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Constitutional Petitions Nos.24 and 26 of 1980, decided on 14th May, 1984.

---Art.199--Finding of Tribunal not based on material document- Effect--Where finding of Tribunal below was not based on material documents or material documents had illegally been excluded from consideration such finding, held, having been passed without lawful authority and being of no legal effect could be struck down by High Court in exercise of constitutional jurisdiction.

---Para.38--Constitution of Pakistan (1973), Art.199--Issuance of P.T.D. without proper authority-- Constitutional jurisdiction, exercise of--P.T.D. issued by Settlement Department without proper exercise of its authority, held, would be subject to judicial scrutiny of High Court in exercise of its constitutional jurisdiction and transferee would not acquire valid title in respect of property transferred on basis of that P.T.D.

Muhammad Amin v. Chief Settlement Commissioner P L D 1966 Kar.91; P L D 1979 Kar.534; 1973 S C V1 R 624; 1983 C L C 2970; Aziz Khan v. Abdul Khaliq 1976 S C M R 95; Syed Ahmad Shah v. Fazal Din and another 1975 S C M R 268; Muhammad Sharif v. Muhammad Younus 1981 S C M R 548; Mst.Fazal Bibi v. Settlement Commissioner and another P L D 1983 S C 164; and Mst.Noor Jehan and others v. Syed Hasan Shah and others P L D 1979 Kar.796; Mst.Fazal Bibi and others v . Settlement Commissioner P L D 1983 S C 163; Muhammad Anwar Khan v. M. A . Wasti Settlement and Rehabilitation Commissioner 1975 S C M R 372 ref.

---Para.38--P.T.D. issued by Settlement Department based on order passed without lawful authority, held, could not be maintained.

M.M.Beg. for Petitioner (in C.P.No.24 of 1980).

Imran Ahmed for Respondents.

Dates of hearing: 18th and 19th April, 1984.

These petitions have been filed challenging the order passed by the learned Settlement Commissioner, the respondent No.1, whereby application of Noor Muhammad petitioner in Petition No.24/80 hereinafter referred to as the petitioners for transfer of disputed flat has been dismissed and Mst. Halima Bai, petitioner in Petition No.26/80 and respondent No.2 in Petition No.24/80 hereinafter referred to as respondent No.2 has also challenged the order. The dispute relates to tenement Nos.2/1 and 3/1 in building on Plot No.M.6/4/313/1 Custodian No.IVA/136 situated on the second and third floor of the said building. The petitioner claims to be in occupation of this flat from 1955 but did not apply for its transfer under Scheme No.I. It seems that these tenements were included in the auction list by the Deputy Settlement Commissioner during the year 1966. After the promulgation of Settlement Scheme No.8 the petitioner filed N.C.R. form for transfer of the tenements which was registered at serial No.KYC/F 1575 N.C.R. dated 29-10-1966. Before the disposal of this application the tenements were included in the auction list in the year 1967 at a reserve price of Rs.7,140. The petitioner has alleged that as he was not intimated of the rejection of his NCH form and as no action was taken on his application he made a complaint to the Martial Law Authority who forwarded it for disposal to the Deputy Settlement Commissioner who passed the order on 23-2 1971 holding that the property has already been transferred to the respondent No.2 under an order dated 24-12-1964 passed by the Deputy Settlement Commissioner on negotiation basis and P T D has been issued on 15-12-1967. The petitioner filed an appeal which was dismissed on 12-6-1971 and revision filed against that order was also dismissed on 21-3-1974 mainly on the ground that as P T D has been issued to respondent No.2 the Settlement Commissioner has no jurisdiction to reopen the case. The petitioner challenged this order in Constitution Petition No.860/74 which in view of a consent statement made by the parties was allowed, the order of Settlement Commissioner dated 21-3-1974 was set aside and the revision filed by the petitioner was remanded to the Notified Officer for disposal after hearing the parties. By his impugned order dated 14-12-1980 he dismissed the revision application on the ground that as the petitioner did not file his N.H.C. form in time and there being no authentic entry in the official record to support the petitioner's case he was guilty of laches and negligence, and the disputed property was available for transfer. He further held that the P T D issued in favour of respondent No.2 was valid as transfer of non-attractive property on negotiation basis should have been made by the Additional Settlement Commissioner and not by the Deputy Settlement Commissioner. The petitioner and the respondent No.2 have challenged this order by separate petitions which have been heard together.

