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Constitutional Petition No. 833 of 1975, decided on 18th January, 1.983.

‑‑ S. 10 read with Permanent Transfer Rules, 1961, rr. 6 & 7 (after deletion) ‑Settlement Authorities, after deletion of rr. 6 & 7 and after issue of P. T. D. cannot look into matter or decide any, dispute between parties.

Aminuddin v. Settlement Commissioner 1973 SCMR624 ; Ali Muhammad v. Haji Hussain P L D 1975 Kar. 971 and Aziz Ahmad v. Sardar Begum P L D 1980 Pesh. 204 ref.

‑‑ Art. 199 read with Displaced Persons (Compensation and Reha bilitation) Act (XXVIII of 1958), S. 10‑Petitioner agitating dispute before Civil Judge and appeal in matter already pending before District. Judge‑Orders of Settlement Authorities, although without jurisdiction, not working any injustice to any party‑‑Held, Court, cannot, in such case, exercise discre tion to set aside impugned orders.

P L D 1973 S C 236 ref.

‑‑ Art. 199‑Writ petition‑Limitation‑Delay of more than two years in filing petition remaining unexplained‑Held, such belated petition cannot succeed.‑[Delay].

Maroof Ali Khan for Petitioners.

Arif Hussain for Respondent No. 3.

Date of hearing : 18th January, 1983.

By this petition the orders passed by the Settlement Commissioner and the Additional Settlement have been challenged.

Briefly the facts. are that one Anwar‑ul‑Haq purchased an evacuee house, bearing No. B‑1028 at Math, District Hyderabad from Settlement Authorities in an auction held on 1st June, 1960. P. T. O. dated 19th April, 1960 was issued in his favour and subsequently P. T. O. dated 29th May, 1963 was also issued. After about a year he applied for in sertion of City Survey Number 116 of Ward C' in the P. T. O. which was accordingly made. Thereafter by a registered sale‑deed dated 24th August, 1967 the said Anwarul Haq, old this house to the petitioners who are in possession thereof. It ‑s alleged that in September, 1969 when the petitioners were away the respondent No. 3 encroached upon the space of the house and collected some construction material there. The petitioners objected to it and the respondent No. 3 filed Suit No. 9/69 in the Court of the Civil Judge, Math for a declaration that the house bearing No. B‑1029 at Math is situated at City Survey No. 116 as such it is his property and the petitioner he restrained from interfering with it. The respondent No. 3 had purchased house bearing No. B‑1029 at Matli in the same auction in which Anwarul Haq had purchased B‑1028 and on 3rd September, 1968 P. T. D. was issued in his favour. In this suit the petitioners had pleaded that house No. B‑1028 exists on City Survey No. 116 Ward C' on an area of 455.2 square yards. The learned Civil Judge dismissed the suit on 21st September, 1971 against which an appeal was filed. During the pendency of the suit, the respondent No. 3 made a Miscellaneous Application dated 4th August, 1970 before the Deputy Settlement Commissioner, Hyderabad for demarca tion of the property transferred to him, but this application was dismissed by an order dated 5th January, 1973. The respondent No. 3 filed an appeal before the Additional Settlement Commissioner who held that both the properties namely B‑1028 and B‑1029 are on C. S. No. 116. It was held that B‑1028 was previously in occupation of Rama and B‑1029 was in occupation of Manwa. It was observed as follows :‑

"The appeal therefore is disposed of giving entitlement of the appellant over the premises No. 1029 which was in occupation of one Manwa son of Moli and according to the report of Mukhtiarkar is a portion of C. S. No. 116."

The petitioners filed a Revision against this order before the Settle ment Commissioner who by his order dated 9th March, 1965 dismissed the same and upheld the finding of the Additional Settlement Commis sioner that B‑1028 and B‑1029 are situated on C. S. No. 116. There is no doubt that C. S. 1028 and C. S. 1029 were two separate houses which were purchased in auction by Anwarul Haq and respondent No. 3. respectively. The confusion has arisen because Anwarul Haq got C. S. No. 116 inserted in the P. T. D. afterwards.

