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Writ Petition No. 271/R of 1962, decided on 1st October 1962.
‑Case transferred by administrative order from one Court to another pending ex parte proceedings against defendant ‑ Defendant entitled to notice after transfer‑High Court Rules and Orders (Lahore) Vol. I, Ch. XIIl, para. 6 Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 20.
Krishen Lal Malhotra v. Madan Lal and others P L D 1950 Lah. 82 rel.
‑ Principles of ‑ Maxim : audi alteram partem (nobody should be condemmed unheard) ‑ Applicability.
Saeed Akhtar and Agha Taj Muhammad for Petitioners.
Abid Ali Bhuttar for Respondents.
Dates of hearing : 9th and 10th July 1962.
Briefly, the facts out of which this writ petition has arisen are as follows. Bungalow No. 45 on Mozang Road has an annexe No. 45‑A. The annexe was allotted to Mr. Shahid Husain while the main bungalow was on the Secretariat pool. The Estate Officer used to allot it to different Government Officers. Both of these houses were transferred by the Deputy Settlement Commissioner to Mr. Shahid Hussain by his order dated the 8th of January 1960. Pir Salah‑ud‑Din, on his transfer to Lahore took possession of House No. 45 on the 30th of June 1960, under orders of the Estate Officer. It is alleged that on the 3rd of November 1960, Mrs. Salah‑ud‑Din sent a C H Form to the Deputy Settlement Commissioner for the transfer of the bungalow.
2. On the 21st of December 1960, the petitioners applied to the Chief Settlement and Rehabilitation Commissioner that the property had been irregularly transferred to Mr. Shahid Hussain as it consisted of two independent houses and Mr. Shahid Hussain was entitled to the transfer of house No. 45 A only. The petitioners asked that house No. 45 be taken away from Mr. Shahid Hussain and transferred to them as informers. This application was registered in the office of the Chief Settle ment and Rehabilitation Commissioner on the 9th of January 1961, and it was sent to the office of the Director of Enforcement for enquiry where it was received on the 11th of January 1961.
3. On the 23rd of November 1960, Mrs. Salah‑ud‑Din respondent filed a miscellaneous application in the Court of Mr. Ghulam Jilani, Additional Settlement Commissioner (Judicial), praying that her C. H. Form be disposed of expeditiously. The Additional Settlement Commissioner (Judicial) treating the application as an appeal, accepted it and declared the annexe and the house to be two units. The transfer of house No. 45 in the name of Mr. Shahid Hussain was cancelled and the case was remanded to the Deputy Settlement Commissioner for transfer of the house to the eligible candidate. The copy of that order is Annexure B'. The Deputy Settlement Com missioner, vide order dated the 28th of January 1961, (Annexure C'), held respondent No. 3 as ineligible for the transfer of the house and directed that the same be put to auction. Respondent No. 3 filed an appeal which was accepted by Mr. Ghulam Jilani, Additional Settlement Commissioner, by his order dated the 7th of March 1961, (Annexure D'), who ordered the transfer of the house to respondent No. 3, Mr. Shahid Hussain filed a revision petition against this order and Mr. Farzand Ali Khan, Settlement and Rehabilitation Com missioner, by his order dated the 9th of May 1961, (Annexure E'), set aside the order and remanded‑ the case to the Additional Settlement and Rehabilitation Commissioner. The petitioners had joined in this revision petition on the ground that they had informed the Settlement authorities about the illegal transfer of two properties in favour of Mr. Shahid Hussain and were, there fore, interested in the petition.
4. Mr. Shahid Hussain raised the following contentions before Mr. Farzand Ali Khan :‑
(1) That the appeal filed by respondent No. 3 in the lower Court was time‑barred and that no application for the exten sion of limitation under section 5 was 'led with the appeal and that there was no order of the lower Court condoning the delay.
(2) That respondent No. 3 came into possession of the house after the target date, i.e., the 20th of December 1958, and, therefore, could not seek its transfer through her C. H. Form.
(3) That the property had already been transferred to him when the Estate Officer allowed its occupation by the husband of respondent No. 3 as a Government Officer. That she could not apply for the transfer on the basis of the possession of her husband.
(4) That she had submitted her C. H. Form in November 1960, when the property had already been transferred to Mr. Shahid Hussain on the 8th of January 1960.
(5) That the property was one unit.
5. The petitioners raised the following contentions: ‑
(1) That the order of the transfer in favour of respon dent No. 3 was illegal as it was passed without impleading them as respondents.
(2) That the husband of respondent No. 3 had already got a house transferred in his name at Montgomery and that the petitioner could not claim the transfer of another house at Lahore.