Mr.M.M. Beg, the learned counsel for the petitioner has contended that the N.C.H. form filed by the petitioner was pending and the property had remained un-disposed till 1966-67 therefore without disposing of his N . C . H . Form the property could not be transferred in favour of the respondent No.2. On the other hand Mr.Imran Ahmed the learned counsel for the respondent No.2 has contended that the property had been transferred to respondent No.2 on 24-12-1964 and P T D was issued on 15-12-1967 therefore the Settlement Authority had become functus officio and P T D could not be cancelled or amended. The petitioner had filed N.C.H. form on 24-10-1966. This fact is completely borne out by the record of the Settlement Department which has been placed before me. There is one file which consists of N.C.H. form filed by the petitioner in respect of the disputed property. The application bears an order dated 31-10-1966 for registration if in order. The 'petitioner has produced the original receipt for inspection which had been issued by the Settlement Department. There is a note dated 7-10-1967 stating that the property has already been transferred to Halima Bai and P T D has been issued to her. A Letter No.480 dated 25-3-1969 was issued to the petitioner stating that the Application No.KYO 1/1575 in respect of the disputed property has been rejected as the property in question has already been disposed of and it is not available for transfer. The letter seems to have been despatched by register post A/D but it was returned back undelivered with the remarks of the postal authorities that the address was incomplete. In the address of the petitioner only name of the street was mentioned but the number of the house and property in which he was residing was not mentioned. This negligence on the part of the Settlement Department in giving incomplete address of the petitioner has resulted in the non-service of the letter. The petitioner does not seem to have been served with the order of rejection of N.C.H. form. The respondent No.1 has rejected the application of the petitioner in the following manner:-----

"Since the Petitioner also did not file his NCH Form in time and I did not find any authentic entry in the official record which should support the case of the Petitioner, therefore, I hold that petitioner should also suffer for his laches and inaction."

The observation made by the respondent No.1 completely ignores the material evidence on record. It is incorrect that the NCH Form was not filed in time. This form was filed on 29-10-1966 and nothing has been pointed out to show that it was filed beyond the period of limitation. The observation of the learned Notified Officer that he did not find any authentic entry in the official record is also not correct because a file was maintained by the Settlement Department in which there are relevant papers and action has been taken on it. If the file maintained by the Department is not authentic then the respondent No.1 should have pointed out to such documents which ought to have been maintained and were missing. These observations have been made by the respondent No.1 without properly applying his mind tot the facts and the documents that were available. Where finding of a Tribunal is not based on material documents or material documents have illegally been excluded from consideration, it should be struck down. I have come to the conclusion that NCH Form filed by the petitioner was proper and its rejection was not communicated to him.

The question arises what is the effect of this form on the transfer of the property. The learned counsel for the respondent No.2, has contended that the property was transferred to respondent No.2, in the year 1964, therefore, it was not available for transfer in the year 1966 when the petitioner filed his form. The respondent No.2, draws her title on the basis of order of transfer made in her favour by Deputy Settlement Commissioner on 24-12-1964. It seems that on 10-11-1964 the respondent No.2, filed an application before the Deputy Settlement Commissioner stating that the disputed property is available for transfer and the same may be transferred to her at a reasonable price. The Deputy Settlement Commissioner called for the report on 11-11-1964 which was submitted on 23-12-1964 stating that the property is 'no bid property' and is available for transfer. On 24-12-1964 the Deputy Settlement Commissioner passed an order that "since the property is a no bid property may be transferred to the applicant (respondent No:2) at Rs.200 above the reserve price i.e. 4320+200=Rs.4520". Appendix IX was issued on the same date. After payment of price Provisional Transfer Order was issued on 12-2-1965. The respondent No.2, applied for issuance of PTD which was issued on 15-12-1967.

