1994 PLP 2102 (MLD)

The dispute, in this Constitution petition, pertains to urban evacuee property No.S-63-S-10 situated on 2-Fane Road, Lahore. It measures 7 Kanals and hereinafter shall be referred as the "premises in dispute/property in dispute/property".

2. The facts, briefly stated, giving rise to this petition are simple and, fortunately, not in dispute. Mst. Fatima Bibi/the paternal aunt of the petitioners had been running school known as Fatima Girls High School in some place in Lahore before 1947. On 22-9-1947, she was permitted to shift her school in premises in dispute. In 1959, she passed away leaving behind Abdul Hamid, her real brother, who continued to run the school in the name of M/s. Fatima Girls High School, 2-Fane Road, Lahore. On 5th of June, 1961, he got partnership/comprising of himself and his wife Mst. Razia Bibi registered under the provisions of Partnership Act (IX of 1932) in the name of hf/s. Fatima Girls High School, 2-Fane Road, Lahore. On 2-4-1959, Abdul Hameed applied under section 10(2) of the Displaced Persons (Compensation 9rrd Rehabilitation Act) (hereinafter called as the Act). Vide an order dated 1'3'1.963, the Settlement and Rehabilitation Commissioner, Lahore allowed the application and transferred the premises in dispute in the name of Management of School in following words:

On 2-4-1959 the respondent made an application to the former Chief Settlement Commissioner Sayed Hasham Raza that the building be transferred to him for the purpose of school. It was then in the first instance taken up by the Deputy Settlement Commissioner Mr. A.A. Malik and he put it up before the Additional Settle Commissioner with the note that the case be decided in accord with the Press Note regarding the disposal of the properties converted to some other use after the 14th of August, 1947. This Press Note is at page 40 of the Settlement Manual and is to the effect that a house a shop or a small industrial concern converted into a School, College or a Hostel may be transferred to the person or an Authority running the School, College or the Hostel if the institution was duly recognized by the Education Authorities. The respondent produces a certificate dated 5-11-1960 from Mr. G.M. Sadiq, Director of Education, Lahore Region, to the effect that the School which is known as Fatima Gins High School' is permanently recognized as a High School by the Education Department and further recommending that the building be sold to the management of the school as it would be in the public interest. The Additional Settlement Commissioner, however, vide his letter dated 15-12-1960 addressed to the Settlement Commissioner (Policy) did not recommend the transfer of the building to the respondent on the ground that the School Authorities were not in a position to pay for the building valued at Rs.1.20.000 an approximately and further, that his impression was that the management was looking around for some claimants who would pay some Pagri before he brought them into the picture. The Settlement Commissioner then sent case to the Director of Enforcement for investigation and hence the present reference. I see no ground to deny the transfer and relying on the press note and finding that the school is now being run by the respondent for the last 16 years and that it is recognized by the Education Department rejected reference and allow the transfer but only in the name Management and for the purpose of School."

3. In pursuance of the aforesaid order, Abdul Hameed paid price of premises in dispute and obtained its transfer document from Settlement Authorities in the name of Fatima Girls High School-2. On 1-4-1972, Martial Law Regulation 118 was promulgated to nationalize privately-managed schools/institutions. Fatima Girls High School, Lahore was also nationalized under paragraph 5 of the above Martial Law Regulation and its management was taken over by the Province of Punjab. Abdul Hameed had died on 8-3-1969. Mst. Razia Bibi filed an application to the Settlement Authorities for substituting the name of legal heirs of Abdul Hameed in transfer documents of premises in dispute. It was on 14-1-1974 when the Deputy Settlement Commissioner, Lahore allowed the application and substituted the narne ot` Mst. Razia Bibi, Mehboob Hameed and Rifat Hameed in the permanent transfer deed of property in dispute.

4. Soon thereafter erupted a dispute regarding the title of the property between Educatioan Department on one hand and Mst.Razia bibi, Rifat Hammed and Mehboob Hameed on the order hand. The Educatioan Department claimed that the premises in dispute had been transferred to the Management of School for the purpose of running school and so school was exclusive owner of it while the petitioners reasoned that it had been transferred to partnership known as M/s. Fatima Girls High School, 2-Fane Road, Lahore; that Abdul Hameed and Mst. Razia Bibi were the members of the partnership and after the demise of Abdul Hameed now the petitioners were the owners of the premises in dispute. In this factual background, the Director of Education, Government of Punjab, Lahore served a notice upon Mst. Razia Bibi calling her to close English Medium School which was being run by her in the property in dispute. It was further stated therein that property in dispute belonged to Education Department. In order to clear the mist, the Department also moved the Settlement Authorities for correction of the transfer documents of property which had been issued to Abdul Hameed. The Deputy Settlement Commissioner, after hearing the parties, held that the premises in dispute had been transferred to the Management of Fatima Girls High School for the purpose of running the school; that the Management of school, under paragraph 5 of the Martial Law Regulation 118, had been taken over by the Government of the Punjab and so Government of Punjab was its absolute owner. This happened vide an order dated 15-7-1976/now the subject-matter of challenge in this Constitution petition.

