1976 PLP 395 (SCMR)

MUHAMMAD AFZAL CHEEMA, J. ‑‑The subject‑matter of dispute in this civil appeal by special Leave to appeal is a house site forming a part of evacuee property No B. 11‑7‑S‑9‑A, situate in Kamoke, District Gujranwala. The short background of the case is that one Farzand Ali who is not a party to this litigation submitted an NCH Form fee transfer of the site in question under Settlement Scheme No. VI, which was rejected by the Deputy Settlement Commissioner, who vide his order dated 19‑7‑1960 directed its disposal by public auction. On 1‑8‑1960, Muhammad Din respondent No. 1 submitted a time‑barred force for the transfer of the plot, the last date fixed for the purpose, being 30th of November, 1959 on the ground that he had raised some construction over it. It seems that no formal order of the rejection of this form either or, ground of limitation or his ineligibility was passed by a competent authority. However, in compliance with the order of the Deputy Settlement Commissioner dated 19‑7‑1950 the plot was put to open auction for which Mst. Hussain Bibi appellant offered the highest bid of Rs.

500. Muhammad Din respondent basing leis claim on the two‑fold ground of occupation and construction did neither take any step for the deletion of the plot from the auction list nor otherwise, in the auction proceedings. It appears however, that immediately after the conclusion of the auction proceedings and before the auction was confirmed, the respondent submitted an application offering 50 per cent. more than the auction price. The application was forwarded by the Inspector, Rehabilitation to the Assistant Settlement Commissioner on 13‑12‑1960 who vide is endorsement dated 15‑12‑1960, submitted it to the Deputy Settlement Commissioner with the recommendation that the offer be accepted, to which the Deputy Settle ment Commissioner agreed. The Inspector's report, the Assistant Settle ment Commissioner's recommendation and the D. S. C's order are contained in Annexure 'A', at page 26 of the Paper Book. The reports purported to show that the respondent was in possession, had raised some construction and had also filed a plot‑form which remained un-disposed of. Since the appellant was not a party to these proceedings, and bad no immediate knowledge of the D. S. Cs'. transfer order dated 15‑12‑1960, she challenged the same in a time‑barred appeal filed on 25‑4‑1962 before the Additional Settlement Commissioner. It is pertinent to observe in this context that instead of impleading respondent No. 1 in whose favour the transfer order had been made, she impleaded his brother Feroz Din. The appeal was partly accepted by him, vide order dated 28‑11‑1962 directing a re‑auction of the house. The order specifically referred to the impropriety of transfer by negotiations in favour of Muhammad Din. It further went on to say that Muhammad Din had failed to prove that he was in possession of the proper ty or had constructed anything over it. It is rather intriguing to note that although Feroz Din was impleaded as a respondent, the order was made against his brother Muhammad Din. Being dissatisfied with the above order, the appellant filed a revision which was accepted by Syed Ijaz Hussain Shah, Settlement and Rehabilita tion Commissioner, tide order dated 12‑2‑1963. He remanded the case to the Additional Settlement and Rehabilitation Commissioner for reconsidera tion of his previous order on the ground that no good reasons were shown for directing the re‑auction of the property and in particular for not trans ferring it to the present appellant. It would be pertinent to observe that in theses proceedings too, the appellant did not implead respondent No. 1 as a party, the revision having been directed only against the State. It was in remand proceedings which were also taken behind the hack of the respondent that the site was transferred ire favour of the appellant. To complete the narrative, reference may also be made to yet another limb of this litigation. The appellate order of the Additional Settlement and Rehabilitation Commissioner dated 28‑11‑1962 referred to earlier wherein Mst. Hussain Bibi had not impleaded Muhammad Din respondent but instead the brother Feroz Din, was separately challenged by Muhammad Din in revision before Mr Syed Muhammad Azhar, Settlement and Rehabilitation Commissioner, who had succeeded Syed Ijaz Hussain Shah. One of the grounds taken by Muhammad Din was that the order, dated 28‑11‑1962 was passed behind his back and was condemned unheard. It appears that at the time of hearing of this vision, the Settlement and Rehabilitation Com missioner, besides Muhammad Din respondent, his brother Feroz Din was also present and stated that Muhammad Din had left they property which was in his Feroz Din possession on behalf of Muhammad, Din. The revision petition was dismissed by the Settlement Commissioner as having become infructuous on the ground that the impugned order had already been se aside by his prod processor‑in‑office S. Ijaz Hussain Shah and a fresh order dated 17‑8‑1963 passed by the Additional Settlement Commissioner is remand proceedings was in the field. Muhammad Din then invoked the writ jurisdiction of the High Court challenging only the Additional Commissioner's order, dated 17‑8‑1963 and not the final order of the Settlement and Rehabilitation Commissioner dated 9‑4‑1964, which remained unchallenged. His Writ Petition No. 839‑H of 1964 was accepted by a D B. of the Lahore High Court on the groan‑ that