MUHAMMAD YOUNUS Versus SETTLEMENT COMMISSIONER
This Constitutional Petition filed in 1973, calls in question the order dated 31‑10‑1973 passed by‑ the Settlement Commissioner, Karachi, respondent No. 1 and the order dated 1st May, 1973, passed by the Additional Settlement Commissioner, Karachi, respondent No. 2. The main prayers made therein are for declaration that the P.T.D. issued on 5‑4‑1969, (Annexure "B" to the petition) in favour of Mst. Rafiq‑un‑Nisa, predecessor‑in‑interest of the present petitioners is valid and proper and still holds good.
2. The dispute relates to tenement No. 1/1, in the building situated at the plot of land bearing City Survey No. NP 6/8, and Custodian No. I‑C‑317, Napier Quarters, Karachi.
3. Mst. Afzal‑un‑Nisa, respondent No. 3, applied on C.H. form for the transfer of tenements Nos. 1/1, and 1/2, in the building. She was however, found entitled to the transfer of tenement No. 1/1 only. Accordingly, Appendix IX, was issued to her for a sum of Rs. 5,760. She accepted the same and filed her Compensation Book for adjustment of the amount. However, later on the Deputy Settlement Commissioner, '(Disposal) Karachi in his note dated 19‑12‑1962, observed that the tenement in question was mentioned as Trust Property and directed for issuance of a show‑cause notice why the same be not declared as Trust Property. It may be useful, if the order is quoted here which is reproduced in the order of the Additional Settlement Commissioner, respondent No. Z.
"Gazette seen.‑‑It is mentioned as Trust property hence show‑cause notice to be issued why the same be (not) declared as Trust property.
Sd/ HIM MEHAR,
19‑12‑1962,
D.S.C.(Disposal) Kar "
On the same day a notice was issued directing the respondent No. 3 to appear on 31‑12‑1962, and produce documents showing that it was not Trust property. However, no order appears to have been passed on the show‑cause notice by any Settlement Authority but on 22‑6‑1964, the Deputy Settlement Commissioner (Judicial), namely, Syed Shamshed Hussain Zaidi passed the following order:‑‑
"Mst. Afzal‑un‑Nisa was an applicant for transfer of 1/1 and 1/2 on her C.H. Form but it appears that Mr. H.I.M. Mehar, Deputy Settlement Commissioner by his order dated‑19‑12‑1962, held that as the property in question had been entered as a Trust property the same could not be transferred.
Against this decision no appeal seems to have been filed and the said order has thus become final. This Court cannot pass any order in supersession of the same.
The present application is consequently filed and dismissed as no action is called for."
It appears that thereafter respondent No. 3, again moved an application under section 21(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the Act), and with this application she filed a certificate showing that the property was not Evacuee Trust Property. This application according to the Additional Settlement Commissioner was endorsed by the Deputy Settlement Commissioner (Judicial) on 4‑8‑1964, but no order was passed on this application, but according to the Settlement Commissioner the application was dismissed as being incompetent. Thereafter, it appears that respondent No. 3 filed several applications and appeal and ultimately on 1‑5‑1973, the first impugned order was passed. The concluding part of the order may be reproduced hereinbelow for ready reference:‑‑
"In view of the above observations and discussion I hold that the subsequent disposal of the property was bad, void and illegal when the application of Mst. Afzal‑un‑Nisa dated 4‑8‑1964, was pending and no orders were passed, on the contrary the property was disposed of as a non‑Trust property while the appellant's (Mst. Afzal‑un‑Nisa) case for transfer was rejected on the ground being Trust Property. She has been condemned unheard and by reversing the order dated 22‑6‑1964, by the Deputy Settlement Commissioner and putting the property in auction as non‑trust property the application for transfer became' revived and remained undisposed.
"Therefore, I hold that the C.H. Form of Mst. Afzal‑un‑Nisa is deemed to be pending and remand the case to the Deputy Settlement Commissioner II, Karachi to dispose of, if the same is not a Trust property. As regards the case of Faiz Muhammad he has no locus standi because he has not filed any form for transfer of property as such his appeal is dismissed."
