ABDUR RAHIM Versus ASSISTANT COMMISSIONER/DEPUTY SETTLEMENT COMMISSIONER

This petition under Article 199 of the Constitutional of Islamic Republic of Pakistan, 1973 is directed against order, dated 4-8-1975 passed by respondent No. 1, Assistant Commissioner/ Deputy Settlement Commissioner (Lands), Pasroor, District Sialkot.

2. The facts briefly stated are that two shops bearing Nos. 6/40 and 6/41 situated in Pasroor, District Sialkot were put to auction by the Settlement Department (Urban Wing) on 12-11-1960. These shops were purchased in the open auction by Ghulam Mohy-ud-Din and Allah Dad Khan. P.T.Ds were also issued to both of them on 17-9-1962. These shops had been built on Khasra No. 74 and were initially in occupation of the Mukhtar-e-Khas' of both Ghulam Mohy-ud-Din and Allah Dad Khan, but later respondent No. 2 came into its occupation as Licencee of the petitioners. The said respondent No. 2 made application on 13-12-1974 to the Deputy Settlement Commissioner (Lands) Pasroor for being allowed to purchase the property in dispute under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1974. The learned Deputy Settlement Commissioner (Lands) obtained a report from the Patwari and on the basis thereof passed the impugned whereby he transferred the Khasra number on tioned shops are built to respondent No. 2.

3. The petitioners feeling aggrieved by this order preferred an appeal to the Deputy Commissioner, Sialkot who first called for a report from the Patwari but later consigned the appeal to record as by then the relevant laws had been repealed. The petitioners have, therefore, come up to this Court in the present Constitutional Petition.

4. No one has appeared for the respondents despite intimation having been given to the learned counsel for respondent No. 2 as well as to the other respondents. They have, therefore, been proceeded against ex parte.

5. The learned counsel for the petitioners contended:-

(i) That the impugned order has been passed by the learned Deputy Commissioner (Lands), respondent No. 1 at the back of the petitioners and without affording them an opportunity of hearing;

(iii) That the order impugned in this petition is otherwise also not maintainable as it has been obtained by misrepresentation and fraud which position is clearly established in the report submitted by the Patwari (Annexure 'M' to the present petition) under orders of the Deputy Commissioner before whom the appeal was preferred;

(iii) That the property in dispute having been established to be 'urban property' there was no jurisdiction vested in the Deputy Settlement Commissioner (Lands) to, in any manner, transfer ordeal with the same especially when the shops in question had been duly auctioned by the competent Authority and P.T.Ds. pertaining thereto had also been issued.

(iv) That even the urban Settlement Authorities after the issuance of the P.T.Ds. and repeal of displaced Persons (Compensation Rehabilitation) Act, 1958 had become functus officio and could not in any manner interfere with the proprietary rights of the petitioners which they had acquired from the P. T. D. holders by purchase of the property through registered sale-deeds.

6. The contentions of the learned counsel for the petitioners are not only going unrebutted from the side of the respondents but these also have been supported by the documents placed on record. The proprietary rights of the petitioners in the shops in dispute could in no manner be interfered with as the said shops had been permanently transferred to the predecessors-in-interest of the present petitioners who are bona fide purchasers from them for valuable consideration especially when the validity of the Permanent Transfer Deeds of the shops have never been questioned. The passing of the impugned order by an officer who otherwise also has no jurisdiction to deal with the property akestemtteral more clear and laves no room for doubt to hold' that the said order cannot be maintained in law.

In view of the foregoing discussion, allowing this petition the order, dated 4-8-1975 passed by respondent No.1, the Assistant Commissioner/ Deputy Settlement Commissioner (Lands), Pasroor, District Sialkot is quashed.

Since no one has appeared from the side of respondents, there will be no order as to costs.

H . B . T . Petition allowed.