IN THE HIGH COURT OF SINDH, KARACHI
Constitution Petition No.S-69 of 1990
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Date of Hearing |
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05.04.2010 |
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Petitioners
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Abdul Hafeez & others through Mr. Ahmedullah Farooqui, Advocate.
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Respondents |
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Settlement Commissioner Sindh & others through Mr. Akbar Farrukh, Advocate.
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SAJJAD ALI SHAH, J – Through this petition the petitioners have challenged the order dated 23.05.1990 passed by the Secretary(E.P)/Notified Officer under Section 2(2) of the EP & DP (Repeal) Act, 1975, whereby the respondents were held entitled for the transfer of whole house i.e. Ground plus one bearing No.B-1086/1 at Sukkur (hereinafter referred to as “said property”).
Briefly, the predecessor-in-interest of the private respondents being displaced persons in possession of upper portion of “said property” in the year 1959 submitted a joint C.H. Form (Claimant House Form) for the transfer of said property in their names. However in the said form they mentioned that the ground floor is occupied by M/s. Afridi Transport. The Deputy Settlement Commissioner after having found them entitled to the said property issued P.T.O. dated 10.12.1959 in their names against deposit of compensation book. It appears that one Ghulam Nabi also filed N.C.H. Form (Non Claimant House Form) dated 17.11.1959 in respect of “said property” but since he was not found in possession of any portion of the said house therefore, his claim was rejected. Said Ghulam Nabi did not file any appeal against the rejection of his Form, however, after one year moved a miscellaneous application before the Deputy Settlement Commissioner who vide his order dated 27.04.1961 transferred ground floor to him. The predecessor-in-interest of the Respondent filed an appeal against the order of Deputy Settlement Commissioner and the Additional Commissioner on 23.09.1961 set aside the order of the Deputy Settlement Commissioner by declining the entitlement of Ghulam Nabi on the ground that he never remained in possession.
Record further reflects that one Khayal Gul, predecessor-in-interest of the Petitioners, also on 15.07.1959 filed Non Claimant House Form for the transfer of said property showing his address as Afridi Goods transport, Miani Road, Sukkur. Since Khayal Gul was a local and not entitled to transfer of a house therefore, his claim was rejected against which no appeal was filed. It appears that thereafter the predecessor-in-interest of the Respondents submitted an application before the Deputy Settlement Commissioner asserting that the property is in dilapidated condition and not horizontally divisible therefore the entire property be transferred in their names. Since there was no claimant in the filed therefore, the Deputy Settlement Commissioner vide Order dated 11.2.1967 transferred the entire house to them in terms of P.T.O. dated 10.12.1959 already in their favour. This order was not challenged by any one. Record reflects that after the death of Ghulam Nabi, his legal heirs submitted an application on 01.09.1967 seeking transfer of the ground floor and the Deputy Settlement Commissioner vide order dated 16.2.1968 modified the transfer of the Respondents’ predecessor-in-interest only to the extent of upper floor. Consequently, an appeal was filed and the order of the Deputy settlement Commissioner was set aside by remanding the case. The Deputy Settlement Commissioner on remand vide his order dated 19.4.1969 held that the Respondents’ predecessor-in-interest are only entitled to the upper floor of the house and the ground floor be sold through auction. The Respondents challenged the order before the Additional Settlement Commissioner but their appeal was rejected on 12.02.1970. At this juncture, Khayal Gul on 16.03.1970 submitted an application to Deputy Settlement Commissioner for transfer of the ground floor to him in L.S. Form (Local Shop Form). The Deputy Settlement Commissioner without admitting the Form directed “please examine and report”. In the meanwhile the Respondents filed an appeal against the order of additional Settlement Commissioner dated 12.02.1970 before the Settlement Commissioner, who after hearing directed the disposal of the ground floor by unrestricted auction. However, the Deputy Settlement Commissioner instead of placing the property for an unrestricted auction after observing that no bid has been received vide his order dated 19.05.1971 transferred the ground floor in the name of Khayal Gul by accepting his L.S. Form (Local Shop Form) and on the same day accepted the application for issuance of transfer document.
