MUHAMMAD SIDDIQ Versus KISHWARI BEGUM

The petitioner has assailed the order dated 30th September 1968, passed by the third respondent (Additional Settlement Commissioner, Hyderabad and Khairpur Divisions at Hyderabad) and the order dated 9th April 1969, passed by the second respondent (Settlement Commissioner, Karachi) whereby they cancelled the transfer of a portion of House No. D/44-2475-76, Hyderabad, occupied by the petitioner.

2. Briefly narrated, the facts of the case are that the petitioner is a local and he is in occupation of the rear portion of the first floor of the building bearing Municipal No. D/44-2475-76 situated in Hyderabad. This portion of the building was allotted to him on 4th December 1947, as such, She was a recorded tenant of the Custodian in this portion of the budding.

3. The building in question consists of three independent units. The entire ground floor is in occupation of Habib Bank Ltd. while the front portion of the first floor is occupied by one Jalil Ahmed and the rear portion of the first floor is occupied by the petitioner. The building is jointly assessed for the purposes of rent. The petitioner applied for the transfer of the portion of the building in his occupation on L. H. forms dated the 27th July 1959, but the forms were rejected as the reserve price for this portion was more than Rs. 10,OOO.CO. Subsequently, the entire building was treated as one unit and transferred to Jalil Ahmed on the 16th of November 1959, for Rs. 42,000.00. However, during the subsistence of the transfer in favour of Jalil Ahmed the Settlement Authorities auctioned a portion of the building consisting of the ground floor but cancelled the auction subsequently. The portion of the building in possession of the petitioner was earmarked and drawn in favour of one Asfia Begum on the 15th of May 1960.

4. Feeling aggrieved of these transfers, Jalil Ahmed filed an appeal before the third respondent who passed an order dated 5th August 1960, directing that the transfer in favour of Jalil Ahmed shall remain confined only to the portion occupied by him. He cancelled the transfer of the petitioner's portion made in favour of Mst. Asfia Begum. Then, Jalil Ahmed filed a revision before the second respondent who passed the order dated 12th October 1960, rejecting the revision and directing that the ground floor and the portion of the building in possession of the petitioner should be auctioned. These orders were challenged by Jalil Ahmad in Writ Petition No. 410 of 1960, before this Court. The petition was accepted by this Court ride its judgment dated the 12th of October 1961 (judgment reported in P L D 1961 Kar. 197). The High Court allowed the transfer of the 'entire building in favour of Jalil Ahmed as one unit. The orders passed in the writ petition were challenged in letter's patent appeal by the second and third respondents. The letters patent appeal was allowed vide judgment dated the 9th of February 1960, and the judgment of the learned Single Judge was set aside. Jalil Ahmed sought leave to appeal to Supreme Court vide Petition No. K-79/66 which was refused by the Supreme Court on the 16th of February 1966.

5. After the introduction of Settlement Scheme No. VIII the petitioner applied for the transfer of the portion in his possession again on form L. H. on the 31st of October 1966. It was at this stage that the first respondent intervened and opposed the transfer of the portion of the building in favour of the petitioner on the ground that by the order of second respondent dated the 13th of October 1966, this portion of the building had been transferred to her as a substitute in lieu of a house drawn in earmarking in her favour in Larkana which was subsequently cancelled. According to her, in 1959, House No. 57/1 was drawn in her favour in earmarking but subsequently the transfer was cancelled on the discovery that it was a non-evacuee property. Upon this, the Deputy Settlement Commissioner, Larkana, requested the Settlement Commissioner, Hyderabad to transfer her some other property in Hyderabad in lieu of the house drawn in her favour and subsequently cancelled. The first respondent accordingly selected the property bearing No. C/2135/1 to 6 at Hyderabad on 21st June 1960, but this property could also not be transferred to her as it was not available for transfer. She again filed an application before the second respondent who ordered the Deputy Settlement Com missioner, Hyderabad, to transfer some suitable house to the first respon dent. Accordingly the disputed house was transferred to her. However the petitioner's case is that the transfer was effected in her favour only on telephonic directions received from the second respondent by the Deputy Settlement Commissioner, Hyderabad which was not valid.

