MUHAMMAD ISHAQ vs ABDUL QAYYUM AND. ANOTHER
This matter arises from a petition for leave to appeal against a judgment of the Lahore High Court, which directed the Settlement Authorities to reconsider the entitlement of respondents for the transfer of a disputed house. The petitioner had originally secured the transfer of the property on the sole ground of being a claimant. However, subsequent proceedings before the Claims Commissioner established that the petitioner's claim verification was fraudulent and he was an imposter, resulting in the cancellation of his verified claim and compensation book. Although initial litigation protected the transfer of the house as not being a direct consequence of the claim verification, the Supreme Court ultimately restored a judgment that left the question open for the Settlement Authorities. The core legal question was whether the transfer of property based on a fraudulent claim could be re-examined and whether the matter was a past and closed transaction. The Supreme Court held that the matter was not past and closed, and the Settlement Authorities were fully competent to re-examine the petitioner's entitlement since his initial preference was entirely based on his status as a claimant. The petition was accordingly dismissed.
- Whether the transfer of evacuee property obtained on the basis of a fraudulent claim can be reconsidered by the Settlement Authorities?
- Does a finding by the Claims Commissioner that a person is an imposter affect their entitlement to property transferred on the basis of being a claimant?
- Can proceedings regarding the transfer of property be treated as a past and closed transaction when the foundational claim has been set aside by superior courts?
- Section 14, Claims Act
ORDER
' SHAFI-UR-REHMAN, J.-Muhammad Ishaq, the petitioner, seeks leave to appeal against the judgment of the Lahore High Court dated 26-11-1977 in a Constitutional petition whereby the entitlement of the applicants for the transfer of House No, SW-III-62-S-3, Krishan Nagar, Lahore, is required to be reconsidered by the Settlement Authorities.
2. The property in dispute is a small house held indivisible by an order dated 9-1-1960. The petitioner was held by the Deputy Settlement Commissioner to be entitled to its transfer on the sole ground that he was a claimant and the respondents were not. The appeal to the Addl.
Commissioner failed for the same reason. The revision petition before the Settlement Commissioner was dismissed in default and an effort to get it restored failed on 16-7-1968. The refusal to restore the revision petition was challenged by a Constitutional Petition (W. P. No, 971- R/68) and in L. P. A. (272/68) but there was no success. The petitioner therefore emerged as the successful transferee of this property on the strength of the property being indivisible and on the ground of his being a claimant.
3. On a complaint by one Allah Bakhsh his status as a claimant was examined in great detail by the Claims Commissioner who, by an order dated 20-4-1964 held that he was not a claimant but "an imposter". As a consequence the verified claim in his name was rejected. The compensation book obtained by him on the basis of such a verification was cancelled and property transferred to him, was forfeited under section 14 of the Claims Act. This order of the Claims Commissioner was challenged by Constitutional Petition (No, 623-R/64) which was allowed in so far as the forfeiture of the property transferred to him was concerned on the basis of the following observations :- "The direct benefit obtained by the petitioner as a result of the claim verification order being the issuance of the compensation book, the same can clearly be forfeited. If as a result of such forfeiture the petitioner cannot get the house transferred in his favour that will be a matter for the Settlement Authorities to decide before whom the matter is still pending. The benefit of transfer of the house not being the direct consequence of the claim verification order, I hold that the order of the Claims Commissioner cancelling the transfer of the property is not sustainable."
' This order was challenged in L. P. A. (No, 151/68) and the entire order of the Claims Commissioner was set aside but in appeal to the Supreme Court (Civil Appeal No, 131/72) the judgment of the learned Judge in Chambers was restored. A review petition filed by the petitioner in Supreme Court failed.
4. In this background of litigation an application was moved by the respondents before the Deputy Settlement Commissioner seeking the reconsideration of their entitlement on the strength of the order of the Claims Commissioner in so far as it was upheld by the learned Judge in the High Court while disposing of Constitutional Petition (No, 623-RI 74). The Deputy Settlement Commissioner refused to exercise jurisdiction on which a Constitutional petition was filed by the respondents which has been, allowed by the learned Judge whose order is now challenged. It has been held by the High Court that "the Deputy Settlement Commissioner should consider the form of the writ- petitioners in accordance with law".
5. The learned counsel for the petitioner has objected to the proceedings initiated on a miscellaneous application by the respondents before the Deputy Settlement Commissioner and its restoration by the learned Judge of the High Court. On merits it is stated that the transfer of the house to the petitioner was not directly the result of his status as a claimant and therefore even if he ceased to be a claimant he could keep on the property. Secondly, it is contended that the effect of the forfeiture of the property ordered by the Claims Commissioner had been considered by the Settlement Commissioner in his order dated 16-7-1968 when be was dealing with the restoration of the dismissed revision petition. The exact remarks were as follows :-- "It is stated that the Claims Commissioner was also the Settlement Commissioner and his order having been quashed by the High Court, the transfer in favour of the respondent Ishaq has attained finality."
' The learned counsel for the petitioner also urged that acts which were past and closed could not be reopened on the basis of decisionsbanded down by Courts subsequent to the event in litigation not directly arising out of the question of transfer. That question had attained finality when the Constitutional Petition and the Letters Patent Appeal of the respondents against the refusal of the Settlement Commissioner to restore the revision petition failed.
6. The effect of the judgment of the Supreme Court in Civil Appeal referred to was that the order dated 11-6-1968 in W. P. No, 623-R/64 was restored. That order contained a reservation that it was open to the Settlement Authorities to decide whether the transfer had taken place on the basis of the petitioner being a claimant. That question was directly in issue in the proceedings and was kept alive unless decisions were handed down on the subject. It was so done by the Deputy Settlement Commissioner when deciding the application filed by the respondents he proceeded on an erroneous view of the judgments of the superior Courts in the previous litigation whereby it was inferred that the transfer was sacrosanct and could not be re-examined. It would be incorrect on the part of the learned counsel for the petitioner to say that the petitioner had been preferred for any reason except that of being a claimant and that the respondents were not preferred on any ground other than their being non-claimants. In this background we find that the decision of the High Court suffers from no legal defect nor was the matter past and closed. It was in fact very much a pending matter and had to be decided in the light of the order holding the field. The petition is therefore dismissed.