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Constitutional Petition No.S-53 of 1977, decided on 21st January, 1986.

---S.2--Settlement Scheme No.I, para. 29--Transfer of property- Petitioner was held to be entitled to transfer of tenement in question by Deputy Settlement Commissioner, who further ordered that Appendix X to be prepared and issued--Deputy Settlement Commissioner did not issue any notice to petitioner requiring him to comply with directions contained in notice within a period of fifteen days and later on without complying with provisions of para.29 of Settlement Scheme No.I, transferred said property to respondent--Order of transfer of property passed in favour of respondent, held, was illegal and void and P. T. D. issued in his favour had no sanctity law--Order set aside and case remanded to Notified Officer to go into question of transfer afresh after hearing parties and after looking into various aspects of the case and the law.

Ali Muhammad F.Seth for Petitioners.

Abdul Naseer Khan and M.Akmal Waseem for Respondent No.3.

Date of hearing: 3rd October, 1985.

The petitioners through this Petition have prayed for the following reliefs:-

"The Petitioners, therefore, pray that this Honourable Court be pleased to declare that the impugned orders dated 15-3-1969 and 6-10-1970 and 26-2-1977 are illegal, void, nullity in law and of no effect, and that the permanent Transfer Deed issued in favour of the Respondent No.1 on the basis of these orders and subsequent sales of the said property by Respondents are illegal, nullity in law and without jurisdiction. The Petitioners further pray that this Hon'ble Court be pleased to order the concerned Settlement Authorities, Karachi, to pass order on the C.H. Form KYC/B/184/CH/XIII that the Tenement No.G/7,T.L.2/21, II-A-17 be transferred to the petitioners. Any other writ, direction or order be passed which this Hon'ble Court deem proper and legal in circumstances of the case".

The facts which give rise to this petition are that the Petitioners are legal heirs of Ibrahim Rasool Mullah who died in the year 1969. The said Ibrahim Rasool Mullah filed a C . H . Form bearing Registration No.KYC/B/184/C.H./XIII for transfer of tenement No.G/7 T.L.2/21, 11-A-17 to the Deputy Settlement Commissioner, Karachi. The Deputy Settlement Commissioner by his order dated 24-9-1960 held that the said Ibrahim Rasool Mullah was entitled to transfer of the said tenement and ordered that Appendix 'X' be prepared and issued. The certified copy of the order is annexed to the petition as Annexure 'A'. He died in 1969 and the Petitioners applied to the Deputy Settlement Commissioner for bringing them as legal heirs of deceased Ibrahim Rasool Mullah. The Deputy Settlement Commissioner published a public notice in Daily 'Hurriat' of 8th March, 1970 inviting objections. No further proceedings were taken for disposal of C.H. Form of the Petitioners. The Petitioners subsequently came to know that the said tenement was transferred to respondent No.1 on 15-3-1969. This was transferred on the application dated 5-3-1969 of the respondent No.1. The Petitioners filed an application for finilization of transfer of the tenement. The application was dismissed vide order dated 6-10-1970. The respondent No.4 held that since the tenement was transferred to respondent No.1 who sold the same to respondent No.2. The Petitioners preferred revision before the respondent No.5 against the order dated 6-10-1970 which was dismissed by an order dated 26-2-1977.

The Petitioners being aggrieved against the order dated 26-2-1977 of the respondent No.5 have preferred this Constitutional Petition on the grounds disclosed in the memo of Petition.

Mr.Ali Muhammad F.Seth the learned counsel for Petitioners has contended that property cannot be transferred without disposing of the C.H. Form of the petitioners.

On the other hand Mr. Abdul Naseer Khan learned counsel for the respondent No.3 has submitted that the Petitioners slept for nine years and the respondent 3 is a bona fide purchaser for consideration. He has further submitted that the orders of respondents 4 and 5 is in accordance with law.

