MUHAMMAD IBRAHIM vs THE SETTLEMENT COMMISSIONER, LAHORE DIVISION, LAHORE and others
This civil appeal arose from a judgment of the Lahore High Court dismissing a constitutional petition regarding the transfer of a shop (Shop No. 5 in Property No. H/1190, Akbari Mandi, Lahore) under settlement laws. The appellant, a local occupant and old tenant of the shop, applied for transfer under Settlement Scheme No. VIII. The Deputy Settlement Commissioner had initially recommended placing the shop on the auction list as an untransferred unit, but subsequent settlement proceedings failed to evaluate the appellant's entitlement or the shop's status as an independent unit, ultimately rejecting his remedies for lack of limitation and locus standi. The Supreme Court observed that settlement authorities and the High Court completely overlooked the critical fact that the shop had not been transferred to anyone else and remained available. The Court held that in the absence of any competing applicant with a superior right, the local occupant in possession could not be denied transfer under Settlement Scheme No. VIII. The appeal was accepted, ordering the property transferred to the appellant at the prescribed price.
- Whether a local occupant in possession of an untransferred evacuee property is entitled to its transfer under Settlement Scheme No. VIII in the absence of any applicant with a superior right?
- Does the failure of settlement authorities to consider an occupant's possession and the availability of an independent unit vitiate their orders denying transfer?
- Can an occupant be denied locus standi to seek transfer of a settlement property when no prior transfer of that unit has been lawfully made to any other party?
- Settlement Scheme No. VIII
1. ' GHULAM MUJADDID, J.--Muhammad Ibrahim son of Fazal Din. Occupant of Shop No,H/1190, Akbari Mandi, Lahore, was granted leave to appeal on 21-6-1978 against the judgment of the Lahore High Court dated 28-81975 passed in Constitution petition filed by him.
2. ' The dispute pertains to a shop described as `5th shop' in Property No, H/1190, Akbari Mandi, Lahore.
3. ' Muhammad Ibrahim is a local. Therefore, when the settlement operation commenced, he was not eligible to file form for transfer of the property. It was on 28-10-1966 when Settlement Scheme No,VIII came into force that he filed the requisite form for transfer on the ground that he was in possession. The Deputy Settlement Commissioner while dealing with the transfer of Property No,H/1190 observed that Shop No,5 was in possession of the appellant as a local and old tenant and as it had not been transferred to any one. It should he included in the auction list. The rest of the property was transferred to different persons.
4. ' From the record it so appears that appellant Muhammad Ibrahim filed an appeal before the Additional Settlement Commissioner against M. A. Khan. That appeal pertained to the demarcation of Flour Chakki. According to the grounds of appeal, the appellant's case before the Additional Settlement Commissioner was that respondent M. A. Khan submitted site plan to the Deputy Settlement Commissioner (Factory) in which he wrongly showed the property in dispute to be in his possession. The Deputy Settlement Commissioner (Factory) accepted the plan and attested it. The relief sought by the appellant before the Additional Settlement Commissioner was, "In view of the above facts and reason it is most respectfully prayed that the appeal be accepted, the impugned order be set aside and the shop may kindly be declared as still available for transfer being not part of the Flour Chakki". The appeal was dismissed on 27-11-1969 on the ground of limitation.
5. ' Muhammad Ibrahim filed a revision against the aforesaid order. The Settlement Commissioner held that he had no locus standi. The property had been rightly disposed of. The appellant had no case for the transfer of the property in dispute. Thereafter the appellant invoked the Constitution jurisdiction of the Lahore High Court but was unsuccessful.
6. ' Learned counsel for the appellant contended that at no stage the case of the appellant was considered in accordance with law. It was argued that even the learned Single Judge did not advert to certain important legal and factual aspects of the case which entitled the petitioner to the transfer of the property in dispute. He referred to the order of the Deputy Settlement Commissioner who initially dealt with the question of transfer of entire property No,H/1190, Akbari Mandi, Lahore.
7. ' Learned counsel submitted that for all intents and purposes the shop in dispute was an independent unit and the appellant was entitled to its transfer under the law.
8. ' Legal representatives of respondent No,4 have not turned up. They are, therefore, proceeded ex parte.
9. ' The dispute is only with regard to Shop No,
5. The Deputy Settlement Commissioner observed, This is a small shop in possession of Muhammad Ibrahim who is a local and old tenant of this shop. The shop has not so far been auctioned. This shop should be included in the auction next list".
10. We are inclined to agree with the submission of the learned counsel and it is correct that this important aspect of the case was completely ignored by the Settlement Authorities and escaped notice of the learned Judge of the Lahore High Court as well. In view of this and in the absence of any other applicant with a superior right, the appellant could not .Be denied transfer of the property in dispute.
11. ' We, therefore, accept this appeal and order that the property in dispute shall be deemed to have been transferred to the appellant on the prescribed price in accordance with the relevant law. The price notice shall be issued to the appellant, forthwith.
12. ' No costs.