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Civil Appeal No. 154 of 1977, decided on 11th November, 1985.

(On appeal from judgment and order of Lahore High Court, Lahore, dated 15‑4‑1975, in Letters Patent Appeal No. 104 of 1974).

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10, 11 & 21(1), proviso (c)‑‑Settlement Scheme No. VIII‑‑Leave to appeal granted to consider whether High Court was in error in holding that appellants' revision had been disposed of before date on which permission was granted for cancellation of P.T.D. issued in favour of respondent.

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‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10, 11 & 21(1), proviso (c) and Settlement Scheme No. VIII‑‑Leave to appeal granted to consider whether High Court failed to notice that order passed by Assistant Settlement Commissioner was incompetent, as he had no delegated authority to dispose of property while holding that order passed by Deputy Settlement Commissioner was without jurisdiction.

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10, 11 & 21 (1)‑‑Settlement Scheme No. VIII‑‑Leave to appeal granted to consider whether order passed in review could not have been passed during pendency of revision application in contravention of proviso (c) to subsection (1) of S. 21 of Act XXVIII of 1958.

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10, 11 & 21(1) Settlement Scheme No. VIII‑‑Leave to appeal granted to consider whether High Court erroneously held that middle residential portion exists "exactly on the shop" as held by Deputy Settlement Commissioner.

‑‑‑Ss. 10, 11 & 21(1), proviso (c)‑‑Settlement Scheme No. VIII‑‑Transfer of property‑‑Disputed portion of property transferred to respondent on basis of order of Deputy Settlement Commissioner passed on review allowed by Additional Settlement Commissioner on appeal by respondent when appellants revision was pending before Settlement Commissioner‑‑ Appellants argued that during pendency of their revision application before Settlement Commissioner, Additional Settlement Commissioner could not, on appeal of respondent, order for review of order of Deputy Settlement Commissioner in view of express bar contained in proviso (c) to subsection (1) of S. 21 of Act‑‑Respondent claiming that revision application of appellants stood dismissed but producing neither copy of dismissal order nor showing any authentic material to establish dismissal thereof‑‑Held, order passed by Deputy Settlement Commissioner on review suffered‑from jurisdictional defect and, therefore, same could not be basis for any transfer of property to respondent‑‑Respondent even otherwise being neither in possession nor applying for transfer, had no entitlement to transfer of disputed portion of property‑‑On this ground alone reconsideration of eligibility of appellants to transfer of said portion of property; which was separate and had independent access, as ordered by Settlement Commissioner, while accepting revision of appellants, could not be disputed after promulgation of Settlement Scheme No. VIII‑‑Order passed by Letters Patent Bench, maintaining order of Single Judge which declared order of Settlement Commissioner without lawful authority, set aside‑‑Specific consideration of other points, on which leave to appeal granted, not necessary‑‑Case remanded to Notified Officer for determining eligibility afresh in terms of orders passed by Supreme Court.

‑‑‑Art. 185(3)‑‑Constitutional petition‑‑Question going to root of matter‑‑Contention, that same was not raised earlier, held, of no consequence.

‑‑‑Art. 185(3)‑‑Constitutional petition‑‑Question of jurisdiction, held, could be raised at any stage of proceedings. ‑‑‑[Jurisdiction].

A.R. Sheikh, Senior Advocate, Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Appellants.

Ch. Khalilur Rahman, Senior Advocate, Supreme Court, instructed by M. A. Qazi, Advocate‑on‑Record for Respondent No. 1.

Shahzad Jehangir, Advocate Supreme Court for Respondent No.2.

Date of hearing: 11th November, 1985.

‑This appeal, by leave, arises from the order, dated 15‑4‑1975 passed by the Letters Patent Bench of the Lahore High Court, Lahore, maintaining the order, dated 14‑2‑1974 passed by the learned single Judge in writ petition No. 271‑R of 1968 declaring the order, dated 22‑3‑1968 of the Settlement and Claims Commissioner without lawful authority.

