ZEENAT NISA Versus SETTLEMETN COMMISSIONER KARACHI

1. These two connected Petitions Nos. 161 of 1969 and 138 of 1974 involve dispute relating to a common passage of property No. S. B. 3/32 situated at Frere Street, Saddar, Karachi.

2. This common passage was initially transferred to the petitioner in Petition No. 161/69 by the Settlement Department on negotiation basis ,by accepting his offer of Rs. 560 and P. T. O. was also issued to him .on 5-11-1963. Thereafter, he applied for P.-T. D. but the Deputy Settlement Commissioner was not satisfied about the assessment of the property and accordingly inspected the premises in dispute and thereafter passed the Following order:

3. "I am not satisfied with the present evaluation price. I have inspected the site. There is no tenant. It Is as a matter of fact, a toilet room used for keeping gharas/matkas in the side of a passage. The contention of the applicant seems to be that in such an evaluation price they could, later on possess the whole passage could be converted into a good shop on front street adjacent to the Frontier Hotel. I, therefore enhance the assessment of this so-called tenement @ Rs. 6 p.m. The evaluation price be determined accordingly. Appendix be issued."

4. The petitioner accordingly paid the enhanced price and obtained the P. T. D. on 4-10-1967. The respondent No. 2 namely, Shah Zaman, on .coming to know of the transfer of the common passage to the petitioner, filed an appeal before the Additional Settlement Commissioner challenging the above transfer on the ground that the premises in dispute were not a tenant but common passage of the main building intended for common use of its residents and as such could not be transferred to the petitioner. The learned Additional Settlement Commissioner made site inspection of the premises and gave a finding that the premises in dispute was only a common passage without any room or tenement existing therein and formed part and parcel of the building as its easment and as such neither be transferred as a separate unit to the petitioner nor even to the respondent No. 2 and accordingly, cancelled the transfer documents of the petitioner in respect of the premises in dispute. In reaching to the above finding he also took into consideration the Evacuee Property Register wherein ..this common passage had neither been surveyed nor assessed as a separate unit.

5. Aggrieved by the order of the Additional Settlement Commissioner, the petitioner went in revision before the Settlement Commissioner. The respon?dent No. 2, however, did not further challenge the order pf the Additional Settlement Commissioner as he was satisfied with the order.

6. In the revision, the learned Settlement Commissioner after making site inspection, concurred with the findings of the Deputy Settlement Commissioner ?as well as the Additional Settlement Commissioner and held that firstly, the common passage could not be legally transferred to any one. Secondly, that, in any case, the petitioner was not entitled to the transfer of the premises in question as he bad, admittedly, not filed any form under any of the Settlement Schemes Nos. 1 and 8 nor were the premises in question put to auction so that the same could not be legally transferred to him on the basis of negotiations either. The learned Settlement Commissioner further held that the respondent No. 2 was also not entitled to the transfer of the premises inasmuch as he was neither an auction purchaser nor had he obtained it from any other transferee nor did the easement rights claimed by the respondent No. 2 confer any proprietary rights on him. In the result, he ordered the premises in dispute to be put to public auction. Being aggrieved by the order of tile learned Settlement Commis?sioner, the petitioner filed this Petition No. 161/69. Respondent No. 2 in petition No. 161 /69 feeling aggrieved by the order whereby the Settlement Commissioner ordered auction of the common passage also filed a petition No. 138/74. Both the petitions have come up for hearing today and are being disposed of by this order.

7. Mr. Mufti Alimuddin, appearing for the petitioner in petition No. 162/69 contended that the petitioner had been to occupation of this common passage since a long time and had been paying rent for it to the Custodian Department. Thereafter, the Settlement Authorities had transferred it to him on negotiation basis through a letter dated 14-8-1963 by accepting his highest bid of Rs. 580 and had also issued the P. T. D. to him and the Permanent Transfer Deed having been issued to the petitioner and no appeal having been filed against the issuance of the P. T. D. by the respondent No. 2, the Additional Settlement Commissioner and the Settlement Commissioner had no jurisdiction to cancel the P. T. D. In support he placed reliance on the Supreme Court case reported in P L D 1971 S C 699.

8. There is no substance in the contention. The learned counsel conceded that the petitioner did not file any form either as a claimant or a non-claimant displaced person or even as a local under the Displaced Persons (Compensation & Rehabilitation) Act 1958 or any of the schemes and had also not purchased the premises in any auction. He also admitted that the premises in dispute were a common passage. Now under the Displaced Persons (Com?pensation and Rehabilitation) Act, 1958 (hereinafter referred to as the `Act') the premises in dispute could be transferred only if it were house as defined in the Act. The learned Deputy Settlement Commissioner, the Additional Settlement Commissioner and the Settlement Commissioner after making site inspection gave a concurrent finding of fact that the premises in dispute were only a common passage and not a house. In view of this finding of fact, the premises could not be legally transferred to the petitioner under the Act or any of the schemes and since it could not be transferred the P. T. D. for the same also could not be legally issued. Rule 3 of the P. T. D. Rules lays down as under:-

9. "(1) When a property has been provisionally transferred under the Act or a Scheme and

(a) the order of transfer is a final order, and

(b) the proposed or provisional transferee has paid in full

(i) the transfer price or the auction price of the property,

(ii) settlement fee, and

(iii) all public dues. a record of permanent transfer of the property in the name of the proposed or provisional transferee shall be made by the Deputy Settlement Commissioner of the area in a register to be kept and maintained in the form given in the schedule to these rules and thereupon the property shall stand transferred to the transferee from all encumbrances."

