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Writ Petition No.510-R of 1981, decided on 19th October, 1986.

---S.10 & Sched.--Settlement Scheme No. VI--Constitution of Pakistan (1973), Art.199--Transfer of building site Application under Settlement Scheme No. VI--Limitation--Finding that application was within limitation being a finding of fact, could not be interfered with in exercise of constitutional jurisdiction--Settlement Authorities while dismissing . revision /petitions of contesting parties directing sale of property in dispute through auction--Predecessor-in-interest of petitioners meanwhile making application for sale of disputed property and after approval of Central Government property was sold to him- Matter having come before it through writ petition, High Court remanding case to Chief Settlement Commissioner to decide inter alia whether predecessor-in-interest of respondent had applied for transfer of property in dispute under Settlement Scheme No. VI within limitation--Commissioner exercising powers of Chief Settlement Commissioner finding that though application of predecessor-in-interest of respondent was subsequent to final date specified by Government, same was entertained on basis of Supreme Court decision in P L D 1965 S C 79 and holding that since he had been pursuing his case for allotment since 1952, his application was rightly entertained and his claim to the allotment of property in dispute was justified- application of respondent's predecessor-in-interest under Settlement Scheme No.VI not being within limitation, neither any order entertaining same shown nor application for condonation of delay ever filed--Record of Settlement Department also showing that application of predecessor -in-interest of respondent under said Scheme was rejected--Such order of rejection not having been challenged, matter was concluded and transfer under Settlement Scheme No.VI could not be ordered in favour of respondent's predecessor-in-interest--Fact that it was -not pleaded that application stood rejected or that notwithstanding "record examined" by offices; passing impugned order, he had not referred to said proceedings would only show lack of diligence in examining original record with care--Deficiency or default could not lead to disappearance of a fact and would not detract from reality that the application of respondent's predecessor-in-interest stood rejected and that order never having been challenged had become final under the law--Property in dispute having been sold in favour of their predecessor-in-interest by Central Government some 25 years ago, petitioners, held, were entitled to have it in peace--Impugned order ,declared to be without lawful authority and of no legal effect.

Altaf Hussain v. C.S.C. P L D 1965 S C 79; Altaf Hussain v. C.S.C. P L D 1965 S C 68 and Ch.Sadiq Ali v. Settlement Commissioner, Lyallpur and .6 others 1977 S C 1W R 440 held not applicable.

Muhammad Ahmad Hassan for Petitioners.

S.M. Zafar with Azhar Sheikh for Respondent No.2.

Shahzad Jehangir for the Settlement 'Department.

Dates of hearing: 6th, 7th, 12th, 13th, 18th and 19th October, 1986.

A quarter of a century has gone by regarding the' dispute for the disposal of a portion of the property No.S.II-14-S.9, Fiaz Street, Anarkali, Lahore. One Maula Bakhsh, no more a contestant was in possession of a shop in the said property. He filed C . S. form. Sh. Fazal Elahi & Co. respondent No.2 filed LH form. The Deputy

Settlement Commissioner transferred the shop to Maula Bakhsh b ; directed the rest of the property to be put to auction, vide orclc: dated 16-3-1960.LH form of the respondent was rejected The respondent did not challenge the order any further. Maula Baksh filed an appeal and case was remanded by the Additional I3eh;ibilittation Commissioner on 1-4-1960 with the direction that Maula Bakhsh's entitlement for the whole of the property be examined. In pursuance thereof, the Deputy, Settlement Commissioner transferred him the entire property vide order dated 28-4-1960.

2. The case of the respondent No.2 is that he filed an application No.17-3-60 for transfer of the disputed portion under Settlement Scheme No.VI. This is also a finding in the impugned order. This application was placed on record at page 186 of the paper book in the earlier litigation, before the Supreme Court and the learned Supreme Court at page 7 of its judgment noted that "it bears no date". It may also be noticed that when the respondent filed an appeal the order of the Deputy Settlement Commissioner dated 28-4-1960 the respondent did not mention filing of the aforesaid application under Settlement Scheme No. VI. However, his appeal was taken up by Raja Muhammad ' Ziaullah Khan, Addl. Settlement & Rehabilitation Commissioner, Lahore, who in para 5 of his order observed that:

"When I inspected the spot the other day find that the position was different than what had been described in the file by the officials. There were two shops old structure standing side by side on the North. There was a small store house 16x10 sq.ft. on the extreme South East corner. The rest of it was a vacant site. As alleged by the appellant, I found no new construction on it. It appears that they had effected some alterations in the old shop in their possession but the construction was not new at all. If the shop and the store house are taken as constructed by the appellant, even then the area under the construction was too small as compared with the entire area of the plot and, therefore, they were not entitled to its transfer under Scheme No.VI".

