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Writ Petition No. 1424/R of 1974, decided on 7th April, 1980.

---S. 16--Settlement Scheme No. V, para. 11--Form L.H. submitted but not pursued further--Effect--Where person seeking allotment of property submitted L.H. form but thereafter did not pursue matter, such person, held, would be deemed to have withdrawn such form and could not obtain any right there under.

Mst. Habib Bano's case P L D 1972 S C 52 rel.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)

---S. 10(2)--Constitution of Pakistan (1973), Art. 199--Constitutional jurisdiction, exercise of--Cancellation of P.T.O. and P.T.D. without notice to transferee and transfer of property to subsequent transferee without fulfilling requirements of 9.10(2) of Act XXVIII of 1958, being without lawful authority and of no legal effect, transfer in favour of prior transferee who had already been issued P. T.O. and P. T. D. was maintained by High Court in constitutional jurisdiction.

Ch. Qadir Bakhsh for Petitioners.

Manzoor Elahifor Respondent No. 3.

Nemo for the Remaining Respondents.

Date of hearing: 7th April, 1980.

The contesting parties to this case are litigating about the transfer of Property Nos. B-606 to 610. Liaqat Road, Rawalpindi. It was in possession of respondent No. 3. It submitted a Form L. H . on the enforcement of the Displaced Persons (Compensation and Rehabilitation) Act. The property was, however, included in the list meant for Settlement Scheme No. V. The petitioner also submitted an application to get his name included in the lots to be drawn. The property in question fell to him under the drawing of lots as provided in para. 7 of Settlement Scheme No. V. An Appendix II was, therefore, issued in favour of the petitioner on 3rd December, 1959. A P T.O. followed on 23rd April, 1963. The petitioner is said to have paid the entire transfer price and was granted a P. T. D. on 18th July, 1970.

2. It is stated by the learned counsel for the petitioner that the alleged form submitted by respondent No. 3 on a date prior to 26th November, 1959 (Annexure R/3-3) was rejected on 28th April, 1961 (Annexure G). Respondent No. 3 did not agitate against any of those orders. His learned counsel, however, referred to Annexure R/3-3 to state that an application had been made for excluding the property in question from the earmarking list but nothing was done. He, however, could not say if any further action was taken by respondent No. 3, in that direction either to get the drawing of lot cancelled or Appendix II set aside.

3. Respondent No. 3 rather proceeded in the matter from a different angle. It appears from Annexure H, that the Central Government was approached for the transfer of the property under section 10(2) of the Displaced Persons (Compensation and Rehabilitation) Act. The Chief Settlement Commissioner requested the Central Government vide letter, dated 3rd February, 1962, for an approval for the sale of the property in question to respondent No. 3, at a price to be determined by the Chief Settlement Commissioner. The request was allowed by the Central Government vide its letter, dated 21st February, 1962 (Annexure J) with the following conditions:-

"(1) the properties in question have not been transferred, are not transferable to any person under the provisions of the schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and

(2) that the market value for the properties determined by you is recovered before the transfer is effected."

It is stated by the learned counsel that a P.T.D. was thereafter issued in favour of respondent No. 3 on 20th December, 1962.

4. The litigation between the parties started after 1972 when both the petitioner and respondent No. 3 lodged their claim in respect of a portion in possession of one Muhammad lqbal. The petitioner applied to the Chief Settlement Commissioner praying that the order passed in favour of respondent No. 3 be withdrawn and the transfer of the property in favour of the petitioner be maintained. He narrated all the facts of the case in his application. The matter came up before the Chief Settlement Commissioner who vide his order, dated 7th December, 1973, passed in office routine, cancelled the P.T.O., dated 23rd April, 1962 and P. T . D. , dated 18th July, 1970, issued in favour of the petitioner and directed the Settlement Commissioner to probe in the matter under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act. The petitioner has challenged that order and Annexure 'J' through the present writ petition.

