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Writ Petition No. 830‑R of 1979, decided on 14th November, 1982.

‑‑ S. 10‑Constitution of Pakistan (1973), Art. 199 ‑ Transfer of property‑Dispute as to transfer of property as a whole or part ‑ Settlement Commissioner not calling person likely to be affected by his order and directing that action as suggested be taken immediately ‑ Order of Settlement Commissioner, held, contrary to all canons of justice and void altogether. ‑ (Natural justice, principal of].

‑‑ Ss. 2 (4) & 10 read with Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)]‑Transfer of property‑ House‑Dispute as to transfer of property as a whole or part Property transferred to petitioner in accordance with law and P.T.D. issued twenty years ago ‑ Settlement Authorities becoming functus officio and having no authority to inter‑meddle in rights of peti tioner ‑ Law under which these rights created also repealed ‑Reincarnation, held, no part of law‑Order of Settlement Commis sioner directing action on dispute whether property in question transferred to petitioner as a whole or part after repeal of law under which his authority created, held further, without lawful authority and of no legal effect, and petitioner entitled to 'remain in peace in his property transferred to him nearly quarter of century ago Petition accepted.

Aminuddin v. Settlement Commissioner and others 1973 S C M R 624 and Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another 1974 S C M R 8 rel.

Muhammad Anwar Jan Durrani and others v. Syed Hasan Imam Kazmi and others P L D 1968 Lah. 1406 and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others P L D 1975 S C 331 ref,

A. R. Shaukat for Petitioner.

Shahzad Jahangir for Respondents.

Date of hearing :14th November, 19.82.

An evacuee owned Plots Nos. 10 and 11 Block G', Model Town, Lahore. He built a house thereon and planted fruit trees. The property was occupied by the petitioner on 11th September, 1947. On the advent of the Settlement operation, he applied for transfer on C. H. form which was allowed by the Deputy Settlement Commissioner op 19th November, 1959. He was issued, what is known as Appendix X, that is to say, demand for payment of the transfer price of Rs. 81,600. On the same day he was also issued P. T. O. The price was paid. P. T. D. was issued in his favour on 19th January, 1963. He became a member, as required, of the Model Town Society on 6th November, 1961. He gave away a portion of the property to his grand‑daughters who too applied for membership of the Society and on a reference for the Society, the Deputy Settlement Commissioner on 24th December, 1978 informed the Society that the P. T. D. in respect of the property was genuine. On 14th February, 1.979 a report was prepared that the payment was only for houses Nos. 10/G, and 11/G having not been transferred and becoming available property, belonged to the. Provincial Government. The note was put up to the Settlement Commissioner on 15th February, 1979 who on the same day. passed the following order :‑

The D. S. C.‑V should also explain as to why he sent the verification report of the P. T. D. to the Model Town Society without knowing the facts of the case available in the file. Action as suggested overleaf be taken immediately."

In consequence a notice was issued by the Deputy Settlement Commis sioner to the petitioner to surrender the P. T. D. for necessary amendment. The petitioner replied to the notice and the matter was finally put up before the Settlement Commissioner, Punjab who held that since there was an order of the Settlement Commissioner dated 15th February. .1979 "nothing has been shown to convince that jurisdiction was held by this Court for going into or undoing such an order by a parallel authority." He, therefore, rejected the representation of the petitioner vide order dated 6th August, 1979. Hence, this Constitutional petition.

