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Writ Petition No. 543-R of 1976, decided on 30th October,1985.

---9. 2(2)--Permanent Transfer Deed, cancellation of-- Requirements- P.T.D. issued to a transferee, held, could not be interfered with except on account of fraud or misrepresentation--Settlement Authority after issuance of P. T . D would have no jurisdiction to re-demarcate portion and take away property permanently transferred.

Aminuddin v. Settlement Commissioner, and others 1973 SCMR 624 fol.

---Art. 199--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)--Constitutional jurisdiction, exercise of- Order of Settlement Authority indirectly circumventing order of transfer which had attained finality, held, would not be sustainable on principle that if such measures were allowed to be adopted there would never be a finality to settlement operations.

Sardar Muhammad Tufail Khan for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Respondent No. 3 in person.

Date of hearing: 30th October, 1985.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against orders, dated 7-7-1972 and 2-4-1976 respectively passed by the Deputy Settlement Commissioner, Lahore and the Settlement and Rehabilitation Commissioner, Lahore.

2. The facts necessary for the purpose of this petition briefly stated are that an evacuee house bearing No. S-VI-3-S-I, Bhagwan Street, Old Anarkali, Lahore was in occupation of four persons, namely Mst. Zainab Bibi (not a party to this petition). Mst. Nasim Akhtar respondent No. 3, Muhammad Yaqub (not a party to this petition) and Muhammad Amin respondent No. 2. This house was divided into three portions marked A, B and C by the Deputy Settlement Commissioner, by his order, dated 25-1-1960 passed on the i eport of the Rehabilitation Inspector, dated 25-1-1960. He transferred portion A to respondent No. 3 Mst. Nasim Akhtar, portion B to Mst. Zainab, and portion C to Muhammad Yaqub. The sketch of the property was also attached with the order.

There has been protracted litigation between the abovementioned four persons but one thing is admitted in all orders and at all hands that portion A remained transferred to Mst. Nasim Akhtar, respondent No.3 all along. This portion, according to the plan which is a certified copy of the plan annexed with the aforementioned order, consisted of three rooms on the ground floor and similar accommodation on the first floor, and some accommodation on the second floor. The certified copy has been seen by me, signed by the Reader and returned to the learned counsel for the petitioner as a similar copy is available on the file of Writ Petition No. 1303-R of 1961 having been filed by respondent No. 2 with his written statement and marked as Annexure 'D' therein.

Respondent No. 3 sold two rooms each on the ground floor and the first floor to the petitioners by a registered sale-deed, dated 2-6-1969. The petitioners after purchase of this portion served a notice on respondent No. 2 under section 30 of the Displaced Persons (Compensation and Rehabilitation Act, 1958 on 8-3-1972).

Respondent No. 2 made an application on 18-3-1972 asking for amendment to be made in the P.T.D. of Mst. Nasim Akhtar as regards the portion transferred to her. On this application the Deputy Settlement Commissioner passed an order on 7-7-1972 whereby he amended the P.T.D. of Mst. Nasim Akhtar, respondent No. 3 and took away two rooms from her on the ground floor.

Respondent No. 3 Mst. Nasim Akhtar preferred an appeal to the Settlement and Rehabilitation Commissioner against the aforementioned order of the Deputy Settlement Commissioner, which was treated as a revision by him and dismissed by his order, dated 2-4-1976. Hence the present constitutional petition.

3. None has appeared on behalf of respondent No. 2 to contest this petition and he has been proceeded against ex parte.

4. The learned counsel for the petitioner contended

(i) that the P.T.D. having been issued on 3-5-1969 to Mst. Nasim Akhtar, respondent No. 3, there was no jurisdiction vested any longer with the Settlement Department to re-demarcate the portions and take away two rooms permanently transferred to her. Reliance has been placed in this regard by the learned counsel for the petitioner on Aminuddin v. Settlement Commissioner, and others reported as 1973 S C M R 624;

(ii) that respondent No. 2 was estopped by his conduct to take the plea that the two rooms in dispute were not permanently transferred to respondent No. 3 as he himself had annexed the copy of the original plan of demarcation with his written statement as Annexure 'D'. This writ petition was filed by Mst. Zainab inter alia against Muhammad Amin respondent No. 2. In this writ petition as well the transfer effected in favour of respondent No. 3 as regards portion. A had bL in maintained:

(iii) that the learned Courts below have totally ignored the legal as well as the factual position while passing the impugned orders;

(iv) that the learned Deputy Settlement Commissioner while passing the impugned order, dated 7-7-1972 was so unmindful of the facts of the case that he had held Mst. Nasim Akhtar to be a non-claimant whereas not only she has all along been held as a claimant which in fact she is but also this was not the case of any of the parties either; and

(v) that the learned Settlement Commissioner also did not appreciable the position canvassed before him that the Settlement Authorities were functus officio so far as the P.T.D. of Mst. Nasim Akhtar respondent was concerned and that there was no question of re-demarcation as demarcation had already been done by the Deputy Settlement Commissioner while passing the order, dated 26-1-1966 which demarcation was never disputed till the collusive application made by respondent No. 2 but he ignored this position and also did not refer to this contention in his order which has also been raised in para. 6 of the grounds of appeal before him.

5. Having given consideration to the controversy involved, I am of the view that the contentions raised on behalf of the petitioner have force. It is by now well-settled that a P. T . D. issued to a transferee could not be interfered with except on account of fraud or misrepresentation. This proposition has also been succinctly enunciated in the judgment reported as 1973 S C M R 624 cited by the learned counsel for the petitioner. The orders of the forums below are, therefore, liable to be quashed on this short ground alone.

6. Apart altogether from the above position these orders cannot be sustained on merits as well. It has been rightly pointed out that the orders were passed in total ignorance of the facts on record. The Deputy Settlement Commissioner has without any basis available on record held that Mst. Nasim Akhtar has turned out to be a non-claimant which was not the case of any party before him. This erroneous finding arrived at by him appears to have influenced his order.

7. It has also been rightly pointed out by the learned counsel for the petitioner that the learned Settlement Commissioner did not advert to a very material plea raised before him that the question of redemarcation or amendment in the P.T.D.lplan does not arise in view of availability of a certified copy of the originally demarcated sketch being available.

8. 1 may also observe here that the approach of the two forums below has been wholly erroneous all along. Even if the application of respondent No. 2 had to be adjudicated upon what the Settlement authorities could do was to reconstruct the file so as to have the original demarcation plan formed which had been misplaced according to the averment in the orders. In the presence of a certified copy available which was produced before the Settlement authorities by the petitioner there was no justification to have re-demarcated the portions of the property and thus to annul the orders of the Deputy Settlement Commissioner, dated 26-1-1960 so far as transfer of portion to Mst. Nasim Akhtar was concerned which orders had attained finality having never been set aside in appeal or revision or even at the stage of the High Court in the earlier writ petition referred to above. The orders of the Courts below in fact amount to indirectly circumventing the orders of transfer which had attained finality and such a course in no case can be permitted to be done.

9. It may also be observed that if such measures are allowed to be adopted there would never be a finality to the Settlement operations.

10. In view of the foregoing discussion accepting this petition I declare the orders, dated 7-7-1972 and 2-4-1976 respectively passed by the Deputy Settlement Commissioner and the Settlement Commissioner, Lahore to be without lawful authority and, therefore, of no legal effect.

A . A . Petition accepted.

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