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Writ Petition No. 49/R of 1975, decided on 28th January 1975.

---Sched. read with Permanent Transfer (Houses and Shops) Rules, 1961, rr. 6 & 7-Transfer of house and issuance of P. T. D. based on fraud and misrepresentation or order of transfer corum non judice-Settlement Authorities although functus officio end left with no power to correct even clerical mistake yet aggrieved party can seek declaration in civil Courts including High Court in writ jurisdic tion-Constitution of Pakistan (1973), Art. 199.

Syed Murid Hussain Shah v. Mufti Muhammad Yusaf Ali and another 1974 S C M R 8 ; Mo. Hajra Bi and another v. Settlement and Rehabilitation Commissioner, Karachi and another 1974 S C M R 235 ; Chottey Khan v. The Settlement and Rehabilitation Commissioner, Karachi and 2 others P L D 1974 Kar. 226 ; S. Anwar Hussain Sani v. Sarfraz Ahmed and others P L D 1971 S C 669 ; Amlnuddin v. Settlement Commissioner and others 1973 S C M R 624 ; Muhammad Ismail and another v. Settlement Commissioner and another 1973 S C M R 407 and Muhammad Raza Khan and S others v. Ahmad All Khan 1973 S C M R 230 ref.

Syed Farooq Hassan for Petitioner.

This Rehabilitation matter has been brought before this Court for the second time in the form of a writ petition. The earlier writ petition No. 584-R/1964 filed from the side of the respondents herein was accepted by me vide judgment dated 12-4-1971 which may be read as part of this order. The transfer through auction of the property in dispute in favour of the present petitioners was set aside and the case was remanded to the Settlement Commissioner for fresh decision according to law as discussed in the judgment.

2. The Settlement Commissioner has, in a detailed order dated 7-5-1974, held that Chiragh Din, predecessor-in-interest of the respondents herein having duly filed LH form, was entitled to the transfer of the property. Aggrieved by this order Fateh Muhammad, the auction-purchaser and Muhammad Ismail, his associate, have filed this writ petition.

3. During the only argument raised by the learned counsel relating to the effect of issuance of P. T. D. in favour of the petitioners, he relied on Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another (1974 S C M R 8) and Mst. Hajra B1 and another v. Settlement and Rehabilitation Commissioner, Karachi and another (1974 S C M R 235 ). In addition he has also relied on Chottey Khan v. The Settlement and Rehabilitation, Commissioner, Karachi and 2 others (P L D 1974 Kar. 226) wherein two other Suprems Court judgments namely, S. Anwar Hussain Sani v. Sarfraz Ahmed and others (P L D 1971 S C 669 ) and Aminuddin v. Settlement Commissioner and others (1973 S C M R 624) have been referred to. The argument of the learned counsel is that the P. T. D. having been issued in favour of the petitioners, the Settlement Authorities had become functus officio, therefore, the property in dispute could not be transferred to the respondents.

4. Prima facie the argument of the learned counsel gets support from the observation made in the last paragraph of the judgment of the Supreme Court in the case of Syed Murid Hussain Shah. It reads as follows:-

"Finally it was also overlooked that subsequent to the surrender by respondent No. 1 of the house situate in Mohallah Water Works Sialkot, P. T. D. had also been issued in favour of his two sons. It is a well-established proposition that with the issuance of P. T. D. in relation to an evacuee property, it ipso facto goes out of the compensation pool and as such, is no longer subject to the suo motu revisional jurisdiction of the Settlement Commissioner or for that matter the Chief Settlement Commissioner."

The other observations of their Lordships of the Supreme Court in matter of effect and value of P. T. D. are found in Muhammad Ismail and another v. Settlement Commissioner and another (1973 S C M R 407) and Muhammad Raza Khan and 3 others v. Ahmad All Khan (1973 S C M R 230 ). In the first mentioned ruling it was held as follows:--

"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."

Thus looked at the observation in the case of Syed Murid Hussain Shah, earlier quoted, gets explained. Their Lordships, it is with respect pointed out, noted that P. T. D. being a culminating point in so far as the property going out of the compensation pool is concerned it was no longer subject to "the suo motu revisional jurisdiction of the Settlement Commissioner or for that matter the Chief Settlement Commissioner." It appears the stress was on suo motu exercise of revisional jurisdiction. If there is no aggrieved party seeking relief against the order culminating in a P. T. D., and the transfer having become past and closed transaction; in so far as the Settlement Autho rities are concerned, they would not be permitted to re-open the matter in their suo motu revisional jurisdiction. This would not mean that the issuance of P. T. D. could not be scrutinised in any other jurisdiction than suo motu revisional jurisdiction of the Settlement Authorities. For example, if the issuance of P. T. D. in a case was based on fraud and misrepresentation, the same could be challenged before a competent forum including High Court in writ jurisdiction. This principle would also apply to orders which are corum non judice or are without jurisdiction, without lawful authorit and/or nullity. This assumption gets support from the ruling of the Supreme Court in the case of Aminuddin. It was no doubt observed therein that no power was left in the Settlement Authorities to correct even the clerical mistakes in P. T. D. after the repeal of Settlement Rules 6 and 7 by Notifica tions dated 2-3-1964 and 27-12-1964. However, it was further held that an aggrieved party could seek a declaration in the civil Court, in the circum stances of the case. Thus all remedies against wrong issuance of P. T. D. were not declared by their Lordships in any of these judgments, as barred.

5. There is another aspect of the matter. In the present case, the orders of the Settlement Authorities were set aside as without lawful authority In the earlier judgment of this Court in Writ Petition No. 584-R/1964. According to the learned counsel it was not challenged in either a Letters Patent Appeal nor the case taken to the Supreme Court. The judgment became final qua all the parties concerned therein. It is too late for the petitioners to challenge the same judgment indirectly in this second writ petition filed in the same Court after such a long time.

6. After hearing the learned counsel, I find no justification for inter ference, this petition, therefore, is dismissed to limine.

K.B. A. Petition dismissed.

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