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--- S. 10--Settlement Scheme No. VIli--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2) Constitution vl Pakistan (1973), Art. 199--Transfer of evacuee property--Findings of fact--Constitutional jurisdiction--Finding of fact by Settlement Authority having exclusive jurisdiction that disputed portion was part and parcel of registered industrial evacuee unit which had already been disposed of and as such was not available property under Settlement Scheme No.VIII, held, was not liable to be challenged in constitutional jurisdiction of High Court.

---Art. 199--Decision on question of fact--Constitutional jurisdiction Decision on question of fact by Tribunal of exclusive jurisdiction, even if erroneous, held, was not open to challenge before High Court in constitutional jurisdiction.

--- Ss. 10 & 11--Cancellation of allotment--Plea of--Order passed by Settlement Authority would attain finality, if not challenged through remedies available therefore-Such order having attained finality, held, could not be allowed to be re-agitated after lapse of years through collateral proceedings.

Malik Muhammad Afzal for Petitioner.

Maqbool Sadiq for Respondents Nos.1and 2.

Date of hearing: 18th November, 1985.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the order, dated 20-5-1976 passed by the Deputy Settlement Commissioner II Lahore.

2. The facts necessary for the purpose of this petition briefly stated are that evacuee property No. NW-111-R-101, situated at Ravi Road, Lahore was an evacuee industrial concern known as Raghu Nath Rai Workshop. It was allotted initially to Mauia Bux, respondent No.1 and one Abdul Majid (not a party to this petition) by the Punjab Industrial Rehabilitation Board with 50 per cent share each in the allotment, by order, dated 19-8-1948 passed by the Director of Industries and Rehabilitation Commissioner (Industries), West Punjab, Lahore. The share of Abdul Majid aforementioned was later allotted to respondent No. 2.

Respondents Nos. l and 2 on the commencement of the operations of settlement applied for transfer of the aforementioned property.

By letter, dated 12-5-1960, the Chief Settlement Commissioner informed respondents Nos. 1 and 2 that they had been found entitled to the transfer of the workshop in question on the prevailing market value to be assessed in due course in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958).

The petitioner Ali Muhammad and one Muhammad Yaqub made application to the Additional Settlement Commissioner (Industries) claiming that the portions in their respective occupation in property No. III-R-101, Ravi Road, be not treated as a part of the above-mentioned industrial workshop but instead those be transferred to the applicants.

This application was rejected by the Additional Settlement Commissioner (Industries) by his order dated 16-1-1961 and it was held that the portions in occupation of the petitioner and the other person above named were part of the evacuee workshop which had been transferred to the respondents.

The petitioner and Muhammad Yaqub abovementioned preferred appeals before the Settlement Commissioner (Industries), West Pakistan, Lahore against the order of the Additional Settlement Commissioner (Industries), dated 16-1-1961.

The two appeals were rejected by the learned Settlement Commissioner by his order, dated 4-3-1961. He held that the N . C . H . Forms filed by the appellants before him for transfer of the portions in their respective occupation had been rightly rejected as they could not apply for transfer of a portion of a registered factory. The order of transfer of the industrial unit in favour of the respondents was upheld.

The order of the learned Settlement Commissioner, dated 4-3-1961 was admittedly not challenged further by the petitioner.

The petitioner, however, made an application on 24-10-1973 before the Chief Settlement Commissioner under Settlement Scheme NO.VIII seeking transfer of the portion in dispute.

The learned Chief Settlement Commissioner forwarded this application to the Deputy Settlement Commissioner for disposal.

The Deputy Settlement Commissioner, by his order, dated 19-6-1974 in the absence of the respondents, transferred the property to Muhammad Yaqub and Ali Muhammad petitioners.

The petitioner then applied for issuance of a transfer order in his favour.

The Deputy Settlement Commissioner-I1, Lahore. by his communication, dated 2-6-1965 informed the petitioner and Muhammad Yaqub aforementioned that the transfer in their favour had been effected under a misunderstanding by order, dated 19-6-1974 as no transfer could be made in their favour the property having already been transferred by the Additional Settlement Commissioner (Industries), Lahore to respondents. It was also directed that the transfer order issued in favour of the petitioner should be considered as non-existing and having not beer. issued.

The petitioner it appears further agitated the matter by making miscellaneous petition before various Settlement Authorities.

The Deputy Settlement Commissioner-II, Lahore decided these petitions by his order, dated 20-5-1976 and held that the transfer order issued in favour of the respondents pertaining to the premises in dispute could not be altered in any manner and the petitions made by the petitioner and Muhammad Yaqub were rejected.

