RASHID AHMAD Versus SETTLEMENT AUTHORITY

The petitioner, Rashid Ahmad, has moved this Constitutional petition praying therein that the action of respondent No. 1 for cancellation of the transfer of house No. J/217‑E, Rawalpindi and its auction in the name of Nabi Bakhsh and subsequent associations in the names of different persons including respondent No. 2 may be declared without lawful authority and of no legal consequence.

2. The case in brief is that the petitioner is a claimant displaced person and was allotted house No. J/217‑E, Arya Mohallah, Rawalpindi. He being a claimant displaced person submitted CH Form for its transfer in his favour. The learned Deputy Settlement Commissioner vide his order, dated 8‑12‑1959 transferred the house in question in favour of the petitioner vide Annexure 'A'. The learned Deputy Settlement Commissioner directed that appendix be issued in his favour. However, later on the transfer of the house in question was ordered to be cancelled from the name of the petitioner on 26‑9‑1964 without issuing any notice to him. This fact is established vide the order, dated 6‑3‑1967 passed by the learned Deputy Settlement Commissioner (Annexure 'C'). The petitioner came to know that the transfer of the property has been cancelled from his name vide order, dated 26‑9‑1964 and he went in appeal before Mr. Wali Muhammad Khan Nagar, learned Additional Settlement and Rehabilitation Commissioner, Rawalpindi who by order, dated 8‑3‑1969 accepted the appeal vide Annex. 'D'. It may be noted that the learned Additional Settlement Commissioner observed in the above referred order that the order regarding cancellation of the transfer is not borne out from the record. It was directed that the lower Court shall realise the proper price of the property in question after hearing the petitioner, and further that time shall be allowed to him to pay the dues. It was also observed that Taj‑ul‑Malook, respondent made a statement that he has no objection if the property is restored to the petitioner. On remand the learned Deputy Settlement Commissioner vide his order, dated 19‑7‑1969 without determining the proper price as directed by the Additional Settlement Commissioner proceeded to observe that the compensation book has been deposited by the petitioner and that the amount available in the compensation book shall be adjusted and further direction was issued by the Deputy Settlement Commissioner that balance amount should be paid by the petitioner within fifteen days. This order, dated 19‑7‑1969 was challenged by the petitioner by filing an appeal before the learned Additional Settlement Commissioner who disposed of the appeal on 7‑11‑1969 without taking into consideration his early decision dated 8‑3‑1969. The petitioner went in revision which was heard and dismissed by the learned Settlement and Rehabilitation Commissioner vide his order, dated 3‑9‑1971. It was held by the learned Settlement and Rehabilitation Commissioner that he was not competent to hear the case and as such the petition was dismissed.

3. On 30‑3‑1j76 a learned Judge of this Court while admitting the writ petition directed the petitioner to deposit the entire transfer price within one month. Vide the report dated 14‑4‑1976 submitted by Ghulam Ahmad, Accountant at page 77 of the file, it appears that the entire transfer price in cash as well as by depositing his compensation book has been paid by the petitioner. Thus, at the moment there is nothing due from the petitioner so far transfer price of the property in question is concerned.

4. It is contended by the learned counsel for the petitioner that there is nothing on the record to show that the property in question was ever cancelled from the name of the petitioner and that the same was resumed for its auction in favour of the respondent. It #s next maintained forcefully that the impugned order, dated 8‑3‑1969 still holds the field inasmuch as the direction issued to the Deputy Settlement Commissioner for assessment of the proper price of the property in question was never carried out in letter and spirit. Learned counsel further submitted that the order, dated 7‑11‑1969 passed by the learned Additional Settlement Commissioner cannot stand in the way of the petitioner because the earlier order passed by the learned Additional Settlement Commissioner, dated 8‑3‑1969 still stands. Learned counsel submitted that the order passed by the learned Additional Settlement Commissioner, dated 8‑3‑1969 was never assailed by any body including respondent No. 2 before any competent forum. This being so, the said order has attained finality. Learned counsel submitted that it appears from the record that the Settlement Authority has not taken any action under the provisions contained in the Settlement Scheme No. VIII. Learned counsel for the respondent submitted that ample opportunity for payment of the transfer price was allowed to the writ petitioner and he failed to avail of that opportunity and as such the property was rightly auctioned in favour of the predecessor‑in‑interest of respondent No. 2. He maintained that the contesting respondent has paid the entire transfer price of the property in question to the Settlement Department and in lieu thereof title documents have been issued in his favour. Learned counsel further submitted that the petitioner cannot now claim the transfer of the property in question at this belated stage.

