ABDUL KADIR Versus CHIEF SETTLEMENT COMMISSIONER

SAAD SAOOD JAN, J. ‑‑This is an appeal by special leave from the judgment and order dated 14‑4‑1975 of the Peshawar High Court. It arises in the following circumstances.

2. The dispute between the parties relates to a portion of a largish bungalow, situate on the Mall, Peshawar. It was formerly numbered as 84 but has now been renumbered as 27. Prior to Independence, it was owned by M/s. D.C. Anand and Sons. In 1937 it was partitioned into three portions which were then marked as 84, 84‑A and 84‑B. In this appeal we are concerned only with the portion marked as 84‑A. It fell to the share of four brothers, namely, Lala Amar Nath, Lala Ram Nath, Lala Tarlok Nath and Lala Brij Nath There is no evidence that these four brothers too had carried out any internal partition by metes and bounds of their portion before they left Pakistan, but in 1939, at their request, Board divided the annual, assessment property among them.

3. After Independence, the whole bungalow was declared as evacuee property. The portion known as 84‑A was occupied by a number of persons. Among them was Amin Jan, respondent No.8. He was a local and he obtained an allotment order on 8‑3‑1949. When the settlement operations started, he submitted an L.H. form for the transfer of the portion in his possession. According to him, this portion belonged to Lala Amar Nath. On the assumption that the value of the portion in his possession was Rs.8,685 (that is, less than Rs.10,000) Major N.M. Khan Khel, Deputy Settlement Commissioner, by an order dated 22‑9‑1959 transferred it to him on a 'temporary' basis.

4. The other occupants of the portion 84‑A also applied for the transfer of the parts in their respective possession. While considering their applications, Mr.Abdul Jalil Khan, another Deputy Settlement Commissioner, found that the value of the part in the occupation of Amin Jan was more than Rs.10,000; accordingly, by his order dated 20‑1‑1960, he cancelled the earlier transfer order in his favour. Amin Jan and others who were also affected by the order of Mr.Abdul Jalil Khan, filed appeals before Mr Muhammad Alam Khan, Additional Settlement Commissioner. After an inspection of the property in dispute, the Additional Settlement Commissioner noticed that Mr. Abdul Jalil Khan had not taken into consideration the various independent units which existed at the spot. Consequently, by an order dated 31‑3‑1960 he accepted the appeals and remanded the matter to the Deputy Settlement Commissioner for a fresh decision with the direction that he should take into account the different independent units as shown in the old record and then determine the eligibility of the applicants for the transfer of the portions under their occupation.

After the remand the dispute relating to the transfer of the different portions of the bungalow once again came up for consideration before Mr. Abdul Jalil Khan. By an order dated 28‑6‑1960 he decided all the applications before him. So far as Amin Jan was concerned, he observed:

"House of Ram Nath Anand, according to 1946 assessment was assessed at Rs.420 and is in occupation of Amin Jan, a local. The valuation cost being more than Rs.10,000, it cannot be transferred to him and should go in the next list of auction."

Amin Jan and the others who were affected by the order of Nir.Abdul Jalil Khan, filed revision petitions before the Settlement Commissioner which were heard by Mr.Mir Ajam Khan. By his order dated 17‑1‑1961 Mir Ajam Khan accepted all the petitions, holding that the basis upon which the value of various portions had been computed was not correct. He observed: in my opinion the best course would be to divide the total assessment of Rs.1,849 on the footage and the value of each portion should be worked out according to the area in feet. If after this assessment any body is entitled to the transfer as a local or otherwise according to possession then the portion should be transferred to him."

Accordingly, he remanded the case to the Deputy Settlement Commissioner.

5. On 18‑2‑1961 respondent No‑5 who was also interested in a portion of the bungalow challenged the legality of the order of Mir Ajam Khan in second revision before the Chief Settlement Commissioner. Their revision petition was dismissed in default on 28‑11‑1962. Respondent No.5 filed an application for its restoration alleging that he had not received any intimation about the date fixed for its hearing.

The order direction the restoration of the revision petition is not available on the record. However that may be, by an order dated 25‑2‑1964 the Chief Settlement Commissioner accepted the revision petition, set aside the order of the Settlement Commissioner and remanded the case back to him for a fresh decision after taking into account a number of matters including matters relating to:

(i) valuation of each unit of the bungalow, and

(ii) eligibility of the applicants including Amin Jan for the transfer of the various units.

6. In pursuance of the order of remand, the District Judge, Peshawar, who also exercised the powers of Settlement Commissioner, inspected the bungalow and by his order dated 28‑5‑1J65 found the value of the portion claimed by Amin Jan to be in excess of Rs.10,000. Since Amin Jan was a local the learned Settlement Commissioner held that he was not eligible for its transfer. Being aggrieved by the order of the Settlement Commissioner, Amin Jan filed a writ petition in the High Court.

