1987 PLP 1573 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal by leave from the judgment of the Lahore High Court, dated 28‑6‑1974.

2. The dispute in this case is with regard to a house bearing No.D‑895, situate in Gumti Bazar, Vourian Street, Lahore. Both the appellant and respondent No.1 claim for its transfer. This is the second time that the litigation has reached the Supreme Court level. Earlier on 18‑3‑1968 on the appeal filed by the appellant this Court set aside the Judgment of the High Court and remanded the case to the Settlement Commissioner for decision afresh in accordance with the full requirements of law. On remand the case came up before Mr. Maqurrab Khan, Settlement Commissioner, who further remitted it to the Deputy Settlement Commissioner, Lahore, for decision who after recording the evidence in the case ordered the transfer of the house to Ehsanul Haq, respondent No.1, vide his order dated 31‑8‑1970. This order was challenged before the Additional Settlement Commissioner, Lahore, who on 3‑5‑1971 accepted the same and set aside the transfer made in the name of respondent No.1. The above order was then made a subject‑matter of revision before the Settlement Commissioner, Lahore by respondent No,l, which was rejected on 27‑12‑1971, with the result that respondent No.1 filed a writ petition in the High Court which culminated in the impugned order.

3. Leave was granted in this case to consider whether the High Court could distrub the findings of the Settlement Commissioner who had exclusive jurisdiction to decide the matter.

4. The learned counsel for the appellant heard. We do not propose to decide the appeal on merits because, as the record stands, the revision filed by respondent No.1 before the Settlement Commissioner has been decided by an authority who at the relevant time had no jurisdiction to hear and adjudicate upon the matter. This aspect of the case has been gone into by the learned Single Judge who after taking note of the relevant orders of the Chief Settlement Commissioner and the law on the subject held that ‑the powers to hear revision petitions pertaining to Centres II and III, Lahore, stood withdrawn from Kh. Mahmood Sadiq, Settlement Commissioner, Lahore and entrusted to Mr. Maqurrab Khan, Settlement Commissioner (Policy) Cash Compensation and (Accounts & Records) two months earlier than 27‑12‑1971 and thus the order dated 27‑12‑1971 whereby the revision petition of the respondent was rejected was one without jurisdiction. The house in dispute is admittedly situated in Centre NO.III and the revision petition was to be heard and decided by Mr. Muqurrab Khan, Settlement Commissioner (Policy). When confronted with the above finding of the High Court, the learned counsel for the appellant though could not controvert the above finding on the legal plank but tried to justify the revisional jurisdiction exercised by Kh. Mahmood Sadiq which was neither convincing nor had any legal backing. The learned counsel for the respondent however did not dispute the findings of the learned Single Judge of the Lahore High Court. The legal position being clear the findings of the learned Single Judge of the Lahore High Court on this aspect of the case must be sustained and the order of Kh. Mahmood Sadiq, Settlement Commissioner, Lahore, dated 27‑12‑1971, is held to be without jurisdiction. Having held as above, we also hold that the learned Single Judge in the exercise of his constitutional jurisdiction ought not to have gone into the disputed question of fact qua the comparative entitlement of the parties and should not have decided the case on merits. The course open to him was to have remitted the case to the relevant authority for its decision on merits.

5. The view, therefore, that we take in the matter is that we accept the appeal, set aside the order of the learned Single Judge of the Lahore High Court dated 28‑6‑1974 with regard to the disposal of the writ petition on merits and remand the case to the relevant notified Authority having jurisdiction to decide the matter afresh in accordance with law. Since the dispute with regard to transfer of the suit house is pending for a period of more than two and a half decade, we direct the notified Authority to dispose of the matter within two months. There is, however, no order as to costs. S.Q./A‑77/S Case remanded.