5. I have heard the learned counsel for the parties and have seen the record very carefully. The order dated 8‑3‑1969 (Annex, 'D') appears to be a clear order which order in my view still stands and holds the field. In this order it was observed that cancellation order is not borne out from the record. The appeal of the petitioner against the predecessor‑in‑interest of respondent No. 2 was accepted and the case was remanded to the Deputy Settlement Commissioner with a clear direction that he shall realise the proper price from the petitioner after hearing him. Later on, on remand, the Deputy Settlement Commissioner vide his order, dated 19‑7‑1969 did not care to follow the mandate given to him by his superior, namely the Additional Settlement Commissioner on 8‑3‑1969. The remand order passed by the Deputy Settlement Commissioner shows that he did not follow the direction issued to him by the learned Additional Settlement Commissioner. Without applying his judicial mind to the facts and circumstances of the instant case, he abruptly proceeded to direct the petitioner to pay the entire price within 15 days. There is nothing on the record to show that in fact he followed the order passed by his superior in the matter of determining the proper price of the property in question. It is established on record that the learned Additional Settlement Commissioner by using the words 'realization of proper price' meant that there was an application pending before the Settlement Authority which application was moved by the present petitioner for reduction of the transfer price on the ground that some of the property stood demolished. In this behalf, learned counsel for the petitioner has drawn my attention to the report of the Settlement Inspector dated 6‑3‑1967 (Annex. 'C') showing that the general condition of the house was very poor and that the store room of the property was lying collapsed and further that the gallary over it was also demolished. He specifically requested the learned Deputy Settlement Commissioner that spot should be inspected and the case may be sent to XEN. P.W.D. for fixation of its present price. It is clear that this report was available before the learned Additional Settlement Commissioner when he passed the order, dated 8‑3‑1969. Similarly, the second appeal having been filed by the petitioner on 7‑11‑1969 wag disposed of after hearing the parties. There is a specific observation made even in the second order of the learned Additional Settlement Commissioner that the Deputy Settlement Commissioner shall consider the case of the petitioner regarding reduction of the price under para. 25 in accordance with law. It appears that this observation of the learned Additional Settlement Commissioner has not been complied with so far. The contention of the learned counsel for the respondent that the property has been auctioned in favour of respondent No. 2 is misconceived in law and facts on the file for the simple reason that the petitioner was transferred the property in question and that his case was pending adjudication for reduction of the transfer price before the competent Settlement Authority. In these circumstances, there was no legal justification whatsoever for the Settlement Authority to have auctioned the property in question in favour of respondent No. 2 as the same was never available property. It is clear from the record that the application for reduction of the price was pending adjudication an" this fact has been candidly admitted by the learned Additional Settlement Commissioner in his order, dated 8‑3‑1969. thus, the contention that the property was auctioned and was purchased by respondent No. 2 is neither here nor there. From the record it is established that the petitioner has paid the whole transfer price of the property in question and that nothing is due from him. This was done by the petitioner under the order of this Court on 30‑3‑1976.

The aims and objects of the Displaced Persons (Compensation and Rehabilitation) Act are to pay compensation and to rehabilitate the displaced persons and other eligible persons. In this case, the house in question was transferred to the petitioner on the basis of his possession in accordance with law. His application for reduction of transfer price, as observed earlier, was pending decision before the competent Settlement Authority. Under these circumstances, there was absolutely no justification fop auction of the suit house. Thus, the auction is without lawful authority on the very face of record which is hereby set aside and the transfer order of the house in favour of the petitioner is restored to him. The petitioner's application for reduction of price shall also be deemed to be pending in law.

6. The upshot of the above discussion is that this petition succeeds and is allowed leaving the parties to bear their own costs.

A.A./R‑73/L Petition accepted,