10. It will be noticed that under the above rule P. T. D. could be issued in respect of property which has been transferred under the Act and by an order which is final. Since in the instant case the premises had been transferred in violation of and outside the Act, the order transferring the same was illegal and void ab intio and the P. T. D. issued on the basis of the void order also became void and did not acquire the sanctity attached to a P. T. D. issued in respect of the property transferred under B the Act on the basis of final valid order. It is well settled that if initial order is found to be void; any subsequent order passed on the basis of that void order also becomes void and is of no legal effect. If authority is needed for above, reference be made to the reported case of Yousaf Ali v. Muhammad Adam Zia (P L D 1958 S C 104) where their Lordships of the Supreme Court observed as under:-

11. "Where the Legislature clothes an order' with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void non-existent. And if on the basis of a void order subsequent orders hale been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."

12. Further it was held by their Lordships in the case reported as Muhammad Ismail v. Settlement Commissioner (1973 S C M R 407) that the issuance of P. T. D. is subject to appeal and revision as provided by the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In the instant case, the respondent No. 2 on coming to know of this illegal transfer to the petitioner, filed an appeal before the Additional Settlement Commissioner alongwith an application for condonation of delay in filing the appeal. The learned Additional Settlement Commissioner accepted the explanation of the respondent No. 2 that the premises in dispute had been transferred to the petitioner without any notice to the respondent No. 2 and allowed the appeal by a well reasoned order and cancelled the P. T. D. issued to the petitioner.

13. Since the learned Additional Settlement Commissioner condoned the delay and allowed the appeal and the order in appeal was maintained by the Settlement Commissioner by dismissing the revision application filed by the petitioner, the P. T. D. issued to the petitioner did not require the alleged finality and sanctity on this ground as well. The contention of the petitioner that he had purchased the common passage by negotiation also cannot be entertained as the premises could not and were not put to auction.

14. Even if it were to be assumed for the sake of argument that the premises in dispute were a house, the same could not be transferred to the petitioner as admittedly he did not apply for its transfer either under Scheme No. 1 or Scheme No. 8 nor did he purchase it in an auction. Mr. Naimuddin, the learned counsel for the respondent No. 2, therefore, very rightly relied upon the cases reported as Amir Din v. Muhammad Siddiq (P L D 1966 Lah. 416), Shaikh Muhammad Amin v. Chief Settlement Commissioner (P L D 1966 Lah, 473) in support of his contention that a party could not get something which he never applied for.

15. In view of what has been said above, the learned Settlement Commissioner very rightly upheld the order- passed by the Additional Settlement Commissioner cancelling the P. T. D. of the petitioner. The learned Settlement Commissioner, however, was not right in ordering the auction of the premises in question. After holding that the premises in dispute were only a common passage and not a house and therefore were not transferable under the Act or under any of the schemes, he could not n order its auction either which could also be done in respect of properties transferable under the Act and, therefore, acted in excess of his authority by ordering auction of the common passage. Consequently, this part of his order cannot be sustained and is set aside.

16. With regard to the petition No. 138 of 1974, Mr. Mufti Alimuddin, the learned counsel for :he respondent raised a preliminary objection that the petition suffered from serious laches in that it was filed after the lapse of nearly five years. Mr. Naimuddin, the learned counsel for the petitioner, in reply contended that this petition had been filed out of abundant caution only as the impugned order was already under challenge in the petition No. 161/69, filed by the respondent in which the petitioner arrays as respondent No. 2. In any case the learned counsel contended, the main question involved in this petition was already before this Court and, there fore, filing of this petition at the late stage caused no prejudice to any one. In support, he referred to P L D 1971 Lah. 248. It is not doubt true that the petition has been filed after the laps of five years and, therefore, appears to suffer from laches, but it is equally true that the question involved in this petition is already before his Court in the Petition No. 161/69 filed by the respondent wherein the petitioner in this petition is also a respondent. Consequently, the delay in filing this petition has entailed no; prejudice to the rights of a party. Preliminary objection is therefore found to be devoid of substance. On the merits, the only contention repeated by the learned counsel for the petitioner was that the Settlement Commis?sioner having held that the premises in question was a common passage and, therefore, not transferable under the 'Act' acted beyond his authority in ordering its auction. This contention has been already found to be of no substance while dealing with the Petition No. 161 of 1969.

17. In the result, while petition No. 138 of 1974 is allowed, Petition No. 161 of 169 is dismissed and the order of the learned Settlement Commis?sioner is upheld except the part whereby he ordered auction of the common passage. The parties to bear their own costs.

18. S. Q. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ??????????????????????????????????? Order accordingly.