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--S.2(3)(b)--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.3--Transfer of property to one set of persons as building site under Act XXVIII of 1958--Transfer of same property to other set of persons as land under Act XLVII of 1958--Transfer of property as building site being earlier in time than transfer as land- Effect--Where property itself was not available for transfer, its character having not been determined under S.3 of Act XXVIII of 1958, which was the basic requirement for transfer thereof, such transfer, held, could not be validated only on account of delay or equities--Agricultural land could not be acquired under the compensation pool constituted under S.3 of Act XXVIII of 1958 except where such land had been declared as building site under provisions of S.2(3)(b) of Act XLVII of 1958.

(b) Constitution of Pakistan (1973)--

---Art. 199--Displaced Persons (Land Settlement) Act (XLVII of 1958), S.2 (3) (b)--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.3--Transfer of property as building site under Act XXVIII of 1958 and transfer of same under Act XLVII of 1958- Appropriate course to be adopted in exercise of constitutional jurisdiction--Where character of property had not been determined before allotment thereof and two conflicting orders had been passed under two enactments viz. Act XXVIII of 1958 and Act XLVII of 1958, appropriate course, held, would be to declare such orders passed by Settlement Authority as orders without lawful authority with direction to Notified Officer to determine whether at any stage such property had been declared as building site by Settlement Authority under Act XLVII of 1958--Determination of such question would decide entitlement of property to appropriate set of allottees.

A. Sattar for Petitioners. Maroof Ali for Respondents. Dates of hearing: 22nd and 26th January, 1987.

By this common order I propose to dispose of Constitutional Petitions Nos. 237 to 239 of 1974 and 956 of 1974. In all the above noted petitions the subject-matter of .dispute is a plot bearing No.172/2 situated in Deh Narejo, Kali Road, Hyderabad, which has been disposed of both under the provisions of the Displaced Persons (Land Settlement) Act, XLVII of 1958 as well as under the Displaced Persons (Compensation & Rehabilitation) Act XXVIII of 1958. In order to appreciate the contentions of the learned counsel for the parties in the above cases it is necessary to state here the following facts which are not only relevant but are necessary for the disposal of these petitions.

(For the sake of convenience, I will refer hereinafter the above property namely Survey No.172/2, Deh Narejo, Kali Road, Hyderabad, as the "disputed survey number").