The record further reflects that on 26.05.1971 one Abdul Hafeez submitted an application along with a surrender deed signed by Jalaluddin as attorney of Khayal Gul surrendering the entitlement in favour of the Petitioners, which was accepted on the same day. The Petitioners consequently moved another application for issuance of P.T.D. The Respondents after having come to know moved an application before the Deputy Settlement Commissioner to grant them some time to approach this Court but the request was declined. However, on 01.06.1971 the Respondents approached the Additional Settlement Commissioner who suspended the proceedings before the Deputy Settlement Commissioner. In the meanwhile, the Respondents also filed Constitution Petition bearing No. 317/1971 challenging the transfer of ground floor, the petition was allowed as prayed and the ownership of the Respondents in respect of ground floor was restored.
The petitioners, thereafter, moved various applications seeking review of Judgment in Const. Petition No.317/1971 and to become a party therein, but all his applications were dismissed. Thereafter, the petitioners filed Const. Petition bearing No.1137/1973, which was also dismissed by this Court vide its Judgment dated 21.8.1978. The petitioners consequently approached the Apex Court by filing Civil Appeal No.131-K of 1980 and the Apex Court on 28.01.1988 by consent of the parties remanded the case to this Court for its decision afresh. In the meanwhile respondents’ predecessor-in-interest initiated ejectment proceedings against New Afridi Transport Company before IInd Rent Controller, Sukkur, who after allowing the parties to adduce evidence allowed the ejectment on 19.11.1990. Respondents, thereafter, filed execution application, which was allowed on 24.01.1991.
On the other hand, after remand of the Const. Petition No.1137/1973 this Court by consent of the parties vide its Judgment dated 14.02.1990 further remanded the matter to the Notified Officer under Section 2(2) of the Evacuee Property & Displaced Person Law (Repeal) Act XIV of 1975 to decide the revision of the petitioners on merits. Consequently, the Secretary (E.P) acting as Notified Officer after hearing the parties vide impugned order dismissed the revision which order is impugned in the instant petition.
Mr. Ahmedullah Farooqui, learned counsel for the petitioner has contended that the Deputy Settlement Commissioner vide his order dated 19.4.1969 had modified the transfer of the respondents only to the extent of upper floor of the said property and ground floor was available for disposal and their appeal against the said order was dismissed by the Additional Settlement Commissioner on 12.02.1970 and so does their revision by the Settlement Commissioner vide his order dated 20.04.1971. In the meanwhile Khayal Gul had submitted LS Form on 16.03.1970 praying therein that the ground floor be transferred to him. Per learned counsel, since the property was available, therefore, the shop was validly transferred to him by the Deputy Settlement Commissioner vide Scheme No.VIII which scheme has dispensed with unrestricted auction and such valid order was set aside by this Court in CP No.317/1971 only because the petitioners were not the party, which order ultimately was set aside by the Apex Court. Learned counsel has further referred to Notification dated 13.09.1966 by which the Chief Settlement Commissioner by exercising powers conferred by paragraph 8 of Settlement Scheme No.VIII invited applications for the transfer of available houses and shops and on 17.3.1967 directed that “disposal of a house or a shop by auction may not be implemented if a person in possession of such a house or a shop has applied for its transfer under Settlement Scheme No.VIII and is also found entitled to its transfer”. Per learned counsel, since the petitioners were in possession, and also entitled to the transfer, therefore, had a right to the transfer of the said property after dispensation with unrestricted auction as directed by the Settlement Commissioner.
On the other hand, Mr. Akbar Farrukh, learned counsel for the respondents has contended that the property was transferred in the name of petitioners on 11.02.1967 by the Deputy Settlement Commissioner by accepting CH Form which order till date is intact and has not been assailed by any one, therefore, there was no property available and the question of its disposal under Scheme No.VII did not arise. Per learned counsel, no doubt that the petitioners in their CH Form dated 15.7.1959 had mentioned that the lower portion of the said house was occupied by Afridi Transport, who never applied for the transfer of said property and consequently the request of the respondents for transfer of ground floor on the ground that the property cannot be horizontally bifurcated was accepted by the Deputy Settlement Commissioner and the property was allotted to them on 11.02.1967.
