MUHAMMAD ISMAIL AND Another vs SETTLEMENT COMMISSIONER AND Another
This matter arises from a petition for special leave to appeal concerning the transfer of a disputed shop room under settlement laws, where the petitioner initially obtained a transfer order that was later modified, leading to public auction of the shop and purchase by the petitioner, followed by issuance of a permanent transfer deed and subsequent sale to a second petitioner. Meanwhile, the respondent pursued revision proceedings before the Settlement Commissioner, who set aside the auction purchase and directed the property's transfer to the respondent. The High Court summarily dismissed the petitioners' constitutional petition under Article 98, holding that findings of fact by the Settlement Commissioner could not be interfered with. The core legal questions involved whether the issuance of a permanent transfer deed divested settlement authorities of jurisdiction and whether technical irregularities in filing transfer forms should defeat an otherwise valid claim based on an agreement of association. The Supreme Court held that the permanent transfer deed remained subject to pending appeal and revision proceedings, and that substantial justice was done as the claimant was lawfully entitled through association. The petition for leave to appeal was dismissed.
- Does the issuance of a permanent transfer deed deprive settlement authorities of jurisdiction while appeal or revision proceedings are pending?
- Can a High Court interfere with a finding of fact made by a Settlement Commissioner in a proceeding under Article 98 of the Constitution?
- Whether an irregular procedure in filing a C. S. Form defeats a substantive right of transfer based on a valid agreement of association.
- Section 21, Displaced Persons (Compensation and Rehabilitation) Act 1958
- Article 98, Constitution of Pakistan 1962
1. HAMOODUR RAHMAN, J.-The petitioner No. , who is a claimant displaced person, submitted a C. S. Form for the transfer of two shops Nos. C/2 (60 and C/2 1 61 and the residential portion above them, situated in Hyderabad town, although he was in pos--session only of shop No. C/2160 and the residential portion. An order of transfer was made by the Assistant Settlement Commis--sioner and was confirmed by the Deputy Settlement Commissioner. But as this order did not clearly mention anything about shop No. C/2161 the petitioner went up in revision before the Additional Settlement Commissioner. The latter treated both the shops and the residential portion as one unit and ordered their transfer to the petitioner No. 1 on the 16th of June 1961.
2. It appears that in the meantime the provisional transfer order had been issued in respect of shop No C/2161 in favour of res--pondent No. 2 on her C. S. Form. The latter coming to know of the transfer to the petitioner No. 1 applied under subsection 13) of section 21 of the Displaced Persons (Compensation and Rehabili--tation) Act, 1958, for a revision of the order to favour of the said petitioner. The Additional Settlement Commissioner on the 3rd of May 1962, held that shop No. C/z161 was an independent unit and should be disposed of by public auction, as the respondent No. 2 not being in occupation of it was not entitled to its transfer.
3. This shop room was in the occupation of one Qamaruddin, a son-in-law of the respondent No. 2, and she had entered into an agreement of association with her son-in-law in 1955. This agreement of association was also cancelled by the Additional Settlement Commissioner.
4. The shop room No. C/2161 was put to auction and the petitioner No. 1 was found to be the highest bidder. This bid was accepted by the Deputy Settlement Commissioner on the 20th of November 1962.
5. In the meanwhile the respondent No. 2 went up to the Settlement Commissioner in revision against the order of the Additional Settlement Commissioner. But before the notice of the revision could be served on the petitioner No. 1 a permanent transfer deed was also issued in his favour in respect of this shop room on the 27th of April 1963. Thereafter, the petitioner No.1 on the 8th of June :964, sold this shop room to, the petitioner No. 2. The purchaser was not made a party to the revision proceeding but the same was opposed by the petitioner No. 1 Wm convened that after the issuance of the permanent transfer deed the property no longer remained in the compensa--tion pool and that the respondent No.2 not being in possession of the said shop room .Was not entitled to its transfer on the basis of the agreement of association.
6. The Settlement Commissioner, however, set aside the auction purchase of the petitioner No. 1 and directed that the shop room be transferred to respondent No. 2. Against this order both the petitioners moved the High Court of West Pakistan under Article 98 of the Constitution, but the petition was summarily dismissed on the ground that the Settlement Commissioner had found that the respondent No. 2 and her son-in-law had in their C. S. Form jointly applied for the transfer of the said shop room and this finding being a finding of fact could not be interfered: with in a proceeding under Article 98 of the Constitution.
7. The fact that the petitioner No. 2 had not been made a party to the revision proceedings b,-fore the Settlement Commis--sioner was held to be of no consequence, as he would in law be bound by whatever order was passed in the presence of his vendor, the petitioner No. 1.
8. The petitioners now seek special leave to appeal and it is contended on their behalf that the High Court had failed to consider that the issuance of the. Permanent transfer deed deprived the Settlement Authorities of any further jurisdiction, as the property thereafter went out of the compensation pool. There is no substance in this contention, as the order for the issuance of the permanent transfer deed was still subject to appeal and revision in accordance with the provisions of the Act of 1958.
9. It further appears that the High Court was right in taking the view that the Settlement Commissioner had found that Qamarduddin, who was admittedly in possession, could have applied for the transfer of the shop room concerned and he could have associated his mother-in- law with him. Again, after the agreement of association had been entered into between the respondent No. 2 and her son-in-law she could have caused a C. S. Form to be filed through her son-in-law and thereby obtained the transfer of the shop. The fact that another irregular pro-- cedure was adopted should not be allowed to defeat a right which they could have enforced by adopting a different method.
10. In the circumstances, we are of the opinion that substantial justice was done in this case by the Settlement Authorities and the High Court rightly refused to interfere. This petition is, accordingly, dismissed.
Cited by 4 cases
- MUHAMMAD SHAFI vs Sardar NOOR AHMAD and others 1989 SCMR 728
- MUHAMMAD AYUB vs SADIK ALI KHAN and another 1984 SCMR 1402
- BEGUM SHAMS-UN-NISA vs SAID AKBAR ABBASI AND ANOTHER 1982 PLD Supreme Court 413
- Mst. MUMTAZ JEHAN BEGUM vs SETTLEMENT & REHABILITATION 1981 CLC 774