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Civil Petitions Nos. 263‑R and 264‑R of 1985, decided on 10th February, 1985.

(Against the Judgment of the Lahore High Court, Rawalpindi Bench, dated 20‑2‑1985 in Civil Miscellaneous No. 5/80).

‑‑‑Arts. 185(3) & 199‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10 & 11‑‑Constitutional jurisdiction‑‑Finding of fact recorded while reconstructing record of Settlement Department, held, cannot be unsettled constitutional jurisdiction.

‑‑‑Ss. 10 & 11‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Transfer of property‑‑ Chaubara allotted to petitioner, demolished by Municipal Authorities as being found to be in a dilapidated condition and after demolition of Chaubara, petitioner was not in possession of either of a shop or a house nor could he be deemed to be in possession of flat roof of shop as a house‑‑Petitioner not even getting it reconstructed with permission of competent authority nor getting an alternative allotment‑‑Petitioner, held, could not, on strength of his allotment of a property which was not there, get transferee another property.

Ch. Hamiduddin, Senior Advocate Supreme Court, Zakiuddin Pal, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th February, 1986.

‑The same petitioner by two separate petitions seeks leave to appeal against a consolidated Judgment of the Lahore High Court, Rawalpindi Bench, dated the 20th of February, 1985 whereby two constitutional petitions filed by him were dismissed with costs.

The petitioner had been allotted a Chaubara bearing No. U/354 in Raja Bazar, Rawalpindi. Soon after its allotment on 17‑1‑1955, the Municipal Committee found it to be in a dilapidated condition and in 1956 it was demolished. When the settlement operation started, the petitioner asked for the transfer of the Chaubara and described it in the following words‑

"No. U‑354 Chaubara after demolished remaining walls, staircase and roof."

This Chaubara before its demolition was located above the three Shops Nos. U/355, U/356 and U/357. The stairs leading to the Chaubara adjoined Shop U/355 and separated other shops including No.U/353 which was in possession and claimed by respondent No.3. By a subsequent application, dated 15‑11‑1959, the petitioner claimed not only the site of the demolished Chaubara but also the shops underneath i.e. shops bearing Nos. U/355, U/356 and U/357 all of which were in possession of locals who were not then entitled under Settlement Scheme No.1 to get them transferred. The Deputy Settlement Commissioner while taking up the disposal of his form inspected the property and observed as follows:‑

"I personally inspected‑ the site of this building. There is a staircase contiguous to Shop No. U/355 leading upto the roof but on the roof itself there is no indication of the existence of a Chaubara. There is no debris or even any other indication to prove that any Chaubara existed on the top of this roof. However, Municipal No.U/354, exists on the staircase."

He transferred the property claimed by the petitioner observing as follows:‑

"I accept that Chaubara No. U/354 did exist in 1956 and in view of the order of learned Additional Settlement Commissioner, by which the applicant was compensated by the transfer of a shop underneath. I do consider that the applicant has made out a case in the special circumstances enumerated above that he should get at least a portion of built up area contiguous to the staircase allotted to him and in his possession. I, therefore, decide that Shop No. U/355, contiguous to the staircase U/354, be transferred to him. The remaining two Shops Nos. U /356 and 357, will, however be included in the auction list and in view of the fact that no Chaubara exists on the roof of these shops and roof cannot be termed as a building site the applicant will have no claim on the roof of U/356 and 35 which will be auctioned as independent shops without any encumberances."

This order was the subject‑matter of appeal before the Additional Settlement Commissioner by various persons. While disposing of the appeals on 28‑2‑1961 the Additional Settlement Commissioner held that "the passage and stairs U/354 shall remain open, and not be transferred to anybody but keeping in view transfer of Shop U /355 in lieu of demolished Chaubara, all the time doubting its legality and for this reason he forwarded the copy of his judgment to Chief Settlement Commissioner observing as follows:‑

"In view of the unusual nature of this case I direct that a copy of this order be forwarded to the Chief Settlement Commissioner because the transfer of a shop to Mohammad Naqi under these peculiar circumstances entails a policy question."

The Chief Settlement Commissioner conveyed through the Settlement Commissioner Policy that such an alternative transfer of property was not in accordance with law. However, it was not given effect to.