It was next contended that order in Const. Petition No.317/1971 whereby the petition of the Respondent was allowed as prayed by cancelling the PTD of the Petitioner has attained finality which cannot be upset through these proceedings. It was further argued that the alleged Surrender Deed whereby the Petitioners claim interest in the said property was never executed by Khayal Gul. Even the Surrender Deed is without consideration as it recites that Khayal Gul is not in a position to pay the price of the godown, therefore, he surrendered his right in favour of the Petitioner, such Surrender Deed was executed by one Jalaluddin claiming to be the Attorney of Khayal Gul which Attorney was never produced as Khayal Gul was never interested in the property and thereafter the Petitioners in connivance with the Settlement Department manipulated PTD in favour of the Petitioner which was rightly cancelled by this Court. It was lastly contended that the instant property was put to unrestricted auction by the Additional Settlement Commissioner in the year 1971 much after the Scheme No.8 and therefore the said property could not have been transferred to the Petitioner by invoking the provisions of Scheme No.8.
I have heard the Learned Counsel for the respective parties and perused the record.
It appears to be an admitted position that the property in question comprised ground plus first floor and first floor was in possession of the respondents since 1950 and by accepting Claimant House Form of the respondents Permanent Transfer Order dated 10.12.1059 was issued. It also appears to be an admitted position that Non-Claimant House Form in respect of ground floor of the petitioners’ predecessor-in-interest viz. Khayal Gul was rejected in 1960 as he admitted himself to be a local. Thereafter, one Ghulam Nabi filed Non-Claimant House Form in respect of ground floor which was also rejected on the ground that he was not in possession of the ground floor and further he was living in another property. Since thereafter there was no claim in respect of the property in question and the respondents had applied for transfer of the entire property as one unit on the ground that it being dilapidated and could not be bifurcated in case the ground floor gives way, consequently, Deputy Settlement Commissioner inspected the property and on 11.02.1967 transferred the entire property in favour of the respondents’ predecessor-in-interest as “one unit” and this order was neither challenged by Khayal Gul nor by Ghulam Nabi and had attained finality.
The subsequent proceedings commenced on an application of Mst. Amna widow of Ghulam Nabi (whose Non-Claimant House Form was rejected earlier) were based on concealment of facts and non-disclosure of the rejection form of her husband, consequently, on such application the allotment of the property as one unit in favour of respondents was cancelled without any justification in ancillary proceedings and thereafter the ground floor was shown as available for disposal. In appeal though it was held that Mst. Amna is not entitled and the application of Khayal Gul to become party was rejected, but the directions that the property is available for disposal were maintained. Mst. Amna thereafter filed revision which was also dismissed on 20.4.1971 with direction to put the property in open auction. Till then the respondents’ predecessor-in-interest viz. Khayal Gul was not in picture at all as his L.S. form was not registered / entertained. It appears that in compliance of order dated 20.4.1971 surprisingly auction was held without any notice on the very next day i.e. 21.4.1971, but no bid was received and consequently auction proceedings were postponed to 29.4.1971. In the meanwhile on 27.4.1971 LS Form from Khayal Gul was taken up by Deputy Settlement Commissioner instead of following the directions for selling the property in public auction or at least giving notice to interested parties including respondent, allowed the application of Khayal Gul on 19.5.1971 by holding that auction proceeding can be dispensed with in terms of Scheme VIII by exercising power conferred through Paragraph 8 of Settlement Scheme No.VIII.
Mr. Farooqui has argued that Chief Settlement and Rehabilitation Commissioner on 17.03.1967 in Settlement Scheme No.VIII had dispensed with the condition of the publication, therefore, the ground floor was rightly allotted to the Petitioners, however, perusal of directives dated 17.03.1967 of Chief Settlement and Rehabilitation Commissioner reflect that a question was posed that in cases where after the enforcement of scheme, a person in possession of such a house or a shop is entitled to its transfer or should it be auctioned as not available for disposal under the scheme, was replied that order for disposal of a house or a shop for auction, may not be implemented if a person in possession of such a house or shop has applied for its transfer under Settlement Scheme No.VIII and is also found entitled for its transfer. However, in the instant case it appears to be an admitted position that till the property was declared as “one unit” and allotted to the respondent’s predecessor-in-interest on 11.02.1967 Khayal Gul never applied though the occupants under Settlement Scheme No.VIII were notified to move necessary applications under said scheme as evident from the Notification dated 17.03.1967. Since the person in possession was never interested it was granted to the respondents’ predecessor-in-interested by declaring it one unit on 11.02.1967. Consequently, the property was never available and the order passed on the application of Mst. Amina declaring the property available despite the fact that Mst. Amina was never found entitle to the property was without lawful authority. It is further a matter of record that the order whereby the ground floor was declared as (available) were obtained by Mst. Amina widow of Ghulam Nabi and were subjudiced before this Court in Const. Petition No. 317/1971 and further an order has been placed on record in Appeal No. 53/1971 dated 01.06.1971 which reflects that the directions declaring the property “available” were also suspended by Additional Settlement Commissioner despite property was treated available and was granted to Khayal Gul. In my view since the Deputy Settlement Commissioner after inspecting the property had declared it to be “one unit” and such order had attained finality, therefore, in ancillary proceedings initiated by Mst. Amina the property could not have been declared as available and since the property was never available, therefore, the question of applying Settlement Scheme No.VIII does not arise.