They also supported Shahid Husain in his other allegations against respondent No. 3, except that the two houses formed one unit. It was also alleged that the Additional Settlement Com missioner had shown undue haste in deciding this case, ignoring hundreds of similar other cases which were pending in his Court.
6. Mr. Farzand Ali did not accept the contention of Mr. Shahid Husain that houses No. 45 and No. 45‑A consisted of one unit. As regards the other contentions, the learned Settlement Commissioner remarked that the appeal of Mst. Amatullah Begum, respondent No. 3, was disposed of by the Additional Settlement Commissioner without hearing the other interested parties, that they were not even impleaded as parties and that the case was disposed of in haste by giving priority to this case without any cogent reasons. Consequently, the case was remanded to the Additional Settlement Commissioner for re‑decision after hearing all the interested parties. The case thus came back to the Court of the Additional Settlement Com missioner. The petitioners applied to the Additional Settlement Commissioner that the enquiry papers regarding the information sent by the petitioners be summoned from the office of the Director of Enforcement. The Additional Rehabilitation Com missioner did not pass any orders on this application. Thereupon the petitioners applied to the Chief Settlement and Rehabilitation Commissioner who directed the Additional Settlement Commis sioner to send for the file from the office of the Director of Enforcement before deciding the case.
7. Respondent No. 3 filed a revision petition against the order of Mr. Farzand Ali and it came up for a hearing before Malik Fateh Khan on the 11th of November 1961. Malik Fateh Khan, due to his illness, did not work on the 11th of November 1961, and the case was adjourned to the 23rd of December 1961, by the Reader. It came up before Ch. Sultan Mahmood, Settlement and Rehabilitation Commissioner with the powers of the Chief Settlement Commissioner, who accepted the revision petition and directed that the property be transferred to respon dent No. 3 (Annexure J'.) It is against this order that the present writ petition is directed. This may be mentioned here that Mr. Shahid Hussain filed a writ petition against the order depriving him of house No. 45, but he did not succeed. His Letters Patent Appeal was also dismissed.
8. In this writ petition the petitioners have raised the follow ing contentions :‑
(1) That the Chief Settlement and Rehabilitation Commis sioner had passed the impugned order without notice to the parties.
(2) That the revision petition before the Chief Settlement and Rehabilitation Commissioner was barred by time and that although there was an application for the condonation of delay but no order condoning the delay was passed by the Chief Settlement and Rehabilitation Commissioner.
(3) That Ch. Sultan Mahmood had no jurisdiction to hear that case as the area of the Civil Lines was within the jurisdiction of Sh. Muhammad Rafique, another Rehabilitation Commissioner exercising the powers of the Chief Settlement and Rehabilitation Commissioner.
(4) .That the respondent, Mrs. Salah‑ud‑Din, was not eligible to apply for the transfer of the house as she came into possession of the house on the 30th of June 1960.
(5) That even if she was entitled to file a transfer application, she was not entitled to the transfer of the house in dispute, as she did not possess the requisite qualifications for filing a belated form. Her husband having come into possession of the house in dispute under the orders of the Estate Officer, could not be considered as having come into possession of the house under the orders of a competent authority. The house on that date had already been transferred to Mr. Shahid Hussain and was no longer in evacuee pool. Consequently, the order of the Estate Officer could not be regarded as an order of a competent authority.
(6) That as the husband of respondent No. 3 has an evacuee house transferred in his name in Montgomery, she could not claim the transfer of another house on the basis of the possession of her husband.
9. All these contentions have been controverted by Pir Salah‑ud‑Din who holds a power‑of‑attorney on behalf of his wife. I do not consider it necessary at this stage to pass any orders on the merits of these contentions, as I consider that Ch. Sultan Mahmood was not justified in passing orders in revision without hearing all the interested parties. Pir Salah‑ud -Din on behalf of the respondents contended that all the parties were present in the Court of Malik Fateh Khan on the 11th of November 1961, and the case was adjourned to 23rd of December 1961, in their presence. It was, therefore, not necessary to send them any fresh notice. It is contended on behalf of the peti tioners that Malik Fateh Khan, who was the presiding officer on the 11th of November 1961, retired the next day and under executive orders of the Chief Settlement and Rehabilitation Commissioner, his cases were distributed amongst several Rehabi litation Commissioners with delegated powers of the Chief Settlement Commissioner. It was, therefore, necessary for Ch. Sultan Mahmood when the case came up before him on transfer from the Court of Malik Fateh Khan that he should have issued notices to the parties concerned. Ch. Sultan Mahmood was undoubtedly not a successor‑in‑office to Malik Fateh Khan. Before the hearing of the case by him one Mr. Shamshad, son of Wahida Begum, represented to Mr. Sultan Mahmood that the parties had not been served for that date. Ch. Sultan Mahmood in his order remarked:
"Pir Salah‑ud‑Din, husband of the petitioner, is present, while none of the respondents is present, although they were supposed to be here today. Mr. Shamshad, son of Waheeda Begum, has appeared before me and stated that the parties have not been served, but from the order of the Chief Settle ment Commissioner, dated 11‑11‑1961, it appears that the parties were present on that date and they were directed to be here to‑day. Therefore they will have no grudge if the case is decided in their absence."
