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Letters Patent Appeal No. 10 of 1976, decided on 1st October 1976.

-- S. 20(4)-Revision-Notice to show cause-Natural justice, rule of-Settlement record showing some persons as transferees of plot in dispute but Settlement Commissioner cancelling such allotment and transferring plot to another without calling upon person shown as transferee to show cause against his allotment-Order, held, without lawful authority and of no legal effect not merely due to non-compli ance with provisions of Act and rules but also on ground of principle of natural justice-Persons shown as transferees, held, to be heard and question of authenticity of their transfer not to be settled in their absence.-[Revision (civil)-Natural justice, principles of].

.-- S. 2-Letters Patent Appeal -Act VI of 1975-Not retrospective in operation so as to affect vested right of intra Court appeal-Right of intra-Court, appeal accruing at time of institution of writ petition, intra-Court appeal, held, entertainable despite original order being revisable or reviewable.-[Intra-Court Appeal-Letters Patent Appeal].

Qureshi Mahmood Ahmad for Appellant.

Aamer Raza A. Khan for Respondent No. 2.

Nemo for Respondents Nos. 1, 3 to 5.

Date of hearing : 1st October 1976.

-The dispute in this case is about plot No. 110 measuring six kanals, situated in Block No. 'C', Model Town, Lahore. It was auctioned in favour of Mohammad Afzal son of Rana Mohammad Khan and a P. T. O. bearing No. 096252 was issued in his favour on 24-11-1962. Mohammed Afzal associated with Mirza Ashiq Hussain writ petitioner/appellant) and his two sisters Mst. Khadijatul Kubra and Mst. Bilqis Akhtar and surrendered all his rights in their favour. A P. T. D. was then issued in favour of the aforesaid associates on 8-6-1965. The associated transferees later transferred four kanals out of the said plot to Ali Muzaffar (respondent No. 5) through a registered deed of sale.

2. It appears that Major Iqbal Ahmad Khan (respondent No. 2) was a transferee of some other plot bearing No. 20 and situated in a different locality known as Fazalia Colony, Lahore through a similar auction. He ,obtained P. T. D. of that plot on 27-6-1962. However. after transfer in his favour the said plot was allegedly occupied by certain squatters who made some construction over the same. As the possession of that plot was not to handed over to Major Iqbal Ahmad Khan, therefore, he filed an application, to the then Minister for Rehabilitation for some alternate plot whereupon the Minister directed that "alternative accommodation may please be provided under the law". On this the Additional Settlement Commissioner, Lahore, passed an order on 2-6-1974 whereby he transferred Plot No. 110-C, Model Town to Major Iqbal Ahmad Khan. It came to his notice that in the settlement record as maintained in a register known as C.S.C.-V, there existed certain entries showing transfer of Model Town plot in favour of Mohammed Afzal/his associates with due reference to various orders of the relevant authorities on the subject, but despite that without formally setting aside all those proceedings and orders he transferred the Model Town plot to Major Iqbal Ahmad Khan. The relevant portion of his order reads as follows :-

"As such the auction of Plot No. 20 Fazalia Colony is cancelled in the name of Major Iqbal Ahmad Khan and in its place Plot No. 110/C, Model Town, Lahore is transferred to him as recommended by the D. S. C. (Plots). The transfer price of this plot should be determined in accordance with the provisions of taw and the instructions on the subject.

It has been recommended by the D. S. C. (Plots) that the bogus entries existing in C.S.C.-V Register with regard to the disposal of Plot No. 110/C, Model Town, Lahore may be cancelled. The D. S. C. is competent to cancel such entries and he may proceed further with the case accordingly."

3. Mirza Ashiq Hussain. writ petitioner/appellant challenged the aforesaid proceedings and order of the learned Additional Settlement Commissioner by means of a writ petition bearing No. 1157/R/1974 which was tiled on 26-6-1974 and was admitted to a regular bearing on 27-6-1974. However, ultimately it was dismissed by a learned Single Judge of this Court on 22-1-1976. The learned Single Judge was of the view that if the appellant had secured full title to the property be could move a civil Court for redress, especially when the matter was such which needed some enquiry. The writ ;petitioner/appellant has come up in letters patent/infra-Court appeal against the same which will be disposed of by the present order.

