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Constitutional Petition No. 993 of 1974, decided on 24th May, 1982.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 195H)

‑‑‑S. 10‑Transfer of property‑Determination‑Decision based solely upon inspection made by deciding authority, held, cannot be sustained.

It cannot be disputed that while deciding the disputes involved between the parties the Settlement Authorities are required to act in judicial manner. In the present case instead of allowing the parties to lead evidence and 'establish their respective contention the Settlement Authorities took upon themselves to inspect the site and then proceeded to decide the case solely on the basis of their own inspection notes and impressions. Neither the documents produced by the petitioner in support of his contention referred to nor any opportunity was given to either of the parties concerned to lead evidence. The petitioner had not agreed to be bound by the procedure adopted by the Settlement Authorities. A decision in the circumstances based solely upon inspection made by the deciding authority cannot therefore, b: sustained.

Muhammad Juman v. Mst. Aqlan P L D 1980 Kar. 108 eel.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXV111 of 1958)‑

‑‑S. 10‑Constitution of Pakistan (1973), Art. 199‑Determination of property‑Impugned orders based solely on inspection of Settlement Authorities deciding case without giving opportunity to parties to lead evidence and without referring to any document produced by peti tioner‑Orders set aside‑Site inspection, held, cannot be a substitute for evidence in matter of identity of property or its survey number Case remanded forbearing afresh after giving opportunity to parties to lead evidence and disposal in accordance with law.

Anwar Jamal for Appellant/Petitioner.

Nemo for Respondents.

Date of hearing : 24th May, 1982.

This petition is directed against the orders dated 26‑1‑1974 passed by the Deputy Settlement Commissioner and order dated 16‑5‑1974 passed in Revision by the Additional Settlement Commissioner Khairpur Division.

(i) The brief facts o: the case are that House bearing No. II‑C 756 situated at Shahdadpur was disposed of by the Settlement Authority by public auction on 11‑2‑1960 wherein the petitioner's highest bid was accepted and P. T. D. issued is his favour n 10‑8‑1965. The endorsement on the P. T. D. appears wherein the above‑mentioned property is shown as corresponding to City Survey Nos. 328 and 329 owned by Rewacband Tharumal, evacuee.

(ii) Another property bearing DS‑II‑C‑755 also situated at Sbahdadpur was transferred to one Sachal on 10‑11‑1959. He however, did not pay the price and accordingly same was cancelled. The property was thus put to public auction on 30‑5‑1962, when Umer Din (respondent No. 1) purchased the same being the highest bidder.

2. On 8‑5‑1962 the petitioner on the strength of the transfer of the property bearing No. DS‑I1‑C‑756 in his favour, served a notice upon the respondent No. 1 under section 30 of the Displaced Persons Compensation and Rehabilitation Act of 1958. No rent in spite of the said notice was pata which led to the filing of the Rent Case No. 60/71 in the Court of the Rent Controller, Sbahdadpur. The respondent No. 1 filed his objections wherein he denied tenancy between the parties, and at the same time plea was taken that he was not i n possession of House No. II‑C‑756. As disputes arose between the ‑ parties about the identity of the property and finding that no relief could be granted by the Rent Controller, the petitioner moved the Deputy Settlement Commissioner on 27‑E‑1973 wherein he prayed that the property transferred to him as D S. No. I1‑C‑756 corresponding to City Survey Nos. A/328 and 329 Shahdadpur be demarcated. The site was inspected by the Settlement Inspector on 17‑2‑1973. Thereafter the Deputy Settlement Commissioner also inspected the., site. He however without recording any evidence whatsoever on the conflicting claims made by the parties disposed of the case with the following observations :‑

"I have inspected the site in presence of both the parties on 29‑12‑1973 with the help of office record. The Settlement Inspector of this office was also deputed to inspect the site and report. He submitted the report on 28‑2‑1973 which is on record. On my site inspection I found that the report of Settlement Inspector is correct. As per report of Settlement Inspector D. S. Nos. II‑C‑755 and II‑C‑756 is a double storey house and at present is in possession of Umar Din son of Urs, the Opponent.

As per record of this office the accommodation of both D. S. No. are 3 rooms and other amenities of life. After thorough enquiry in the matter and my site inspection it has been found that the upper portion was assigned D. S. No. 11‑C‑756 and ground floor as 1I‑C‑755 which corresponds to City Survey Nos. A/328 and A/329. At present the upper portion has been demolished but the signs of wall are visible on spot.

