Mst. FATIMA AND OTHERS vs DEPUTY SETTLEMENT COMMISSIONER, LYALLPUR
This petition for special leave to appeal arises from a property dispute concerning the transfer of a house under settlement laws. The predecessor-in-interest of the petitioners, Mohammad Din, along with other occupants, was initially granted portions of the house by the Deputy Settlement Commissioner, which was later modified in review with Mohammad Din's consent to transfer portions to respective occupants. Although the Additional Settlement Commissioner dismissed appeals against this division, a subsequent revision by the Settlement Commissioner favored Mohammad Din by declaring the property indivisible and transferring it entirely to him. Mst. Hamida successfully challenged this in the High Court through a writ petition, which held Mohammad Din bound by his earlier consent. The Supreme Court upheld the High Court's view, ruling that the Deputy Settlement Commissioner's order validly transferred the property with consent, and that the Settlement and Rehabilitation Commissioner lacked jurisdiction to interfere with the delegatee's order prior to the statutory amendment introduced by Ordinance XVIII of 1965. Consequently, the petition for leave to appeal was dismissed.
- Whether a party who consented to the transfer of a portion of a house to another occupant can subsequently challenge that transfer in appeal?
- Whether the Settlement and Rehabilitation Commissioner had jurisdiction to interfere with an order passed by a delegatee prior to the enactment of Ordinance XVIII of 1965?
- Can the High Court in writ jurisdiction enter into the question of the practicability of dividing a property?
- Section 20(3), Displaced Persons (Compensation and Rehabilitation) Act, 1958
- Section 21(3), Displaced Persons (Compensation and Rehabilitation) Act, 1958
- Ordinance XVIII of 1965
1. ' HAMOODUR RAHMAN, C. J.-The dispute in this case relates to the transfer of House No, P./85, Street No, 5, Partab Nagar, Lyalipur. This consists of three rooms with one chaubara and a shop with a common dead. Two rooms thereof were in occupation of one Mohammad Din, the predecessor-in- interest of the persent petitioners. One, Ali Mohammad, was in occupation of one room, although the said room was allotted in the name of his son, Allah Baksh, and another room was in the occupation of Mst. Hamida.
2. ' Ali Mohammad and Mohammad Din both filed CH forms but Mst. Hamida filed no form at all. The Deputy Settlement Commissioner, on the 21st December, 1959, allotted the two rooms in possession of Mohammad Din to him and to Ali Mohammad the room in his possession as also the room in possession of Mst. Hamida.
3. ' Subsequently, Mst. Hamida submitted some application and on this a Settlement Inspector made a report that the value of the property being less than Rs, 10,000, it could not have been transferred under the Settlement Scheme No, I but should have been transferred under Settlement Scheme No 7, therefore, permission should be sought to review this order. This permission was granted by the Additional Settlement Commissioner on the 12th October, 1961.
4. ' In the meantime, Mst. Hamida also filed a belated CH form.
5. ' In review, the Deputy Settlement Commissioner, on the 5th June, 1962, modified his previous order by transferring the portions to the persons in respective possession thereof leaving the deari and courtyard common.
6. ' From this order three appeals were filed but all were dismissed by the Additional Settlement Commissioner on the 7th August, 1962. Against this order, Mohammad Din alone went up in revision which was allowed by the Settlement Commissioner. He transferred the entire house exclusively to Mohammad Din, as the house, in his opinion, being a small one, was not conveniently divisible having only one entrance and one courtyard. Apart from this, Mohammad Din alone was considered to be a claimant allottee. Allah Baksh and Mst. Hamida were considered to be non- claimants.
7. ' Mst. Hamida sought to challenge this order by an application under sections 20 (3) and 21 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 but at the hearing, at the request of her learned counsel, this was treated as a review application under section 21 (3) of the said Act. The Settlement Commissioner dismissed the application as being misconceived.
8. ' Then Mst. Hamida came to the Lahore High Court in the writ jurisdiction. A learned Single Judge of the said High Court accepted her petition and declared the order of the Settlement Commissioner to be without lawful authority on the ground that, since before the Deputy Settlement Commissioner, Mohammad Din had voluntarily permitted Mst. Hamida to stay in one room and the Deputy Settlement Commissioner had transferred the said room to her, Mohammad Din could not challenge that order.
9. ' The heirs of Mohammad Din now seek special leave to appeal and it is contended on their behalf that the High Court has misinterpreted the order of the Deputy Settlement Commissioner. If Mohammad Din had voluntarily permitted Kist. Hamida to stay in one room then there was no order of transfer in favour of Mst. Hamida. Alternatively, unless the house was first divided, it could not be transferred and the only order with regard to the division of the house is that of the Settlement Commissioner who held the property to be indivisible.
10. ' It is true that the Deputy Settlement Commissioner in the earlier portion of his order of the 5th June, 1962, has stated that "Mohammad Din is permitted to accommodate Mst. Hamida Begum, a non-claimant" but the operative portion of the order reads as follows :- "Consequently the applicants are transferred the portions in their respective possessions with common deorl and common courtyard."
11. This clearly indicates that there was an order of transfer in favour of Mst. Hamida and since this was with the consent of Mohammad Din, the High Court is right in taking the view that Mohammad Din could not challenge it subsequently.
12. ' It is also not without significance that Mohammad Din, in his appeal, only challenged the transfer against Allah Baksh. The Additional Settlement Commissioner, in his order of the 7th August, 1962, was, therefore, wrong in taking the view that "the Deputy Settlement Commissioner has not transferred the property to her but direction has been given that Mohammad Din should accommodate her".
13. The very fact that the house has been transferred to three parties, who were already living in it for several years, does show that the house was considered to be divisible. Hence in 1964, the Settlement and Rehabilitation Commissioner had no jurisdiction to interfere with that order, as the order of the Deputy Settlement Commissioner was passed as his delegatee. The power to interfere with such orders passed by delegatees was conferred by an amendment made long after this vide Jalaldin's case (1). The law was -changed by Ordinance XVIII of 1965, which was long after the order of the Settlement Commissioner in this case.
14. ' The contention that the division was, in any event, impracticable, as pointed out by the Settlement Commissioner, has not impressed us, because, obviously all the three parties were living in different portions of the same property ever since they came in to possession thereof. In any event, the question of practicability of the division was not for the High Court to consider in the writ jurisdiction.
15. ' None of the contentions advanced in support of this petition has impressed us. This petition is, accordingly, dismissed.
(1) PLD 1965 SC 261