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Civil Appeal No. 46 of 1984 in Civil Petition No. 25‑R of 1983, decided on 29th January, 1984.

(On appeal from the judgment and order; dated 14th November, 1982, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No. 74‑R of 1972).

‑‑ Arts. 185(3) & 199‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10 & Sched., para. 24 read with Settlement Scheme No. VIII, paras. 2 & 3(a) ‑Property acquired by Central Government and not available for disposal‑Settlement Authorities, after issuance of P. T. D., assuming jurisdiction to dispose of forms of respondents who could not have been transferred such property‑High Court too not applying its mind to said aspect of case and erroneously holding that as object of acquisition was not fulfilled, transfer in favour of petitioner could not be justified‑Notice for payment of price not given pursuant to pare: 2 of Scheme‑Order of Additional Settlement Commissioner remanding case to Deputy Settlement Commissioner for consideration as to whether forms of respondents were pending‑Held, without any merit in circumstances of case‑Lapse on part of respondents to pursue matter pending since 1971 and allowing seven years to pass by‑Held, itself a consideration disentitling their claim to be considered on merits Locus stand of petitioner to contest proceedings never challenged at any stage of proceedings‑Petition for leave to appeal converted into appeal impugned orders set aside and writ re‑called.

Abdul Hameed v. Municipal Committee, Lyallpur P L D 1973 Lah. 339 and Mst. Rashda Parveen v. Deputy Settlement Commissioner (Plots) P L D 1982 Lah. 250 cited but not examined.

Maulvi Sirajul Haq, Senior Advocate Supreme Court instructed by Samad Mahmud, Advocate‑on‑Record for Petitioner.

Mian Nazir Akhtar, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 2 to 5.

Date of hearing : 29th January, 1984.

The petitioner herein was registered as a Society in 1954 under the Societies Registration Act with the object of opening and maintaining school and colleges in Pakistan. For this pur pose, the Rawalpindi Cantonment Board applied to the Central Government on the 2nd of July, 1960, for the acquisition of property bearing No. 283‑286 situate at Octroi Post No. 22, Rawalpindi for the petitioner. The Ministry of Rehabilitation by letter dated the 2nd of July, 1960, communicated the approval of the Central Government for the sale of this property to the Cantonment Board.

Respondents Nos. 2 and 3 bad applied for the transfer of the portions in their possession under Settlement Scheme No. VIII sometimes in 1965, but their forms were rejected as the property was not available for transfer. Their appeal was also rejected by the Additional Settlement Commissioner by order, dated the 30th of November, 1966. The reasons, which impelled him to deny the relief, were:

(a) That the property was acquired, in the larger public interest ; and,

(b) It was not established that the respondents had filed their forms.

The respondents were asked to approach the Deputy Settlement Commis sioner for alternate accommodation.

As the Cantonment Board did not pay the price of the property, a notice was served on the 31st of August; 1968 for the payment of Rs. 2,926 within a month, but as no payment was made the Deputy Settlement Commissioner cancelled the transfer of the property and resumed it by order, dated the 26th of October, 1968. It seems that on the 18th of June, 1969, payment was made and accepted and by order dated the 14th of February, 1970, the Deputy Settlement Commissioner restored the property to the Cantonment Board. There after a P. T. D. was issued on the 4th of March, 19 0, and on this date no proceedings to challenge the transfer were pending. Nonetheless the respondents Nos. 2 to 5 again applied to the Deputy Settlement Com missioner for the transfer of the portions in their possession claiming that they had filed the forms, but this application was rejected on the 25th of April, 1970 on the ground that the disputed property was not available for transfer. They then preferred an appeal to the Additional Settlement Com missioner, who by order, dated the 21st of July, 1971 partly accepted the appeal and remanded the case to the Deputy Settlement Commissioner to examine as to whether the respondents' forms were pending at the time of resumption of the property. The Deputy Settlement Commissioner did not proceed with the matter, and in the meantime the Evacuee Laws and Displaced Persons Laws were repealed. In 1975, an ejectment application was filed for their eviction, which culminated in the order as prayed.

In 1981, the Deputy Settlement Commissioner assumed jurisdiction under the Repealing Act and without notice to the petitioner cancelled the transfer on the 5th of February, 1981, on the, ground that the property was not utilized for the purpose for which it was acquired and transferred it to respondents Nos. 2 to 5.

