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Constitutional Petition No. S. 52 of 1979, decided on 14th October, 1986.

‑‑‑Art. 199‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10‑‑Impugned order transferring shop in dispute to respondent passed on basis of consent given by son of petitioner representing petitioner‑‑Petitioner raising for first time plea that his son had given no consent‑‑Question of transfer of shop in favour of respondent involved a dispute of civil nature which could be resolved mutually by parties‑‑Interference declined in constitutional jurisdiction.

Khurshid Alam for Petitioner.

Nemo for Respondents.

Date of hearing: 14th October, 1986.

By this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the order, dated 30th January, 1979 passed by the Settlement Commissioner Sind at Karachi (the‑respondent No. 1) whereby, with the consent given on behalf of the present petitioner by his son Ali Bux, out of the two shops in dispute situated at Jehruck, Shop No. 103 was ordered to remain with its occupant Ghulam Ali (since deceased now represented by his legal representative) and the other Shop No. 102 was directed to be transferred to the petitioner against the auction price.

1. The facts briefly stated are that at the auction held on 13th February, 1960 the petitioner gave highest bid of Rs.1,300 for the purchase of the aforementioned two shops. Before the bid was approved an application was filed on 2nd July, 1960 by the respondents Ghulam Ali and Allah Bachayo praying for the transfer of the said shops to them on the basis of their occupation at an amount equivalent to the highest bid. The then Settlement Commissioner without notice to the auction purchaser by order passed on 2‑7‑1970 directed the petitioner that the said two shops be transferred to the said occupants at a price 10 more than the highest bid made therefor. The Deputy Settlement Commissioner by his letter, dated 19‑7‑1960 informed the applicant about the cancellation of his bid in view of the said order. Review application filed before the Settlement Commissioner by the petitioner in the circumstances was allowed and consequently the order of transfer of the said shops to Ghulam Ali and Allah Bachayo was set aside. It was further ordered that the auction already held in favour of the applicant should prevail.

The last mentioned order was challenged by Ghulam Ali and Allah Bachayo by filing Writ Petition No. 99 of 1964. The said petition was disposed of by a consent order passed on 5th April, 1966 which for the sake of reference is reproduced below:‑‑

"The learned Advocates 6r the parties agree that the order, dated 27th September, 1963 by the Settlement Commissioner should be quashed as he had no risdiction to review the order of his predecessor, in view of Ordnance II of 1962. In the result they propose that the Revision filed by the respondent Mahmood son of Ali Bux Memon should be disposed of on merit, after notice to the petitioner. I order accordingly."

(Sd. )

Chief Justice."

2. Pursuant to the order of t e remand, the Revision No. SCH‑3/ 78 Thatta, was heard by respondent, No. 1 after notice to all the parties and was disposed of by order passed on 30th January, 1979 the relevant portion of which is reproduced herein below:‑‑

"During the hearing of the case, Mr. Ali Bux the son of the applicant has consented that Shop No. 103 should remain ‑w h respondent No.2 and the Shop No. 102 ma be 'ven to him against the aforementioned Auction price. It is, therefore, ordered that the transfer in respect of Shop No. 102 may be finalised in favour of the applicant and that of 103 in favour of the respondent Ghulam Ali".

(The underlines have been made by me).

3. The petitioner after a lapse of 'over three months filed this petition on 15‑5‑1979 and has challenged, the transfer of Shop No. 103 to the respondent No. 2.

4. Mr. Khursheed Alam, Advocate for the petitioner has submitted that Ali Bux who represented the petitioner at the hearing before the respondent No. 1 had not given any consent to the transfer of Shop No. 103 to Ghulam Ali as mentioned in tae impugned order.

Learned counsel further contended that the consent of Ali Bux recorded in the impugned order was a result of some misunderstanding on the part of the respondent No. 1. It was also argued that the alleged consent given by Ali Bux could not be made a basis for the transfer of the said Shop No. 103 to Ghulam Ali or his legal representatives.

5. Having heard the learned counsel for the petitioner I find that no case for interference with the impugned order by this Court in exercise of its constitutional jurisdiction has been made out. It would A be observed that the impugned order was passed by the Settlement Commissioner allowing the Shop No. 103 transferred in favour of Ghulam Ali (since deceased) on the basis of the consent given by Ali Bux representing his father, the petitioner, at the hearing of the Revision Petition. Though the petitioner has now in this petition raised the plea for the first time that All Bux had given no consent as recorded by the Settlement Commissioner in his order, in my opinion such a controversial question of fact cannot be resolved in these proceedings by this Court in exercise of its constitutional jurisdiction. The question of transfer of shop No. 103 in favour of Ghulam Ali involved a dispute of civil nature which could be resolved mutually by the parties. The petitioner could not justifiably turn back upon the concession made/ consent given by his own son whose: authority to do so has not been disputed. The situation brought into existence by the petitioner/his representative himself in the circumstances therefore, cannot be allowed to be challenged by the petitioner hilmself by invoking the constitutional jurisdiction of this Court.

The upshot of the above discussion is that this petition is[ dismissed but the parties in the circumstances are left to bear their own costs.

M. Y. H. /5152/K Petition dismissed.

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