1998 PLP 84 (SCMR)

AJMAL MIAN, J.

This is a petition for leave to appeal against the judgment dated 18-4-1996 passed by a learned Single Judge of the Lahore High Court in Writ Petition No.222-R of 1984, filed by respondents Nos.2 to 7 i.e. legal representatives of one Latif Hussain Shah against the order of the Settlement Commissioner dated 19-4-1984 restoring the transfer orders dated 18-9-1962 and 9-11-1962 in favour of the petitioner as an informer, allowing the same as follows:-- "In view of what has been stated above, this petition is allowed; the impugned order is declared to be without lawful authority and of no legal effect and the property shall be treated and disposed of as available property. The parties shall bear their own costs."

2. The above case has a chequered history. It will suffice to state the relevant facts. The Evacuee property bearing No.XVIII-2-S-40 known as Haider Building, situate at College Road, Gujranwala, hereinafter referred to as the building, was first included in the earmarking scheme, but subsequently the same was excluded upon appeal by the Settlement and Rehabilitation Commissioner by his order dated 9-12-1959. After that, the Deputy Settlement Commissioner on 26-3-1960 transferred the building to the predecessor-in -interest of the private respondents, Latif Hussain Shah. The petitioner filed an application as an informer pursuant to the Chief Settlement Commissioner's Press Note dated 29-9-1960. The matter remained under litigation. Eventually, the same came up for hearing before this Court in the form of an appeal (Civil Appeal No. 108 of 1971) filed by the petitioner with the leave of this Court, which was disposed of on 3-5-1981 as under:-- "Both the learned counsel for their respective parties agree that as order under appeal is only of remand, they would in the circumstances rather take the chance of arguing the case before the settlement authorities. They further submit that in this view of the matter, any expression of opinion made by the High Court - (either by the Single Bench or by the Division Bench) it should be directed, should not influence the authorities concerned on the merits of the case, and that, the said authorities should be left free to take an independent view of their own while adjudicating upon the matter afresh. With these submissions the learned counsel for the appellant withdraws the appeal, and the learned counsel for the contesting respondent has no objection to the remand proceeding being taken up accordingly.

2. In this state of affairs we do not want to express any view on the point whether Ch. Ali Ahmad or Sh. Muhammad Rafiq had the jurisdiction to decide this case at the relevant time and leave the aforesaid point open for consideration on any other appropriate occasion in some more appropriate case.

3. The present appeal is disposed of as withdrawn in the terms mentioned above and it is further clarified that in the remand proceedings the parties shall be at liberty to support their respective pleas by leading such evidence as they may like to adduce in accordance with law and the authorities concerned will be free to decide the case according to their independent view uninfluenced from any observation of the High Court as abovementioned. There shall be no order as to costs. " After the above remand order, the Settlement Commissioner (Urban) Punjab, Lahore, passed the aforesaid impugned order dated 19-4-1984, the operative portion of which reads as under:-- "18. 1, therefore, order that P.T.O. in the name of Latif Hussain Shah should be cancelled. The informant shall be transferred the house as a 'mukhbar'. He has a much better claim than the respondents as discussed already. I cannot disentitle him now in view of the Supreme Court's order that the respective claims of these parties are to be looked into. If the law had been repealed from 13-1-1962, then the case would not have been remanded for fresh decision on merits. The informant would have been ousted by the Supreme Court. This. was not done and the case was declared as pending in my Court between these two parties. Ch. Ali Ahmad, Settlement Commissioner's order dated 18-9-1962 and Deputy Settlement Commissioner's order of transfer to the informant passed on 9-11-1962 are reiterated in this way." Against the above order of the Settlement Commissioner, aforesaid Writ Petition was allowed in the above terms. The petitioner has, therefore, filed the present petition for leave to appeal.

3. In support of the above petition Ch. Muhammad Farooq, learned Senior Advocate Supreme Court appearing for the petitioner, has contended as under:-- (i) That since before the withdrawal of the above memo of the Chief Settlement Commissioner dated 29-9-1960 on 13-1-1962 on account of the amendment in section 10(2) of the Displaced Persons (Compensation and Rehabilitation) Act, the record of the case was already called for the ratio decidendi of the judgment of this Court in the case of Major J.H. Naqvi v. The Director, Enforcement Directorate, West Pakistan and others (PLD 1966 SC 512) is attracted and not the judgments in the case of Allah Ditta v. Haji Jan Muhammad and 3 others (PLD 1974 SC 113) and the case of Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208) relied upon by the learned Judge in Chambers, in which the above earlier judgment of a larger Bench was not considered. . (ii) That since it was held that the private respondents were not entitled to the transfer of the building, their writ petition was liable to be dismissed by the High Court in view of the judgments of this Court in the case of Shadi Khan v. Additional Commissioner (Consolidation) and others (1989 SCMR 1942), the case of Sh. Barkat Ali v. Additional Settlement Commissioner and 2 others (1972 SCMR 293) and the case of Haji Faizul Haque Khan v. Syed Abdul Hamid and another (1976 SCMR 429). On the other hand, Mr. A.R. Shaukat, learned Advocate Supreme Court appearing for the private respondents, has urged that after the above amendment and withdrawal of the Press Note on 13-1-1962, the petitioner had no right to claim the transfer of the building as an informer and since particularly no transfer order was passed in his favour prior to the above date. According to him, the impugned judgment is in consonance with law. However, he candidly conceded that the earlier judgment of this Court in the case of Major J.H. Naqvi (supra) was not considered in the above two subsequent judgments of this Court relied upon in the impugned judgment.

4. We are inclined to grant leave to consider the following questions:-- (i) Whether the ratio decidendi of the judgment of this Court in the case of Major J.H. Naqvi (supra) is applicable to the case in hand or the ratio decidendi of the above two subsequent judgments. (ii) Whether the learned Judge in Chambers, after having held- that the private respondents' predecessor-in-interest was not entitled to obtain the transfer of the building, was justified in allowing the aforesaid writ petition. Leave is, accordingly, granted Status quo in respect of the building is to be maintained by all the parties. A.A. /R-299/SC Leave granted