The dispute relates to the transfer of the middle residential portion of the property bearing No. S‑57‑R‑27, Temple Road, Lahore City. The appellants were locals and in possession of this portion. They submitted separate L.H. forms for the transfer of the portions in their respective possession. In regard to its disposal two orders were passed; one by the Assistant Settlement Commissioner on 26‑11‑1959, and the other by the Deputy Settlement Commissioner on 22‑2‑1960. By the first order the L.H. forms of the appellants were rejected and one shop and the middle portion except one room were transferred to Muhammad Shafi, respondent No. 1 herein. This room and one shop underneath it were transferred to Bashir Muntazir. By the second order, as the price exceeded Rs.10,000, the transfer of middle residential portion was denied to the appellants and this portion was reserved for ear‑marking. The transfer in favour of Bashir Muntazir was set aside and as he was held to be a local resident of Peshawar and had not submitted the proper L.H. form. His residential portion which was separate and had three floors was set apart for ear‑marking. One shop which was in possession of Muhammad Shafi, respondent No. 1, who had filed a C.S. form, was transferred to him, but his request for the transfer of the portion in possession of the appellants was refused. It may also be noted here that he had only filed a C.S. form for the transfer of the shop and no other form was filed for the transfer of any residential portion of the property. Another shop which was in possession of Doctor Karam Din who was a local was also reserved for auction as he had not filed any L.H. form for its transfer.

As the order of the Assistant Settlement Commissioner was set aside by the Deputy Settlement Commissioner, the appellants went in appeal before the Additional Settlement Commissioner against his order dated 22‑2‑1960, but did not succeed as it was held that there was an attempt on the part of the appellants who were locals to get their portions adjusted by a sub‑division of the two portions in order to bring down the value of each portion below Rs.10,000. It was further held that this middle residential portion was one‑unit which could not be sub‑divided for the benefit of the locals. This order is, dated 21st of June, 1960. Against this order the appellants went in revision before the Settlement Commissioner and during the pendency of this revision Mian Muhammad Shafi's appeal against the order, dated 22‑2‑1960 was decided by the Additional Settlement Commissioner (Judicial) on 31‑10‑1960. The main ground urged before him was that the Deputy Settlement Commissioner could not review the order of the Assistant Settlement Commissioner without getting the prior permission of the Additional Settlement Commissioner, which was accepted and the order of the Deputy Settlement Commissioner, dated 22‑2‑1960 was set aside.

It appears that on 6‑2‑1961 permission to review the order was given to the Deputy Settlement Commissioner and the case went to the same Assistant Settlement Commissioner who had by then become the Deputy Settlement Commissioner. By his order, dated 7‑4‑1961, he disposed of the property as under:‑

(a) One shop and the middle residential portion in possession of the appellants was transferred to Muhammad Shafi as, according to the Deputy Settlement Commissioner, it was above the shop transferred to him.

(b) The portion for which Bashir Muntazir had filed his N.C.H. form was transferred to him.

(c) The shop auctioned in favour of S.A. Durrani was not disturbed.

As the appellants were not a party in these proceedings, the order was passed without hearing them.

The revision filed by the appellants against the order, dated 21st of June, 1960 was taken up for consideration by the Settlement Commissioner on 24‑11‑1964. He held; firstly, that the appellants were eligible to seek for the transfer of the portions in their possession; and, secondly, that Muhammad Shafi was not entitled to more than one shop as he had not applied for the transfer of the residential portion, therefore, the P.T.D. issued in his favour was recommended to be cancelled. Further he entertained suspicion in regard to the procurement of certain orders. In this connection it would be pertinent to highlight his observations:‑

"From the perusal of the record and after hearing the parties I think that in accordance with the provision of section 21(1)(c) an order against which an appeal had been preferred cannot be reviewed. Two appeals had been filed against the order of Mr. Jaffery, dated 22‑2‑1960, which were pending when an order of sanction of review was sought from the Additional Settlement Commissioner on 7‑4‑1961 when the D.S.C. reviewed the order, dated 22‑2‑1960, the said order had already been confirmed in appeal by Ch. Nasrullah Khan on 21‑6‑1960. I also think that the order of Ch. Nasrullah Khan, Additional Settlement Commissioner has been taken out of the file as to clear the way for obtaining the order of review from D.S.C. It also appears from the record that Rehmatullah and Abdur Rehman had not been impleaded as a party in review proceedings or in appeal filed by Muhammad Shafi. Anyhow the residential house situated at the back of the shops could not have been transferred to Muhammad Shafi who is the occupant of the shop alone and had filed form C.S. The residential portion is a three storeyed independent house with a separate entrance from the lane and is worth less than Rs.10,000.