Mr. M. M. Beg, the learned counsel for the petitioner has contended that the Deputy Settlement Commissioner was not empowered to transfer the property by negotiation. In this regard the learned counsel has referred to para 6 of the letter of the Central- Government dated 24-6-1960 which provided that unattractive properties which could not be disposed of be put to last round of restricted auction quickly. If such properties remain un-disposed of then they should be disposed of by negotiation. The Additional Settlement Commissioner could exercise this power. This letter has been relied upon and reproduced in Muhammad Amin v. Chief Settlement Commissioner (P L D 1966 Karachi 91). Relying on this instruction the learned counsel for the petitioner contended that the Deputy Settlement Commissioner had no jurisdiction to transfer .the property by negotiation. From this letter it seems that the Additional Settlement Commissioner was authorised to transfer by negotiation. It therefore follows that the order of transfer by negotiation passed by the Deputy Settlement Commissioner in favour of respondent No.2, was without lawful authority.

Mr.Imran Ahmad, the learned counsel for the respondent No.2, has contended that after P T D had been issued the respondent No.1 , had no authority to cancel it. In support of this contention he has relied upon P L D 1979 Kar.534, 1976 S C M R 95; 1973 SCMR 624 and 1983 C L C 2970. In Amin v. Settlement Commissioner and another (1973 S C M R 624) it was held that "after the repeal of Rules 6 and 7 of the Permanent Transfer Rules there was no power left in the Settlement authorities to correct even the clerical mistakes in the P T D." In Aziz Khan v. Abdul Khaliq (1976 S C M R 95), same view was re-affirmed.

Mr. M. M. Beg has referred to Syed Ahmad Shah v. Fazal Din and another (1975 S C M R 268) where it was clearly laid down that if the disputed property was not transferable the transfer order even if followed by P T D will be without any legal effect. In this regard reference can be made to Muhammad Sharif v. Muhammad Younus (1981 S C M R 548), Mst. Fazal Bibi v. Settlement Commissioner and another (P.L D 1983 S C 164) and Mst.Noor Jehan and others v. Syed Hasan Shah and others (P L D 1979 Kar.796). In Mst. Fazal Bibi and others v . Settlement Commissioner (P L D 1983 S C 163) it was observed:--

"The jurisdiction of the Settlement authorities to interfere with the P T D is not attached where a complaint is made, ,but it could be interfered with if at all, only on proof of alleged forgeries or nullities and not merely for re-examining the case afresh."

The rule is well-settled that where P T D has been issued without proper exercise of the authority by the Settlement Department it is subject to judicial scrutiny of the High Court in exercise of its Constitutional writ jurisdiction and if the P T D is void the transferee does not acquire a valid title. As held in Muhammad Anwar Khan v. M.A. Wasti Settlement and Rehabilitation Commissioner (1975 S C M R 372) the issuance of P T D does not affect the constitutional jurisdiction of the High Court to inquire into the validity of the transfer. Similar view was expressed in Civil Appeal No. K-149/80, S. Anwar Ali v . Settlement Commissioner Karachi and 5 others decided on 30-8-1982 holding that "the High Court in its Constitutional jurisdiction is fully empowered to strike down the P T D if it is shown that the order of transfer on which it was based was passed without lawful authority and was of no legal effect".

The learned Settlement Commissioner has correctly held that the transfer of property to Respondent No. 2, was against the mandatory provision of law. The P T D based on an order passed without lawful authority cannot be maintained. In the circumstances when the petitioner, filed NCH Form the property was legally available for transfer. The petitioner's NCH Form is still pending and it should be disposed of according 'to law. If on the basis of NCH Form the petitioner is entitled to the transfer of the property then it should be transferred to him on the price fixed by the respondent No.1.

The impugned order as far it relates to the claim of Respondent No.2, is upheld. The order rejecting the petitioners NCH Form and making the property available to Land Utilisation Department of Board of Revenue as undisposed of property has been passed without lawful authority and is of no legal effect.

In the result Petition No.24/80, is allowed and Petition No.26/80 is dismissed.

H.B.T./H-62/K. Order accordingly.

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