P L D 1988 Peshawar 121 (PLP)

Date of hearing: 28th February, 1988. Through this Constitutional petition Qazi Naimatullah Khan and four others seek indulgence of this Court for declaring the order dated 15‑1‑1985 of Assistant /Deputy Settlement Commissioner, Bannu (Respondent No.2) whereby he declared shop No.52/1 as part and parcel of properties Nos.53/1 and 54/1 as illegal and of no legal effect against the petitioners.

2. Property bearing survey cards No.52/1, No.53/1 and No.54/1 undisputedly was evacuee property and was owned by one Faqeer Chand prior to the partition of the sub‑continent. After the migration of the evacuees as is evident from the survey card of the Settlement Department disputed shop No.52/; was in the possession of Islamuddin father of the petitioners while shop No .53/1 was in the occupation of one Khan Sardar and shop No.54/1 was in possession of Haji Ghulam Khan father of Sher Bahadur respondent No.3. All the three properties were recorded as separate units and were given independent survey cards. Shops Nos.53/1 and No.54/1 were put to open auction on 19‑12‑1960 which were purchased by Respondent No.3 for Rs.5,200 and this auction was subsequently confirmed on 26‑1‑1961. Consequently P.T.D. was also issued to Respondent No.3 in respect of these two shops. Shop No 52/1 prior to the partition of the sub‑continent was in possession of one Abdur Rehman who, however, after the partition put Islamuddin father of the petitioner in its possession. This shop was neither put to open auction nor allotted to any person and is still available for allotment. In the year 1972 Sher, Bahadur Khan Respondent No.3 instituted a suit in the Court of Senior Civil Judge, D.I. Khan for declaring Shop No.52/1 as part and parcel of Shops Nos.53/1 and 54/1. The suit of Sher Bahadur Khan Respondent No.3 was dismissed on 28‑7‑1972 by the Senior Civil Judge holding that the Court had no jurisdiction to ponder over the matter. However, the learned District Judge in appeal by his order-dated 19‑11‑1973 remanded the case to the Trial Judge for giving its decision on all the issues holding that the Civil Court had the jurisdiction. Consequently by the judgment and decree dated 13‑1‑1975. The plaintiff (Respondent No.3) in this Court was granted the decree prayed for by the Senior Civil Judge, Bannu. Qazi Islamuddin father of the present petitioners challenged the said decree in the Court of the learned District Judge where too by the order dated 26‑7‑1977 his appeal was dismissed. The judgment and decree of the District Judge, Bannu was subsequently challenged in a revision petition before the Peshawar High Court (C.R.No.335 of 1976) and the honourable Judge of this Court by order-dated 29‑11‑1977 accepted the civil revision petition and set aside the judgments and decrees of the two Courts below holding that the Civil Courts had no jurisdiction to entertain the dispute. Aggrieved by the order of the High Court referred to above Sher Bahadur Khan went in appeal to the Supreme Court of Pakistan and by the order-dated 1‑11‑1983 the august Supreme Court dismissed his appeal.

3. It is worth mentioning that during the pendency of the dispute between the father of the petitioners and respondent No.3 Islamuddin father of the petitioners submitted an application to the Deputy Settlement Commissioner, Bannu for transfer of shop No.52/1 in his name in accordance with provisions of Scheme No.1 of 1976. The matter regarding allotment of the disputed shop in the name of Islamuddin was in process between the Assistant Settlement Commissioner and the Settlement Commissioner but the proceedings were stopped as a result of the status quo' order issued by the Supreme Court and upon the dismissal of the appeal of Respondent No.3 in the Supreme Court of Pakistan the Settlement Commissioner. D.I. Khan Division vide his Letter No.533 dated 15‑1‑1984 directed the Assistant Settlement Commissioner, Bannu to forward the case of Islamuddin father of the petitioners for condonation of delay submission of the belated L.S. Form for further action but instead of forwarding the case of condoning delay the Assistant Settlement Commissioner sought the advice of the Additional Settlement Commissioner in view of the' judgment of the Supreme Court which according to him leas based on different circumstances than those of the Peshawar High Court and ultimately on 15‑1‑1985 declared shop No.52/1 as part and, parcel of shops No.53/1 and No.54/1 which obliged the petitioners to come to this Court to invoke its extraordinary Constitutional jurisdiction to declare the order dated 15‑1‑1985 of the Deputy Settlement Commissioner to be illegal and ineffective on the rights of the petitioner.