7. During the pendency of the writ petition, the Settlement Depart ment held an open auction and on the basis of the bids offered therein it transferred the portion in possession of Amin Jan to the appellant.

8. After a lengthy examination of different legal provisions, a Division Bench of the High Court held that the Chief Settlement Commissioner was neither competent to restore the revision petition which was dismissed in default nor to entertain it after his revisional powers were taken away by Ordinance XIII of 1962 which came into force on 13‑1‑1962; consequently, his order dated 25‑2‑1964 was without jurisdiction. It also found that in his order dated 28‑5‑1965 the Settlement Commissioner had erred in holding that the value of the portion in possession of Amin Jan was in excess of Rs.10,000; accordingly, it declared the orders of the Chief Settlement Commissioner and the Settlement Commissioner to be without lawful authority and legal effect. The result was that the order dated 17‑1‑1961 made by Mir Ajam Khan stood revived.

9. It is difficult to support the judgment of the learned Judges in the Peshawar High Court. One Abdul Hakim, an occupant of another part of the bungalow, was also aggrieved by the said order of the Chief Settlement Commissioner and the order dated 28‑5‑1965 of the Settlement Commissioner. He invoked the constitutional jurisdiction of the High Court to call in question their legality but without any success. He then sought leave to appeal from this Court. In support of his petition he assailed the validity of the order of the Chief Settlement Commissioner on the same grounds which found favour with the learned Judges in the order in appeal before us. After examination of the legal issues involved this Court upheld the order of the Chief Settlement Commissioner with the findings that he was competent to restore the revision petition and make an order of the nature which he did. (See Abdul Hakim v. Government of Pakistan: C.P.S.L.A. No.14‑P of 1973). The judgment of this Court was before the learned Judges when they declared the order of the Chief Settlement Commissioner to be void. It is somewhat surprising that they rested their decision on the same grounds which had been examined and rejected by this Court. It is therefore not possible to support the finding of the High Court with regard to the validity of the order of the Chief Settlement Commissioner.

10. As already mentioned, the Settlement Commissioner had ill pursuance of the order of remand made by the Chief Settlement Commissioner, found that the value of the portion in the possession of Amin Jan was in excess of Rs.10,000. This was a finding of fact recorded by the Settlement Commissioner after a visit to the spot. It was not open to the High Court to interfere with this finding in exercise of its constitutional jurisdiction. It is to be noticed that in his L.H. form Amin Jan had asked for the transfer of the house owned by Amar Nath and had claimed that he was in possession o f the entire house owned by the latter. Although, as already mentioned, there was no evidence that the four evacuee brothers had divided the portion of the whole bungalow falling to their lot by metes and bounds, yet on their own application the Cantonment authorities had a portioned the assessment relatable to their portion among them. The share of Amar Nath came to Rs.589. Later, Amin Jan averred that he was occupying the portion owned by Ram Nath. The share in the assessment of Ram Nath's portion was Rs.420. Whether he was occupying Amar Nath's portion or Ram Nath's portion he, being a local, was ineligible to obtain the transfer as the evaluation price in each case exceeded Rs.10,000. To get over this difficulty, he took the position that the shops and servant quarters attached to the bungalow were not transferred to him and for that reason the assessment with re‑and to the portion in his possession should be reduced. The learned Settlement Commissioner rejected his contention and observed:

"The contention of the petitioner is that the value as entered in the assessment record for each portion in their possession has to be reduced now because the assessment of 1946‑47 of these properties also included the servants' quarters and shops which too were assessed against these residential units. This actually amounts to a partial refutation of their own case that the entire property was joint in fact except for the purpose of assessment. The fact that the shops and servants' quarters were proportionately assessed against residential quarters is not borne out nor is it shown that these were not already partitioned and allotted to one of the brothers. In absence of such evidence and when it remains unproved that any portion has been excluded a claim to proportionate reduction is untenable. There is no question of making a deliberate effort to reduce the assessment in order to create an entitlement for the petitioners who on the facts admitted are not entitled to it. Accordingly the assessment of the year 1946‑47 will not require to be reduced except where the property has itself been divided between Ahmadullah, Karimullah Afghani and Abdur Rahman."

It cannot be said that the reasons given by the learned Settlement Commissioner were in substantial or that the order made by him was not within his competence. It was therefore not open to the High Court to interfere with his finding, in exercise of its extraordinary jurisdiction under the Constitution.

11. For the reasons stated above we accept this appeal, set aside the judgment and order of the High Court and dismiss the writ petition filed by Amin Jan, respondent No.1. There will be no order as to costs.

M.Y.H./A‑201/S Appeal allowed.