It must be mentioned here that meanwhile the tenement in question alongwith other 3 tenements was transferred to Mst. Rafiq‑un‑Nisa otherwise than on C.H. Form or NCH Form for Rs. 1,500 though the reserved price was Rs. 5,700.
4. After the Permanent Transfer Deed was issued, Mst. Rafiq‑un‑Nisa sold the tenement alongwith other tenements transferred to her, to Muhammad Abbas who in turn sold the same to the Petitioners.
5. Aggrieved by the order of the Additional Settlement Commissioner, Muhammad Abbas filed a Revision Application with the Settlement Commissioner, Karachi who observed that it was surprising that the very proper (1/1) which was being considered Trust property by the Deputy Settlement Commissioner all of a sudden turned out to be non‑Trust property without any inquiry or proceeding under section 4(3) of the Act and disposed of in the favour of S.M. Tufail, who it is stated at the bar by Mr. Rizvi was the agent‑ of Mst. Rafiq‑un‑Nisa, for Rs. 1,500 against reserved price 'of Rs. 5700 alongwith tenement No. 1/2
6. The learned Settlement Commissioner further observed as follows:‑
"This transaction was illegal, inequitable and improper for two‑fold reasons. Firstly, application for transfer (CH Form) of Afzal‑un‑Nisa for 1/1 had not been rejected and appendix had been issued to her and secondly the Department was fully conscious of the fact that this property as well as 1/2 was mentioned in the list of Trust properties. Therefore, it was the duty of the Deputy Settlement Commissioner, to refer the matter to the Chief Settlement Commissioner for determination of the question under section 4(3) of the Act 1958 whether it was attached with charitable or religious Trust. Unfortunately, the Deputy Settlement Commissioner, without adopting the legal procedure disposed of this property in favour of S.M. Tufail. Then irregularly transfer documents were issued to Mst. Rafiq‑un‑Nisa in most objectionable manner. Mst. Rafiq‑un‑Nisa got rid of this property quickly by selling the same to Muhammad Abbas who also sold the same to Muhammad Younus, Muhammad lqbal, Abdul Razzak sons of Haji Abdul Karim Misa under registered sale‑deed dated: 7‑4‑1973."
7. He, therefore, concluded that in his view unless the question with regard to the nature of the property was determined under section 4(3) of the Act, its disposal under any Settlement Scheme prepared under the Act was illegal. Consequently, he held that the transfer of tenement No. 1/1 in favour of S.M. Tufail and the documents issued in the name of Rafiq‑un‑Nisa were illegal and nullity in the eyes of law. He, accordingly directed the Deputy Settlement Commissioner, to immediately make reference to the Chairman, Evacuee Trust Board, for determination of the status of the property in question under section 4(3) of the Act. He further directed if his decision was that the property was non-?Trust property, then it should be transferred to Mst. Afzal‑un‑Nisa on her C.H. Form. The order of the Additional Settlement Commissioner dated 17‑5‑1973 was modified accordingly and the revision was dismissed.
8. Aggrieved by the afore‑said order, as stated earlier, the present petition has been filed.
9. I have heard Mr. S.H. Rizvi, Advocate for the petitioner's and Mr. Syed Ahmed Nagi Mirza, Advocate for respondent No. 3. No one has appeared on behalf of the Settlement Department.
10. Mr. Rizvi has contended that once the Permanent Transfer Deed was issued, the Settlement Authorities had become functus officio, and therefore, respondents 1 and 2 had no jurisdiction to cancel the Permanent Transfer Deed.
11. In support of this contention he relied on; S. Anwer Hussain v. Sarfraz Ahmad P L D 1971 S C 669; Ali Muhammad v. Haji 1‑lussain and 2 others P L D 1975 Kar. 971; Manzoor Ahmed and 4 Others v. Chief Settlement and Rehabilitation Commissioner P L, D 1975 Lah. 1331; Mst. Jehanara Begum v. Bashir Ahmad and another 1975 S C M R 401; Haji Habib v. Haji Muhammad and another 1981 C L C 543; Mst. Mumtaz‑e‑Jehan Begum v. Settlement and Rehabilitation Commissioner Sind and 2 others 1981 C L C 774; Nazir Ahmad v. Additional Settlement Commissioner and 4 others, 1981 C L C 1644.