the plot‑form filed by Muhammad Din had not be considered and disposed of by the Settlement Authorities and on the view taken by the Supreme Court in Mehmooda Tehseen v. S. Ijaz Hussain Shah (P L D 1965 S C 618) his failure to‑raise construction on 1/4th of the plot did not render him ineligible for transfer. Accordingly the case was remanded to the Settlement Authorities to determine afresh the right of Muhammad to transfer of the Ihata in dispute. Leave to appeal was granted by this Court to consider: Firstly, whether the rights acquired in the Ihata by Mst. Hussain Bibi a claimant dis placed person, as the highest bidder at the auction held under Settlement Scheme No. VI could be affected by the plot‑form filed by the respondent long after the prescribed date, and Secondly, whether in view of the decision of the Settlement Authorities that the respondent had not put up permanent construction on 1/4th of the plot to become eligible for its transfer, the High Court had the jurisdiction to set aside the orders, of the Settlement Authorities. The following contentions were raised before us on behalf of the appel lant: Firstly, that the reasoning of Mst. Mehmooda Tehseen's case was not applicable to the facts of the instant case inasmuch at the requirement of the construction of 1/4th of the site, a qualification contained only in the Scheme was not in conflict with the relevant statutory provision. Secondly, that the respondent had filed a time‑barred form which could not have been entertained and according to the report submitted by the Department to the High Court had already been rejected. Thirdly, that the final order of the settlement and Rehabilitation Commissioner dated 9‑4‑1964 dismissing respondent's revision petition, having remained unchallenged, the finding contained therein, that Muhammad Din had left the property, had attained finality and was good enough to put him out of the Court. Fourthly, that the proposal of transfer by private negotiation in favour of the respondent not leaving been confirmed by the Additional Settlement Commissioner as secured under Memo. No. 10593/P L/Reh/60, dated 24‑6‑1960, was invalid, and Lastly, that the order of the Additional Settlement Commissioner dated 17-8-1963 could have been challenged by the respondent in revision before the Settlement Commissioner which alternative remedy not having been availed of by him, the writ petition was not competent. Taking‑the last point first, it is well settled that failure to have recourse to a revisional remedy does not necessarily operate as a bar to the invocation of writ jurisdiction and no exception could, therefore, be taken to the enter tainment of writ jurisdiction by the High Court. As regards the first contention, we rind that the requirement of raisin, construction "^ 1/4th of the area to render an occupant eligible for the transfer of the house site as contained in part (c) of the definition of "perma nent Building" given in Settlement Scheme No. VI is in excess of the statutory provision contained in para. 13 (3) of the Schedule and therefore, cannot operate as a bar in view of this Court's dictum in Mst. Mehmooda Tehseen's case which is directly in point. Likewise, we do not see much force, in the next contention on the point of limitation for the reasons Firstly, that the date for filing of forms wag extended from time to time, and other Secondly, in view of Altaf Hussain s case (P L D 1965 S C 68) no such limitation could other wise, be imposed. Coming now to the last contention, namely, that the final order of the Settlement and Rehabilitation Commissioner, dated 9-4-1964, dismissing the respondents revision having remained unchallenged was still in the field, we find that even though technically this is title correct position, yet as stated earlier, the revision petition resulting in this order was directed against the earlier order of the Additional Settlement Commissioner, dated the 28th November, 1962,which was passed behind, the back of the respondent as he was not impleaded as a party in those proceedings culminating in the Settle ment and Rehabilitation Commissioner s order, dated 9‑4‑1964. No sanctity would thus attach to the findings contained in the latter order. Even other wise, having perused the various orders on the record as also submitted by the Department before High Court we cannot avoid on impression that the findings are rather inconsistent as to the factual position regarding responder s of the site. Extent of construction raised by him it any etc. Furthermore, in the absence of any order on the record showing that the plot from of the respondent laud been dismissed either on ground of limitation or as ineligibility on any other score, it fat difficult to disagree with the High Court that the respondent plot‑form had never been properly considered and disposed of. Again admittedly the auction proceedings having remained unconfirmed no vested right accrued in favour of the appellant on account of being the highest bidder. No doubt the respondent did not participate in the auction list but is equally a result of exparte proceeding taken behind the back of the respondent. In the circumstances, the order of the High Court remanding the case to the Settlement Authorities for a fresh determination of the rights of the parties is pre-eminently a just and a proper order which cannot be successfully assailed on the legal plane. The appeal, therefore fails and is hereby, dismissed with no order as to costs. Appeal dismissed.