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(a) Constitution of Pakistan (1973)--

---Art. 199--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10/11--Constitutional jurisdiction--Order of Settlement Authorities, disposing property, passed lawfully--Order, held, not liable to be challenged in constitutional jurisdiction.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)--

---S. 2(2)--Revision--Deputy Settlement Commissioner deciding matter as notified officer when Repealing Act had already been enforced- Revision filed against such order--Order of Settlement Commissioner holding revision as incompetent, held, was justified as no provision for revision was available against order of notified officer in Repealing Act.

(c) Constitution of Pakistan (1973)--

- -Art. 199--Constitutional jurisdiction--Question of fact--Contentions raised belonging to question of fact on which findings had already been given by a forum of exclusive jurisdiction and finding attaining finality--Finding, held, not open to challenge in constitutional jurisdiction.

(d) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)--

---S. 2(2)--Constitution of Pakistan (1973), Art. 199--Contesting parties, seeking transfer of property in dispute, settled in property by an order of bifurcation/ partition which was reasonable and not open to exception in any manner--Division was made keeping in view broad principles of ensuring that so far as practicable it would be vertical- Interference declined in writ jurisdiction.

Muhammad Siddiq Butt for Petitioner.

S. Farooq Hassan Naqvifor Respondents.

Date of hearing: 23rd November, 1985.

JUDGMENT

By this judgment I propose to dispose of (1) W.P. No. 558/11-75 titled "Mst. Anwari Begum v. Abdul Rashid etc." and (2) W.P. No. 759/11-75 titled "Muhammad Abbas Khan and another v. Abdul Rashid" as the two petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan are directed against order of the Settlement Commissioner, Lahore Division, Lahore and the Deputy Settlement Commissioner, Lahore, dated 2-5-1975, 6-5-1975 and 23-3-1975. respectively by which property Nos. 1002, 1003 and 1004, Wellington Mall, Lahore Cantonment was disposed of under the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

2. The facts briefly stated are that the property referred to above was owned by an evacuee non-Muslim. After exodus of the evacuee the following persons occupied various portions of the said property:-

(1) Mst. Anwari Begum (petitioner in W.P. No. 558/11-75), a claimant who filed two C. H. Forms, one directly and the other on the basis of possession of her husband Rasul Khan (non-allottee).

(2) Messrs Muhammad Abbas Khan and Ata Ullah Khan (petitioners in W.P. No. 759/11-75) claimants who filed C.H. Form (allottee).

(3) Abdur Rashid (respondent in W.P. No. 558/11-75), a claimant (non-allottee) who filed C.H. Form.

(4) Muhammad Hanif) both non-claimants, one of whom namely,

Muhammad Hanif only filed N . C . H . Form.

(5) Abdus Sattar ) Both of them are not in the picture any

longer and were also not so in the previous

W.P. No. 985/11-62, decided on 6-1-1966

The Deputy Settlement Commissioner, vide his order, dated 13-1-1960 divided the property into three portions. One portion was given to Messrs Muhammad Abbas Khan and Ata Ullah Khan, another to Abdur Rashid, and the third to Mst. Anwari Begum. Abdus Sattar and Muhammad Hanif were excluded.

Four appeals were preferred against, the order of the Deputy Settlement Commissioner, one by Messrs Muhammad Abbas Khan and Atta Ullah, another by Mst, Anwari Begum, third by Abdur Rashid and the fourth by Abdus Sattar.

The learned Additional Settlement Commissioner after obtaining a report from the Deputy Settlement Commissioner, by his order, dated 20-5-1960, dismissed the appeals of Abdur Rashid and Abdus Sattar and eliminated them altogether, and ordered transfer of the property to two parties only i.e. Muhammad Abbas Khan and Atta Ullah Khan as one party and Mst. Anwari Begum as the other.

Three revisions were filed against the order of the Additional Settlement Commissioner before the learned Settlement Commissioner, one by Messrs Muhammad Abbas Khan and Atta Ullah Khan, another by Abdur Rashid, and the third by Abdus Sattar.

The learned Settlement Commissioner, dismissed all the three revision petitions by his order, dated 7---12-1960.

The second revision filed before the Chief Settlement Commissioner also met the same fate on 20-3-1962.

Aggrieved by the abovementioned orders two writ petitions, viz. W.P. No. 985/11-1962 and W.P. No. 1008/11-1962 were filed before this Court, the former by Abdur Rashid and the latter by Messrs Muhammad Abbas Khan and Atta Ullah Khan.

These two writ petitions were disposed of by a learned Single Judge of this Court by judgment, dated 11-1-1966 delivered in W.P. No. 985/11 of 1962.

