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‑‑‑ Ss. 20 & 22 and Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) ‑ Transfer of property ‑ Portion in dispute transferred 20 years back to petitioner and order of transfer passed by Deputy Settlement Commissioner attaining finality ‑After repeal of Evacuee laws Settlement Authorities not empowered to treat house in question in more than two units‑Order re‑opening matter again, held, without lawful authority and of no legal effect.

Syed Tanseer Asghar for Petitioner.

Ch. Inayat Ullah Khan for Respondents.

Date of hearing: 30th September, 1981.

This writ petition has been filed to challenge the validity of the order dated 11th August, 1979 (Annexure 'E') and the order dated 13th March, 1980 (Annexure 'G') passed by the Deputy Settlement Commissioner, Lahore.

2. The dispute in this case relates to property No. 6‑48‑S‑Ram Bazar, Gowalmandi, Lahore. The Assistant Settlement Commissioner, with the power of the Deputy Settlement Commissioner, Circle‑III, Lahore vide his order dated 21st March, 1960 (Annexure A) divided the property in question into two portions and on the basis of a rough sketch placed on record marked the two portions as portion "A" and "B" respectively. Portion "A" was ordered to be transferred to the petitioner against her C. H. Form No. 6772 whereas, portion "B" was ordered to be transferred to one Ali Muhammad who is not a party to these proceedings. One Abdul Hamid, an occupant of a portion of the property in dispute filed an appeal against the aforesaid order but the same was also dismissed by the Additional Settlement Commissioner (Judicial), Lahore‑1 by an order dated 2nd of February, 1961 (Annexure B). The revision petition against the same order was also dismissed by the Settlement Commissioner, vide his order dated 23rd of December, 1963 (Annexure C). Thereafer, Abdul Hamid invoked the sue motu jurisdiction of the Settlement Authority but the same was also turned down by the Deputy Settlement Commissioner (Urban) on behalf of Settlement Commissioner , (Urban) on the. ground that the case of the property, in dispute had already been decided up to the level of the Settlement Commissioner and, therefore, no in terfertnee was called for on the executive side (Annexure D). In consequence, Provisional Transfer Order bearing No. 505493, dated 7th April, 1960 was issued to the petitioner by the Deputy Settlement Commissioner Circle‑III. This is at page 83 of the Settlement File which has been produced before the Court by Ch. Inayat Ullah Khan, Advocate counsel for the Settlement Department. In the Schedule of Property, the share of the petitioner in the property in dispute was again shown as portion "A". The P. T. O. was followed by an appendix X whereby the transfer price with respect to portion "A" was determined as Rs. 6,667. This is at page 97 of the Settlement File. Accordingly, a notice of transfer for the payment of the transfer price was also issued to the petitioner. This is at page 99 of the Settlement File. The price was evaluated in pursuance of an order dated 26th March, 1962 passed by the Deputy Settlement Commissioner (page 137 of the Settlement File) whereas the total Tent of the house was dis tributed into two portions. For portion "A" it was fixed at Rs. 13/14 p. m. and for portion "R" Rs. 13/14 p. m., respectively.

3. However, an agreement of association dated 28th June, 1976 was alleged to have been executed between Ali Muhammad and one Muhammad Yousaf in respect of portion "B" of the property in dispute, Ali Muhammad filed an application on 1st December, 1976 praying therein for the cancellation of the agreement of association on the ground that the same was bogus. Eventually, this application came up for consideration before the Deputy Administrator (Residual Property) who, while deter mining the controversy regarding the authenticity or otherwise of the agree ment of association, also observed that the property in question, in fact, consisted of three independent properties and not two units as originally transferred by the Deputy Settlement Commissioner vide order dated 21st March, 1960 (Annexure A). The operative part of his order dated l Ith August, 1979 (Annexure E), reads thus :‑

"For determination and demarcation of the portions "A" and "B" transferred to Ali Muhammad and Nawab Begum and the other two properties over which they have formed their illegal constructive possession without transfer or payment of any price, the case be taken up separately for disposal in accordance with law and the parties and the occupants be summoned."

4. The petitioner challenged the impugned order by a miscellaneous application dated 3rd February, 1980 (Annexure F) before the respondent in which he pointed out that the latter trod no jurisdiction to review the order of transfer of the Deputy Settlement Commissioner as the property in fact consisted of only two portions "A" and B" and that in any case the matter stood finally concluded up to the level of the Chief Settlement Commissioner on the judicial as well as executive side. He therefore, prayed that the proceedings for further demarcation may be dropped. Notwithstanding this application, the respondent visited the spot and observed by his order dated 13th March, 1981 which has also been impug ned in this writ petition, that Abdur Rehman was in possession of one room in the ground floor, Ali Muhammad in possession of one room in the first floor and Mst. Nawab Begum was in possession of three rooms in the ground floor and that all the three units consisted of distinct and separate properties. Accordingly, he issued notice to Abdur Rehman to submit a complete plan of the properties.

5. The learned counsel for the petitioner has challenged the validity of the impugned order on the ground that the Settlement Authorities have become functus officio, inasmuch as the order dated 21st March, 1960 (Annexure A) bad attained a finality and, therefore, the order in question could not be re‑opened after a lapse of 20 years and the repeal of the Evacuee Laws, by the Deputy Settlement Commissioner, in collateral proceedings pertaining to the alleged cancellation of the agreement of association between Ali Muhammad and Muhammad Yousaf.

6. The learned counsel for the Department, Ch. Inayat Ullah, how ever, submits that it has been found as a matter of fact that at the spot there exist three independent properties owed by different owners and they have also been assessed independently and separately. In support of his submission, he has placed reliance on Annexures IR/1 to R/9". These documents relate to the assessment by the Excise and Taxation Depart ment for the year 1945‑46 and also of the Lahore Municipal Corporation for the same years. According to the learned counsel for the petitioner, these documents tend to show that the finding of fact arrived at by the Deputy‑Settlement Commissioner vide his order dated 11th August, 1979, was not ultra vires, inasmuch as, the portion which has been transferred to the petitioner by an order dated 21st March, 1960 will continue to be transferred to him at the price charged. Learned counsel for the respon dent has, however, frankly conceded that according to rough sketch the property in dispute, consists of only two portions, namely, portions "A" and "B" and not three independent portions. The rough sketch in ques tion, is at page 75 of the Settlement File. He however, submits that this was due to omission on the part of the Deputy Settlement Commissioner and that on account of a mere omission which was inevitable in the earlier stage of the Settlement operation, the petitioner should not be allowed to get unjustly rich by getting another property which was neither assessed nor for which she had paid the transfer price.

7. The contention of the learned counsel for the respondent is devoid of any force. Portion "A" has since been transferred to the petitioner by an order dated 21st March, 1960 of the Deputy Settlement Commis sioner, Lahore, the same had attained a finality in terms of section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 anti in any case, no such power was available to the Settlement Authorities to treat the house into more than two units after the repeal of the Evacuee Laws.

8. In view of the‑ above, the impugned orders dated 11th August, 1979 (Annexure E) and 13th March, 1980 (Annexure G) in so far they effect the rights of the petitioner, are declared to be without lawful authority and of no legal effect. In the result,, the writ petition is allowed as prayed for but there will be no orders as to cost.

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