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Civil Appeal No. 125‑K of 1976, decided on 22nd January, 1986.

(On appeal from the judgment and Order, dated 17‑5‑1976 of the High Court of Sind and Baluchistan passed in Constitutional Petition No. 110 of 1971).

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10 &11‑‑Settlement Scheme No. VIII‑‑Leave to appeal granted to consider whether in absence of any allegation of fraud, Settlement Authorities were justified to cancel Permanent Transfer Deed of appellant in respect of shop and order for its disposal by public auction.

‑‑‑Ss. 10 & 11‑‑Settlement Scheme No. VIII‑‑Transfer of property‑ Shop‑‑Appellant, in occupation of shop in dispute in context of finding of Deputy Settlement Commissioner, having a legitimate entitlement for its transfer under Settlement Scheme No. VIII‑‑High Court disentitling appellant to its transfer on ground that his application was not on prescribed form‑‑Order of High Court, held, was of a technical nature as in substance application of appellant related to transfer of disputed shop and could be treated as a substitute for one on a prescribed form and this being a procedural defect could not defeat a valuable right which had accrued to appellant‑‑Order of High Court set aside and that of Deputy Settlement Commissioner transferring property to appellant restored.

‑‑‑Ss. 10 & 11‑‑Settlement Scheme No. VIII‑‑Transfer of property‑ Procedural defect not to defeat right of transfer‑‑Submission of application for transfer of property on plain paper instead on a prescribed form, held, was a procedural defect which could not defeat a valuable right that had accrued to the applicant.

‑‑‑Ss. 10 & 11‑‑Settlement Scheme No. VIII‑‑Transfer of property‑ Submission of application‑‑Limitation‑‑Time limit mentioned in Scheme a mere enabling provision empowering Chief Settlement Commissioner to invite applications for transfer of property under relevant Settlement Scheme from persons from time to time and did not in term authorise him to lay down a limiting date for purpose‑‑Time prescribed therein could not be allowed to import any such limiting factor‑‑Time limit being inconsequential, order of High Court rejecting claim of appellant on ground that his application was not submitted within time prescribed, held, was erroneous.

Altaf Hussain v. Chief Settlement Commissioner P L D 1965 S C 68 rel.

Mahmood Iqbal, Advocate Supreme Court with Ameer Ahmad Khan, Advocate‑on‑Record for Appellant.

Respondents: Ex parte.

Date of hearing:‑22nd January, 1986.

This appeal, by leave, arises from the judgment of the erstwhile High Court of Sind and Baluchistan, Karachi, by which Constitutional Petition No. 110 of 1971, was dismissed.

Leave was granted to consider whether in the absence of any allegation of fraud, the Settlement authorities were justified to cancel the Permanent Transfer Deed of the appellant in respect of the shop and order for its disposal by public auction.

The dispute relates to a shop in Elphinstone Street, Karachi, which was occupied by the appellant. Adjoining to this shop was another shop called "Gem Jewellers" and owned by respondents Haji Abu Bakar and Haji Usman, the latter now represented by his legal representatives. The appellant claims to have occupied the shop in 1948 while the other two came into possession of their shop at the time of partition. On the commencement of the Settlement operations, Haji Abu Bakar respondent No. 2, herein, applied for the transfer 'of the shop known as "Gem Jewellers" which was transferred to him by order, dated 26th of November, 1959, and a Provisional Transfer Order (P. T.O.) was issued in due course which only related to the area occupied by his shop, Gem Jewellers. Subsequently the area of the shop in the occupation of the appellant was added to his premises although both the shops had different survey numbers in the Evacuee Property Register. The respondents did not pay its transfer price and in the events that happened, the shop of the appellant was advertised for auction. Respondent No. 2 thereupon filed an objection before the Deputy Settlement Commissioner, but it was dismissed by order, dated 22nd of January, 1962, and it was ordered that the shop be disposed of by public auction. The appeal against that order was dismissed by the Additional Settlement Commissioner on 31st of December, 1962, on the ground that the shop occupied by the appellant was on a very small piece of land which was not a part of the plot on which the shop of respondent No. 2 stood and appeared to have been constructed on a portion of the street which was municipal land; and while upholding its disposal by way of public auction, the Deputy Settlement Commissioner was directed to ascertain whether or not it was a regular evacuee construction liable to be transferred under Settlement Scheme No. I.

Respondent No. 2 did not challenge this order, and on remand the Deputy Settlement Commissioner by order dated 4th of February, 1963, held that the shop of the appellant was a part of the shop occupied by respondent No. 2 and had been transferred to him as one unit; and as to the disputed portion measuring 3' x 5' it could not be transferred to respondent No. 2 as it was an unauthorized construction on a non‑evacuee plot. The appellant was not informed of this order and on 16th of February, 1968, he applied on a plain paper for the transfer of the disputed shop for the price according to its market value under Settlement Scheme No. VIII. The Deputy Settlement Commissioner while transferring the shop to the appellant held by his order, dated 21st of March, 1968, that it was not a part or parcel of any other tenement and neither transferred to any one nor its price was paid or recovered. The appellant deposited its price and he was issued a Permanent Transfer Deed on 30th of March, 1968.