The disputed survey number, measuring 4840 sq. yds. was sub-divided into smaller plots by the Settlement Authorities acting under Act XXVIII of 1958 and these sub-divided plots were disposed of by way of public auction under the Settlement Scheme No.6 framed under Act XXVIII of 1958, partly in 1960 and partly in March 1970 as would appear from the order of the Deputy Settlement Commissioner, Hyderabad, dated 30th September, 1972. The petitioners in Petitions Nos.237 to 239 of 1974 are the purchasers of sub-divided plots which were auctioned by the Settlement Authorities on 24th March, 1970 and the sub-divided plots purchased by them measured 800 sq. feet each. The permanent transfer deeds in respect of these sub-divided plots were issued to them on 30th August, 1970. The respondent No.l in Petition No.956 of 1974 is also an auction purchaser of one such sub-divided plot measuring 10890 sq. feet which was auctioned in his favour in the year 1960. Permanent transfer deed in respect of this sub-divided plot was issued in favour of respondent No.l in the year 1967. It is an admitted position that out of 10890 sq.feet transferred to respondent No.l, he sold an area of 236 sq.yds. to one Sirajuddin by a registered sale deed, dated 25-2-1970, while another portion measuring 496 sq.yds. was sold to one Barkatullah by another registered sale deed dated 26-2-1970. The above named two persons namely, Sirajuddin and Barkatullah later on sold their portions by two separate registered sale deeds dated 15-5-1972 and 5-11-1972 to the deceased respondent No.2. The petitioners in Petition No.956 of 1974 are on the other hand the joint transferees under the provisions of the Displaced Persons (Land Settlement) Act XLVII of 1958 and the supplementary Scheme No.2 framed thereunder of the entire area of 4840 sq.yds. as an urban land. It appears that after obtaining transfer of land under the provisions of Displaced Persons (Land Settlement) Act and the Scheme framed thereunder the petitioners came to know that the land which was transferred to them under the provisions of Act XLVII of 1958 was also sold by the Settlement Authorities under the provisions of .act XXVIII of 1958. In fact the petitioners in Petition No.956 of 1974 faced resistance from the persons who were holding allotment of the same land under the provisions of Act XXVIII of 1958, when they attempted to take over possession of the disputed survey number. In these circumstances the petitioners in Petition No.956 of 1974 filed a Miscellaneous Application before the Deputy Settlement Commissioner, Hyderabad, alleging that the transfer made in favour of several persons as building site was wholly without jurisdiction as this land was never acquired under section 3 of the Compensation Pool and was all along treated as an urban land under Act XLVII of 1958. The Deputy Settlement Commissioner, however, refused to interfere with the transfers made in favour of those 10 persons whose names are mentioned in the order dated 30th September, 1972, on the ground that he had no jurisdiction in the matter as permanent transfer deeds has already been issued to these parties and the confirmation of the auction was made in favour of the transferees by the Additional Settlement Commissioner concerned. It may be mentioned here that from the order of the Deputy Settlement Commissioner dated 30th September, 1972 it appears that out of the total area of 4840 sq.yds. of the disputed survey number only an area of 3251 was disposed of in public auction under Scheme No.VI of Act XXVIII of 1958.

Aggrieved by the order of Deputy Settlement Commissioner the petitioners in Petition No.956 of 1974 preferred a Revision Application before the Settlement Commissioner which was made over to the Additional Settlement Commissioner, Hyderabad, for disposal by order of Settlement Commissioner dated 4-8-1973, The Additional Settlement Commissioner in the Revision Application recorded evidence of the concerned department and by his order dated 17-11-1973 reached the conclusion that Plot No.172/2 was not an open building site and as such its transfer under the provisions of Act XXVIII of 1958 was not valid and he accordingly ordered for cancellation of all the P.T.Ds. issued to the persons in respect of the different sub-divided plots sold by way of auction. From the order of Additional Settlement Commissioner dated 17-11-1973 it appears that before him Ashiq Ali and others were respondents but it is not at all clear as to who were those others who were respondents alongwith Ashiq Ali. The contention of the learned counsel for respondent No.2 in Petition No.956 of 1974 in that he was not made party in the proceeding which culminated in the order dated 17-11-1973 and as such this order passed by the Additional Settlement Commissioner, Hyderabad was wholly without jurisdiction. Be that as it may it is quite clear that the order dated 17-11-1973 was not challenged by any of the parties who arc shown as respondents in the above Revision Application except Abdul Razzaq son of Nanay Khan, Ghulam Muhammad son of Anwar Khan and Abdul Rehman son of Nathu, the petitioners in Petitions Nos; 23 % to 239 of 1974. It may be mentioned here that S.M. Shafiq Naqvi (deceased respondent No.2 in Petition No.956 of 1974) preferred a Revision Application under section 19(3) of the Displaced Persons (Land Settlement) Act, 1958 against the order of Additional Settlement Commissioner (Lands) Hyderabad, dated 2R-8-1970 whereunder the entire disputed survey number 172/ 2 of Deh Narejo. Kali Road, Hyderabad, was transferred to the petitioners in Petition No.956 of 1974 as an urban land. In that Revision Application the Settlement Commissioner (Lands) after referring to various orders passes' by the Authorities under the Act XXVIII of 1958 and referring to certain documents which were produced before him during the course of above proceedings held that survey No.172/2 was a building site and as such its transfer in favour of the petitioners in Petition No.956 of 1974 was not legal and he accordingly cancelled the allotment made in their favour by the order, dated 29th June, 1974. It is this order of the Settlement Commissioner (Lands) passed under the provisions of Act XLVII of 1958 which is challenged as an order without lawful authority in Petition No.956 of 1974 by the petitioners in that petition whereas in the other connected Petitions Nos.237 to 239 of 1974 the order of Additional Settlement Commissioner 'dated 17-11-1973 passed under the provisions of Act XXVIII of 1958 is challenged by the petitioners in that petition.