However, he disallowed Maula Bakhsh of the disputed portion and directed it to be sold through auction. This is vide order dated 9-3-1961. Both Maula Bakhsh and the respondent No.2 filed revision petitions. The former was declined transfer being not in possession and having not applied vide order dated 24-7-1961 and the latter's revision petition was dismissed on the ground that:

"It is conceded that he was never permitted by the Rehabilitation authorities to make any construction, nor he obtained sanction of the Corporation for making any construction. He has no documentary evidence to establish that actually he made some construction on this plot. I am of the view that this local has come up in revision to grab this evacuee property to which he had no title whatsoever."

This is vide order of Khan Farzand Ali Khan, Settlement Commissioner, Lahore dated 16-8-1901.

3. On the application of Abdul Haleem Khan (since. deceased and represented by his heirs, petitioners No.1 to 12) for sale of the disputed property, the Central Government in exercise of powers under Clause (B) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, vide order dated 17-10-1961 accorded approval for sale of the property to him "on payment of the average auction price of similar property in the locality on the conditions that:--

(1) the property in question is not transferable to any person under the provisions of the schedule to the Displaced Person (Compensation and Rehabilitation) Act, 1958 and,

(2) that the price of the property as aforesaid is recovered before the transfer is effected."

Transfer price was paid on 21-1-1962 and the Chief Settlement Commissioner sold the property to Abdul Haleem Khan on 27-1-1962.

4. Against the orders of Khan Farzand Ali Khan, Settlement Commissioner, Lahore dated 24-7-1961 and 16-8-1961. Maula Bakhsh had filed revision petition and so also respondent No.2. Mr. Muhammad Rafiq, Settlement & Rehabilitation Commissioner/ Chief Settlement Commissioner rejected the revision petition of Maula Bakhsh and allowed that of the respondent No.2. As regards Abdul Haleem Khan, the petitioners' predecessor-in-interest, who had got himself impleaded, it was observed that "he has already been transferred another plot". This is vide order dated 21-5-1962. It may be noted that the plot referred had been lost by Abdul Haleem Khan in Appeal No.107 of 1966 Mahmood Khan v. Abdul Haleem Khan decided by the Settlement Commissioner, Lahore on 14-6-1968. Further that the plot in question was being sought on the basis of approval of sale by the Central Government which was not taken into account. The order of the Chief Settlement Commissioner dated 21-5-1962 was challenged through Writ Petitions No.1032-R of 1962 and 1135-R of 1962; the first by Maula Bakhsh and the second by Abdul Halim Khan. It was allowed by a learned Single Judge late Mr. Justice Jamil Hussain Rizvi with the following directions that:

"The Chief Settlement and Rehabilitation Commissioner will please inspect the spot and compare the map of 1946 issued from the Corporation with the building now in existence. He will also determine whether 1/4th of the total area of the site in dispute has been constructed by Fazal Elahi, respondent No.2 or whether it was an old evacuee building, and whether the site in dispute fell within the definition of a building site, as defined in the Act. The learned Chief Settlement and Rehabilita tion Commissioner will please ask a senior officer of the P. W. D. to inspect the spot and prepare a map and give evidence in regard the age of the different buildings on the whole of the property. He will please also decide whether Fazal Elahi had applied for the transfer of the property in dispute under Scheme No.VI within limitation."

