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Writ Petition No. 1892-R of 1976, decided on 27th November, 1985.

---S. 10--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)--Qanun-e-Shahadat Order (10 of 1984), Art. 129--Constitution of Pakistan (1973), Art. 199--Court proceedings, presumption of correctness--Order passed by Settlement Authority clearly maintained that parties were present with their counsel and were heard- Nothing having been placed on record to show that petitioner was not heard--Averment in order of Settlement Authorities, held, would carry presumption of correctness and same would have to be given effect in circumstances.

Ch. Ikram-ul-Haq Nasim for Petitioners.

Malik Sher, Bahadur for Respondents Nos. I and 7.

Nemo for the Remaining Respondents.

Date of hearing: 27th November, 1985.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against order, dated 16-4-1976 passed by the learned Settlement Commissioner, Lahore Division, Lahore.

2. The dispute relates to the residential portion of property No. SW-IV-61-S-12, Sham Nagar, Lahore.

Muhammad Din predecessor-in-interest of respondents Nos. 1 to 6 filed a N . C . H . form for seeking transfer of this house.

Fazal Karim, respondent No. 7 filed a L.H. form for the transfer of the said property.

According to the petitioner, Muhammad Din was in occupation of a garage and gallery above it.

It is asserted on behalf of respondent No. 7 that he was only in occupation of a garage.

It is, however, the admitted position that the remaining portion of the premises was in occupation of respondent No. 7 and by order, dated 8-1-1960 the Deputy Settlement Commissioner transferred the whole residential portion to respondent No. 7.

The Additional Settlement Commissioner I, Lahore in exercise of suo motu jurisdiction by his order, dated 25-5-1960 cancelled the transfer in favour of respondent No. 7.

The revision of respondent No. 7 against the order of the Additional Settlement Commissioner to the Settlement Commissioner was dismissed on 27-2-1961.

However, the Chief Settlement Commissioner, accepted the second revision of the petitioner by his order, dated 25-5-1961.

In the meanwhile without cognizant of the above proceedings the Deputy Settlement Commissioner transferred the garage and the gallery above it to Muhammad Din on his N.C. H . form and placed the remaining portion in auction pool.

Muhammad Din preferred an appeal against the aforementioned order of the 'Deputy Settlement Commissioner, which was accepted by the Additional Settlement Commissioner by his order, dated 23-9-1960 and the case was remanded to the Deputy Settlement Commissioner for adjudication afresh in accordance with law.

The Deputy Settlement Commissioner by his order, dated 19-10-1960, transferred the entire residential portion to Muhammad Din.

Muhammad Din, at this stage, associated with the petitioner.

Feeling that the order of the Chief Settlement Commissioner, dated 25-5-1961 whereby second revision of respondent No. 7 was accepted was violative of his interest in the property the petitioner filed a Writ Petition (W.P. No. 409-R of 1961) in this Court against the order, dated 25-5-1961 passed by the Chief Settlement Commissioner.

By judgment, dated 29-1-1962 the learned Single Judge of this Court accepted the writ petition and quashed the orders of the Chief Settlement Commissioner, dated 25-5-1961 as also of the Settlement Commissioner, dated 27-2-1961 and remitted the case for adjudication afresh in accordance with law after notice to the petitioner.

The Settlement Commissioner by his order, dated 2-5-1962 transferred the entire portion to the petitioner.

Respondent No. 7 filed another Writ Petition (W.P. No. 1206-R of 1962) in this Court which was dismissed by a learned Single Judge of this Court on 4-7-1962.

Review Application against the abovementioned judgment was dismissed on 10-1-1963.

Letters Patent Appeal preferred by respondent No. 7 was, however, accepted by a Division Bench of this Court by judgment, dated 10-1-1966 and the case was remanded to the Settlement Commissioner for decision afresh in accordance with law.

The petitioner filed a petition for Special Leave to Appeal in the Supreme Court and leave having been granted it was converted into an appeal. The Supreme Court, however, dismissed the appeal of the petitioner and Muhammad Din aforementioned by judgment, dated 21-1-1971 with the result that the matter was taken cognizance of by the learned Settlement Commissioner.

On remand, the learned Settlement Commissioner passed the impugned order, dated 16-4-1976.

Feeling aggrieved by the above order the petitioner has come up to this Court in the present constitutional petition.

3. The learned counsel for the petitioner made the following submissions: --

(i) That neither the petitioner was made a party nor was he heard before the impugned order was passed;

(ii) That Muhammad Din was also not heard as his legal representatives were not brought on record though he had died before the matter was heard by the Settlement Commissioner; and

(iii) That respondent No. 7 being a local was not entitled to seek transfer of the premises in dispute its value being more than rupees ten thousand.

4. On the contrary, the learned counsel for respondents Nos. l and 7 contended that the petitioner though not a necessary party being only an associate of the transferee was, nevertheless, heard by the learned Settlement Commissioner as is apparent from the order sheet of the Court of the Settlement Commissioner and not only that he was represented by Mr. M.A. Fareedi, Advocate, his learned counsel.

5. The learned counsel next contended that Muhammad Din had also been heard by the learned Settlement Commissioner as is clear from the impugned order itself and nothing having been placed on record to show about the assertion of not affording an opportunity of hearing to the petitioner and to the aforementioned Muhammad Din the averments in the order will have to be taken as correct. It was also submitted by him that Muhammad Din was the petitioner before the Settlement Commissioner and if he had died it was for his legal representatives to have got them substituted. He also urged that no proof of death of Muhammad Din before the date of order of Settlemen4 Commissioner has been furnished even till date.

6. Lastly, the learned counsel for the contesting respondents contended that the value of the portion of the house transferred to contesting respondent No. 7 is only Rs.6,P24 which is clear from the permanent transfer order issued to him, a photostat copy of which has been placed on record.

7. Having given consideration to the controversy involved I am of the view that the contentions raised on behalf of the petitioner have no force.

8. It has been clearly mentioned in the impugned order that the parties who were present with their counsel had been heard. Nothing having been placed on record by the petitioner to show that he was not heard, the averment in the order has presumption of correctness attached to it and the same will have to be given effect.

9. In addition to the above it may also be observed that a written statement has been filed to the present writ petition wherein it ha, been categorically asserted that the petitioner had been appearing before the Settlement Commissioner alongwith his counsel on all the dates of hearing when the matter was heard by the aforementioned learned Officer on remand of the case .by the High Court.

10 The only other contention of the learned counsel for the petitioner, suffice it to observe, has also been successfully controverted by the contesting respondent by production of the permanent transfer deed of the portion in dispute which shows that the value of the house arrived at on the basis of the evaluation formula is only Rs.8,624.

11. In view of the foregoing discussion. I find no merit in this petition which is accordingly dismissed.

There will however, be no order as to costs.

H . B . T . Petition dismissed,

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