It is advantageous to reproduce relevant para 29 of Settlement Scheme No.1 before reverting to the contents used by the learned counsel for the parties:

"29. Notice of Transfer, Instalment Order arid Provisional Transfer Order:-

(1) The Deputy Settlement Commissioner shall Notice of Transfer conveying his decision to transfer the property to the non-claimant displaced person or the local concerned in the form as specified in Appendix IX and to a claimant in the form specified in Appendix X requiring him to comply with the directions contained in the Notice within a period of fifteen days."

It appears from the facts stated above that Ibrahim Rasool Mullah filed C.H. Form for the transfer of tenement baring No.G/7, T.L.2/KYC/B/184/C.H./XIII. The Deputy settlement Commissioner held that the said Ibrahim Rasool Mullah was entitled to the transfer of the said tenement in his possession. The Deputy Settlement Commissioner further ordered that Appendix 'X' to be prepared and issued. The Deputy Settlement Commissioner did not issue any notice to the said Ibrahim requiring him to comply with the directions contained in the notice within a period of fifteen days. The property could not be disposed of by transfer to respondent No.1 without complying with provisions of pare 29 of the Settlement Scheme No.I. This material aspect of the case totally escaped the notice of the Deputy Settlement Commissioner with the result that the transfer of tenement to respondent No.1 vide order dated 15-3-1969 was without legal sanction. The basic order passed by the Deputy Settlement Commissioner militates against the maxim audi alteram partem and is a void order. The Deputy Settlement Commissioner had no jurisdiction to transfer the tenement to respondent No.1 without first comply with the provision of paragraph 29. The orders passed by the respondents Nos.4 and 5 dated 6-10-1970 and 1977, transfer of tenement in favour of respondent No.1, dismissal of application of petitioners and revision can not be sustained in law because of the Deputy Settlement Commissioner's order dated 15-3-1969 was itself without any jurisdiction and had acted in disregard of para 29 of Settlement Scheme No.I and as such the very basis of the transfer was absent.

Mr. Abdul Naseer Khan the learned counsel for the respondent No.3 has submitted that P.T.D. was issued. The Deputy Settlement Commissioner acted in disregard of paragraph 29. The superstructure raised thereon falls to the ground. Reliance is placed on Yousuf Ali v. Muhammad Aslam Zia P L D 1958 S C 107 and Mst. Abide and another v. Haji Muhammad Boots and 3 others P L D 1976 S C 41. In the case of Juma v. Inayatullah P L D 1976 Lah. 1390. The facts of the case are that Petitioners filed L.H.Form for the transfer of portion of property No.P-47, Block No.2, situated in Samundari, District Lyallpur. The property was disposed of by auction without first legally disposing of the form of the petitioner. Mr. Karam Elahi Chauhan, J., after discussing the case-law held as follows:-

"The first point argued by the learned counsel for the Petitioner was that the finding of the learned Additional Settlement Commissioner in his order dated 23-6-1966 was that the form of the Petitioner was not legally disposed of and that is why he remanded the case 'Lo the Deputy Settlement Commissioner for disposal of the afore-aid form. The effect of that finding was that the disposal of the property in dispute by auction, without first disposing of the form of the petitioner, was without lawful authority. See Gul Muhammad v. Settlement Commissioner, Karachi arid another P L D 1968 Kar. 669 where it was held that if a local is in possession of a house and it he has filed L.H. form, the property cannot be disposed of in auction. The contention was that the Assistant Settlement Commissioner rejected the L. H. Form and it was out to auction after the rejection of L.H. Form. It was held that while rejecting the form, Assistant Settlement Commissioner assigned no reasons, under such circumstances, it will be deemed that the claim of the local was not properly considered and his form shall be treated as still pending and the auction was not proper. To the same strain are Abdul Jabber Khan and others v. Additional Settlement and Rehabilitation Commissioner, Hyderabad and another P L D 1964 Kar. 365 and Ch. Altaf Hussain and 2 others v. Shabbir Hussain and 2 others P L D 1961 Lah. 349. The same is the view which was again reiterated in Abida and others v. Muhammad Boots and others P L D 1976 S C 41 where it was held with reference to an application of a non-claimant displaced person that till the disposal of his application the house could not have been disposed of otherwise (in that case by means of earmarking). The tenor of provisions of Paras.l to 6 of the Schedule attached to the Displaced Persons (Compensation and Rehabilitation Act) XXVIII of 1958 (which was the law in force at the relevant time) also shows the same result. In that view of the matter, since the basic order of transfer by auction was a nullity in the eye of law any superstructure based thereon in the form of maintaining that transfer would also be a nullity. See Yousuf Ali v. Muhammad Aslam Zia and 2 others P L D 1958 S C (Pak.) 104.