Feeling dissatisfied the petitioner has come up to this Court against the order dated 20-5-1976 passed by the learned Deputy Settlement Commissioner on the miscellaneous petitions of the petitioner.

.3. The learned counsel for the petitioner contended that the portion in dispute is not a part of the factory which was built only on half of Kanal and, therefore, it should have been transferred to the petitioner as his occupation thereof was established on record.

The only other contention raised by the learned counsel for the petitioner was that the respondent(s) fraudulently got transferred this property as a Khasra number instead of having it transferred as an urban immovable property.

4. On the other hand, the learned counsel for the contesting respondents argued: -

(i) that the order of the transfer of the property in dispute having been passed by the Additional Settlement Commissioner (Industries), Lahore and affirmed by the Settlement Commissioner (industries) despite the appeal of the petitioner as far back as 4-3-1961 which order was not further assailed by the petitioner the transfer thereof had attained finality and was not open to question through miscellaneous proceedings;

(ii) that the order of transfer passed in favour of the petitioner on 19-6-1974 has been rightly quashed by the superior Settlement authorities as it was not only a non-speaking order passed at the back of the contesting respondents but was otherwise also without any lawful authority.

Elaborating his contention the learned counsel pointed out that under Settlement S: he:ne No. VIII by which the transfer was purported to have been made by the Deputy Settlement Commissioner could not be made on the relevant date in 1974 as the property was in any case not an available property the same having already been lawfully transferred to the contesting respondents. In the same context it was urged that under Settlement Scheme No. VIII only such properties could be transferred which had not already been transferred under the schedule to the Displaced Persons (Compensation and Rehabilitation) Act and any of the schemes promulgated thereunder;

(iii) that no N . C . H . Form could be filed for seeking transfer of the portion of the property in dispute as the same was not included in the definition of "house" as given in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act; and

(iv) that there are findings of fact given by Tribunals of exclusive jurisdiction that the portion in dispute is a part and parcel of the registered industrial evacuee unit. This finding, it is contended, is not open to question in the constitutional jurisdiction of this Court.

5. Having considered the controversy involved I am of the view that the contentions raised by the learned counsel for the petitioner have no force.

6. The first contention of the learned counsel for the petitioner is that the portion in dispute which is being claimed by him is not a part of the industrial unit which challenges the determination of a question of fact made by a Tribunal of exclusive jurisdiction. It is well-settled that such controversies of fact are not liable to challenge in the constitutional jurisdiction of this Court. It has neither been urged before me nor it possibly could be that the Additional Settlement' Commissioner or, for the matter, the Settlement Commissioner (Industries) were not the competent authorities to determine question as to whether the portion in occupation of the petitioner was a part of the evacuee registered industrial unit or not That being so, the determination of this question of fact has been made by a competent authority with jurisdiction. There is no denying the well-settled principle that even erroneous decision on question(s) of fact by Tribunals of exclusive jurisdiction are not open to question before the High Court in its constitutional jurisdiction. In the case in hand this principle is squarely applicable especially when determination on a question of fact has otherwise also been reached on perusal of the record.

7. Apart altogether from the above position the petitioner having admittedly not challenged the order of the Settlement Commissioner passed on 4-3-1961 holding that the portion in dispute is a part and parcel of the evacuee industrial concern would now be precluded to challenge this finding through proceedings initiated on a miscellaneous application. This finding through the order of the Settlement Commissioner has attained finality and cannot be allowed to be re-agitated after elapse of 15 years through collateral proceedings.

8. The other contention of the learned counsel for the petitioner has also no force as it does not find support in any manner from the record. The property has been transferred to the contesting respondents as an industrial unit and with its urban survey number as is apparent from the transfer order in favour of the contesting respondents, a copy of which has been annexed with the written statement.

9. Before parting with the case it may also be observed that the contentions raised on behalf of the contesting respondents have also force. It has been rightly pointed out that the order of the Deputy Settlement Commissioner, dated 19-6-1974 by which the transfer was made in favour of the petitioner and which order has subsequently been quashed by the Settlement authorities themselves has rightly been withdrawn in that that order was a nullity and was void ab initio. The said order transferring the portion in dispute to the petitioner was passed in utter disregard of the factual and legal position that the property in dispute stood already transferred to the contesting respondents by a valid and lawful order which had attained finality about thirteen years prior to the passing of the said order and also by remaining quite oblivious to the legal provisions that only such properties could be transferred under Settlement Scheme No. VIII which were available after promulgation of the said scheme.

10. In view of the foregoing discussion there is no merit in this petition which is accordingly dismissed.

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

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