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Writ Petition No. 1355‑R of 1976, heard on 6th November,1985.

‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑Transfer of rural evacuee property‑‑Entitlement‑‑Original documents on record had established possession of petitioner over shop in dispute since before 1‑‑1‑1961‑ Property number of shop in dispute was admittedly different from shop allotted and transferred to respondent‑‑Forums below failed to apply their minds in transferring shop in dispute to respondent on basis o1 his allotment of shop other than shop in dispute‑‑Respondent was also transferred two other properties in addition to property in dispute‑ Transfer orders in respect of shop in dispute in favour of respondent by Settlement Authorities, held, were illegal and without lawful authority in circumstances.

Barjees Nagi for Petitioner.

Nemo for Respondent No. 1. Respondent No. 2: Ex parte.

Date of hearing: 6th November, 1985.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the order, dated 24‑8‑1976 passed by the Additional Commissioner (C), Sargodha Division exercising the powers of Settlement Commissioner.

2. The facts necessary for the purposes of this petition briefly stated are that evacuee Shop No. 189 situated in village Piplan, Tehsil and District Mianwali was taken possession of by the petitioner some time in the month of August, 1958. This shop, according to the averments in the petition, being in a dilapidated condition was demolished and the petitioner constructed a shop thereon at his own expense by expending about rupees three thousand. In proof of this expenditure receipts as pasted on Annexure‑'H' have been annexed with this petition.

The case of the petitioner is that he being in possession of the shop since August /September, 1958 was entitled to its transfer under Scheme No. VII which was promulgated on 7‑8‑1961 whereunder a person in occupation of any property in a rural area was entitled to its transfer if he was in possession thereof since before 1‑1‑1961.

The case of the petitioner for transfer was considered by the Deputy Settlement Commissioner, Jauharabad who did not allow transfer of the shop in question in favour of the petitioner but instead transferred it to respondent No. 2 Abdul Ghafoor by his order, dated 25‑10‑1966 annexed with the earlier Writ Petition No. 791/11 of 1967 filed by the petitioner.

Aggrieved by the aforementioned order of the learned Deputy Settlement Commissioner the petitioner went up in appeal to the learned Additional Settlement Commissioner Bhakkar who rejected the appeal by his order, dated 15‑3‑1967.

Feeling dissatisfied the petitioner filed a revision which was rejected by the learned Settlement Commissioner on the ground that the same was not competent.

The petitioner then came up before this Court in Writ Petition No. 791/R of 1967 which was accepted by judgment, dated 24‑9‑1974 and the case was remanded to the Settlement Commissioner for disposal of the revision afresh in accordance with law.

On remand of the case the learned Settlement Commissioner rejected the revision petition of the petitioner and maintained the order of transfer in favour of Abdul Ghafoor, respondent No. 2.

Hence the present constitutional petition.

3. None has appeared for the respondents who have been proceeded against ex parte.

4. The learned counsel for the petitioner contended:‑-----

(i) that the possession of the petitioner was duly established since before 1‑1‑1961 as is apparent from documents annexed with the petition as Annexures 'H' and 'H.1' which are receipts of material used by the petitioner for construction of the shop in August/ September, 1958 and of his having paid tax in respect of the property to the Tax Inspector concerned. He has also annexed a receipt from the Inspector of Weights and Measures, dated 10‑7‑1960 to show that he was in possession of this property then also;

(ii) that the rejection of the petitioner's claim to the transfer of the shop in dispute in the face of these documents is wholly untenable especially when the forums below have not at all applied their mind to the facts of the case and they have transferred the shop to Abdul Ghafoor respondent No. 2 on the basis of his allotment of Shop No. 206 whereas the number of the shop in dispute is admittedly 189. He in this regard referred to the order of the Deputy Settlement Commissioner, dated 25‑10‑1966 wherein the matter under adjudication before him was Shop No. 189 whereas in the body of the order, the order of allotment of Abdul Ghafoor, respondent is clearly mentioned as pertaining to Shop No. 206. It was urged that both the learned Additional Settlement Commissioner and the learned Settlement Commissioner while passing the impugned order did not advert to this aspect of the matter which resulted in maintaining the illegal order of the Deputy Settlement Commissioner by them;

(iii) that the Courts below also did not take notice of the fact that Abdul Ghafoor, respondent was not in possession of the shop in dispute since before 1‑1‑1961 which fact is borne out from the order of the Deputy Settlement Commissioner referred to above which shows that Abdul Ghafoor respondent came into possession: of the shop with effect from April, 1961 and remained in possession till January, 1962 and February to June, 1962 only;

(iv) that despite the Additional Settlement Commissioner by his order, dated 15‑3‑1967 having come to the conclusion that Abdul Ghafoor respondent was a transferee of another house as well in the same village and despite having been given an opportunity to choose which of the properties he wanted to retain which opportunity was avoided by him by an evasive reply he maintained the transfer in favour of the said respondent. This aspect of the matter, the learned counsel submitted, was also not adverted to by the Settlement Commissioner while passing the impugned order; and

(v) that the respondent Abdul Ghafoor is a transferee of two other properties in addition to the property in dispute and was, therefore, in no case entitled to retain the transfer of this property. The learned counsel produced in support of his above contention an affidavit of the petitioner deposing that Abdul Ghafoor in addition to having illegally obtained transfer of the property in dispute is still enjoying the transfer of two other properties in the same village bearing No. 356/3 and No. 331.

5. Having given consideration to the contentions raised by the learned counsel for the petitioner I find that these have force and are well‑supported by documents placed on record. There are original documents on record such as receipts of the amounts incurred by the petitioner for constructing the shop in 1958, payment of tax pertaining to the shop in 1959‑60 and 1960‑61 to establish possession of the petitioner over the shop in dispute since before 1‑1‑1961.

6. It has also been correctly pointed out by the learned counsel for the petitioner that although the shop in dispute bears No. 189 yet the transfer in favour of Abdul Ghafoor, respondent No. 2 has been made on the basis of an allotment order pertaining to Shop No. 206.. This aspect that the allotment order produced before the Deputy Settlement Commissioner was regarding Shop No. 206 does not only find mention in the order of the Deputy Settlement Commissioner, dated 25‑10‑1966 but also the learned Additional Settlement Commissioner though cognizant of the fact that the shop allotted to respondent No. 2 bore No. 206 rejected the appeal of the petitioner and maintained the transfer of Shop No. 189 in favour of the said respondent. The above gross misreading of record has also not been adverted to by the learned Settlement Commissioner.

7. The further assertion of the learned counsel for the petitioner that respondent No. 2 is a transferee of two other houses also finds support, apart from the affidavit of petitioner, from the order of the learned Additional Settlement Commissioner, dated 15‑3‑1967. The transfer in favour of respondent No.2, therefore, does not merit to be maintained on this ground also.

8. In view of the foregoing discussion accepting this writ petition declare that the orders, dated 25‑10‑1966 passed by the learned Deputy Settlement Commissioner, Jauharabad, dated 15‑3‑1967 passed by the Additional Settlement Commissioner, Thal Project Colony, and dated 24‑8‑1976 passed by the Settlement Commissioner, Sargodha Division, Sargodha are illegal and without lawful authority. These are accordingly quashed. It is further declared that the shop in question shall be transferred to the petitioner.

9. Since none has appeared on behalf of the respondents to contest this petition, there will be no order as to costs.

H. B. T. Constitutional petition accepted.

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