In view of the above facts and the report of Settlement Inspector I am of the opinion that ground floor which is at present in occupation of opponent Muhammad Umar son of Urs bears D. S. Nos. II‑C‑755 and the upper portion of the same is D. S. II‑C‑756 which leads a separate stair case. The corresponding City Survey Nos. of both D. S. Nos, are A/328 and A1329. Necessary correction in the transfer documents may be made. The case Is disposed of accordingly. Issue P. T. D. to the opponent accordingly."

3. The petitioner preferred a revision application before the Additional Settlement Commissioner who after inspection of the site dismissed the same by order passed on 16‑5‑1974, the material part whereof reads as under :‑

"Site inspection revealed no such house as bearing DS No. II‑C‑755 situating by the site of D. S. No. II‑C‑756 as alleged by the petitioner. It is one and the same house on the site which contained two units at the time of Survey one as ground floor and the other its upper storey which now stands demolished. The ground floor bears D. S. No. II‑C 755 while the upper storey was assigned D. S. No. II‑C‑756, Shahdad pur District Sangbar.

In view of the above facts, I find no grounds to interfere with the impugned order dated 26‑1‑1974 which is upheld being according to facts on record as well as site and the revision having no merits is hereby dismissed.‑

4. The above orders are challenged by the petitioner by filing this petition under Article 199 of the Constitution of Pakistan as having been passed without lawful authority and are of no legal effect.

6. Mr. Anwar Jamal the learned counsel for the petitioner has argued that the case is based upon no evidence and/or are vitiated on the ground of misreading of evidence and being arbitrary and perverse. It may be men tioned here that by order passed on 12‑4‑1982 the record of the Settlement Authorities was called for at the request of Mr. Anwar Jamal Advocate for the petitioner. The record has been received and with the assistance of the learned counsel for the petitioner I have gone through the same.

The learned counsel for the petitioner referred to the printed form "Office Note" at page 1 of the file pertaining to the property bearing No. I1‑C‑756 Shahdadpur received from the Office of the Deputy Settlement Commissioner, Shahdadpur. In the said form (Office Note) the name of the evacuee owner of this property is shown as Rewamal. Apart from showing therein particulars of the said property, entries of its sale to the petitioner at public auction and that the petitioner bad applied for issuance of P. T. D. an endorsement appears at the very end of the said Office Note which read as follows

"C. S. Nos. A/32E and A/329 Rewachand Tharumal Sheet No. 19 Ward 'A' entered in P. T. D."

6. The P. T. D. was issued to the petitioner on 10‑8‑1965 wherein property No. II‑C‑756 corresponding to C. S. Nos. A/328 and A/329 was shown to have been transferred to the petitioner.

The learned counsel in order to establish that the property bearing No. II‑C‑7:6 is an independent house and is ore storey building, referred to the extract of the Register of survey of Evacuee Immovable Properties. The name of the occupant as per entry therein is shown to be one Khakoo. Detail of accommodation thereof is also given therein. According to the learned counsel it is significant that it is not mentioned in this 'Inquiry register that the building was double storey house.

Having made reference to the above‑mentioned document the learned counsel invited attention to the extract from the Property Register of the City Survey duly certified by the City Survey Shahdadpur wherein on the basis of the P. T. D. issued for house No. II‑C‑756, name of the petitioner was mutated in respect of survey No. 328 measuring 85‑1 sq. yds. as well as Survey No. 329 measuring 15 sq. yds. as the corresponding property trans ferred to him. These two documents have been produced as Annexures (C) and (D) to the petition. The learned counsel also relied upon certificate issued by the Chief Officer Municipality, Shabdadpur, produced before the Settlement Authorities, which reads as follows :‑

"Certified that house bearing Municipal Nos. S. 2094, 2095 and 2096 and its survey numbers are 327, 328 and 329."

The petitioner also produced a photostat copy of the certified sketch plan of the property issued by the City Surveyor Shahdadpur wherein according to the petitioner City Survey Nos. 328 and 329 are shown independent of City Survey No. 327. The counsel submitted, the petitioner is the transferee of City Survey Nos. 328 and 329 which correspond to Custodian No. II‑C‑756.