4. Arguments of the learned counsel for the parties have been heard and record of the case has been thoroughly examined.

5. As is clear from the brief resume given above while shops No.53/1 and No.54/1 'were put to open auction and were allotted to Sher Bahadur Respondent No.3 Shop No.52/1 was left un-disposed off and is still available for allotment. Whether the said shop can be allotted to the petitioners or otherwise is a matter to be adjudicated upon by the concerned authorities but the question for determination before this Court is whether the order dated 15‑1‑1985 of the Deputy Settlement Commissioner declaring Shop No.52/1 as part and parcel of the properties No.53/1 and No.54/1 is correct or not. The fact that Shop No.52/1 was not put to open auction alongwith Shops No.53/1 and No.54/1 would clearly suggest that Shop No.52/1 was not treated as part and parcel of the other two shops and right from 1960 when the two shops were permanently allotted to respondent No.3 upto 1972 when respondent No.3 brought a declaratory suit in the Civil Court claiming shop No.52/1 as part and parcel of the other two shops, respondent No.3 dad not agitate this question during the long interval of more than 12 years. As far as the civil suit filed by Respondent No.3 seeking declaration that shop No.52/1 was part and parcel of the other two shops was dismissed by the order dated 29thNovember, 1977 by the Peshawar High Court, Peshawar. Sher Bahadur Khan respondent No.3 feeling aggrieved by the conclusions arrived at by the High Court approached the Supreme Court of Pakistan where too his petition was dismissed and thus it becomes clear that the Civil Courts declined to declare Shop No.52/1 as part and parcel of Shops No.53/1 and No.54/1. It is indeed a dishonest quotation, by the 'Deputy Settlement Commissioner as in Annexure 'K' that the decision of the Supreme Court was based on different reasons than those of the High Court. The Deputy Settlement Commissioner either inadvertently skipped over or intentionally omitted to refer to the observations of the august Supreme Court that:‑‑ "Another misconception with regard to the jurisdiction appearing on the face of the record is that the plaintiff /appellant based his entire case on the P.T.D. and the interest derived thereunder. The P.T.D. was the culmination of the proceedings under Displaced Persons (Compensation and Rehabilitation) Act, 1958 with regard to the disposal and transfer of properties forming the pool under the Act. The Courts dealing with the dispute omitted to take note of the fact that though they had full jurisdiction to determine the title derived from the P.T.D. they could not go behind the P.T.D. and interfere with the orders passed by the Settlement Authorities culminating in the P.T.D. The structural features of the property were irrelevant where the Settlement Authority itself had for the purposes of disposal treated the three properties, namely, 52/1, 53/1 and 54/1 separate. The fact that this was done so is borne out from the public notice of auction and the auction list wherein not only these three properties are differently serially numbered but their individual assessment and occupancy is also entered. It, however, appears from the bid sheet that for the purposes of actual auction and in derogation of the auction list and the notice, shops Nos. 53/1 and 54/1 were combined and put to auction as one property while property No.52/1 stood excluded and remains excluded." From the above observations of the Supreme Court of Pakistan it is clear that properties Nos. 52/1, 53/1 and 54/1 were all independent units and even treating Shops No.53/1 and No.54/1 as one property at the time of putting the same in open auction has been held to be in derogation of the auction list and the notice. The Settlement authorities kept their eyes shut over the clear observations of the august Supreme Court and for the reasons best known just with a view to accommodate respondent No.3 effort was made to twist the concluding part of the judgment of the august Supreme Court in favour of respondent No.3 and ultimately in clear violation of the observations of the august Supreme Court reproduced above treated Shop No.52/1 as part and parcel of Shops Nos.53/1 and 54/1 which is the worst type of either in-competency or undue favour.

6. For the foregoing reasons I would accept this writ petition and declare that Shop No.52/1 is an independent unit and is not part and parcel of Shops Nos.53/1 and 54/1 and accordingly would further declare the order dated 15‑1‑1985 of the Deputy Settlement Commissioner as null and void and having no legal effect. No orders as to costs. A.A./626/P Petition accepted.