Letters Patent Appeals preferred against the abovementioned judgment of the High Court were dismissed by a Division Bench of this Court on 29-10-1974.

By the aforementioned order, dated 11-1-1966 passed by a learned Single Judge of this Court the case was remanded to the Deputy Settlement Commissioner for a fresh decision in accordance with law on the subject, with the direction that "the learned D.S.C. will be at liberty to decide the case afresh both on the point of the entitlement of the various applicants and the mode of division to be made -in the case."

On remand, the learned Deputy Settlement Commissioner, vide his order, dated 25/27-3-1975, divided the property into three portions vertically as mentioned below:

(a) Portion at the rear which was abutting the lane was in toto given to Messrs Muhammad Abbas Khan and Atta Ullah Khan (petitioners in W.P. No. 759/11-1975) This portion was marked D, E, F, G, H on the plan.

(b) Front portion of the property abutting the Wellington Malt was further divided into two portions the northern right portion was transferred to Abdur Rashid respondent No. 1 in W.P. No. 558/11-1975. This portion was marked B, C, D, H, 1, J.

(c) Southern left portion which was marked A, B J, H, 1, J was transferred to Mst. Anwari Begum (petitioner in W.P. No. 558/11 1975).

Feeling aggrieved Mst. Anwari Begum filed a revision petition before the Settlement Commissioner who by his order, dated 2-5-1975 dismissed the same as incompetent in view of the repeal of Evaucee Laws. Hence the present writ petition.

Similarly Messrs Muhammad Abbas Khan and Atta Ullah Khan filed a revision petition before the Settlement Commissioner against the aforementioned order of the Deputy Settlement Commissioner which was also dismissed by him by his order, dated 6-5-1975 which has given rise to W.P. No. 985/11 of 1975.

3. Mr. Muhammad Siddiq Butt, Advocate, learned counsel for the petitioner in W.P. No. 558/11-1975 made the following submissions:-

(i) that the revision petition filed before the Settlement Commissioner was competent because rights as to the remedies were to be governed according to law as on the date of remand and, therefore, the order of the Settlement Commissioner is liable to be set aside;

(ii) that Abdur Rashid is a claimant non-allottee and, therefore, could only seek transfer if he could show that he was in undisputed occupation, that he had cleared the rent and that no other person was entitled to its transfer which aspect of the matter has not been considered by the Deputy Settlement Commissioner;

(iii) that the division was not proper and legal; and

(iv) that the form of Abdur Rashid being not traceable in the file and no finding in this respect having been given no transfer could be made in his favour.

4. Mr. Ahmad Saeed Kirmani, Advocate, learned counsel for petitioners in W.P. No. 759/11-1975 contended that actual physical possession should have been considered while dividing the property and effort should have been made to allow the retention of permanent transfer as far as practicable on the basis of actual physical possession which principle has not been followed by the learned Deputy Settlement Commissioner.

He next urged that the portion not applied for should not be given to Abdur Rashid respondent.

5. Mr. Farooq Hassan Naqvi, Advocate, learned counsel for Abdur Rashid respondent in both the writ petitions contended:

First, that the contentions raised on behalf of the petitioner against this respondent are relatable to controversies of fact on which not only there are findings recorded by Tribunals of exclusive jurisdiction but also those findings have been given in the judgment of the High Court in W.P. No. 985/R of 1962 which was upheld in the Letters Patent Appeals preferred by the parties and against which order no further remedy was availed of and, therefore, those findings have attained finality;

Secondly.

that the date of possession of Mst. Anwari Begum as has also been admitted in her own Forms C.H. which are Annexures G and J to W.P. No. 985/R of 1962 is November, 1953, and that of Abdur Rashid is 24-12-1947 as observed in the judgment of the High Court, dated 11-1 1966 which establishes the superiority of the claim of the respondent;

Thirdly,

that according to the statement of Mst. Anwari Begum made before the Deputy Settlement Commissioner, a copy of which is Annexure K to W.P. No. 985/R of 1962 she was not an allottee and, therefore, as regards the allotment part of the entitlement she and his client (Abdur Rashid) were at 'par;

Fourthly,

that Abdur Rashid had filed a form for seeking transfer of the house in dispute which fact has been incorporated in the order of the Deputy Settlement Commissioner, dated 20-5-1960. This finding he urged has not been set aside in any of the subsequent proceedings; and

Lastly

that Mst. Anwari Begum in her written statement filed in W.P. No. 985/R of 1962 has herself admitted categorically that Abdur Rashid had filed C . H . Form for seeking transfer of the entire house. He referred in this regard to para. 1(a) of the aforesaid writ petition and the corresponding para. of the written statement of Mat. Anwari Begum.