4. Learned counsel for the writ petitioner/appellant argued that the order of the learned Additional Settlement Commissioner was both against the provisions of the statute as well as the rules of natural justice. According, to toe settlement record Mohammed Afzal/his associates were the transferees of the plot in dispute. The learned Additional Settlement Commissioner had no jurisdiction to set aside those orders without invoking some relevant or appropriate jurisdiction-(and it was for him to state as to which jurisdiction he was invoking e.g. revisional, review or original and if so how and under' which provision of the statute and against which order)-and while so doing he must have hoard the persons concerned to be affected by his order as laid down in the respective sections of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958. In the alternative this was a require ment even on the principles of natural justice. As this was not done, therefore, it was argued, the impugned order of the learned Additional y, Settlement Commissioner was clearly without lawful authority and of no legal effect. The contention seems to have merit and Mr. Amir Raza A. Khan, the learned counsel for the contesting respondent (Major Iqbal Ahmad Khan) frankly conceded that be could not meet this objection though he submitted that when the finding of the learned Additional Settlement Commissioner and his subordinate officers who submitted the reports to him, was that the transfers as entered in the C. S. C.-V register were bogus and fictitious entries, therefore, to whom the notice should have been issued or who should have been heard by the learned Additional Settlement Commissioner The plea has no merit. The persons who were shown as transferees were to be heard and it was after hearing them that the question of authenticity of their transfer could have been settled and not in their absence, if at all the learned Additional Settlement Commissioner was competent to do so. When confronted with this situation Mr. Amir Raza A. Khan submitted that he could not take his point any further and rather himself suggested that in such a situation the case may have to be remanded to the learned Additional Settlement Commissioner for fresh decision in accordance with law. We are also of the same view. At this place it may be mentioned, with due respect that probably it escaped the notice of the learned Single Judge that if after issuance of a P. T. D. the writ petitioner was expected to have gone to the civil Court then on the facts and in the peculiar circumstances of this case the: application of that principle to the assumption of jurisdiction by the learned Additional Settlement Commissioner should also have been examined or dealt with. In view of inchoate application of that principle the order of the learned Single Judge cannot be maintained and will have to be set aside. We; order accordingly.

5. Some objections were raised with regard to the maintainability of the: present infra-Court appeal on the ground that as the original order dated 20-6-1974 passed by the learned Additional Settlement Commissioner was. appealable, therefore, according to proviso to section 3 of the Lawn Reforms Ordinance, 1972 (as amended) the present appeal was not competent. The contention has no merit. Section 19 of the Displaced Persons (Compensation. and Rehabilitation) Act XXVIII/1958 which dealt with appeals was deleted with effect from 30-7-1973 by Evacuee Property and Displaced Persons Laws (Amendment) Act LV of 1973 and as such the aforesaid order was not appealable. No doubt an intra-Court-appeal in cases where the original order was revisable or reviewable is not maintainable but this disqualification was added by the Law Reforms (Amendment) Act VI of 1975 on 17-1-1975 which in its own place is not retrospective so as to affect vested right of an intra-Court appeal which accrues at the time of the institution of a writ petition on the principle that a right of appeal accrues at the time of the institution of a suit. When faced with this situation, learned counsel for the contesting respondent did not raise any further protest.

6. The upshot of the above discussion is that the present appeal is accepted. The order of the learned Single Judge is set aside and the impugned order of the learned Additional Settlement Commissioner dated 20-6-1974 is declared to be without lawful authority and of no legal effect against the writ petitioner/appellant (and actually against the original transferee of the plot in dispute and his associates) and the case is remanded to the learned Additional Settlement Commissioner for fresh decision in accordance with law after giving opportunity to all persons who are likely to be affected by his order and who should be given due opportunity to present their case and defend themselves. This order will not debar the original transferee/his associates, or as a matter of fact all the parties from raising such pleas before the learned Additional Settlement Commissioner which may be open to them under the law including the question of his competency and jurisdiction to act in the matter. Respondent No. 2 Major Iqbal Ahmad Khan should bear the costs of this appeal as well as the writ petition.

S. A. H. Appeal accepted.

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