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Writ Petition No. 197/11 of 1975, decided on 11th December,1985.

‑‑‑S. 10‑‑Settlement Scheme No. I‑‑Transfer of evacuee property‑ Agreement of association, cancellation of‑‑Agreement of association executed between transferee of evacuee property and bona fide purchaser thereof was duly approved by Settlement Authorities‑‑Order of cancellation of such agreement procured by respondent from Settlement Authorities through fraud and misrepresentation by producing false person, held, would be nullity in eye of law and could not affect rights of bona fide purchaser from transferee.

Sh. Anwarul Haq for Petitioners.

Ch. Muhammad Nazir Ahmad for Respondent No. 1.

Nemo for the Remaining Respondents.

Dates of hearing: 7th and 16th December, 1985.

Through this Constitutional Petition, Muhammad Sharif deceased, Mst . Karam Bhari and Muhammad Siddiq petitioners wanted this Court to declare the order, dated 1‑10‑1971 of Additional Settlement Commissioner whereby agreement of association, dated 4‑10‑1964 between Ali Ahmed respondent and Kamal Din, predecessor‑in‑interest of Tariq Mehmood and others, the legal representatives, was cancelled, to be without lawful authority and of no legal effect.

2. The facts leading up to this petition, briefly are that Parabh Dayal Gokal Chand Flour and Rice Mills, measuring 3 Kanals and 8 Marlas comprising machinery, building godowns and residential quarters was allotted jointly to Ejaz Ali Khan, Ali Muhammad and Islam Din. The quarters were in possession of Mehtab Din, Bashir Ahmad and Nawab Din and were allotted to them on 13‑10‑1960 by Deputy Settlement Commissioner. Kamal Din, predecessor‑in‑interest of Mst. Karam Bhari and others, purchased, by means of agreement of association. 1 /3rd share of Ejaz Ali. He also purchased j< share of Ali Muhammad in the year 1964. Ali Muhammad executed yet another agreement of association in favour of Kamal Din with regard to the sale of Compensation Book No. 252419/LYP 11608 amounting to Rs.11,825. On 4‑10‑1964 Ali Muh‑qrnmad and Kamal Din executed agreement for appointment of Ghulam Nabi as arbitrator for determination of consideration price to be paid to Ali Muhammad for surrendering his 1/3rd share in the factory and sale of compensation book. Thereafter, Ali Muhammad received Rs.20,000 on 19‑11‑1964 for surrendering his share and executed receipt in this behalf. Ali Muhammad filed application before Deputy settlement Commissioner alongwith agreement, dated 4‑10‑1964. Kamal Din also purchased for and 1/3rd share of Islam Din and as such, became the transferee of 3/4th share of the factory. The petitioner's case is that all these purchases have been affected with the approval of settlement Authorities. As for the remaining Ith right of Islam Din, he sold 3/4th of Ith to Mehtab Din. Mehtab Din died in the year 1969. Since Islam Din and Mehtab Din did not pay the transfer price of their shares, so the Additional Settlement Commissioner cancelled the transfer and hares of Islam Din and Mehtab Din on 11‑12‑1964. Feeling aggrieved of this order, they filed revision which was accepted by Settlement Commissioner and their shares were restored to them. Despite acceptance of appeal, they did not pay transfer price, so, their shares were resumed and included in the auction list. While preparing auction list, the shares of Kamal Din were included therein. On this Kamal Din filed appeal and his shares were deleted. But shares of Islam Din and Mehtab Din were put to auction which were purchased by Muhammad Sharif petitioner No. 1 and Muhammad Siddiq petitioner No. 3 who paid Rs.6,250 the auction price and obtained P. T. D. Islam Din filed appeal against the petitioners which was accepted by Additional Settlement Commissioner who remanded back the case to the Deputy Settlement Commissioner for determining the entitlement of Islam Din. The Deputy Settlement Commissioner vide his order, dated 17‑6‑1974 transferred the share of Islam Din to Muhammad Sharif and Mst. Karam Bhari. Muhammad Sharif also purchased 3/16th share in the factory from legal heirs of Mehtab Din for Rs.5,550. The transaction was approved by D.S.C. on 17‑6‑1974. On 24‑5‑1971 Ali Ahmad had filed suit for declaration that association deed, dated 4‑10‑1964 was void. The suit was dismissed on 1‑7‑1974. Ali Muhammad then filed appeal. It was during the pendency of the appeal that Ali Muhammad respondent No. 2 moved application before Additional Settlement Commissioner for cancellation of the agreement of association and sale of compensation books alleging that the same ‑ere obtained by Kamal Din through fraud and misrepresentation. On 1‑10‑1971, the Additional Settlement Commissioner while accepting the application of Ali Muhammad respondent No. 2, cancelled the agreement of association and restrained the Settlement Authorities from implementing the orders in favour of the petitioners, hence this petition

3. Learned counsel for the petitioners mainly contended that the impugned order was obtained through fraud and misrepresentation inasmuch as, the order shows that Kamal Din was very much present in the Court whereas he had died even before the filing of the application, dated 6‑8‑1971 wherein the impugned order was passed. The legal representatives of Ali Ahmad, respondent No. 2 have not entered appearance despite service. So, they are proceeded against ex parte. The learned counsel for Settlement Department has not controverted the submission made by the learned counsel for the petitioners.

4. 1 have considered the submissions made by the learned counsel for the parties with care. I find that the petitioners are bona fide purchasers. The agreements of association detailed above were duly approved by the Settlement Authorities. The application by Ali Muhammad culminating in the impugned order was against a dead person and as such the entire proceedings were nullity in the eye of law. It appears that Ali Ahmad had obtained the impugned order by producing fake person before Additional Settlement Commissioner. For all these reasons, there is no option but to declare the impugned order to have been passed without lawful authority.

5. For what has been said above, the petition is accepted and it is declared that the impugned order, dated 1‑10‑1971 was passed without lawful authority and is of no legal effect. The parties are left to bear their own costs.

H.B.T./651/L Petition accepted.

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