A revision petition followed by a second revision petition was filed by the respondent No.3 and one Muhammad Jamil. The question whether this second revision was disposed of or was still pending and was entitled to be disposed of on merits was the subject‑matter of a detailed factual inquiry wherein evidence was also recorded. The conclusion reached by the Chief Settlement Commissioner Ch. Ali Ahmad was that in fact the record of the case had been called for before the target date fixed under Ordinance XIII of 1962 and that it was entitled to be disposed of on merits and that no such disposal had earlier taken place. On these findings, he proceeded to dispose of the second revision application of respondent No.3 by the impugned order. He held that the petitioner was not entitled to transfer of the Shop U/355 of which he was never in possession and that such a transfer to him was not sustainable in law. He, therefore, set aside the transfer in his favour and held that Shop No. U/355 was available for transfer. What led to the filing of the other constitutional petition is a separate proceedings by nature of an appeal filed by Abdul Ghani in 1964 against the order, dated 2‑8‑1960 passed by the Deputy Settlement Commissioner in favour of the petitioner. This appeal was dismissed and a revision petition was kept pending and was disposed of by that order of the Settlement Commissioner exercising powers of Chief Settlement Commissioner on the 30th of March, 1968.

The petitioner instituted two constitutional petitions challenging the cancellation of the transfer made in his favour and the order disposing of the revision of the occupant of the shop. The grounds taken up by him were that the second revision petition filed by the respondent No. 3 stood disposed of by an order, dated 30‑6‑1962 that the record had not been in fact called for before the target date prescribed under Ordinance XIII of 1962 that it could not be decided on merits by the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner in March, 1968. It was also contended that the finding of fact recorded that in fact the record had been called for and that the second revision was awaiting disposal was against the record and unsustainable. On merits, it was stated that the petitioner being in possession of the roof of the shops which was actually the demolished Chaubara was entitled to its transfer even if it was being treated as a separate property and on the basis of possession of that portion he could be deemed to be in possession of the shops underneath none of which was in possession of persons who were entitled to its transfer. It was also contended that Abdul Ghani should not have been impleaded in the proceedings and if he were kept out of the proceedings in the High Court as he had no locos standi to contest the transfer in favour of the petitioner, there would have been none to contest it and he would have got his relief.

The submission of the learned counsel for the petitioner with regard to the finding of fact is based on three factors. Firstly, the order of the Chief Settlement Commissioner disposing of the second revision on 30‑6‑1962 on the ground that it was not competent as the record had not been called for before the target date. Secondly, the fact that the officer (Ch. Sultan Muhammad) Settlement Commissioner exercising powers of Chief Settlement Commissioner) who is said to have called for the record was himself according to the notification invested with the powers of the Chief Settlement Commissioner after the target date. Thirdly, the petitioner had applied to the copying agency about the copy of any such order or list of other cases disposed of by Ch. Sultan Muhammad as delegate of the powers of the Chief Settlement Commissioner but the same was not made available.

The defect in the submissions is that he applied at a stage and after it was known that the relevant record was untraceable. The Chief Settlement Commissioner had directed that the record be reconstructed and it was reconstructed and on the basis of such proceedings it was held that a second revision was competently filed and was pending disposal. That a second revision was filed is not disputed. Mr. Muhammad Aslam Reader to the Deputy Settlement Commissioner appeared as a witness and on oath deposed that the record had been requisitioned. If that statement is believed then the finding of fact recorded is sustainable. We do not think that such a finding of fact recorded while reconstructing the record could be unsettled in constitutional jurisdiction on the grounds taken up by the learned counsel for the petitioner.

On merits, we find that after the demolition of the Chaubara in 1956 he was not in possession of either a shop or a house, nor could he be deemed to be in possession of the flat roof of the shop as a house. On such demolition either he should have got it reconstructed with the permission of the competent authority or should have got an alternative allotment. He did neither. He could not, therefore, on the 'strength of his allotment of a property which was not there get transferred another property. On this score also we find that this is not a fit case for grant of leave to appeal. Leave is, therefore, refused in both the petitions.

M . Y . H . Petitions dismissed.

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