5. The learned counsel relies on Annexure F a letter, dated 7th December, 1973, issued by the Settlement Commissioner (Acquisition) Punjab, Lahore, to Settlement Commissioner, Rawalpindi wherein he gave a detailed account of the case and also stated as under:-

"On the commencement of Settlement Operations in 1959, the properties in question were wrongly considered to be available for disposal and the same were erroneously brought- in the Earmarking list. Abdul Salam, Abdul Wahab, applied for transfer and lots were drawn in their favour and Appendix for Rs.1,22,760 was issued on 3-12-1959. It was mentioned in the appendix that they should produce their C . Bs. and the C . Bs. of their associate s within ten days of the receipt of the Notice failing which it would be presumed that they agreed to retain the properties and a warning that if he failed to produce the mentioned documents within 10 days of the receipt of the notice it will be presumed that he had agreed to the transfer of the aforesaid property on payment of the mentioned amount in cash to be recovered within 36 equal monthly instalments. He also relied on the P.T.O. Annexure 'B' and P.T.D. Annexure 'C' in this regard.

7. It is contended by him that as the sanction of the Central Government under section 10(2) was conditional, respondent No. 3 could ask for the transfer of the property only if the same had either not been transferred or was not transferable to any person under the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He referred to the Scheme V prepared under section 16 read with para. 4 of the Schedule to the Act to say that the property in question was transferable to the petitioner under para. 11 of Scheme V which reads as under:-

"11. On receipt of his reply or in case he does not reply within the prescribed period, an instalment Order and a Provisional Transfer Order shall be issued to him in the form prescribed in Appendix XI and XII respectively of Settlement Scheme No. 1 and the amount payable by him in cash shall also be recovered from him in thirty-six equal monthly instalments."

8. The learned counsel for the contesting respondent submitted that as the respondent had filed a Form L.H. the property in question could not have been included in the earmarking scheme and, therefore, was not transferable to the petitioners there under. He also relied on letter Annexure R/3-3 to say that the respondent did approach the

Additional Settlement Commissioner to delete the property in question from the earmarking list. He, however, could not meet the objection that respondent No. 3 had abandoned whatever right or claim it might have for it, under the Form L.H. by not pursuing the matter further particularly when it knew that the property in question had not been deleted from the earmarking list on its request and had also been transferred to the petitioners.

9. It is to be further noticed that not only the respondent did not pursue the matter further it rather abandoned all its claim with regard to the Form L. H. as it proceeded to claim the property under section 10(2). Consequently, in view of the law laid down by the Supreme Court in the case of Mst. Habib Bano P L D 1972 S C 52 he shall be deemed to have withdrawn its Form L. H . and could not claim any right there under.

10. As for the right under section 10(2) it was conditional as stated above. The property, on the other hand, was transferable to the petitioners in view of their application, drawing of lots and issuance of Appendix 11, under Settlement Scheme No. V. The objection that the petitioners had not taken any steps after the Appendix had been issued, is misplaced for the reason that on the admission of the petitioners to take any further steps the transfer in their favour was presumed and B the Deputy Settlement Commissioner was obliged to issue the P.T.O. and the instalment orders. It has neither been shown nor even alleged that the petitioners had failed to comply with the legal requirements after the P.T.O. or the instalment orders had been issued and that the property in question had been cancelled for a default on their part.

11. In view of the above, respondent No. 3 could not claim any right in the property in question on the basis of the order of the Central Government under section 10(2) as the conditions stipulated, therein were not fulfilled. Further, the cancellation of the P.T.O. and the P.T.D. by the Chief Settlement Commissioner by an ex parte order was without any legal justification or validity.

For the reasons given above the order, dated 7th December, 1973, passed by the Chief Settlement Commissioner and other proceedings on that basis are declared to be without lawful authority and of no legal effect. The result is that the transfer already made in favour of the petitioners shall be maintained. There will be no order as to coats.

A . A . Petition accepted.

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