MUHAMMAD AFZAL Versus MUHAMMAD LQBAL
The petitioners challenge a notice issued by the respondent No.l asking them to appear on 30th of September, 1976 to take up the question of transfer as remanded by the High Court. It is contended by the learned counsel that there was neither any such order of the High Court remanding the case nor is there any provision of law authorising the respondent to act in that manner. In this view of the matter, it is prayed that the respondent be restrained to act in an illegal manner.
2. Briefly, the facts leading to this petition are that the Deputy Settlement Commissioner transferred property No.S‑64‑R‑161, New Anarkali, Lahore, to the petitioner No.l as one unit vide order dated 1st of December, 1959. He associated petitioner No.2 as a joint transferee.
3. Muhammad Sadiq father of Muhammad Younas respondent had applied for a shop on the basis of the possession of his son Muhammad Younas. His application was, however, rejected. Muhammad Younas and not Muhammad Sadiq filed an appeal. It was accepted by the Additional Settlement Commissioner on 4th of June, 1960. The Additional Settlement Commissioner treated the portion in possession of Muhammad Younas as a shop and transferred the same to him. The petitioners challenged that order in a revision petition. The Settlement Commissioner vide his order dated 6th July, 1960, accepted their plea and declared that:
(i) stairs cannot be separated from the main shop; and
(ii) since Muhammad Sadiq had not filed an appeal and Muhammad Younas was not an applicant, no appeal lay on his behalf.
4. Muhammad Younas and Muhammad Sadiq both filed a review petition before the Settlement Commissioner but the same was rejected on 5th of May, 1961, Muhammad Sadiq alone filed a second revision petition. It was accepted by the Chief Settlement Commissioner who divided the property and transferred to Muhammad Sadiq the shop in possession of his son vide his order dated 20th of April, 1962.
5. The petitioners challenged the order of the Chief Settlement Commissioner in writ petition No.1336‑R‑62. It was accepted vide order dated 27th June, 1963, on the ground that the record had not been called for within the prescribed period. The learned Single Judge, however, made certain observations, which attracted an appeal by the petitioners. It came up before a Division Bench of this Court who dismissed it on the ground that the observations of the learned Single Judge did not amount to a positive order.
6. The respondents had also filed a review petition before the learned Single Judge but that failed on 30th of March, 1964. They then filed Letters Patent Appeal No‑334 of 1964, which was allowed on 12th March, 1969, on the ground that the record had been summoned by the Chief Settlement Commissioner before the target date. The order of the Chief Settlement Commissioner was, therefore, held to be valid. The petitioners went up to the Supreme Court to seek Special Leave to Appeal which was granted. Their appeal (276 of 1970) succeeded on 21st May, 1976, holding that the Letters Patent Appeal was barred by time and, therefore, could not have been entertained and decided.
7. After failing upto the Supreme Court the respondents filed a miscellaneous application before the Settlement Commissioner praying that the observations of the learned Single Judge of the High Court amounted to remand and, therefore, fresh proceedings be taken on that basis. The Settlement Commissioner issued a notice to the petitioners for 30th of September, 1976, to appear. The petitioners in their reply challenged the assumption of jurisdiction but the Settlement Commissioner overruled it vide his order dated 27th of December, 1976. The petitioners have challenged the order through the present writ petition.
8. It is contended by the learned counsel that as the learned Single Judge and the Division Bench of the High Court as well as the Supreme Court expressly refused to restore the order of the Chief Settlement Commissioner, dividing the shop transferred to the petitioners, into two units, the respondents could not achieve the same result indirectly, particularly when the Displaced Persons (Compensation and Rehabilitation) Act 1958, had been repealed. It is submitted that the attempt on the part of the respondents was rather to defeat the orders of the High Court and the Supreme Court. It is to be noted that the Settlement Commissioner by a very express order held the premises in dispute to be one unit. A review application was also dismissed by him. The order of the Chief Settlement Commissioner declaring the property divisible was also set aside and that order was upheld by the Supreme Court.
9. The learned counsel for the respondents raised the following points: ‑
(i) the petitioners have no locus standi on the ground that as they were entitled to only one shop, they cannot challenge the proceedings with regard to the second shop;
(ii) as petitioner No.l had applied for one shop in his possession, the Settlement Authority could not transfer him the second shop;
(iii) having unlawfully secured transfer of two shops, the petitioners could not invoke the equitable jurisdiction of this Court to retain ill‑gotten gains;
(iv) the observation of the learned Single Judge having been upheld upto the Supreme Court, it should be complied with by the Settlement Commissioner;
(v) the Settlement Commissioner had the power to review when the learned Single Judge passed his order;
(vi) the Settlement Commissioner be rather compelled to review his order in order to maintain the judicial dignity of this Court.
