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Writ Petition No. 1181/R of 1977 and Civil Miscellaneous No. 108 of 1986, decided on 19th January, 1986.

‑‑‑S. 20, Sched., Parts I & II‑‑Permanent Transfer (Houses and Shops) Rules, 1961, R.4‑‑Constitution of Pakistan (1973), Art. 199 Issuance of P. T. D.‑‑Effect‑‑Evacuee property after issuance of P. T. D. , held, would go out of compensation pool and Settlement Authorities would become functus officio to deal with that property‑‑Order passed by Settlement Authorities in exercise of revisional jurisdiction after issuance of P. T. D. was declared illegal by High Court.

S.Anwar Hussain Sani v. Sarfraz Ahmad and 2 others P L D 1971 SC 669, Aminuddin v Settlement Commissioner and others 1973 SCMR 624 and Syed Murid Hussain Shah v Mufti Muhammad Yousaf Ali and another 1974 S C M R 8 ref.

‑‑‑Art. 199‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2‑‑Constitutional petition‑‑Petitioner dying during pendency of petition and only his son brought on record as his legal heir‑‑Court ordering his daughter, the other heirs to be brought on record‑‑While accepting petition High Court observing that acceptance of writ petition would not imply that the son of deceased was entitled to the entire property of deceased‑‑Question with regard to abandonment of property by daughter of petitioner having not been raised directly before High Court, it refrained from passing any order on the point leaving parties to contest same before appropriate forum.

Sh. Muhammad Naseem for Petitioner.

Dispute herein relates to an erstwhile evacuee plot bearing property No.SE‑32‑R‑8/10 comprising of Khasra Nos. 4041 and 4042, Abdul Karim Road, Lahore having an area of 19 Marlas 180 sq. ft. Petitioner claims to be its allottee since the year 1947 and alleges also that subsequently a formal order of its allotment (Annexure 'A') was issued to him in the year 1952. Facts, as they appear from the writ petition, are that one Malik Ghulam Muhammad had occupied a portion of this plot measuring 53 x 8 feet despite his being the occupant also of another vacant plot bearing Khasra No.4040 situated towards the North of it. He was later brought round to abandon his possession over the part of the plot so that the petitioner has remained in continuous possession of the entire 19 Marlas 180 sq.ft. In due course of time he raised some construction over it and latter even remodelled the construction on the basis of a plan sanctioned by the Municipal Corporation. With the enforcement of Settlement Scheme VI petitioner applied for the transfer of the plot on the basis of his possession. Necessary proceedings were taken thereon and on the basis of a report made by the Rehabilitation Inspector upon site inspection, the matter was put up before the Deputy Settlement Commissioner who, however, took the view on 28‑4‑1960 that the construction was of temporary nature so that the plot could be transferred to the petitioner and accordingly rejected his form. Petitioner preferred an appeal there‑against which was ultimately accepted by the Additional Settlement Commissioner on 11‑6‑1960 (Annexure 'G') on the basis of his site inspection whereafter he recorded that there was a permanent construction containing two rooms, a big shed and a shed of machinery of Pacca bricks and cement morter also fitted with an electric motor and a saw mill installed there. He directed the Deputy Settlement Commissioner to assess the value of the plot in accordance with the constructions issued from time to time. P.T.O. No. 522953 (Annexure 'H') was consequently issued to the petitioner whereafter he applied to the Deputy Settlement Commissioner for assessment of the evaluation price of the plot and the matter was processed and demand notice, dated 15‑11‑1961 (Annexure 'J') was issued to the petitioner, requiring him to deposit a sum of Rs.9,996 as the price of the plot within one month of the receipt thereof. Upon the payment accordingly made by the petitioner P. T. D. (Annexure 'K' ), dated 16‑1‑1962 was issued to the petitioner. It is alleged that thereafter petitioner invested another sum of Rs.30,000 to further improve the property which tempted the aforementioned Malik Ghulam Muhammad to approach the petitioner for the sale to him of the plot in question for being annexed to his hotel. The petitioner, however, declined to accede to the request and this, according to the petitioner, resulted in his managing the issuance of another demand notice, dated 11‑8‑1966 (Annexure 'L') requiring the petitioner to pay a further sum of Rs.96,924 on the basis of some report made by the Accounts Officer to point out that the Central Government had by its Letter No. 6078/Plots‑REH/63, dated 29‑11‑1963 approved the price of Rs.3,600 per Marla but since the petitioner was a non‑allottee, therefore, he may be required to pay 50 more and a price of Rs. 5, 400 per Marla be charged from him and thereat the Deputy Settlement Commissioner summoned the petitioner and by his order, dated 8‑12‑1967 (borne on Annexure 'P') required the petitioner to be summoned to be explained the correct position by stating clearly that in case he did not pay or turn up, he will be proceeded ex parte. Thereafter the Deputy Settlement Commissioner took up the matter to, by his order, dated 19‑1‑1970 (Annexure 'Q') require the petitioner to pay a sum of Rs.96,924 within 30 days or the penalties indicated therein would be imposed. By his representation (Annexure 'R'), dated 12‑2‑1970 petitioner informed the Deputy Settlement Commissioner that since the property had been permanently transferred to him long before and all its dues were cleared leading to the issuance of Permanent Transfer Deed, dated 16‑1‑1962, therefore, notice under reply may be withdrawn. The matter remained pending threafter and nothing was heard about it until the Chief Settlement Commissioner took it up to, by his Memo. No.5572/Urb/71, dated 8‑11‑1971 (Annexure 'S') require the Settlement Commissioner (Urban) to take up the case in suo motu revision under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and passed a remand order regarding the recovery of the balance transfer price from the petitioner. At that stage one Mian Abdul Hafeez purported to act as an informer against the petitioner and filed a miscellaneous application that the petitioner was making construction over the property despite the matter pending in suo motu revision with the Settlement Commissioner and secured the order, dated 19‑8‑1972 (Annexure 'T') from the Settlement Commissioner to require the petitioner to refrain from raising any construction till the disposal of the suo motu revision because, in his view, he was no more the transferee of the property. Petitioner put in appearance before the Settlement Commissioner (Urban) who by his order, dated 16‑10‑1972 (Annexure 'U') set aside the Additional Settlement Commissioner's order, dated 11‑6‑1960 (Annexure 'G') which had determined the entitlement of the petitioner with regard to the plot and had required for assessment of the price in accordance with the instructions of the Government. Petitioner challenged the order of Settlement Commissioner (Urban) in Writ Petition No. 675/ R of 1972 which was finally accepted on 27‑2‑1975 by setting aside the said order, dated 16‑10‑1972 as being without lawful authority and the case was remanded for decision afresh. In pursuance thereof the matter was taken up by the Additional Settlement Commissioner who concluded by an order presumably, dated 28‑10‑1976 (certified copy Annexure 'W') that the transfer price was payable in accordance with the formula framed by the Central Government on the basis whereof the transfer price came to Rs.1, 06, 920 and that since the petitioner was an unauthorised occupant of the plot in dispute, therefore, he was liable to pay the market value prevailing in the year 1960 plus 50 more. He also doubted the genuineness of the allotment order of the petitioner for the reason that it was in bad shape and was not proved from the record. He concluded that "the Deputy Settlement Commissioner had rightly assessed the rental value of the disputed plots at Rs.1, 06, 920 because the property is situated in predominantly commercial area and this should have been paid by the respondent . He sent the case to the Deputy Settlement Commissioner for recovering the said transfer price from him.

