Haji Chowdhary ABDUL REHMAN Versus SETTLEMENT COMMISSIONER, KARACHI

1. This is a dispute in respect of a portion of the godown which was a part of the property bearing No.C‑2538 at Hyderabad. There is no dispute that this property consists of residential house and a godown. The residential house and a part of the godown was in possession of the petitioner's predecessor‑in‑interest Haji Chaudhry Abdul Rehman while part of the godown was in possession of Dr.Muhammad Ibrahim but according to the petitioner it was allotted to him. In the year 1959 when the Settlement Authorities invited applications for transfer of the evacuee properties, the petitioner applied but in his application he had incorrectly mentioned the number of the property as C‑2536. Dr.Muhammad Ibrahim had also submitted a form for transfer of property bearing No.C‑2537. These numbers seems to have been wrongly mentioned because none of these persons were in occupation or possession of these properties. The form of the petitioner was rejected by the learned Assistant Commissioner on the ground that property applied for was not in his possession and was intimated accordingly by letter dated 21‑9‑1959. By letter dated 11‑7‑1960 Dr.Ibrahim was also informed that the occupied property No.C‑2538 which was a charitable property and could not be transferred to him. This order was not challenged by Dr.Muhammad Ibrahim. The petitioner was transferred C‑2536 but realising that he was not in occupation of this property and the correct number should have been C‑2538, he filed an application for correction of the number in the form but this application was rejected by the Deputy Settlement Commissioner on 27‑11‑1967. The petitioner preferred appeal against this order of the Deputy Settlement Commissioner which the Additional Settlement Commissioner allowed by order dated 4‑2‑1969. The number of the property was accordingly corrected to 2538 and P.T.D. was issued. It seems that the petitioner had also obtained a letter of waiver from Dr.Muhammad Ibrahim in respect of the portion which was in his occupation. Dr.Muhammad Ibrahim died on 19‑2‑1.977. After leis death an application was submitted on 3‑7‑1978 on his behalf to the Deputy Settlement Commissioner praying therein that is form which was rejected in the year 1960 be restored and part of the godown in his possession be restored to him. The Deputy Settlement Commissioner after calling a report passed an order dated 8‑7‑1978 restoring the said part of the godown to Dr.Muhammad Ibrahim provided he pays the amount in cash with dues. An application for substitution of respondents Nos.3 to 6 as legal heirs of Dr.Muhammad Ibrahim was made on 17‑3‑1979 which was allowed by an order of the Deputy Settlement Commissioner dated 12‑4‑1979 and a transfer order dated .12‑7‑1979 was also issued. The petitioner came to know about the transfer order and challenged it before the Settlement Commissioner inter alia on the ground that the order was passed without jurisdiction and without any notice to the petitioner. The learned Settlement Commissioner by the impugned order dismissed the Revision application.

2. Mr.Maroof Ali Khan the learned counsel for 111e petitioner has pointed out that the order of the learned Settlement Commissioner is without jurisdiction as after the repeal of the settlement laws and in view of the provisions of act 14 of 1975 he could not have entertained the revision application. This contention has not been pressed by him as the revision was filed by the petitioner himself. He has however, contended that the order of transfer made by the Deputy Settlement Commissioner in favour of legal heirs of Dr.Muhammad Ibrahim was without jurisdiction as after the repeal of settlement laws such an order could not have been passed and no transfer could have been made by him.

3. From the facts stated above it is Ilea: that 1'.. T .D. had been issued to the petitioner but no notice of application filed on behalf of Dr.Muhammad Ibrahim for retransfer of part of the godown which was stated to be in his possession was issued to the petitioner. Dr.Muhammad Ibrahim even after rejection of his transfer application in 1960 did not challenge the order before the higher of authorities but he supported the transfer made in favour of the petitioner in the sense that he made a declaration waiving his right, if any, in the property. Therefore, at a later stage the legal heirs could not have challenged the order which was in operation for a period of 18 years during which no action seems to have been taken by the respondents. Furthermore, the application for transfer to Dr.Muhammad Ibrahim could not have been made after his death in his name.

4. The learned counsel for the petitioner has drawn my attention to the provisions of Act 14 of 1975 and also Ordinance 18 of 1974 to establish that after the repeal of Settlement laws the respondent No.2 had no jurisdiction to reopen the case and transfer the property to tire legal heirs of Dr.Muhammad Ibrahim. If any property was available for transfer it ought to have been reported to the Board of Revenue which was competent to transfer under the scheme framed by it. However, this procedure was riot adopted by the respondent No.2 and he had no jurisdiction to transfer the property. In these circumstances the orders of the respondents Nos.1 and 2 transferring part of the godown to respondents Nos.3 to 7 were illegal without jurisdiction and void. The impugned orders of the respondents Nos.1 and 2 are declared to have been passed without lawful authority and of no legal effect. There will be no order as to costs.

5. AA./A‑285/K Petition accepted.