The respondents went in appeal against this transfer before the Additional Settlement Commissioner who remanded the case to the Deputy Settlement Commissioner who on remand, by his order, dated 25th of March, 1970, rejected the claim of the respondents and held as under:‑‑

"As a matter of fact the portion measuring 3 feet to 5 feet referred to in various orders has created the confusion all along. The impression, one takes, on reading of these orders is that the wine shop is situated on this 3' x 5' = 15 sq. feet, which is non‑evacuee portion and on it stands wine shop. It is wrong. This land is an open space at the back of the premises and has nothing to do in disposing of any of these premises i.e. Gem Jewellers or Hurumzed Wine Shop which is approximately 12 x 14 sq. feet stand on evacuee land and it assessed as Rs.64 p.m. It is an independent shop and with no stretch of imagination can be taken to, mean as part and parcel of the shop named as Gem Jewellers. I: am sorry that these findings are contradictory to the order of the learned Additional Settlement Commissioner, dated 15‑2‑1969.

He further observed that the respondents had been transferred two evacuee shops which was not permissible under Settlement Scheme No. 1. Eminently the area 3' x 5' = 15 sq. ft. was held to be an open space at the back of the disputed shop and had nothing to do with the disposal of the disputed shop. The Deputy Settlement Commissioner also rejected the plea that Gem Jewellers was partly situated on Plots Nos. 615 and 615‑A as according to him the respondents being jointly the transferees of Gem Jewellers were not entitled to two independent shops under Settlement Scheme No. 1 even if they stood on one municipal number.

Against this order, the Additional Settlement Commissioner by his order, dated 20th of July, 1970, held that the application of the appellant for the transfer of the disputed shop was not on prescribed form and that it being a commercial premises should have been disposed of by public auction. Against this order, the respondents and the appellant preferred separate revisions which were dismissed on 29th of March, 1971, against which order they filed separate writ petitions in the erstwhile High Court of Sind and Baluchistan which were disposed of as aforesaid. The respondents did not file any petition for leave to appeal against that order and remained content with its disposal by public auction. The appellant, however, was granted leave by this Court to examine the question as stated earlier.

The High Court while rejecting the claim of the appellant held:

"In the present case not only that Mirjina & Co. did not submit the application within the time limit prescribed therefore, but the one submitted by them was on a plain paper which did not give any details required to be given on the form prescribed for the purpose. This application, therefore, was no application in the eyes of the law. The Settlement authorities were, therefore, perfectly correct to hold that Messrs Mirjina & Co. had not submitted any proper application, and the one submitted by them was also beyond time. In these circumstances it was correct to declare, as they did that the property could not be disposed in terms of Settlement Scheme No. VIII."

And as regards the treatment of the respondent's claim, the Court observed that the Settlement authorities were right in holding that the disputed shop, 'Hurumzed Wine Shop' could not be transferred to Messrs Gem Jewellers and that the only way for its disposal was by 'public auction'. As for the misrepresentation of fraud pleaded at the time of the arguments, the High Court rejected it on the ground that it was not taken at any stage before the Settlement authorities.

Eminently as the respondents had not challenged the order of the High Court and so also not having contested these proceedings they gave up their claim for the transfer of the disputed shop. There is a distinct finding that this shop is separate from the shop occupied by the respondents and they had no entitlement to it as only one shop could be transferred to them. The disputed shop was admittedly in the occupation of the appellant and in the context of the findings of the Deputy Settlement Commissioner, dated 25th of February, 1970, the appellant had a legitimate entitlement for its transfer under Settlement Scheme No. VIII. This being so, the order of the High Court disentitling the appellant to its transfer on the ground that the application was not on the prescribed form was of a technical nature, as in substance the application related to the transfer of the disputed shop and could be treated as a substitute for the one on a prescribed form. Moreover, l this defect which was procedural could not defeat a valuable right which had accrued to the appellant. And as for the delay in filing the application, it was held in Altaf Hussain v. Chief Settlement Commissioner P L D 1965 S C 68 that the statute does not import limitation of time for the submission of the application, and that the time limit mentioned in the scheme is a mere enabling provision which empowers the Chief Settlement Commissioner to invite applications for the transfer of the property under the relevant Settlement Scheme from persons from time to time. It does not, in terms, authorize him to lay down a limiting date for the purpose, and, accordingly, the time prescribed therein could not be allowed to import any such limiting factor into the situation. This being so, the time limit was inconsequential and the High Court erroneously pressed it into service for rejecting the claim of the appellant.

In the result, we would set aside the impugned order of the High Court and that of the Additional Settlement Commissioner and the Settlement Commissioner, and restore the order of the Deputy Settlement Commissioner, dated 25th of February, 1970, and uphold the Permanent Transfer Deed (P.T.D.) issued in favour of the appellant by order, dated 21st of March, 1968. There will be no order as to costs.

M.Y.H. Appeal allowed.

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