This is vide order dated 14-10-1963. Respondent No.2 challenged the order by means of a Letter Patent Appeal No.452 of 1963 which was dismissed in limine by a learned Division Bench vide order dated 11-12-1963. This was challenged by the respondent No.2 through two Civil Appeals Nos.48 and 49 of 1964. These were dismissed with costs vide judgment of the learned Supreme Court of Pakistan dated 16-10-1967.Civil Review Petitions No.80 & 81 of 1967 were also dismissed on 18-3-1968. In pursuance of the order of remand of the learned Single Judge as upheld throughout, the matter was taken up by Mr. Imar Khan Afridi, Commissioner, exercising the powers of Chief Settlement Commissioner, Lahore Division, Lahore who has passed the following order as far as relevant for the disposal of this petition:

"Direction V. This issue has been examined and the date of application under Scheme No.6 has been determined as 17-3-1960. The Government instructions on the subject indicate 30 November, 1959 as the last date of receipt of applications vide their Notification No.1042-F & M-Reh/59, dated 12th November 1959. It will, therefore, be seen that the application by Fazal Ilahi was subsequent to the final date specified by the Govt. However, his application was entertained on the basis of certain rulings given in P L D 1965 SC 79 (Altaf Hussain v. CSC). In view of this and the fact that Fazal Ilahi had been applying for the transfer of this particular plot since 1952 and was also allowed provisional allotment in the same year, combined with the fact that throughout the interven ing period he has been pursuing the case for allotment at various forums and levels, I am of the opinion that his applica tion was rightly entertained.

(6) Another important aspect of this case is the fact that this site was applied for by Fazal Ilahi and Maula Bakhsh in his initial application did not include this site in his claim. It was only after Fazal Ilahi's right to this allotment was disputed by the Settlement Authorities that Msula Bakhsh levied his claim. In view of the foregoing I find that the claim of Fazal Ilahi to the allotment of this plot is justified. As far as Abdul Haleem is concerned his claim becomes infructuous in view of the validity attached to Fazal Ilahi's allotment:"

This is vide order dated 3-5-1981. This is challenged by the heirs of Abdul Halim Khan through the afore-titled Constitutional petition. '

5. On receipt of reply to the notice that Sh. Fazal Elahi had died, an application (C . M . 2 of 1981) under Section 151 C . P: C . read with Order VI, Rule 17, C.P. C. for bringing on record his legal representatives, was filed. It was opposed on the ground that he had died much earlier than the filing of the writ petition'. It may, however, be noted that he had died before the impugned order in his favour, and litigation had gone on. Moreover, his name appeared as "Sh. Fazal Elahi & Co." The-firm which admittedly is registered continues to exist and is being represented. The learned counsel appearing for it does not oppose the application. Therefore, the application is allowed and the petition shall proceed vis-a-vis the firm.

6. Coming to the crux of the problem, the contention of the learned counsel for the petitioners, though he had made soft sub missions in respect ' of the other aspects of the case, is that the aforequoted finding that the application of the respondent No.2 under. A Settlement Scheme No.6, was within limitation, is without basis.

7. Learned counsel for respondent No.2 submitted that the finding is one of fact recorded after perusal of the record and is, therefore not interferable in exercise of Constitutional Jurisdiction. Secondly, that no limiting date could be fixed for filing of applications and any application filed after such a date could be determined as held in the case relied upon by the learned Officer in the impugned order, Altar Hussain v. C.S.C.(P L D 1965 S.C 68) read with Ch. Sadiq Ali v. Settlement Commissioner, Lyallpur and 6 others (1977 S C M R 440).