It is quite surprising to note that Khayal Gul all of sudden after 11-years of rejection of his NCH Form jumped in by filing LS Form on 16.3.1970 and Deputy Settlement Commissioner notwithstanding the fact that LS Form of Khayal Gul was not registered dispensed with the auction as directed by the Settlement Commissioner vide order dated 20.4.1971 and without providing an opportunity to the other claimants entertained an application moved on behalf of Khayal Gul through his attorney for transfer of ground floor on his LS Form and in fact transferred the same in favour of Khayal Gul on 19.5.1971. Again on 26.5.1971 an application was moved by one Hafiz Jalaluddin as attorney of Khayal Gul asserting surrender of ground floor in favour of the petitioners by placing on record Surrender Deed dated 25.5.1971 and consequently the property was transferred in the name of the petitioners. However, a minute perusal of this Surrender Deed reflects that it was executed by one Hafiz Jalaluddin as attorney of Khayal Gul. During the course of arguments Mr. Farooqui was asked to point out power of attorney if available on record or produce it if not available but learned counsel was not in a position to place on record such power of attorney. Notwithstanding the recital of Surrender Deed reflects that Hafiz Jalaluddin claimed to be the attorney of Khayal Gul on the basis of a power of attorney duly registered in his name on 23.1.1969 that is even one year before making application to the Deputy Settlement Commissioner for the grant of ground floor on LS Form. It is quite apparent from the record that the interest, if any, in the ground floor was acquired by Khayal Gul on 19.5.1971 then how he could execute power of attorney authorizing Hafiz Jalaluddin to deal with his interests in respect of the said ground floor, therefore, in my opinion beside the fact that there was no property available for transfer under Scheme VIII, there was no valid surrender in favour of the petitioners and they never required any right in the ground floor.
It is further pertinent to note that the order whereby the property was declared as available as well as its grant to Khayal Gul were called in question before this Court in Const. Petition No. 317/1971 and were set aside whereby PTD in favour of the Petitioner was cancelled and the order whereby the Respondents were given the entire property were restored which order till date is intact. Though the Petitioner after moving various applications in Const. Petition No. 317/1971 without any success managed to file yet another Const. Petition No. 1137/1973 which was rejected mainly on the score that the Judgment in Const. Petition No. 317/1971 was intact and could not be interfered with in a second Constitutional Petition. The respondent filed an appeal against the Order dated 21.08.1978 whereby Const. Petition No. 1137/1973 was dismissed and the Apex Court vide its Judgment dated 28.01.1988 remanded the case to this Court mainly on the ground that the respondents failed to implead present petitioners in C.P. No.317/1971. This Court vide Order dated 14.02.1990 further remanded the matter to the notified officer for deciding the revision but the fact remains that the effect of order passed by this Court in Const. Petition No. 317/1971 was never set aside and the PTD of the petitioners in respect of property in question was never restored. It is also important to observe that the Apex Court while remanding the petition to this Court for decision afresh directed the parties to maintain status quo till the High Court was able to take up the matter for consideration after remand and the appellant having made an application in this behalf. However, no such application was ever made nor any order was passed and consequently the ejectment proceedings initiated by the respondents against the petitioners after cancellation of their PTD were allowed and ultimately the respondents on 24.01.1991 were put in possession by the Rent Controller while executing its order in Execution Application No.01/1991.
In view of what has been discussed above, the petition being merit-less is hereby dismissed. Besides it is pointed out that the petition even otherwise was liable to be dismissed on account of non-prosecution, as the petitioners have failed to deposit a sum of Rs.5,000/- a condition precedent to restoration of his petition, which was dismissed on account of non-prosecution vide order dated 22.8.2002.
JUDGE
Karachi, 17th day of May 2010.