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Letters Patent Appeal No. 203 of 1971, decided on 8th November, 1982.

--- Ss. 19, 20 & 21-Clarification, correction and cancellation of P.T.D.-Power of Settlement Authorities regarding-Appellant issued . P.T.O. of property No. 1/A-Earlier Assistant Accounts Officer in his ex parte note about assessment of rent of House Nos. 1/A & I/B .observ ing one room of House No. 1/A in possession of occupant and trans feree of House No. I/B i.e., respondent-Deputy Settlement Commis sioner issuing P.T.D. to appellant in respect of House No. 1/A includ ing, on basis of said note, disputed room in possession of transferee of House No. 1 /B without notice to latter--Deputy Settlement Com missioner and Additional Settlement Commissioner finding room in dispute part of House No. 1/B-Settlement Commissioner in revision deciding disputed room part of House No. 1/B and to be. deemed part of house. transferred to respondent--Appellant contending after issuance of P.T:D.-, Settlement Authorities functus ofcfo and riot em powered to cancel or make any variation therein-Held, in circum stances Settlement Authorities neither cancelled nor made any correction in P.T.D., they had only clarified position of two houses as to accommodation supposed to have been transferred to two transferees and they had even power to correct or cancel P. T. D.-Held further, question of fact regarding disputed room rightly decided by Settle ment Authorities and findings of fact cannot be interfered with by High Court in writ jurisdiction.

Muhammad Anwar Khan v. M.A. Wasli, Settlement & Rehabilitation Commissioner and others 1975 S C M R 372 rel.

Azhar Ali Siddiqui for Appellant.

Hassan Inamullah for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing : 8th November, 1982

-The appellant has by this Letters Patent Appeal challenged the order of a Single Judge of this Court dated 9th July, 1971 whereby the Writ Petition of the appellant against the order of Settle ment Commissioner, Dadu was dismissed. The facts of the case relating to this appeal are as under

2. The appellant and respondent No. 4 had applied for transfer of Houses Nos. B-649/1-A and B-649/1-B respectively situated in Dadu. (The above houses shall be referred to hereinafter as houses Nos. 1/A and 1/B respectively). On 24th October, 1959 P.T.O. in respect of House No. 1/A was issued in favour of the appellant. Earlier on 17th October, 1959 the Assis tant Accounts Officer had submitted a note about the assessment of rent of the two houses i.e. 1/A and 1/B. While making assessment he had also' observed that one room pertaining to House No. 1 /A is in possession of the occupant of House No. 1/B i.e. respondent No. 4. On the basis of the above note of the Assistant Accounts Officer, which was only for the purpose of assessment of runt and not for the purposes of determining the actual accommodation of Houses Nos. 1/A and 1/B, the Deputy Settlement Com missioner issued P. T. D. in respect of House No. 1/A including the dis puted room which was in possession of respondent No. 4 in favour of the appellant on 20th February, 1962. In 1963 the Deputy Settlement Commis sioner Dadu (respondent No. 3) while examining the record found that the note of the A.A.O. dated 7th October, 1959 which was recorded only for the purpose of assessing rent of the two houses, has also wrongly been used as the basis of entitlement in respect of the disputed room. He, therefore, made. reference to the Additional Settlement Commissioner, Dadu (respondent No. 3) that the note of the A.A.O. in respect of the disputed room should not be deemed to be the basis for transfer of the disputed room to the appellant. On this reference the Additional Settlement Commissioner pass ed the following order .on 23rd March, 1963

"It is to inform you that Additional Settlement Commissioner Hyderabad vide endorsement dated .23rd March, 1963 has been pleased to order that A.S.Cs. note regarding the disputed room should be ignored -and that the said note deals with the apportionment of total rent and has nothing to do with regard to entitlement and status of the property. If any party feels aggrieved by the said note it may prefer a regular appeal."

3. Against the above order of the Additional Settlement Commissioner the present appellant filed an application before the same authority challeng ing the said order, The Additional Settlement Commissioner dismissed the application on 20th August, 1963 with the observations that the parties may file appeal if so desired against the so-called' order dated 17th October, 1959. Respondent No. 4 and the appellant thereupon challenged the so called' order dated 17th October, 1959 of the Assistant Accounts Officer (who also exercised the power of Assistant Settlement Commissioner), before the Additional Settlement Commissioner. However, the learned Additional Settlement Commissioner did hold in his order that the disputed room forms part of House No. 1/B which was transferred to respondent No. 4 who had been issued a P.T.D., therefore, in spite of this finding he dismissed the appeal on 20th August, 1963 on the ground that it was time-barred. This order was challenged by respondent No. 4 before the Settlement Com missioner, Dadu by a revision application. The learned Settlement Commissioner accepted the revision application holding that the disputed room was part of House No. 1/B and should be deemed to be part of the house transferred to respondent No. 4. He further held that the appeal of respondent No. 4 was wrongly dismissed by the Additional Settlement Com missioner as time barred. According to the learned Settlement Commis sioner the actual order which was challenged before him was dated 20th August, 1,963 referred to above and not the order dated 17th October, 1959 which was not strictly speaking an order. Even the learned Settlement Commissioner had also described it as a "so-called order". It was in fact only a note of the Assistant Accounts Officer regarding assessment of rent in which he had also made an observation about the disputed room being part of House No. 1/A.