Having held so, he requested for permission from the Chief Settlement Commissioner to reopen the case, which was approved by the Chief Settlement Commissioner on 18th of December, 1964. The case was ultimately taken up by Khan Muqarrab Khan, Settlement and Claim: Commissioner, Lahore Division on 22‑3‑1968, who held as under:‑

"There is no denial of the fact that the petitioners had applied separately on L. H. forms for the transfer of the portions it their respective possession, but when the property has beer divided into various portions then value of each portion has go to be assessed separately. This aspect of the matter has not a all been considered by the learned lower Court and by the Deputy Settlement Commissioner.

The counsel for the respondent urged that the value of the portion in possession of the petitioners being above Rs.10,000 in value they were not entitled to the transfer thereof and that the same had rightly been transferred to the respondent as part of the shop. There is no force in this contention. The order of the Deputy Settlement Commissioner, dated 7‑4‑1961 is illegal and has been set aside by me as mentioned above."

He, accordingly, set aside the order of the Deputy Settlement Commissioner, dated 7th of April, 1961 holding further that the order of the Additional Settlement Commissioner, dated 21st of June, 1960, is also not maintainable and remanded the case for disposal of L. H. forms of the appellants to the Deputy Settlement Commissioner in respect of the portions in possession of the appellants and Muhammad Shafi. This order was challenged in Writ Petition No. 271‑R of 1968 by Muhammad Shafi which was allowed on 14‑2‑1,1974. The appellants sought a review of the order, but did not succeeds their application was dismissed on 28‑10‑1974. A Letters Patent Appeal was filed against this order, but that too was dismissed on 15‑4‑1975.

Leave to appeal was granted to consider whether:

(a) The High Court was in error in holding that the appellants' revision had been disposed of on 7‑4‑1961 before the 18th of December, 1964 on which date permission was granted for the cancellation of the P.T.D. issued in favour of Muhammad Shafi.

(b) The High Court had failed to notice that the order passed by the Assistant Settlement Commissioner was incompetent as he had no delegated authority to dispose of the property while holding that the order, dated 22‑2‑1960 was without jurisdiction.

(c) The order passed in review could not have been passed during the pendency of the revision application in contravention of proviso (c) to subsection (1) of section 21 of the Displace Persons (Compensation and Rehabilitation) Act, 1958.

(d) The High Court erroneously held that the middle residential portion exists "exactly on the shop" as held by the Deputy Settlement Commissioner in his order, dated 7‑4‑1961.

The learned counsel for the appellants urged that during the pendency of their Revision Application No. 258 of 1965 which was only disposed of by the order of the Settlement and Claims Commissioner, dated 22‑3‑1968, the Additional Settlement Commissioner could not on the appeal of Muhammad Shafi order for the review of the order, dated 22‑2‑1960 as there was an express bar by reason of proviso (c) to subsection (1) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In reply to this submission all that was urged was that as this revision was dismissed on 17th of April, 1961, but neither a copy of the order was produced before us nor any authentic material was shown to establish this fact. This being so there was a jurisdictional defect in the order of the Deputy Settlement Commissioner. dated 7th of April, 1961, and, therefore, it could not be the basis of any transfer of the middle residential portion in favour of Muhammad Shafi. Moreover, Muhammad Shafi had no entitlement to the transfer of the disputed portion as he was neither in possession nor independent he had applied for its transfer. This portion was separate and had round alone reconsideration of the eligibility of the appellants afresh, as was ordered in the order of the Settlement and Claims Commissioner, dated 22nd March 1968, cannot be disputed, moreso after the promulgation of Scheme No. VIII. In this view of the matter, the departmental counsel also supports the stand taken by the counsel for the appellants. As this question goes to the root of the matter, the contention that this point was not raised earlier is of no consequence as the question of jurisdiction can be raised at any stage of the proceedings. It is not, accordingly, necessary to specifically consider the other points on which leave was granted.

It was feebly urged that the appeal was beyond time, but on a verification of the dates on which the copy was applied and delivered, the petition filed was within time. Another objection taken was that the order passed in the writ petition was not challenged, but looking to the substance of the dispute and the points on which leave was granted, it was very much under challenge.

In the result, we would set aside the orders of the High Court, dated 14‑2‑1974, 28‑10‑1974 and 15‑4‑1975 and uphold the order, dated 22‑3‑1968 passed by the Settlement and Claims Commissioner. The case will now go to the Notified Officer under the repealed Act for determining the eligibility afresh in terms of this order.

M. Y. H. Case remanded.

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