Mr. Maroof Ali Khan the learned counsel for the petitioner has con tended that after the P. T. D. had been issued the Settlement Authorities had no jurisdiction to decide the matter further and that the dispute being of a civil nature could be decided by the civil Court. In this regard, the learned counsel has referred to Aminuddin v. Settlement Commissioner (1973 S C M R 624) where the following observation was made :‑

"The learned counsel appearing in support of this petition has sought to assail the correctness of the conclusion of the High Court, but we are of the opinion that after the repeal of rules 6 and 7, there was no power left in the Settlement authorities to correct even the clerical mistakes in the P. T. D. This is now well‑settled, and therefore, we can find no ground upon which any just excep tion can be taken to the conclusion arrived at by the High Court."

In Ali Muhammad v. Haji Hussain (P L D 1975 Kar. 971) after a review of a host of authorities the Bench inter alia observed that "after deletion of rules 6 and 7 of the Permanent Transfer Rules, 1961, if Permanent Transfer Deed has been issued, the Settlement Authorities cannot resume a property or cancel transfer even on grounds of misrepresentation, fraud or contravention of any provisions of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958, nor to correct any clerical mistakes in the Permanent Transfer Deeds.

Mr. Maroof Ali Khan, the learned counsel relying on Aziz Ahmad v. Sardar Begum (P L D 1980 Pesh. 204) contended that the order of the Settlement Commissioner to demarcate the property, could not have been passed. Considering the facts it is now well‑settled that after deletion of rules 6 and 7 and the issuance of P. T. D. the Settlement Authority cannot look into the matter or decide any dispute between the parties.

Mr. Arif Hussain, the learned counsel for the respondent No. 3 has con tended that the petitioner has agitated the dispute before the Civil Court and therefore even if the order of the Settlement Authority is illegal and void the Court will not exercise its discrection in these proceedings. The learned counsel has referred to the proceedings made in the civil suit copies of which have been filed by respondent No. 3. It is an admitted position that after the suit of respondent No. 3 was dismissed he filed an appeal. In the appeal by consent, the judgment and decree of the trial Court was set aside and the case was remanded to the Civil Judge for considering the issues involved therein. On remand the learned Civil Judge considered all the questions and it seems that the impugned orders were also produced before the learned trial Court. The learned trial Court after considering these orders and the evidence on record that was produced held that both the houses i.e. B‑1028 and B‑1029 are situated on same City Survey No: 116 Ward C', Math. This finding was reached after examining P. W. Mohammad Qasim City Surveyor who had produced a sketch to show that City Survey No. 116 Ward C' is divided into portions by wall. Again the learned trial Court while dealing with the issue relating to the area of the house No. B‑1029 has stated that there is no convincing evidence of the area of House No. B‑1029 which is claimed to be 40' x 51' and therefore this issue was answered as not proved. These facts clearly suggest that firstly the dispute between the parties was being fully agitated before the Civil Court and has been decided .by the learned Civil Judge. Secondly while deciding the case, the learned Civil Judge, has not entirely accepted the impugned orders of the Settlement Au thority nor has he made it a basis for his judgment. Therefore, the appre hension of the petitioner that the impugned order shall operate unjustly against him is misconceived. After the order of the Settlement Authority was passed instead of challenging them the petitioners by consent chose to go to trial before the Civil Judge. It is only after the finding has been given against him that he is challenging the impugned orders. Both the learned counsel have stated at the bar that appeal against the judgment and decree is pending before the learned District Judge, Hyderabad.

The petitioners themselves wanted their dispute to be settled through Civil Court and the same is under process of adjudication before a Civil Court of competent jurisdiction. The trial Court has already given its judgment. In view of these facts this petition seems to be completely infruc tuous. In the circumstances of the case although the orders passed by the Settlement Authorities are without jurisdiction, it is not necessary to quash them as it does not work any injustice to any party. Reference can be mad to Raunaq Ali's case (P L D 1973 S C 236). The dispute was agitated before the Civil Judge and appeal is pending before the Additional District Judge. In these circum stances I will refuse to exercise discretion to set aside the impugned orders. Mr. Arif Hussain the learned counsel for the, respondent No. 3 has contended that the impugned orders were passed on the January, 1973 and 19th May, 1973 and the same were produced before the Civil Judge who decided the suit on 7th May, 1975. The petitioner has filed this belated petition after he had preferred appeal which is pending. The delay o more than two years in filing this petition remains unexplained. In view of the conduct of the petitioner as stated above this belated petition cannot succeed.

The petition is therefore dismissed with no order as to costs.

S. Q. Petition dismissed.

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