Find a Lawyer

Constitutional Petition No. S‑155 of 1981, decided on 29th September, 1986.

‑‑‑S. 2(2)‑‑Settlement Scheme No. I‑‑Transfer of evacuee property, cancellation of‑‑Order of Notified Officer cancelling transfer of evacuee property from name of petitioner, passed in complete disregard of directions given to him by High Court and without taking into consideration 'possession and eligibility of petitioner towards such property was set aside by High Court‑‑Writ was issued to Notified Officer for disposal in accordance with law after taking into consideration directions of High Court.

Maroof Ali Khan for Petitioner.

Respondent (absent).

Date of hearing: 29th September, 1986.

The petitioner through this petition has prayed for the following reliefs :---‑

"(1) Declare that the impugned order dated 2‑7‑1981 (Annexure K) being without jurisdiction is of no legal effect and consequences and be pleased to quash the same.

(2) Direct that on the basis of evidence on record, the predecessor -in‑interest being in possession and occupation, has been rightly transferred the shop premises bearing No. 7‑A‑219 Custodian No. I‑A‑429 Nawabshah and that the transfer documents issued in favour of the predecessor‑in‑interest of the petitioner are valid and subsisting.

(3) Declare and direct that the agreement dated 25‑1‑1960 duly acted upon and the consent order based thereon passed by the learned Assistant Settlement Commissioner, dated 26‑1‑1960 are binding and final, the respondent No. 2 being estopped from setting any adverse claim being an admitted and acknowledged tenant.

(4) Direct the respondent No. 2 to pay due rent to the petitioner as successor‑in‑interest and heirs of the original transferee and to hand over possession as per his undertaking.

(5) Give and grant such relief/reliefs as may be expedient in the interest of justice and circumstances of the case.

(6) Costs of this petition and costs all throughout."

The facts leading to the filing of the above petition are that the predecessor‑in‑interest of the petitioner since 1947 continued to be in possession of the shop premises bearing No. C.S. No. 7‑A‑219 which corresponds to Custodian No. 1‑A‑429, situated at Market Road, Nawabshah. It is the case of the petitioner that his predecessor‑in- interest continued to pay the shop tax to the Local Municipality since 1955. It is the case of the petitioner that due to close association with respondent No.2 the predecessor‑in‑interest permitted him as a licensee to use a portion of the shop in 1959 during the period when he was unable to attend the shop. It is the case of the petitioner that the Settlement Department recognized him as tenant and a demand bearing Bill No. M/441, dated 5‑11‑1959 was issued to him and he made the payments in instalments and the same amount was adjusted and on the introduction of Settlement Scheme No.l, the predecessor‑in‑interest of the petitioner applied in Form C . S. which as registered at Serial No. N . W . S‑II‑660 on 20‑5‑1959 and a P . T . O . was issued on 9‑11‑1956. It is the case of the petitioner that the respondent No.2 who had no entitlement surreptitiously filed Form C.S. for the transfer of the same shops although the same shop was not available for transfer. It is the case of the petitioner that while the dispute was pending before the Assistant Settlement Commissioner the parties patched up their disputes through intervention of the Arbitration Council and it was agreed between the parties that the petitioner's predecessor‑in‑interest agreed to pay Rs.500 as compensation to the respondent No.2 and allowed him as tenant for a period of three years at the monthly rent of Rs.10. The Assistant Settlement Commissioner brought the agreement on record and it was agreed between them that the respondent No.2 agreed to withdraw his C.S. No. 6 in favour of the predecessor‑in‑interest of the petitioner and by order dated 26‑1‑1960 the form filed by the respondent No.2 was disposed of. It seems that after lapse of four years the respondent No.2 filed Miscellaneous Application before the Deputy Settlement Commissioner which was filed by order dated 21‑1‑1964. The respondent No.2 filed an appeal against order dated 21‑1‑1964 which was allowed by order dated 3‑5‑1964. The predecessor‑in‑interest of the petitioner filed revision which was dismissed by order dated 31‑8‑1964. The petitioners predecessor‑in‑interest filed Constitutional Petition No. 843 of 1965 in this Court which was allowed and the case was remanded to the Settlement Commissioner for determination of possession vide order dated 18‑6‑1971. The petitioner's predecessor‑in‑interest filed L.P.A. No. 120 of 1971 which was allowed by order dated 18‑4‑1978. It is advantageous to reproduce para. of the judgment which reads as under:‑------

"Counsel, therefore, agrees that the case may be remanded, as ordered by the learned Single Judge, for consideration of the Additional question whether the appeal filed by respondent No.3, was barred by limitation, as was done by the Supreme Court in the above‑cited case. Both these questions shall be decided after notice to the parties and after giving them opportunity to lead evidence, if any. Counsel also request that as the matter is old, the authority may be directed to dispose of these questions expeditiously. "

The case on remand was heard by the respondent No. l and by his order dated 2‑7‑1981 was ordered to be transferred to the respondent No.2 according to the rules. The petitioner being aggrieved by the above order has filed the present petition.

In support of the above petition, it has been vehemently urged by Mr. Maroof Ali Khan, learned counsel for the petitioner that the respondent No.l has deliberately misconceived the directions of this Court.

The respondents were served with the hearing of this petition but they have chosen to remain absent.

It is an admitted position that the learned Division Bench of this Court remanded the case for the determination of two questions to the respondent No.l. A perusal of the impugned order would show that the respondent No.l has based his decision on the order dated 31‑8‑1964 and on the basis of the subsequent exclusive possession of the respondent No.2.

The respondent has completely disregarded the above‑mentioned directions. He has completely ignored this aspect of the case and has even transferred the shop to the respondent No.2 completely. Mr. Maroof Ali Khan has contended that the learned respondent has disregarded the question of limitation and the petitioner has never conceded before the learned Settlement Commissioner that the appeal was within time. The learned counsel has filed affidavit of the counsel who appeared before the respondent No.l and stated therein that he vehemently argued that the case was time‑barred. The grievance of the petitioner in this respect cannot be considered to be without foundation. The learned Notified Officer has not decided this appeal on any principle whatsoever.

The respondent has completely disregarded the directions of this Court and allowed the form of the respondent No.2. The respondent No. 1 has not touched the question of the possession of the shop prior to 20th. December, 1958. I, therefore, consider this as a fit case in which the impugned order should be set aside and the matter should be sent back to the Notified Officer for disposal in accordance with law. I have refrained to express any opinion on the merits of the case because it is likely to prejudice the either party.

Accordingly the constitutional petition is allowed. As a result a writ will be issued to the respondent directing the concerned Notified Officer under section 2(2), the Deputy Secretary, Evacuee Property, Karachi to reconsider the whole case in the light of the observations contained in the judgment dated 18‑4‑1978 and dispose of the shop in accordance with law, after notice to the parties. In the circumstances of the present case, the parties are left to bear their own costs.

H . B . T . Petition allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.