Mr. Maroof Ali Khan, learned counsel for the petitioner in Petition No.956 of 1974 contended before me that the disposal of land under the provisions of Settlement Scheme No.VI framed under Act XXVIII of 1958 is wholly without jurisdiction and lawful authority as the land was never acquired in the compensation pool constituted under section 3 of Act XXVIII of 1958 and as such it was at no time available for transfer under the aforesaid scheme. It is also contended by the learned counsel that as the disputed survey number was at no time declared as building site as required under section 2(3)(b) of Act XLVII of 1958 its transfer to respondent No.2 in the above petition and petitioners in Petitions Nos.237 to 239 of 1974 under Settlement Scheme No.VI framed under Act XXVIII of 1958 is void and as such the cancellation of the permanent transfer deeds issued to the transferees by the Additional Settlement Commissioner, Hyderabad by his order dated 17-11-1973 was fully justified. Learned counsel for the respondent No.2 in Petition No.956 of 1974 and the petitioners in Petitions Nos.237 to 239 of 1974 on the other hand raised the following contentions jointly in these petitions:----

(1) That at the time the disputed survey number was transferred in favour of the petitioners in Petition No.956 of 1974 it was not available for transfer as it already stood transferred in favour of several persons under the provisions of Act XXVIII of 1958.

(2) That the power to declare urban agricultural land as a 'building site' was available to the Chief Settlement Commissioner under section 2(3)(b) of Act XLVII of 1958 which was delegated to all the Additional Settlement Commissioners by a Notification dated 5-2-1960 and the said power shall be deemed to have been exercised when the Additional Settlement Commissioner acting under the provisions of Act XXVIII of 1958 subdivided the disputed survey number into several plots and put the same to public auction and confirmed the sale by auction.

(3) That the cases of the petitioners in Petitions Nos.237 to 239 of 1974 and respondents 1 and 2 in Petition No.956 of 1974 could not be reopened on the basis of a miscellaneous application filed by the petitioners in Petition No.956 of 1974 before the Deputy Settlement Commissioner and as such any superstructure built on the basis of an order obtained on such misconceived application could not be sustained in law.

(4) In any case the transfers in favour of petitioners in Petitions a Nos. 237 to 239 of 1974 and respondents Nos. 1 and 2 in Petition No. 956 of 1974 having taken place earlier to the transfer in favour of the petitioners in Petition No. 956 of 1974, their transfers were protected on the principle that transfer in favour of a bona fide purchaser for valuable consideration cannot be interfered with in such circumstances.

(5) That the equities being in their favour the order passed by the Settlement Commissioner (Lands) on 29-6-1974 even if found to be an order not sustainable in law will not be interfered with in these proceedings.