12. Learned Counsel further contended that from 1964 to 1972 respondent No. 3 had not agitated the question of her entitlement, and therefore, the order dated 4‑8‑1964 passed on review application had become final.
13. On the other hand, it is contended by Mr. Syed Naqi Mirza that Appendix IX was at no stage cancelled and no order was passed on the show‑cause notice which remained pending. In these circumstances, he submitted that the Settlement Authorities retained the jurisdiction to cancel the Permanent Transfer Deed for, he argued, unless there was a final order, Permanent Transfer Deed could not be issued. In support of the contention he relied on Ch. Nazir Ahmad Bhatti v. Ch. Nur Muhammad and 3 others 1970 S C M R 716; Muhammad Ismail v. Settlement Commissioner 1973 S C M R 407; Syed Ahmed Shah v. Haji Fazal Rahim and others 1975 S C M R 268; Muhammad Anwar Khan v M.H. Wasti Settlement and Rehabilitation Commissioner 1975 S C M R 372; Khuda Bukhsh v. Khushi Muhammad and 3 others P L D 1976 S C 208; Mst. Chanda Begum v. Settlement Commissioner and another P L D 1977 S C 503; Nur Jehan v. Syed Muhammad Hussain Shah P L D 1979 Kar. 796.
14. Mr. Mirza also relied on an unreported decision of a Division Bench of this Court in Writ Petition No. 307‑69 Abdul Shakoor v. Settlement Commissioner and others.
15. He further submitted that unless the question that the property was Trust property was decided competently in accordance with the provisions of section 4(3) of the Act the property could not have been dealt with by the Settlement Authorities adversely to the claim of the respondent No. 3 which was accepted by the Settlement Department by issuance of Appendix IX.
16. Now, taking up the first contention that after issuance of the P.T.D. the Settlement Authorities had become functus officio and they could not cancel the P.T.D., it may be stated that the preposition is too broadly stated to be acceptable. It is correct that after the deletion of Rules 6 and 7 of the Permanent I Transfer Rules, 1961 a P.T.D. could not be cancelled even on the grounds of I fraud and mis‑representation as held in the cases cited by Mr. Rizvi but this limitation is subject to the condition that the P.T.D. is issued after decision of pending proceedings and the order has become final and provided further the transfer is not void.
17. In the present case in view of the facts that Appendix IX was not cancelled and no order was passed on show‑cause notice, the proceedings were pending and therefore the property could not have been transferred. Further, unless the transfer in favour of respondent No. 3 was cancelled, the property was not available for transfer to the predecessor‑in‑interest of the petitioner.
18. Moreover, the question whether the property was evacuee Trust property or not was yet to be decided by the Chief Settlement Commissioner and unless the same was decided in accordance with the provisions of section 4(3) of the Act, and it was found that property was not an evacuee Trust property the Settlement Authorities had no jurisdiction to transfer the same under the Act and then if such a finding was given, the result would have been that the transfer of the property in favour of the respondent No. 3 stood vitiated. In such a case if a P.T.D. was issued it could be cancelled because it was issued pursuant to a void order and in breach of the provisions of Rule 3 of the Permanent Transfer Rules, 1961.
19. Here I may refer to some of the cases cited by Mr. Mirza.
20. In Chanda Begum v. Settlement Commissioner P L D 1977 S C 503, it was observed by Muhammad Haleem, J. (Now Acting Chief Justice), at page 506 as follows:‑‑
"Examining the implication of the words `final order' as defined in paragraph 2(b) of the Permanent Transfer Rules, it becomes obvious that such order should be in respect of the entitlement of the proposed or provisional transferee passed by a competent Settlement Authority or Court. A P.T..D. can only by issued if there was a final order of the nature mentioned above. However, in the instant case the order transferring the shop and the residential premises was not an order passed by a competent authority in accordance with law and, therefore, its consequence would be that the C.S. form would still be pending for disposal. It is difficult to accept that such order being otherwise inoperative could confer any right on the appellant merely by the issuance of the P.T.D. which is issued on the passing of the final order and accordingly gives to the transfer the incidence of finality. It can have no such effect if there is no valid order of transfer. The principle of finality laid down in the cases relied on by the counsel can have no application as they are distinguishable on facts. Accordingly the Settlement Commissioner was competent to exercise his revisional powers to set aside any illegal order of transfer as the subject‑matter was still within his domain."