2. Learned counsel appearing for the petitioner has submitted that the petitioner was issued P. T. D. on 19th January, 1963. Thereafter, the Settlement authorities had become functus officio and bad no jurisdiction to inter‑meddle into the rights of the petitioner. He has placed reliance on Aminuddin v. Settlement Commissioner and others 1973 S C M R 624 and Syed Murid Hussain Shah v. Mufti Mohammad Yousaf Ali and another1974 S C M R 8. He, next, contended that the relevant law under which the matter was dealt with i. e. Displaced Persons (Com. & Reh.) Act, 1958, was repealed from lst July, 1974 by Act XIV of 1975. Therefore, after the repeal of the relevant law, there was no jurisdiction left in anybody to interfere in the rights of the petitioner created and confirmed by the repealed law. It is also contended that the learned Settlement Commissioner has declined relief to the petitioner vide the impugned order dated 6th August, 1979 on the ground that there was an earlier order of the Settlement Commis sioner dated 15th February, 1979 which the petitioner had not challenged. It is submitted that the petitioner was not a party to that order and the same had, in fact, been passed on the basis of an office note without notice to the petitioner and determining the points in, issue. Therefore, the order was void altogether. Lastly, the learned counsel for the petitioner submitted that the transfer in favour of the petitioner was perfectly valid because alongwith the Bungalow on plot No. 10 the ‑peti tioner was entitled to the transfer of the garden in plot No. 11, both of which formed part of the same property as would appear from the site plan filed in the Model Town Society much before Partition on 24th March, 1938. He placed reliance on Muhammad Anwar Jan Durrani and others v: Syed Hasan Imam Kazmi and others P L D 1968 Lah. 1406.

3. Learned counsel appearing for the respondent authorities has sub mitted that the transfer in favour of the petitioner of the two plots was illegal and it was open to the Settlement authorities or their successors to set that right. He placed reliance on The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others P L D 1975 S C 33E. He has also submitted that the excess area was not transferable to the petitioner ‑ in view of the second proviso to section 2(4) of the Displaced Persons (Com. & Reh.) Act, 1958.

4. From the statement of facts made above, it would be quite clear that the property was one owned by an evacuee which was in possession of the petitioner who applied therefore and was transferred by the competent authority, the Deputy Settlement Commissioner, in his favour on 19th November, 1959. After receipt of transfer price, he was issued P. T. D. on 19th January, 1963. Sixteen years later somebody in the office of the Deputy Settlement Commissioner having nothing better to do, set the mischief in motion. The Settlement Commissioner to whom the report was made did not care to call the person likely to be affected by his order and directed that "action as suggested overleaf be taken immedi ately." This was contrary to all cannons of justice. The order is void altogether. Consequent demand of the Deputy Settlement Commissioner to surrender P. T. D. was replied to by the petitioner but the matter was finally dealt with by the Settlement Commissioner, who held that he had no jurisdiction because of the earlier order of the parallel authority. Whether he could do so or not, is besides the point but it is quite clear that he could not ennoble a total nullity. The transfer in favour of the petitioner was in accordance with law and in consonance with a judgment of a learned Division Bench of this Court aforeqitoied and referred to by the learned counsel for the petitioner. After the issuance of P. T. D. as numerous. authorities of the highest Court lay down, there was no authority in the Settlement Department to intermeddle in the rights of the petitioner. Those had become functus officio. Not only so, by the repeal of the law under which they were created viz. Displaced Persons (Com. & Reh.) Act, 1958 when that was repealed from 1st July, 1974 by Act XIV of 1975, those had ceased to exist altogether and five years later when the mischief was set afoot, there would be nothing left but their dust. Reincarnation is no part of law or belief in this country. The reliance of the learned counsel for the respondent authorities is no quite apt. Facts were very different. Fraud was pleaded. The authori ties existed. Nothing of the kind is here. On the other hand, the fact clearly justify the order passed some 23. years ago. The time when the matter was raked, the authorities had become functus officio and had been abolished altogether by the repeal of the law under which they were created. It is, therefore, quite clear that the Maintainer is entitled to relief in exercise of the Constitutional jurisdiction. Therefore, this petition is accepted. The orders of the Settlement Commissioner dated 15th February, 1979 and 6th August, 1979 are declared to be without lawful authority and of no legal effect. The petitioner will be entitled to remain in peace in his property transferred to him nearly a quarter of a century ago. The petitioner shall have his costs.

M. Y. H. Petition accepted.

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