4. The present appellant challenged the order of the Settlement Com missioner dated 5th December, 1963 by a Writ Petition in this Court which was dismissed by the learned Single Judge on 9th July, 1971, which has been challenged by this L.P.A.

5. The main ground urged by Mr. Azhar Ali Siddiqui learned counsel for the appellant in .support of his appeal is that after issuance of the P.T.D. in favour of the appellant in respect of the disputed room, the Settlement Authorities were functus officio and were not entitled to cancel it or make any variation therein so as to exclude the disputed room from House No. 1 /A and. declared it to be a part of House No. 1 /B transferred to the respondent.

6. In our view the Settlement Authorities had neither cancelled any P.T.D. nor made any correction therein by declaring that the disputed room was part of House No. 1 /B and not of House No. 1 /A. They had only clarified the position of the two houses in question by stating as to what accommodation was supposed to have been transferred to the two transferees of Houses Nos. 1/A and 1/B. Originally under a misconception the disputed room was treated as part of House No. 1/A on the basis of the report of Assistant Accounts Officer dated 17th October, 1959. This was admittedly an ex parte note and the order of the Deputy Settlement Commissioner dated 20th February, 1962 accepting the recommendations of the Assistant Accounts Officer and issuing P.T.D. to the appellant in respect of House No. 1/A including the disputed room, was also passed without any notice to respondent No. 4 who was not only occupant of the disputed room but also was transferee of House No. 1 /B. The above note of the Assistant Accounts Officer and the order of the Deputy Settle ment Commissioner were, therefore wholly without jurisdiction having been passed at the back of respondent No. 4. When the Settlement Authorities later found that the disputed, room has wrongly been treated as part of House No. 1jA, they declared by the impugned orders that in fact the dis puted room was part of House No. 1/B and not of House No. 1/A. There are concurrent findings of the Deputy Settlement Commissioner, Additional Settlement Commissioner as well as the . Settlement Commissioner, in their orders referred to above, that the disputed room forms part o House No. 1/B. The learned Single Judge has, therefore, rightly held that the question of fact regarding the disputed room being part of House No. 1 /B was rightly : decided by the Settlement Authorities and that these -find ings fact cannot be interfered with by the High Court in exercise of discre tionary powers, under writ jurisdiction.

7. So far as the power of the Settlement Authorities regarding cancella tion of or variation in P.T.D. is concerned, it has been urged by Mr. Azhar Ali Siddr ui that after issuance of the P.T.D. the Settlement Authorities are funetus opcio and have no power to cancel the P.T.D. or to make alteration therein. This. question' has been settled at rest by decision of the Supreme Court in the case of Muhammad Anwar Khan v. M. A. Wasti, Settlement and Rehabilitation Commissioner and others (1). The following observations made by the Supreme Court in the above

case are relevant to the present case:

"The second limb of the argument, namely, that after the issuance of the P.T.D. in the petitioner's favour, the matter could not have been reopened, conveniently overlooks the further well-settled proposi tion that in the circumstances of the case, the question whether P.T.D. in favour of the petitioner was issued in proper exercise of the authority of Settlement Commissioner, is _ open to judicial scrutiny. There is abundant authority in support of the view that the deletion of rule 7 of the 1961 Rules, does not foreclose the jurisdiction of the Settlement Authorities or for that matter the High Court to uncover the cases of fraud or illegalities, even after the issue of P.T.Ds. See for instance the Court's judgment in Civil Petition for Special Leave to Appeal No. K:104 of 1965 Mohammad Ismail v. Mst. Shamsunnisa and in Anwar Hussain v. Sarfraz Ahmed. It is .also well settled that deletion. of rules 6 and 7 of the 1961 Rules does not repeal Chapter VI of Act XXVIII of 1958, which provides for appeals and revisions. Indeed some of the Judgments relied upon by the petitioner's learned counsel expressly, excepted the cases of fraud and lack of jurisdiction as valid grounds for the cancellation of a P.T.D. notwithstanding the deletion of rules 6 and 7 of the 1961 Rules."

The above observations are fully attracted to the present case. This was a case where the disputed .room was included in the house transferred to the appellant by an order which was passed at. the back of the respondent. Hence either the orders or the so-called order dated 17th October, 1959 of the Assistant Accounts Officer and' the order of the Deputy Settlement Commis sioner dated 20th Febuary, 1962 were based either on misconception or mis representation, the same having been passed at the back of Respondent No. 4. The Settlement Authorities, therefore, had the power even to correct B or cancel the P.T.D. .which .was issued under the circumstances as stated above.

For the above reasons we do not find any substance in this appeal which is dismissed with costs. -

K.M.A. Appeal dismissed.

1975 SCMR 372

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