21. This case applies with the full force to the facts of the present case. I may mention here that the property had already stood transferred to respondent No. 3 and transfer could be cancelled only if it was found that the property was evacuee Trust property and there was no such finding of the Deputy Settlement Commissioner (J) much less by the competent authority in accordance with the provisions of section 4(3) of the Act.
22. Here I may refer to another decision of Supreme Court in Khuda Bukhsh v. Khushi Muhammad and 3 others P L D 1976 S C 208, wherein Salahuddin Ahmed, J. at page 213 of the report observed as follows:‑‑
"It has next been contended on behalf of the appellant that a P.T.D. having already been issued to the appellant on the 23rd of October, 1962, the Settlement Authorities had no longer any jurisdiction to interfere with the deed. This contention has no substance. The transfer order of the Deputy Settlement Commissioner dated the 4th of July, 1962 whereby the disputed shop was transferred to the appellant and the P.T.D. issued to him on the 23rd of October, 1962, were both fruitless, because the former was made pendente lite while Allah Diya's writ petition was still pending before the High Court and it flowed from the void order dated the 9th of May, 1962 and the latter because it flowed from the former which was itself the offspring of a void and incompetent order. The cases cited in support of this contention do not apply to the facts of the present case."
23. Therefore, it is clear that the transfer of the property to the predecessor?-in‑interest of the petitioner was void ab initio as the. same was passed after the transfer of the property to respondent No. 3 and before the same was cancelled by any competent authority.
24. It is not necessary to discuss the other cases cited by Mr. Mirza in view of the above two decisions of the Supreme Court.
25. Taking up the second contention of Mr. Rizvi that respondent No. 3 had not agitated the question of her entitlement from 1964 to 1972, it would suffice to say that no order of cancellation of the Appendix IX has been produced or placed on the record and the order dated 22‑6‑1964 states that it appeared that Mr. H.I.M. Mehar, Deputy Settlement Commissioner by his order dated 9‑12‑1962, held that the property in question had been entered as a Trust property and the same could not be transferred and against this decision no appeal, it seemed to him, had been filed and the order according to him had thus become final. It may be observed here that Mr. Mehar's order was an administrative order and not a judicial order and he too had not cancelled the Appendix IX, but he had only issued show‑cause notice on which no further order was passed and therefore the question whether the property was a Trust property or not and was transferable or not had remained pending and respondent No. 3 never gave up her right at any .time. It may be observed here that if the property was evacuee Trust property it could not have been transferred to the predecessor‑in‑interest of the Petitioners at all, and if the property was not evacuee trust property it already stood transferred to the respondent No. 3 which transfer was never concealed.
Therefore, the order of transfer in favour of the predecessor‑in‑interest of the Petitioners was void ab initio.
26. It may be stated here that during the pendency of this Petition the question whether the property is a evacuee Trust property or not, was referred to Mr. S.A. Rauf, Chairman, Evacuee Trust Property Board, Government of Pakistan Lahore under sections 8 and 10 of the Act (XIII of 1975) and he by the order dated 17‑6‑1981 has found that the property in question is not an evacuee trust property as defined under the Evacuee Trust Property (Management and Disposal) Act of 1975.
27. In view of this finding, the order passed by the Settlement Commissioner and impugned in this Petition has been partly complied with, accordingly the Respondent No. 3 is entitled to the transfer of the property and for the reasons given above I find that the order of the Additional Settlement Commissioner as modified by the order of the Settlement Commissioner as well as the order of the Settlement Commissioner, both, are lawful and do not require any interference.
28. Accordingly, I dismiss this petition, leaving the parties in the circumstances of this case, to bear their own costs.
M.Y.M./1682/K ????????
Petition dismissed