8. The case was heard on a number of occasions whenever the learned counsel for the parties were available and record from .the Settlement Department produced by its counsel was gone through page by page in its entirety. Before proceeding on the point in issue, it may be stated that the learned counsel for the respondent No.2 is quite right as regards the legal proposition--based as these are on the judgments of the learned Supreme Court of Pakistan: Facts leading to these propositions may, however, be noted. In the first case of Altaf Hussain (P L D 1965 SC 68) the facts were that Ch. Altaf Hussain had first filed CH form on 15-7-1959 (before the pres cribed date) on the basis that his son and other members of the family were occupying part of the house and his son was an allottee of -the part. On behalf of the other contestant Mr. Shabbir Hussain's CH form was filed on the basis of his possession under an allotment order. Losing appeal being indirect claimant as against a direct claimant, Ch. Altaf Hussain filed an application on 1-12-1959 (after the prescribed date) before the Settlement Commissioner praying as noted in the judgment of the learned Supreme Court "for permission to withdraw his previous CH form and to substitute it by a new one, In which he claimed on the twin grounds that he was himself an allottee of one room in the house and that his son, who was in possession of part of the house, was allottee of that part. Mr: Bashir Ahmad who was then Settlement & Rehabilitation Commissioner (Policy) passed an order on it to the effect that the new form may be entertained and decided on merit. This was forwarded, in- consequence, to the Deputy Settlement & Rehabilitation Commissioner, Lahore Cantonment, for disposal and that Officer, formally admitted it." Three points may be noted; firstly, that Ch. Altaf Hussain had filed the first form within the prescribed period; secondly, In the second form he was asking to add certain facts to strengthen .his case on his own footing and thirdly and more importantly, the second form after the prescribed date, was entertained by the Settlement Commissioner (Policy) and was duly admitted by the Deputy Settlement Commissioner. In the second case Ch' Sadiq Ali v. Settlement Commissioner, Lyallpur and 6 others (1977 S C M R 440) the facts were that the appellants in C . A . No.100 of 1970 had submitted the prescribed forms (under Settle ment Scheme No. VI), alongwith the applications for condonation of delay to the Chief Settlement Commissioner for transfer of the quarters in their occupation. The Chief Settlement Commissioner called for the comments which were never submitted and that the entire property alongwith the quarters was transferred. When in subsequent litigation, the transferee of the entire property lost the quarters and appealed (C . A . No.72 of 1970) against the orders, the learned Supreme Court upheld the finding that the main building and quarters were separate and independent entities. Therefore, the transferee of the main building was rightly not transferred the separate and independent unit consist ing of the quarters by the Settlement' authority. After dismissing the appeal (C.A.No.72 of 1970), the contention of the learned counsel for the appellant that the quarters could not be transferred to other appellants in C . A . No.100 of 1970 because their forms were filed after the prescribed date, was repelled on ,the ground that there was no time limit for filing these forms and those were entitled to be considered. Two points may be noted; firstly, that the person seeking transfer of the disputed quarters was found not entitled thereto on the ground that the quarters were separate and independent unit. Therefore, he had no right to question the transfer of quarters to others. Secondly, that the applicants of the quarters had filed 'forms' before the Chief Settlement Commissioner with applications for condonation of delay in filing the forms after the prescribed date and the Chief Settlement Commissioner had entertained the applications and called for reports.

9. Now coming to the facts of the case in hand, it may be noted that the respondent had based his claim for transfer under Settlement Scheme No.VI on his application dated 17-3-1960 this is the date determined in the impugned order as well. A copy of the application was submitted in the previous litigation before the learned Supreme Court of Pakistan at page 186 of the paper book. The learned Supreme Court at page 7 of judgment, line last but four had observ9d that the application "bears no date". The learned Officer passing the impugned order has noted 'Record Examined' and observed that "the date of the application under 'Scheme No.6 has been determined as 17-3-1960" . He has given no reason for so-determining. Record is said to have been examined but no reference is made to the chapter, verse or page. In fact, there is no application on record under Settlement Scheme No.6 of the said date viz, 17-3-1960. The finding is clearly without basis.