Reverting to tire contention of the learned counsel for the respondent that order of entitlement of the property and preparation of Appendix 'X' was passed on 24-9-1960 and order of transfer in favour of the respondent No.1 was passed on 15-3-1969, the Petitioners and their predecessor-in-interest were not vigilant enough to proceed in the matter promptly. His contention is that the Petitioners were negligent and the P.T.D. was issued in favour of the respondent No.1. He also has submitted that the respondents 2 and 3 are bona fide purchasers for valuable consideration. In view of that if the basic order or proceedings on the basis of which P.T.D. was issued, were without jurisdiction or a nullity then the P.T.D. can have no sanctity in law. See Ghias-ud-Din v. Iqbal Ahmed and 5 others P L D 1975 Lahore 780 and Syed Ahmad Abbas saidi v. Settlement Commissioner P L D 1968 Lah. 166. In the case of Juma v. Inayatullah and 3 others P L D 1976 Lahore 1390 Mr. Karam Elahi Chuhan, J, held:-

"Similarly the view of the learned Settlement Commissioner attributing negligence to the Petitioner, when it was the mistake of the departmental authorities in not disposing of the form of the Petitioner in accordance with the provisions of Settlement Scheme No.1 and without even communicating the fate of his form, is not quite apt, especially when the finding of all the Settlement authorities is that the form of the petitioner was not disposed of and was, in the eye of law, still to be considered as pending."

I respectfully agree with this decision for the reasons given by him as such I am of the opinion that the petitioners cannot be blamed for the negligence of the Settlement authority. The cases cited by the learned counsel for the respondent No.3 are not applicable to the facts of the case.

The arguments in this petition were concluded on 3-10-1985 and the petition was reserved for judgment. On 8-10-1985 the advocate for respondent No.3 moved two applications. Those applications were placed before me on 12-10-1985 and by my order dated 12-10-1985 they were placed before me for order on 14-10-1985. On 14-10-1985 I issued notice to the Petitioner for 17-10-1985. In response to the notice the learned counsel for the Petitioner appeared before me on 17-10-1985 and by consent of the parties the applications were adjourned for hearing to 23-10-1985. On 23-10-1985 Mr. M.Akmal Waseem Advocate filed power on behalf of respondent No.3 and requested for an adjournment. By consent the applications were adjourned to 5-11-1985. On 5-11-1985 by consent application Misc. No.274/85 was granted and record pertaining to property in dispute including register was summoned. The Settlement Authorities produced the relevant record including the register. I have perused the file of Ibrahim Rasul Mullah. It appears that his application for transfer was pending and it was never rejected by the Settlement Authorities. I have also perused the register. There the word 'rejected' was written but no such order could be found in the relevant file. It seems the word 'rejected' was not inserted by the clerk on the basis of any order passed by competent authority and this was subsequently mentioned in the register. This entry is unauthorised entry. In view of the matter applications filed by the respondent No.3 are disposed of.

In this view of the matter the orders dated 15-3-1969 of the Deputy Commissioner, order dated 6-10-1970 of the respondent No.4 and order dated 26-2-1977 of the respondent No.5 are set aside and the case is remanded to the authorised officer to go into the question of transfer afresh after hearing the parties and looking into the various aspects of the case and the law. In the circumstances of the case the parties shall bear their own costs.

M. Y. H./K-35/K Case remanded.

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