6. Having given consideration to the controversy involved betweenl parties 1 find that the orders of the Settlement Commissioner and the Deputy Settlement Commissioner, dated 2-5-1975, 6-5-1975 and 25/I 27-3-1975 respectively were passed lawfully and are not liable to be, challenged in the constitutional jurisdiction of this Court.

7. By the judgment of a learned Single Bench of this Court passed in W.P. No. 985/R of 1962, dated 11-1-1966 the case had been remanded to the Deputy Settlement Commissioner for adjudication afresh in accordance with law.

8. When the case came up for hearing before the learned Deputy, Settlement Commissioner it was obviously a matter pending before him within the purview of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. It, therefore, stood transferred for final adjudication to such Officer as was to be notified by the Provincial Government. Now neither it has been urged before me nor anything has been placed on record to show that the Deputy Settlement Commissioner who decided the matter by order, dated 25/27-3-1975 was not the notified Officer within the meaning of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act. Otherwise also the matter having come up before him in March, 1975 whereas the Repealing Law had been enforced, with effect from the first day of July, 1974 first by virtue of Ordinance XV of 1974 and then by Act XIV of 1975 the Deputy Settlement Commissioner who decided the matter must be knowing that he was the notified Officer and, therefore, he had assumed jurisdiction in relation to the controversy in dispute. The learned Settlement Commissioner was thus justified in rejecting the revision petitions as incompetent as no provision for revision was available against orders of notified Officers.

9. It may additionally be observed that when I asked the learned counsel for the petitioner that if it was to be assumed that revision being a remedy which was available when the case was remanded then in 1966 the remedy of appeal was also available why did the petitioner not avail of that remedy on the analogy that remedies as available at the time of filing of the lis remained intact. He was unable to give any explanation as to why the remedy of appeal was not availed of.

10. Adverting now to the other contentions raised by the learned counsel I suffice by observing that it has been correctly pointed out by the learned counsel for the contesting respondents that all these points relate to controversies of fact on which there are findings given by a forum of exclusive jurisdiction and the same are thus not open to challenge in the constitutional jurisdiction of this Court. It has also been correctly pointed out that those findings have also been given in the judgment of a Single Bench of this Court in writ petition No. 985/R of 1962 and that those findings having not been challenged after the Letters Patent Appeals have attained finality.

11. Otherwise also viewing it from the angle that the Settlement Laws were enforced to achieve rehabilitation and settlement of the maximum number of refugees the order of the Deputy Settlement Commissioner appears to have fulfilled the abovementioned spirit of the law. There were only three persons left in the contest for seeking transfer of the property in dispute all of whom have been settled on the property in dispute by an order of bifurcation /petition which appears to be reasonable and not open to exception in any manner. Division has been made keeping in view the broad principle of ensuring that so far as practicable the division would' be vertical.

12. It is the admitted position that the property is a huge property abutting on one side on the main Wellington Mall, and on the other having an opening and entrance in a lane. Now the portion with lane which is a larger portion has been transferred to a party which is otherwise in occupation of a large portion. The portion abutting on the Wellington Mall has been further sub-divided to accommodate two other claimants who have portions in occupation in both the divided units. In facts the Deputy Settlement Commissioner has specifically held as follows and obviously on the basis of the principles laid down for effecting divisions of a unit:

"After hearing the arguments and careful consideration I have come to the conclusion that the house in question can be divided into three portions vertically and the matter can be solved without any difficulty. All the three parties are claimants and in possession of their respective portions since long."

13. By the arguments advanced on behalf of the contesting respondent it has also been firmly established that all the parties practically had the same criterion of entitlement for seeking transfer viz. possession. Neither there is any allotment order established on record in favour of Mst. Anwari Begum nor in favour of Abdur Rashid. That being so, both of them were claiming on the basis of possession only and the same principles would apply to both of them. If Abdur Rashid is sought to be excluded by Mst. Anwari Begum on the basis that he was not qualified to contest in view of the enlarged definition of "possession" the same position would obtain in the case of Mst. Anwari Begum. In any case the house having been divided the portion a part of which is in occupation of Abdur Rashid became an independent unit and could not be transferred to Mst. Anwari Begum whom the other portion as independently divided unit has been transferred. She was, therefore, out of contest as regards the unit of Abdur Rashid. The same position would obtain as regards the case of Muhammad Abbas Khan and Atta Ullah Khan qua that of Abdur Rashid respondent.

14. In view of the foregoing discussion, I find no merit in this petition and accordingly dismiss the same.

There will, however, be no order as to costs.

M. Y. H. Writs refused.

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