6. The petitioner feeling aggrieved of the transfer of the disputed pro perty to the first respondent filed an appeal to the third respondent who dismissed the appeal on the 30th of September 1968 on the ground that the property in question was not available for transfer under Settlement Scheme No. VIII when on 31st October 1966 the petitioner filed L. H. forms. The revision filed by the petitioner to the second respondent was also dismissed on 9th April 1969. The petitioner has now challenged the order of the second and third respondents respectively in this writ petition.

7. The main contention of the learned counsel for the petitioner is that the petitioner being in occupation of the portion of the building was legally entitled to its transfer under Settlement Scheme No. VIII on the basis of continuous possession. According to h m, the transfer effected in favour of the first respondent was invalid as it had been made on telephonic directions received by the Deputy Settlement Commissioner, Hyderabad from the second respondent. He has argued that according to the Notifications dated 7th April 1960 and 28th July 1960 the first respondent should have applied to the Deputy Settlement Commissioner, Hyderabad for the transfer of the house and not to the secondly respondent. In this connection he has placed reliance on Atta Muhammad Qureshi v. Settlement Commissioner, Lahore (PLD1971SC61). In this case the Supreme Court has observed as under :---

"It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done will invali date the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory ? "

The case of the learned counsel for the petitioner is that under Notifica tion dated 7th of April, 1960 as well as Notification dated the 28th of July 1960, it was mandatory that transfer in lieu of the property cancelled after having been earmarked to a person an application should be moved to the Deputy Settlement Commissioner concerned for the transfer of the property in lieu and not to the Settlement Commissioner or any other authority. He has urged that since in this case second respondent was directly approached therefore under his telephonic directions the Deputy Settlement Commissioner, Hyderabad, could not have transferred the property in question to the first, respondent. The learned counsel for the petitioner seems to have overlooked the fact that in this case the Deputy Settlement Commissioner, Larkana who was entitled to transfer the property in lieu of the property earmarked to the first respondent had requested the Settlement Commissioner, Hyderabad to transfer some property to the first respondent in Hyderabad. The first respondent was then required to select the property which she did. This property was also not transferred to her being not available. Therefore, the first respondent once again approached the second respondent who in turn ordered the Deputy Settlement Commissioner. Hyderabad to transfer some other property to the first respondent. In the procedure adopted by the second respondent in connection with the transfer of the property to the first respondent there is absolutely no irregularity and the rule laid down in the above-cited case has not at all been deviated from. Apparently, the first respondent would not have moved the second respondent directly if the Deputy Settlement Commissioner, Larkana had not requested the Settlement Commissioner, Hyderabad to accommodate the first respondent. However, more defect in the procedure would not invalidate the order of the Deputy' Settlement Commissioner, Hyderabad who transferred the property to the first respondent after ascertaining that she had a right to the transfer of the property. Even if it is assumed for the sake of the argument that there was some irregularity in the procedure adopted by any Settlement Authority or the first respondent even then this irregularity is so minor in nature that it would in no way divest the first respondent of her right to obtain the pro perty. The procedure for applying to the Deputy Settlement Commissioner for the transfer of property in the first instance seems merely directory in nature as there is no in the law or any notification issued thereunder to make an application to the Settlement Commissioner or any other authority directly. As far as the petitioner's case is concerned, the orders of the second and third respondents do not suffer from any irregularity in the least because they had refused to transfer the property which was not available for transfer to the petitioner under Settlement Scheme No. VIII. Section 1 (a) of Chapter I of Settlement Scheme No- VIII defines available property. It lays down that the houses and shops and the building sites, industrial concerns and cinema houses, big mansions and hotels which have not been transferred to any person or which may in future become available for transfer on resumption shall be transferred under this scheme. As the disputed property already stood transferred to the first respondent therefore the second and third respondents B rightly held that the property for which the petitioner had applied was not available for transfer and therefore the order of the Deputy Settlement Com missioner, Hyderabad who rejected the LH. forms of the petitioner was a valid order.

8. As a result of above discussion I find that the petition has no sub stance and therefore the same is hereby dismissed. In the circumstances of the case the parties are left to bear their own costs.

S. A. H. Petition dismissed.