2. The order (Annexure 'W') passed by the Additional Settlement Commissioner is assailed in this writ petition on the grounds, firstly, that the petitioner is actually an allottee of the property and has been wrongly described to be an unauthorised occupant by disregarding all the record and the earlier orders wherein his status as such stands admitted. Secondly, that since the P.T.D. (Annexure 'K') had been issued to the petitioner on 19‑1‑1962, therefore, the formula for payment of price had to be worked on the basis of the schedule approved in 1960 and that the new formula adopted in 1963 cannot be retrospectively applied to his case; and, thirdly, that the matter of transfer to the petitioner being a past and closed transaction, it cannot be re‑opened and muchless so by the Settlement Authorities who have become functus officio thereafter.

3. There is no written statement filed for controverting the averments made in the writ petition and no one has appeared to contest it.

4. Learned counsel has, among others, placed reliance on S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others P L D 1971 SC 669, Aminuddin v . Settlement Commissioner and others 1973 S C M R 624, Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another 1974 SCMR 8 and on an unreported judgment, dated 28‑3‑1974 of the Supreme Court passed in Mst. Jahan Ara v. Bashir Ahmad Civil Appeal No.39 of 1972 as also on another unreported judgment of my learned brother A.S. Salam, J., in Writ Petition No. 483/R of 1970 which clearly support the contentions of the learned counsel. In the case of Syed Murid Hussain Shah (ibid), it has been held that after the issuance of P. T. D. property goes out of compensation pool and Settlement Authorities cannot exercise revisional jurisdiction in respect of such property. There is no doubt that the Additional Settlement Commissioner could not have passed the order, dated 28‑10‑1976 (Annexure 'W') to require further payment to be made by the petitioner. This order is, accordingly declared to be without lawful authority and of no legal effect.

5. Before parting with this file, it is necessary to mention also that the original writ petitioner Haji Rehmat Ullah was stated to have died on 20‑11‑1980, leaving behind Bashir Ahmad and Mst. Anwar Bibi, his son and daughter, as his legal heirs Civil Miscellaneous No. 3224 of 1985 was filed for impleading Bashir Ahmad alone as the legal heir of Haji Rehmat Ullah for the reason that Mst. Anwar Bibi had already consented to a registered will executed in his favour by the deceased. However, I required Mst. Anwar Bibi to be also impleaded as a legal heir of Haji Rehmat Ullah without prejudice to the claim of Bashir Ahmad to be the sole legal heir of the property. Pursuant thereto Civil Miscellaneous No. 108 of 1986 has been filed for impleading both the son and the daughter of the deceased as his legal heirs and I have allowed it by means of a separate order passed today to have both of them impleaded as the legal heirs of the deceased petitioner, Haji Rehmat Ullah, without prejudice to the claim made by Bashir Ahmad. Mr. S. M. Nasim, Advocate has represented both the legal heirs before me. While this writ petition is accepted as above, it does not imply that I have also accepted Bashir Ahmad to be the only person entitled to the property. Since the question with regard to abandonment of her right of inheritance by Mst. Anwar Bibi has not been directly raised before me to enable it to be contested by her, therefore, I refrain from passing any order on the point and leave them to have their rights inter se determined in a property filed proceedings in the appropriate forum.

6. Upshot of the foregoing is that the order, dated 28‑10‑1976 herewith (Annexure 'W') passed by the Additional Settlement Commissioner is found to be illegal and without jurisdiction and is accordingly quashed. There, however, is no order as to costs.

H.B.T./R‑2/L Petition allowed.

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