10. The application on which the respondent relied and copy of which was placed on page 186 of the paper book about which the learned Supreme Court had observed that it 'bears no date' is at page 115 of file No.17 of the Settlement Department. It was marked on to the officers in the month of June, on 7/7, and 8-7-1960 when it was diarized at No.13793. Learned counsel for the respondent con tended that even if the application was not filed on 17-3-1960, it was nonetheless filed before sale in favour of the predecessor-in-interest of the petitioners was approved by the Central Government on 17-10-1961, therefore, the transfer in favour of the respondent is quite correct and question of limitation in filing the application does not arise. Two comments may be offered. On the last submission first Question of limitation does arise as for it determination the case was remanded by the learned Single Judge and this direction .was upheld throughout. Whatever the date of the application, whether 17-3-1960 as found in the impugned order or any subsequent date in the month of June, 1960, the application was out of time as found by the learned Officer in the impugned order as well when he said that "This issue has been examined and the date of application under Scheme No.6 has been determined as 17-3-1960. The Government instructions on the subject indicate 30 November, 1959 as the last date for receipt of applications vide their Notification No.1042-F & M-Reh/59 dated 12th November, 1959. It will, therefore, be seen that the application by Fazal Ilahi was subsequent to the final date specified by the Govt." Actually the case was remanded to him to determine whether Fazal Din & Co. had applied for the transfer of the property in dispute under Settlement Scheme No.VI within limita tion. Having found that the application was not within limitation, the learned Officer should have decided the matter accordingly. However, he proceeded to observe that the "application was entertained on the basis of certain rulings given in P L D 1965 SC 79 (Altaf Hussain v. CSC). Now this is obvious that the application was not 'entertained' in accordance with the said rulings of 1965 because the application was undeniably filed in 1960. The contention of the learned counsel for the respondent No.2 that the principle of the rulings was applied for, is far-fetched. That principle was not known to the Settlement authorities at that time. It may also be observed that the learned Officer does not appear to be conversant even with the vocabulary of the relevant laws a3 he observes that "In view of this and the fact that Fazal Ilahi had been applying for the transfer (underlying mine for emphasis here in italics) of this particular plot since 1952 and was also allowed provisional allotment in the same year, combined with the fact that throughout the intervening period he has been pursuing the case for allotment at various forums and levels. I am of the opinion that his application was rightly entertained." Now the respondent No.2 could not have applied for the "transfer" of the plot since 1952 because the law regarding 'transfer' came into being only in 1958 with the promulgation of Displaced Persons (Com & Reh.) Act, 1958. In the second observation that "the intervening period he has been pursuing the case for allotment at various forums and levels," shows misconception of the pursuit of the respondent because the latter was not pursuing the case for 'allotment' Which matter related to the Pakistan Rehabilitation Act, 1956 but for 'transfer' under the aforenoted Act of 1958. The contention of the learned counsel for the respondent that 'no prescription in limiting the date of filing the application could be made, is correct as far .it goes. However, regarding belated application forms filed after the prescribed date regulatory procedure could be prescribed and it- has always been that an application for condonation of delay would be filed before the Chief Settlement & Rehabilitation Commissioner and thereafter the application/ form would be processed on its merits. It is undisputed that no application for condonation of delay has ever been filed by the respondent. In the two cases relied upon by the learned counsel for the -respondent No.2 of the learned Supreme Court of Pakistan the facts were that in the first case CH form in the first instance was filed within prescribed time and when second form to add a further ground after the prescribed date was filed, the Settlement Commissioner (Policy) had passed an order to entertain the form and in the second., case the application before the Chief Settlement Commissioner for condonation of delay was processed. In the present case there was neither any order nor any application for condonation of delay. Secondly, and fatally is the fact that the application whatever the date and whether within limitation or not, had been processed in the months of June/July, 1960. From the file aforementioned Part 17 at page 119 in red it will appear, that there is a statement of the respondent that the plat in the aforesaid property measuring 14 marlas 184 sq. ft, was allotted to him and that he was prepared to pay the fixed price. Thereafter, a report at page .117 in favour of the respondent for transfer on 50 auction price was submitted by a Settlement Inspector on 9-7-1960. The Officer asked for the relevant file to be placed. The file alongwith a report at page 118 was submitted. The report is to the following effect:

"The file for property No.SII 14S/9 was made available to me today (i.e. 11-7-1960) by the Record keeper (Mr.Jamil). Necessary orders with regards to the transfer of this property have already been passed by the former D.S.C-II LHR. (Aga Aziz Ahmad) on 28-4-1960 in favour of Maula Bux. No action can, therefore, be taken by this office in this case.

Submitted for information pl."

The D.S. C. recorded "Seen" on 11-7-1960, and the file was sent to the Record keeper. From these facts it is quite clear that the application of the respondent No.2 under Settlement Scheme No.VI stood rejected. The order dated 11-7-1960 has never been challenged. Therefore, the application having been rejected and the order of rejection having never been challenged, the matter is concluded and the transfer under Settlement Scheme NO.VI could not and cannot be ordered in favour of respondent No.2. The fact that it was not pleaded that the application stood rejected or that notwithstanding "Record examined" by the Officer passing the impugned order, he had not referred to these proceedings, would only show lack of diligence in examining the original record with care. Deficiency or default cannot lead to disappearance of a fact and would not detract from the reality that the application of the respondent stood rejected when it was approved that action could be taken thereon and the order having never been challenged had become 'final' under the law. In these circumstances the property in dispute having been sold in, favour of the predecessor-in-interest of the petitioners by the Central Government in exercise of its. powers some 25 years ago, they are entitled to have it in peace.

11. In view of what has been stated above, the impugned order is declared to be without lawful authority and of no legal effect. The petition is allowed with costs throughout.

S.Q./A-186/L Petition allowed.

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