P L J 1980 Supreme Court 541

Displaced Persons (Comp. mi! Eehbii ) Act (XXVIII of !95f)-*Schdl— Para. 8 Set-lenient Scheme I. Para, 5 (d)— Transfer of evacuee shop to elai«a-aat$ — Joint possession of two shops but separate applications for their transfer — Deputy Settlement Commissioner acted beyond letter ©f law in jointly transferring two shoos to separate applicants — Parties agreeing before Settlement Commissioner to method of draw the lots resultantly one shop fell exclusively to the iot of respondent whiie other to appellant— No exception cats be tskea to the method on principle of estoppel inter partes— Appeal, dismisied

(P«ra«. 5,6)

Dr. Kkalid Ranjha for Appellant.

Bashir Ahmad Ansari ASC and Ch. Akhtar AH AOR far Respoadetiti Nos. 1 and 2.

Respondent No, 3 : ex parte.

Tanvif Ahmad -As$n. A.G. for Respondent No. 4.

Date of hearing : 8-IO-I9SO.

JUDGMENT

Muhammad Haleem, A.C J —Tai* appeals, by ipecia! leave, arise? from the judgment of the Lahore High Court, Lahore, dated 24ft> of November, J974, by which L.P.A, No. 755 of i 66 was allowed and she order of the SnUemsat mod Rebtbilnatioa Commissioner, Rawaipmdi, upheld,

2. The fscts which have givi-n rise to tbjs appeal are that the appellant and his deceased brother, Waii Mufia«m*d, whqs, is now represented by his iega! representatives, respondents 1 to 3 herein, were claimant displaced masons and ihey were jointly transferred two -.hops bearing Nos. 133 A and S33-C in Sargodba City by the Deputy Settlement .Commissioner.^ irg >dha Both were in joint possession of these shops and had separately applied for i heir transfer Shop No. 133- A wgs divided priva'ely by them aod there is no dispute about it. At the appellant was in possession of An area approximate!)? 25 Sq. It. ia excess of his share. Waii Muhamrnad apoheaxp the Oeoaiy S uls-ment Commissioner for annortioning th^ price of shop Na. !3>C. who by h*s order dated 1st of May, 1961. directed the appellant and Wall Muhammad i» pay Rs. 3, 620/- and Rs. 2. 500/- resp?C!ive!v. B »th of thera aoosslcd against Ibis order aod ia the grounds of appeal ttev ehallenged the legality of ihe transfer «lso for each one of mem claimed shoi N ), B3-4 a* it w*> situate id front of shors Na 133 C where sweets were prepared for being sold sn the Shop No. 133- A The Additional Settlement Commissioner, by h>n order dated 20th of October, I94i. dismissed the

Against .tbi$ ord.er both of them filed revision petitions before the $-ttie-i Co!iij?j!ssioncr irt which tbey again qurstioned tbe legality of the trau fer ; as their eni if temente were on eqtiai looung, be prooosed "to draw the l»t«" and both the parties agreed to ii. However, bv ad p ms of tnii rnethed. Snop No 133 A exelsi^ively full to the fcbare of Walt Mabamm«d and snap No. 133-Q to ihat of the appellant

3. The appcildESt, being aggrieved by this order, filed • eon-muttons! oerti» lion ia tfte Hsgii Court and M$eceetied. !*he c«se «m» accordingly resta ..deu i® S<t*.koS-a! Commsss loner lur thgapponionmsni of the once ia be pasd by oi me tw,j ^iea meu possf$$t.»n of the Dordo > oi ihoo N > 833-'" a- ne JO Court Wis »t be op m it th^l th^ *.«- tue onS^ vtue^don wnsch b» * » • H: decided by the Settlement Commissioner. Further, in its view, the order transferring these shops to the appellant and Wa!i Muhammad bad assumed finality which matter could not again be re-opened. Wali Muhammad preferred an L.P.A. and cucceeded as the Letters Patent Beach held that the appelltot bavingjjjmself invoked the jurisdiction of the Settlement Commissioner in the hope of a favourable result, he could not complain of that decision if the result was against hint. la holding so, the Letters Patent Bench relied oo Ghulam MoMUd-Din v. Chief Settlement Commissioner (PLD 1964 S.C. 829).

4. Leave to appeal was granted to consider whether the Letters Patent Bench was correct in upholding the order of the Settlement Commissioner dated 31st of October, 1962, in the face of the earlier joint transfer having assumed finality.

5. Before we advert to «h« respective contentions of the counsel for the parties, we would like to point out that before the Letters Patent Beach, the appellant had tried to wriggle out of the consent to the drawing of lots and before us he candidly disowned the written compromise entered into betwee® him and some of the legal representatives of deceased Wali Muhammad. His eounse! contended that the matter should be decided on merits and we did so. Accordingly, these are the reasons for it.

Para 8 of the Schedule appended to the Displaced Persons (Compensation and Rehabilitation) Act clearly provides that each claimant displaced person shall be transferred one shop ; and if the shop is in possession of more than one claimant then it shall be transferred to the claimant who bad obtained prior possession. In this connection Para 5 (</) of Settlement "Scheme No. 1 provides that if the shop was allotted to two or more persons jointly and each of them is entitled to retain it under the provisions of the Schedule to the Act than such persons shall submit their applications jointly .unless 'any of such persons is entitled to tetaia it to the exclusion of otherit and in case of disagreement each claimant shall apply separately, giving out the reasons for disagreement. As would appear from the order of the Deputy Settlement Commissioner, no justification is made out for the joint transfer in terms of para 5(d) of Settlement Scheme No. 1 in the context of the fact that each one of them bad applied separately for the transfer of these shops which were admittedly not treated as one unit by any Settlement Aut hority. Further, it also does not appear that the Deputy Settlement Commission ::r had applied hi> mind to the second proviso to Para 8 of the Scheme. Therefore, in jointly transferring the two shops to the appellant and Waii Muha. asmad, the Deputy Settlement Commissioner had acted beyond the letter of law. As such it w» an exercise of authority which had no legal effect whatsoever. In the circum stances it cannot be regarded as a final order ia the absence of an appeal against it. Coasequently, the Settlement Commissioner wa<; entitled ro re-open the question of transfer afresh. The Letters Patent Bane b had not adverted to this aspect of the matter but as the submission was resis ted in regard to the finality of the order we are constrained to hold that fo t the above reasons it was a nullity'.

6. Again, as the par tie*'bad agreed that their entitler neut should abide by! the result of the lots, no exception can be taken to it for on the principle of! estoppel Inter panes 'he appellant cannot question it. It j this connection we would refer to the observations of Vangbaa Williams, J. i a South American and Mexican Company Export* Bank of England (1895)1 Chancery Division 37 which are as under :—