Having referred to above documentary evidence the learned counsel invited attention to the Inquiry Card' produced from the record of the Custodian of the Evacuee Properties wherein the details of the accommoda tion of the property bearing No. II‑C‑755 transferred to Umar Din at the public auction are given. According to the counsel the inquiry form in respect of the property transferred to the petitioner appears at page 71. The learned counsel for the petitioner accordingly argued that in none of these inquiry forms or the copy of the extract of Register of Preliminary Inquiry produced by the petitioner from the record of the Custodian it is shown that Survey No. II‑6756 consists of a double storeyed building.

In the light of the above referred documents it was argued that neither the Deputy Settlement Commissioner nor the Additional Settlement Commissioner were entitled to proceed to decide the matter solely upon their own inspections. It was contended any inspection at site could not reveal or establish the actual city survey numbers of the properties separately transferred to the petitioner and the respondent Umar Din. His grievance is that the case ought to have been decided after giving proper opportunity to the parties particularly the petitioner to lead evidence and also opportunity to cross‑examine the respondent Umar Din, the transferee of survey No. 1I‑C‑755 who alleged that the ground floor of the double storeyed building is numbered as II‑C‑755 and its first floor is II‑6756.

7. The respondent No. 2 and his counsel have been called absent.

I have considered the arguments of the learned counsel for the peti tioner and find that there is force in the contention raised that the judg ment could not have been based solely on the inspection notes of the concerned officer who himself had decided the case. It cannot be disputed that while deciding the disputes involved between the parties the Settlement Authorities are required to act in judicial manner. In the present case instead of allowing the parties to lead evidence and establish their respective contention the Settlement Authorities took upon themselves to inspect the site and then proceeded to decide the case solely on the basis of their own inspection notes and impressions. Neither the documents produced by the petitioner in support of his contention are referred to nor any opportunity was given to either of the parties concerned to lead evidence. From the record it is evident that the petitioner had not agreed to be bound by the procedure adopted by the Settlement Authorities. A decision in the circum, stances based solely upon inspection made by the deciding authority cannon therefore, be sustained. If any authority is needed reference may be made to the case of Muhammad Junran v. Mst. Aqlan (1).

8. The other contention of the learned counsel for the petitioner that the impugned orders are perverse and arbitrary and thus liable to be set aside find support not only for the reasons that the judgment is based solely the inspection of the authorities deciding the case and without giving oppor tunity to the parties concerned to lead evidence, but also for the reason that the settlement authorities had decided the matter upon no evidence what s ever. I have given anxious thought to this aspect of the case as well and fin that while determining the identity of the property transferred to parties,

(1) P L D 1980 Kar.108

neither the Deputy Settlement Commissioner nor the Additional Settlement Commissioner, even cared to refer to any of the documents produced by the petitioner. These authorities in fact completely ignored and omitted to consider the documents including the certificate of the Chief Officer Municipality issued wherein it has been shown that the Municipal Nos. 2094, 2095 and 2096 bear separate city Nos. 327, 328 anal 329. There is letter on record (at page 6) addressed by the Deputy Settlement Commissioner dated 7‑12‑1969 to Umar Din, the respondent No. 2, wherein house No. II‑C‑755 is shown as Municipal No. 2094 Chaikipara Shahdadpur. According to Mr. Jamal this letter also indicate that the property bearing Municipality No. 2091 is equivalent to 11‑C‑755 which is occupied b5 Umar Din, the respondent.

9. In the circumstances discussed above, I am of the opinion that the, impugned orders are based upon no evidence and the same are based upon c. site inspection, which cannot be a substitute for evidence in matter of identity, of property or its survey number.

10. For the reasons stated above 'the impugned orders passed by the Deputy Settlement Commissioner Nawabshah and Sanghar on 26‑1‑1974 and the order dated 16‑5‑1974 passed by the Additional Settlement Commissioner Khairpur Division at Sukkar in Revision Petition No. SCH‑2 of 1974 are declared to have been passed without lawful authority and are held to be of no legal effect.

The upshot of the above discussion is that the case is remanded to the authorised officer concerned who shall hear the matter afresh after giving opportunity to the parties to lead evidence in support of their respective contentions and thereafter dispose of the case in accordance with the law.

As the respondents have remained absent there shall be no order as to costs.

M. Y. H. Case remained.

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