After hearing the learned counsel for the parties at length I am of the view that the crucial point involved in the case namely whether survey number in dispute was an urban agricultural land or a building site within the meaning of section 2(3)(b) of Act XLVII of 1958 and the Policy decision of the Chief Settlement Commissioner, dated 9th October, 1969 printed at page 47 of Latif's Settlement Manual (1973 Edition) has not been resolved satisfactorily in the case. In so far the contention of the learned counsel for the respondents Nos. 1 and 2 in Petition Nos.956 of 1974 and petitioners in Petitions Nos.237 to 239 of 1974 are concerned, it may be stated here that no doubt the transfers in favour of these persons had taken place much earlier to the transfer in favour of the petitioners in Petition No.956 of 1974, however, if the property itself was not available for transfer under the compensation pool constituted under section 3 of Act XXVIII of 1958 which is the A basic requirement of such transfer, the transfers in favour of the petitioners in Petitions Nos.237 to 239 of 1974 and respondents Nos.l and 2 in Petition No.956 of 1974 could not be validated only on account of delay or equities. The basic question therefore, in all these petitions which requires determination is whether on the date the transfers were effected in favour of the petitioners in Petitions Nos.237 to 239 of 1974 and respondent No.l in Petition No.956 of 1974 under the provisions of Displaced Persons Act XXVIII of 1958 the disputed survey number at all was available for such transfer under the Settlement Scheme No.VI. It cannot be disputed that agricultural land could not be acquired under the compensation pool constituted under section 3 of Act XXVIII of 1958 except in one case when it was declared as a building site B under the provisions of section 2(3)(b) of Act XLVII of 1958. On a pointed question asked by me, Mr. Akhtar Mahmood, the learned counsel for respondent No.2 in Petition No.956 of 1974 and Mr. Abdul Sattar, for the petitioners in Petitions Nos.237 to 239 of 1974 very candidly stated that there is no specific declaration by the Chief Settlement Commissioner, declaring the disputed survey number as a building site under section 2(3)(b) of Act XLVII of 1958 on record. However, it is very strenuously argued by Mr. Akhtar Mahmood, that the fact that the plot was sub-divided into smaller plots in the year 1960 and that they were put to public auction and later on confirmed by the Additional Settlement Commissioner, goes to show that the plots were in fact treated as a building site within the meaning of section 2(3)(b) of Act XLVII of 1958. With utmost respect to the learned counsel I am unable to accept this contention. The overt act relied upon by Mr. Akhtar Mahmood to support the contention that these plots were treated as building site or declared as a building site under section 2(3)(b) of Act XLVII of 1958 were all those which were done or taken by the officers appointed under the provisions of Act XXVIII of 1958 whereas the power to declare an agricultural land as a building site vests with the Chief Settlement Commissioner and his delegatees exercising such powers under the provisions of Act XLVII of 1958. I must say that as for the record before me is concerned except of the order of Settlement Commissioner (Lands) dated 29-6-1974 there is no other order by any other officer exercising powers under the provision of Act XLVII of 1958 whereby the disputed survey number was even obliquely treated as a building site under section 2(3)(b) of that Act. On the contrary the order of the .additional Settlement Commissioner dated 17-11-1973 which till today has not been challenged by respondent No.l or respondent No.2 by any appropriate proceedings goes to show that the C officer exercising powers under the provisions of Act XXVIII of 1958 was of the view that the property was not a building site but an urban land which was available for allotment under the provisions of Act XLVII of 1958. The fact that there are two conflicting orders in respect of the same property, one having been passed by the Additional Settlement Commissioner, Hyderabad under the provisions of Act XXVIII of 1958 holding that the property was not a building site and the other passed by the Settlement Commissioner exercising the powers under the provisions of Act XLVII of 1958 holding that the land was not an urban land available for transfer under the provisions of Act XLVII of 1958 has set the whole controversy in these cases at knot. In the absence of a specific declaration by a competent authority under Act XLVII of 1958, declaring the disputed survey number as a building site it is not possible for me to hold in these proceedings that in fact the disputed survey number on the date it was transferred as a building site under the provisions of Act XXVIII of 1958 was available for transfer as a building site. In these circumstances, I am of the opinion ,that the only appropriate course will be to declare the two orders impugned in the above petitions namely order dated 17-11-1973 passed by the Additional Settlement Commissioner, Hyderabad, and that of Settlement Commissioner dated 29-6-1974 as orders without lawful authority with the direction to the notified officer under Act XXVIII of 1958 who will hereafter proceed with these cases to determine the following question:--