All the points noted above revolve round two misconceptions:‑
(1) the petitioners are transferees of two shops;
(2) there is an observation of the learned Single Judge which must be acted upon by the Settlement Commissioner.
10. In order to appreciate the submissions being made it will be advantageous to reproduce the various findings and observations made in the previous round of litigation upto the Supreme Court judgment:‑
6‑7‑60 Settlement Commissioner:
"...and the whole property should be transferred to the petitioner (Kh. Muhammad Afzal) "as one unit."
20‑4‑62. Chief Settlement Commissioner:
" ....I, therefore, hold the shop in possession of the petitioner (Muhammad Sadiq) "to be a separate shop and transfer the same to him."
27‑6‑63 learned Single Judge:
...The impugned order" (i.e. the order of the Chief Settlement Commissioner) "is set aside as being without jurisdiction.
The learned Single Judge also made the following observation after he allowed the petition:‑
"2.The order of Mr. Muhammad Rafiq, however, shows that there were two shops even before partition, one in occupation of Amar Nath and the other of Jai Lal, who were paying Rs.60 and Rs.20 P.M. The petitioner does not, therefore, appear to be entitled to two shops. He could only get both the shops if they are treated as one. It is, however, for the Settlement authorities to decide what action, if any, is necessary in this connection."
5‑1‑65 order in L.P.A. 364/63 filed by the petitioners to challenge the above observations:
" ....The observations (of the learned Single Judge) do not amount to a considered decision that the property in dispute consists of two shops."
12‑3‑69 Order in L.P.A 334/64 filed by Muhammad Sadiq respondent
" ....We ...set aside the order of the learned Single Judge dated 27th of June, 1963. As a result the order passed by Mr. S.M. Rafiq in second revision would stand."
21‑5‑76 Order of the Supreme Court:
"We ....set aside the judgment and order passed by the Letters Patent Bench of the High Court and restore the order passed by the learned Single Judge dated 27‑6‑1963."
11. The operative parts of all the relevant orders as reproduced above do go to show that:
(i) the learned Single Judge set aside the order of the Chief Settlement Commissioner, holding that there were two shops. As a result the order of the Settlement Commissioner occupied the field holding that the premises in occupation of the two parties was one shop.
(ii) The order of the learned Single Judge was maintained by the Supreme Court. The conclusion reached, therefore, was that the petitioners could not be deprived of the stairs/shop applied for by the respondents. There is thus only one shop even if there are two business premises.
The definition of the term 'shop' as given in section 2 (12) of the Displaced Persons (Compensation and Rehabilitation) Act takes care of a building with more business and residential units. The relevant portion reads as under:‑
"2 (12) 'Shop' means Evacuee business premises of any value in an urban area ---- Provided that where any building or premises not so declared consist of more than one business unit, and such units are in possession of several persons, then unless the Chief Settlement Commissioner, orders otherwise, the whole of such building or premises shall be deemed to be a Shop.
Provided further that where any such building or premises consists of both residential and business units, the Chief Settlement Commissioner may order that the whole of such building or premises, or such part or parts thereof as may be specified in the order, shall be deemed to be a shop or a house."
Thus the matter stands finally concluded with a finding that both the units are one shop.
12. It may further be noted that the learned Letters Patent Bench in L.P.A. 364/63 observed that there was not decision of the learned Single Judge, that there were two shops, to allow on appeal. Further, if the learned Single Judge had thought, even for a moment, that there were two shops he could refuse relief. Rather, he observed that it was not for him but the Settlement Authorities to say if there were two shops. Again, as said above, the Settlement Commissioner had even exhausted his power of review vide his order dated 5th May, 1961. The order of the Settlement Commissioner holding that there was only one shop had become final and cannot be reopened.
13. It is to be further noted that even according to the observations of the learned Single Judge it was for the Settlement Authorities to hold otherwise provided the law permitted them. None of the Settlement Authorities even expressed its intention to take up that case what to speak of finding out if there was any power or authority permitting them to do so. The Displaced Persons (Compensation and Rehabilitation) Act was repealed with effect from 30th June, 1974. Only pending proceedings were saved. Admittedly there were no proceedings pending either because of a remand or for any notice issued under any valid power under the Act. The impugned notice issued in 1978 was, therefore, without jurisdiction and hence void and ineffective.
In view of the above, the order dated 27th December, 1976, and the notice dated 30th September, 1970, issued by the Settlement Commissioner, are declared to be without lawful authority and of no legal effect. The parties are, however, left to bear their own costs.
H . B . T . / M‑484/ L Petition allowed.