ASHIQ ALI Versus ZOHRA BEGUM
The petitioner's father namely Aziz Khan, was a claimant and issued a compensation book, which he deposited in the office of the Deputy Settlement Commissioner Multan, vide receipt dated 25‑11‑1960 (Annex. `A'), to participate in the unrestricted public auction held by the Settlement Department. It seems that the compensation book was not returned to him, despite the fact that he could not utilize it, as the auction in his favour was subsequently cancelled. Thereafter, in compliance with the press note issued by the Chief Settlement Commissioner, Aziz Khan filed Form Annex. `B' and then under receipt dated 12‑6‑1968 (Annex. `C') applied to the Deputy Settlement Commissioner, Multan, for payment of cash compensation, as a deferred payment to the extent of Rs.19,140 was, available in his compensation book.
2. It is discernible from the available record that on the basis of association deed dated 21‑2‑1961 (Annex. `F') said to have been executed by Aziz Khan is favour of Zohra Beg um respondent No. 1 and her husband N.M. Khan who is now represented by respondents Nos. 2 to 9, the sum of Rs. 19,140 was utilized from the said compensation book, for payment of transfer price of property No. 45 Empress Road, Lahore, transferred to the latter. This utilization was preceded by some verification as to the genuineness of the compensation book, claimed to have been made from the Deputy Settlement Commissioner, Multan.
3. It appears that Aziz Khan, who died during the pendency of this litigation and is now represented by the petitioner, being unaware of the association deed, pursued his case for payment of cash compensation and in this behalf the Deputy Settlement Commissioner, Multan wrote letter Annex. `D' to the Deputy Settlement Commissioner, Lahore, asking him to return the compensation book as the deceased denied the execution .of any deed of association. In reply to this communication, the Deputy Settlement Commissioner, Lahore, vide his letter dated 25‑4‑1969 (Annex. `E') informed the Deputy Settlement Commissioner, Multan that the deferred payment of Rs. 19.140 had already been adjusted in favour of the respondents, for payment of the price of the property transferred to them. This information was passed on by the Deputy Settlement Commissioner. Multan to Aziz Khan (Annex. `G'). It is to be noticed that after the payment of the transfer price of the property in question, a P.T.D. was issued to respondent No. l and N.M. Khan deceased.
4. After receipt of the information aforesaid, Aziz Khan deceased moved the Additional Settlement Commissioner, Lahore, for cancellation of the deed (Annex. `F') on the plea that his compensation book was never returned to him by the office of the Deputy Settlement Commissioner, Multan, and that he did not enter into any agreement with respondent No. 1 and her husband, for utilization of his compensation book. The execution of the deed of association was thus denied. The Additional Settlement Commissioner obtained a report from the Deputy Settlement Commissioner, on the factual side of the case, and by his order dated 8‑4‑1977, under challenge in this writ petition disallowed the application for cancellation of the association deed. He did not go into the question of its genuineness or other merits of the petitioner's case but took the view that after the issuance of the P.T.D. the Settlement Authorities became functus officio and thus he had no power to hold an enquiry as to whether or not the deed of association was forged document.
5. I have heard the learned counsel for the parties and examined the available record. On behalf of the respondents, their learned counsel on the basis of the reasoning which prevailed with the learned Additional Settlement Commissioner, endeavoured to support the impugned order and heavily relied on S. Anwar Hussain Soni v. Sarfraz Ahmad and 2 others (P L D 1971 S C 669) and Ch. Abdul Haque v. Mst. Mustajab Bano and others (1982 S C M R 1103) to contend that after the issuance of P.T.D. no jurisdiction vested in the Settlement Authorities to deal with the property. In these precedents it has been laid down that the P.T.D. takes away the property out of the compensation pool and the Settlement Authorities cannot exercise jurisdiction over the property under the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1958.
6. These arguments of the learned counsel for the respondents are, much off the tangent. The petitioner is not at all interested in1:~ cancellation of the P.T.D. issued to the respondents. He approached the Settlement Authorities, merely for cancellation of the association deed and such mower fully vested in the Additional Settlement Commissioner, though it was to be exercised sparingly. Reference in this connection may be made to Chief Sett1cment Commissioner's Memorandum No. 4186‑PI‑Reh‑60, dated 5th March, 1960 (Old Settlement Manual page 122). Again in the press note dated 15‑4‑1960 issued by the Chief Settlement Commissioner (Page 134 Old Settlement Manual) it is clearly stated:‑‑
" .The transferees are warned in their own interest to associate only such claimants who are known to them and they are satisfied about the genuineness of their claims. The claims are being scrutinized and if at any stage it is found out that a Compensation Book utilized for payment of the transfer price of the property was not genuine, the person who utilized such Compensation Book, will have to pa v in cash in a lump sum the amount equal to the amount of compensation of the claimant concerned utilized by him "
Though this press note refers to the genuineness of the compensation book but impliedly it covers the cases where the compensation book i.5 utilized fraudulently. Presumably in pursuance of the said press note, in their affidavit dated 31‑7‑1964 (Annex. `P'), respondent No. 1 and N.M. Khan deceased undertook to pay the transfer price in cash if the compensation book utilized by them; was found to be bogus or defective in any way. It was on the strength of this affidavit that P.T.D. was issued to them.
7. It has not been shown that Aziz Khan deceased appeared before the Deputy Settlement Commissioner, Lahore. In this connection the learned counsel for the petitioner has drawn my attention to Mst. Fatima Bibi and others v. Settlement Commissioner (P L D 1973 Head Note 23) wherein it has been maintained that the acceptance of association deed, by the Settlement Authorities, is subject to its scrutiny by examining the parties thereto. It transpires that the Deputy Settlement Commissioner acted on the verification made, from the office of the Deputy Settlement Commissioner, Multan. to the effect that the compensation book was genuinely issued by them. However, such verification could not be treated as a substitute for personal appearance of the parties, for the purposes of scrutiny of the association deed.
8. It is obvious, that the learned Additional Settlement Commissioner did not examine the case in its true perspective. He declined to go into the merits of the case on the grounds which are legally untenable. The petitioner did not call in I question the validity of the transfer order in favour of the respondents or the P.T.D. founded thereon. The issue regarding payment of transfer price, is, altogether different from the scrutiny of the vires of the P.T.D. The learned Additional Settlement Commissioner, therefore, fell in error to refuse to dispose of the petitioner's application on merits. His refusal to exercise jurisdiction lawfully vesting in him, is open to be interfered with through judicial review.
9. This writ petition is, therefore, accepted and the impugned order declared to have been passed without lawful authority and as of no legal effect. The case is remanded to the learned Member Board of Revenue for its entrustment to some officer notified under Section 2(2) of Act XIV of 1975. The petitioner's application for cancellation of the association deed shall be treated as pending and disposed of afresh in accordance with law. The parties are left to bear their own costs.
H.B.T./A‑413/L Petition accepted/Case remanded.