Thereafter he decided the case on merits, but without saying a word as regards the condonation of delay in filing the revision petition. The learned counsel for the petitioners relied on Krishen Lal Malhotra v. Madan Lal and others (P L D 1950 Lah. 82) and urged that the case was adjourned by the Reader of Malik Fateh Khan, who was not competent to pass any orders. Moreover, the Court of Ch. Sultan Mahmood was not a successor Court of Malik Fateh Khan and the cases pending in the Court of Malik Fateh Khan were transferred to different Courts. It was, therefore, essential for the presiding officer to order issuance of fresh notices to the parties. The order passed by the Additional Settlement Commissioner was set aside by the Rehabilitation Commissioner, Mr. Farzand Ali Khan, on the ground that the parties were never heard by the Additional Settlement Commissioner. He wanted that all the points that were raised before him, including the question that if a husband had already got a house trans ferred in his name, on his occupying a second house, whether his wife could avail of his possession of the second house and claim the transfer of the second house. All these matters were very important and should have been specifically dealt with by Ch. Sultan Mahmood in his order. He did not deal with all the points due to the reason probably as there was nobody to raise these contentions specifically before him. The fact that the revision petition was filed after the expiry of the period of limitation also seems to have escaped his notice. It is admitted that Mr. Salah‑ud‑Din, when he was posted as Additional Deputy Commissioner, Montgomery, got a house transferred in his name as a refugee. After that he was transferred to Lahore and he came into possession of this house under orders of the Estate Officer. The question whether in these circumstances his wife could avail of the temporary possession of her husband and claim the transfer of this house is a very important question. It is contended by Pir Salah‑ud‑Din that on the basis of Memo. No. 3223‑P. 1‑Reh./60, dated the 7th of March 1960, if a house is in possession of the husband in pursuance of the order passed on or before the 20th of December 1958, by a competent authority, the wife, if staying with him, will also be deemed to be in possession. Consequently, his wife was competent to apply for transfer of the house. This contention is opposed by the petitioners on the ground that Pir Salah‑ud‑Din had never been in possession of this house on or before the 20th of December 1958, while the latter contended that the date for filing of the applications for transfer having been extended to the 30th of September 1960, the same date should be regarded as one for the purposes of memorandum dated the 7th of Mach 1960, referred to above. However, Pir Salah‑ud‑Din in case the two of them cannot hold two houses has offered to surrender the house at Montgomery.
10. I have already remarked that I do not propose to pass any final orders on all these contentions, because I am of the view that it was incumbent upon Ch. Sultan Mahmood to issue notices to the interested parties. The transfer of the Bungalow in this case is in favour of a highly‑placed Government servant who has already got another house transferred in his name. It was being complained against the Additional Settlement Commis sioner that he had passed orders in the case with undue haste without hearing the interested parties. I think that the same thing has happened even in the Court of Ch. Sultan Mahmood. In the ruling referred to above, it has been remarked that when a case is transferred by an administrative order from one Court' to another while ex parte proceedings are pending against the defendant, the latter is entitled to notice after the transfer inasmuch as he is still a party to the litigation within the' meaning of para. 6, Chapter XIII, Volume I, High Court Rules and Orders, when such a notice is not given, the proceedings taken against the defendant since transfer will be set aside. The observations in this authority apply with full force to the. facts of the present case. The fact that Ch. Sultan Mahmood also occupied the same room which was previously occupied b y Malik Fateh Khan would not make any difference. After the retirement of Malik Fateh Khan on the 12th of November 1961, the parties were entitled to wait for a notices from the Court which would hear it on transfer to that Court. The principles of natural justice demand that nobody should be condemned unheard. I would, therefore, accept this petition and quash the order passed by Ch. Sultan Mahmood on the 23rd of December 1961. The case would go back to some officer other than Ch. Sultan Mahmood exercising the powers of the Chief Settlement and Rehabilitation Commissioner. The parties will bear their own costs.
K. B. A./A. H.
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