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Writ Petition No. 103‑R of 1979, decided on 25th May, 1980.
‑‑ S. 10‑Transfer of property‑Void order‑Authority before whom placed, held, entitled to ignore same. Constitution of Pakistan (1973) Art. 199.
Muhammad Saleh and another v, United Grain and Fodder Agencies PLD964 SC 97ref
Property resumed from transferee after cancelling transfer order‑Held, issuance of notice sine qua non to passing of such order‑Any order passed in violation of such mandatory provisions of law,‑held, evidently void and nullity in law. [p. 3139] B Muhammad Aslam Nag for Petitioner. Muhammad Ahmad Hassan Khan for Respondent No. 1. Dale of bearing : 25th May, 1980.
Dispute in this case relates to Property No. 81 /82, Block No. 1, Khanewal. It was in the possession of inter alia, petitioner's father Qazi Fazal Muhammad, respondent No. 1 and one Munir Khan son of Rehmat Khan
2. On the commencement of the settlement operation petitioner's father not having applied for transfer, the entire property was transferred to respondent No. 1 and one Munir Khan on their C. H. Forms Res pondent No. 1 was issued P.T.O. for property No. 81/1. Petitioner's case is that respondent No. I did not make payment at the transfer price, therefore, the property in dispute was resumed from her name by order of the Deputy Settlement Commissioner, dated 8th September, 1967. There after the property had been appearing in the list of properties available for disposal through auction.
3. The property being available for transfer, a number of persons, inter alia petitioner's father applied for transfer under Settlement Scheme No. VIII. Deputy Administrator (Residual) Property rejected the application vide order, dated 28th November, 1978. On the death of petitioner's father, only the petitioner, out of his heirs, filed a revision before the Administrator (Residual) Property but the same was dismissed vide order, dated 22nd September, 1979. Order of the Deputy Adminis trator, dated 28th November, 1978 and that of the Administrator, dated 22nd September, 1979 are cabled in question in this Constitutional Petition.
4. Petitioner could have been transferred the property in dispute 1 the same was available for transfer. Learned counsel for the contesting respondent brought to my notice order of the Deputy Administrator, dated 6th November, 1977 by which the order resuming the property from the name of respondent No‑:‑ 1, was withdrawn. Petitioner. there fore, had no‑case to the transfer of the property in the year 19,7 . When confronted with this, learned counsel for the petitioner arterial that the order, dated 6th November, 1977 was‑void ab initio as by order, the order of the Deputy Settlement Commissioner, dated 8th September, 1967 by which the property was resumed from the name of ,respondent No. 1 on account of non‑payment of the transfer price, ,.was. reviewed. The Deputy Administrator was not competent to review ‑the order passed by the Deputy Settlement Commissioner.
5. I am not impressed by the argument raised by the learned Counsel for the petitioner. Report of the settlement Inspector dates objection 10/62 to 9/63. It was dropped in the meeting held on 15th/16th September, 1977 as the case had already been referred to them. Headquarters Office for the reduction of price.
The perusal of the files shows that resumption notices were issued to transferees i.e., Sher Khan and Saeeda Khatoon on 7th September, 1967 which are not legal because the case for the re duction of price had already been referred to the H.Qs. Office and case was on the list of Audit objection since 10/62 to 9/63. Moreover, the service of the transferee have not been effected.
In view of the above the resumption is invalid.
Submitted.
(Sd.)
6th October, 1977.
It was in these circumstances that the order of resumption, dated 8th September, 1967 was avoided. The order, dated 8th September, 1967 having been passed without notice to the transferee and the same not having been served upon her, was non‑existent in the eye of law. Therefore, the Deputy Administrator was justified to ignore this order.
The order was ab initio bad, therefore, the same was not being acted upon and the case of respondent No. I for the reduction of transfer price was being pursued. Necessity of passing the order, dated 6th November, 1977 arose as the petitioner's father, inter alia, applied for the transfer of the disputed house. There is abundant case law that an authority before whom a void order is placed, is entitled to ignore the same. Reference can be made to the following observations of the Supreme Court in the case of Muhammad Saleh and another v. United Gain and Fodder Agencies P L D 1964 S C 97
" It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction."
Needless to any that under Settlement Scheme No. VIII before a property is resumed from the transferee after cancelling the transfer order, issuance of notice is a sine qua non to the passing of such an order. Even the copy of the order is to be served on the transferee etc. Any order, therefore, passed in violation of these mandatory provisions of law, would evidently be void and nullity in law. No exception, there fore, can be taken to the order of the Deputy Administrator Residual Property, dated 6th November, 1977. If once the order, dated 6th November, 1977 is upheld; the petitioner or for that matter his pre decessor has no case for the transfer of the disputed house as available property.
6. For all that has been stated above this petition has no merit and is dismissed with no order as to costs.
M. A. K. Petition dismissed
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