The petitioner thereupon filed a writ petition in the High Court to challenge this order as the P. T. D. was cancelled without notice to the petitioner. This writ petition was accepted by order dated the 1st of November, 1981, and the case was remanded to the Deputy Settlement Com missioner for deciding the case afresh after giving notice to the petitioner. The Deputy Settlement Commissioner again re‑armed his earlier order holding that the P. T. D. issued in favour of the petitioner was without any legal validity and the transfer in favour of respondents Nos. 2 to 5 was maintained. This order dated the 3rd of June, 1982, was challenged in the High Court, but the writ petition was dismissed on the 14th of November, 1982. In ordering so, the High Court observed :

"As regards the transfer itself to the petitioners it was open for inquiry by the Settlement authorities as its transfer has clearly been obtained by misrepresentation and fraud. The property was acquired by the Cantonment Board for a public purpose namely establishment of an education institution by the Anglo‑Arabic College and School (Old Boys Association), Rawalpindi, In actual fact this property was never utilised for any purpose by the said association. The property all along remained in possession of the respondents and the posses sion was never delivered to the petitioners. The Old Boys' Associa tion of Anglo‑Arabic College and School instead of utilising the pro perty for public purpose for which it was acquired simply sold it to Haji Abdul Karim etc. This was further the proof that the property was acquired with an ulterior motive and not for the public purpose for which it was acquired."

Notices were issued to the respondents and their counsel appeared to contest the claim of the petitioner. The learned counsel for the petitioner principally contended that the property having been acquired by the Central Government under section 10(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it ceased to form part of the compensation pool, and, therefore, the Settlement authorities had no jurisdiction to deal with it. In support of his contention, he relied on Abdul Hameed v. Municipal Committee, Lyallpur (P L D 1973 Lah. 339) and Mst. Rashda Parveen v. Deputy Settlement Commissioner (Plots) (P L D 1982 Lah. 250). This submission appears to us to be for midable as subsection (2) of section 10 empowers the Central Government to transfer any property in public interest in which case it ceases to remain in the compensation pool and beyond the jurisdiction of the Settlement Autho rities who were by subsection (1) of section 10 empowered to transfer or dispose of any property out of the compensation pool. The expression not withstanding anything contained in subsection (1)" clearly leads to the conclusion that they ceased to have jurisdiction once the Central Government exercised its power to transfer the property in public interest. The transfer can be by sale or in such other manner as the Central Government may deem it proper, This being so and admittedly the approval for sale having been given by the Central Government, it is undeniable that the Settlement Authorities did not have any jurisdiction to cancel or resume the property even though the payment of the price was not made as they had no power to deal with it. In case, there was non‑payment of sale price, all: that they could do was to refer the matter to the Central Government for its decision. Not having done so, the order of cancellation and resumption. of property was illegal. As the adverse orders were founded on this assumption of jurisdiction, they were also without jurisdic tion.

It is regrettable that after the issuance of the P. T. D. the Settlement authorities assumed jurisdiction to dispose of the forms of respondent Nos. 2 to 5, who could not have been transferred this property, as it was not available for disposal. The High Court too did not apply its mind to this aspect of the case, and erroneously held that as the object of the acquisition was not fulfilled the transfer in favour of the petitioner could not be justified. The learned counsel for the respondents was not able to controvert this legal proposition. Apart from it, the notice for the payment of price was not given pursuant to para. 2 of Settlement Scheme No. VIII, and, there fore, the order of the Additional Settlement Commissioner dated the 21st of July,, 1971, remanding the case to the Deputy Settlement Commissioner for consideration as to whether the forms were pending was without any merit as there was no resumption in terms of para. 2 of the Scheme, and for this reason para. 3(a) had no application. The notice was without doubt issued under para. 24 of the schedule in which case the property could have been restored irrespective of any other consideration, if the sale price had been paid. Besides, there was a lapse on the part of respondents Nos. 2 to 5 to pursue the matter which was pending since, 1971, and allowed seven years to pass by, which itself is a consideration, which disentitles their claim to be considered on merits. As to the locus standi of the petitioner to contest the proceedings, it was never challenged at any stage of the proceedings, and ought it be said that the property was transferred for its benefit, and, there fore, it was an aggrieved party.

Accordingly, we would convert this petition into an appeal, set aside the impugned orders and re‑call the writ. There will be no order as to costs.

S. Q. Appeal accepted.

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