5. The learned counsel for the petitioners, in support of this petition, raised the following points: Firstly; that the premises in dispute was transferred to M/s. Fatima Girls High School, 2-Fane Road, Lahore/Partnership comprising of Abdul Hameed and his wife Mst. Razia Bibi; that Abdul Hameed had paid its price to the Settlement Department and had obtained the transfer documents in the year 1963; that Abdul Hameed died on 8-3-1969 and the Settlement Authorities substituted petitioners in his place in permanent transfer deed on property, in dispute. On the strength of these circumstances, it was contended that the Settlement Authorities had transferred the premises in dispute to Abdul Hameed and Mst. Razia Bibi and after the demise of Abdul Hameed, the petitioners were its owners. According to the learned counsel, the Government of the Punjab had no proprietary rights whatsoever in the property. Secondly: that the learned counsel relied upon Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore 1987 SCMR 1197 to contend that under para. 5 of the Martial Law Regulation 118, the Management of School was taken over by the Government of the Punjab and ownership of property in dispute, in which school is located, continued in partnership.

5. Mr. Irfan Qadir, the learned Additional A:G. supported tie impugned order, by advancing two-fold grounds. In the first place, he submitted that on the plain reading of order, dated 1-3-1963, it was clear that the property in dispute was transferred to the Management of the School 6 the purpose of running the school and not to partnership. On this premises it was suggested that the proprietary rights of property in dispute vested in the School and not in the partnership. Reliance was placed on Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1 and Mufti Abdul Ghani v. Province of Punjab and another PLD 1986 SC

311. In the second place, he stressed that the impugned order was challenged by Mst. Razia Bibi in Writ Petition No.1311-R of 1976; that writ petition was dismissed and it was held by his Lordship Mr. Justice Gul Muhammad khan as he then was) that the property in dispute had been transferred to school and not to partnership. On this circumstance,. it was contended that the present; Constitution petition was barred by the principle of res judicata.

6. After hearing the learned counsel for the parties at a considerable length and after going through the record of the case, I am not persuaded to agree with the learned counsel for the petitioners. The main point, convassed on behalf of the petitioners, is that by means of order, dated 1-3-1963 the Settlement and Rehabilitation Commissioner, Lahore transferred the property in dispute to partnership and not school under section 10(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 read with para. 20 of the Settlement Scheme No.I. This agreement, in my opinion, is wholly misconceived and cannot be accepted. A plain look at section 10 of the Act indicates that it authorizes Central Government/the Chief Settlement Commissioner to dispose of the property out of compensation pool. The first part of this section empowers the Chief Settlement Commissioner or any other Officer authorised by him to transfer/dispose of any property out of compensation pool on evaluation basis or by sale or by means of auction or otherwise in accordance with the schedule to Act. Subsection (2) of this section enacts that the Central Government shall be competent to transfer any property in compensation pool to any person in public interest. Very clearly subsection (2) vests power in original owner to dispose of any property in compensation pool to any person without adhering to provisions of Act and schedule to Act. Power of Central Government is unfettered and only circumscribed by the requirement of public interest. On the above analysis I have no doubt in my mind that subsection (1) and subsection (2) of section 10 cover entirely different fields. The scope and functions above to subsections are in my view, entirely different. Subsection (1), as earlier stated deals with the powers of Chief Settlement Commissioner or any other officer authorised by him to transfer the property out of compensation pool in accordance with the Act and Schedule. This is not the position regarding subsection (2). Under this provision Central Government has been given power to transfer the property out of compensation pool after taking into consideration the requirements of public interest. Seen from this angle, I am clear in my mind that the claim of the petitioners that the property in dispute was transferred to them in consonance with subsection (1) of section 10 read with para. 20 of the Settlement Scheme is clearly unfounded and is not supported by either subsection (1) of section 10 or by para. 20 which was inserted in Scheme to facilitate the exercise of authority under section 10(2) of the Act. This para. has m nexus with section 10(2) of the Act. In view of this, I am clear in my mind that the claim of the petitioner is not only unfounded but is self-destructive in nature and was correctly repelled by the Deputy Settlement Commissioner.

7. Furthermore, the perusal of the order, dated 1-3-1963 totally belies the claim of the petitioners. From the bare reading of the order it becomes dear that Mst. Fatima Bibi predecessor-in-interest of Abdul Hammed was allowed to run the school in the premises in dispute. Undisputedly she was neither claiming nor was in occupation of the premises in dispute and was towed to use the property for running the school in order to advance the muse of education. Abdul Hameed, on her demise, moved for the transfer of the property under section 10(2) read with para. 20 of the Settlement Scheme Nol. The impugned order further shows that the Settlement Authorities were conscious about the nature of the transfer from the very inception. The Deputy Settlement Commissioner took up an objection that the application was motivated and Abdul Hameed was looking for some claimant/any other person in order to pay the price of the premises in dispute. This objection of the Deputy Settlement Commissioner was not sustained by the Settlement Commissioner who held that the property was being claimed for the purpose of running school. He, accordingly, transferred the property in dispute to school and for the purpose of running school. From the above it is thus clear that the premises in dispute was transferred to school and it was further specified that it will be used for the purpose of running school and no other purpose. From the above it also becomes crystal clear that the name of the transferee as well as the purpose for which the transfer was made were completely particularized so as to remove any ambiguity. On this, the decision made by the Deputy Settlement Commissioner is eminently correct, just and strictly in consonance with the express letter and spirit or order, dated 1-3-1963. The conclusion of the Deputy Settlement Commissioner neither suffers from jurisdictional defect many legal flaw calling for interference in Constitutional jurisdiction of this Court. Having held that the impugned order is not exceptionable, I do not feel taynecessity to deal with the question of res judicata.

8. As a result of above discussion, this Constitutional petition is found to wholly devoid of merit and is accordingly dismissed. There shall be no order into costs. AA./F-155/L??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.