Mst. Dr. FARZANA ADEEB CHAUDHRY Versus State
ATIR MAHMOOD, J. ---The cause of action given in this writ petition is that the petitioner moved an application to the Settlement Authorities for obtaining certified copies of PTO No.075184 dated 13.07.1960 and PTD No.508 dated 08.05.1962 pertaining to evacuee property No.SE-3R-71/RH, measuring 4 marlas and 66 Sq.ft consisting of one shop and one residential portion falling in Khata No.1193, Khatoni No.1881, Khasra No.369, situated at Shalimar Link Road Ramgarh (at present called Mujahidabad), Mughalpura, Lahore (hereinafter referred to as "the property") as the originals of the same were lost. The application was duly entered as Diary No.8770 dated 29.12.2010, however, the certified copies were not issued to the petitioner on the premise that the case file is not traceable. The petitioner moved application on 18.04.2011 to respondent No.2 Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner / Notified Officer, Punjab Lahore seeking direction to the quarters concerned to issue certified copies of the said documents with the undertaking that the petitioner was ready to pay the dues, if any, in this regard. Learned Member, Board of Revenue vide order, dated 09.04.2012 disposed of the application of the petitioner in the terms that though the record of the Settlement Department favours the petitioner but the case file is silent about issuance of PTD in favour of petitioner's father namely Abdul Rehman Khan (deceased), therefore, she/LRs of Abdul Rehman Khan are allowed to purchase the property in question at the scheduled rate prevailing in the year 2000. The petitioner assailed the said order in civil revision before the Chief Settlement Commissioner/Notified Officer. Vide letter dated 21.01.2015, it was conveyed to the petitioner that the civil revision before the said forum was not maintainable. On 16.02.2015, the petitioner filed Writ Petition No.13-R/ 2015 which was allowed, impugned order was set aside and the Notified Officer was directed to decide the matter after hearing the parties vide order dated 28.02.2017. Member (Judicial-V)/ Notified Officer declared the PTD in favour of petitioner's father bogus and put the property to public auction vide order dated 27.02.2018 which has been impugned in this writ petition.
2. Learned counsel for the petitioner inter alia contends that the record of the Settlement Department was deliberately burnt, however, half burnt file of the property depicts that the whole of the payment of the property was made, the Settlement Department issued PTO and PTD in favour of Abdul Rehman Khan, father of the petitioner, and the property was lawfully transferred in his name which fact has altogether been ignored; that the Notified Officer has admitted the fact that the PTD could not be issued without receipt of all the dues but declared the PTD in favour of Abdul Rehman Khan merely for the reason that the original of the same could not be produced by the petitioner; that the Notified Officer incorrectly held that the record of the payments by Abdul Rehman Khan was not available with the department; that the Notified Officer overlooked the record regarding payment of transfer price duly adjusted in the compensation book of predecessor-in-interest of the petitioner and finally the PTD was issued to him while making entry in CSC-V ownership register; that the predecessor-in-interest of the petitioner also deposited a sum of Rs.5840/- with 10% rebate (i.e. 5840-584-5256/-) through challan No.H/12 dated 14.01.1978 in compliance of order of the Settlement Commissioner and nothing was due against him; that PTO and PTD were issued in the name of Abdul Rehman Khan on 13.07.1960 and 08.05.1962 respectively; that Abdul Rehman Khan was put in possession who remained in possession till his death on 01.07.1979 whereafter his legal heirs are in possession till date; that transfer of property in favour of Abdul Rehman Khan was though contested by some persons but the decision ultimately came in favour of Abdul Rehman Khan, therefore, the contestation by others has no consequence; that the impugned order is against law, facts and record, therefore, this writ petition be allowed, the impugned order be set aside and the respondents be directed to issue certified copies of PTO and PTD as prayed for in the writ petition.
3. On the other hand, learned Additional Advocate General assisted by learned counsel for respondents Nos.2 and 4 has vehemently opposed this writ petition and fully supported the impugned order.
4. Arguments heard. Record perused.
5. The whole case of the respondents is that since the original PTD is neither available in the record of the Settlement Department nor with the petitioner nor the entries of PTD in favour of predecessor are present in relevant registers CSC-V and CSC F at Page Nos.517 and 527, therefore, the photocopy of the PTD presented by the petitioner is bogus.
6. The original record of the case was summoned which has been produced before this Court. The original file comprised untied papers and is also burnt on sides and corners but mostly legible, particularly in the middle. I have minutely perused the same which reveals that the original allottees of the property were Muhammad Abdullah and Muhammad Nazir. The predecessor of the petitioner Abdul Rehman Khan executed a deed of association dated 26.02.1960 with the said allottees. According to the original record, PTO No.075184 dated 13.07.1960 was issued in the name of Abdul Rehman Khan after adjusting a sum of Rs.18,300/- from his compensation book No.194913 LHR-IV 1273.
7. Abdul Rehman filed application stating therein that he had submitted Assessment Certificates from Lahore Corporation for Rs.422/- and from Excise and Taxation Department for Rs.240/- per year and prayed for adopting lesser value for evaluation of the property.
8. On 15.11.1960, Notice of Transfer was issued to Abdul Rehman Khan declaring intention to transfer the property in his name against price of Rs.11,040/-.
9. There is an application (received by the office on 05.05.1962) filed by Abdul Rehman Khan that the property was transferred in his name vide PTO No.75184 dated 13.07.1960 and payment and dues had been paid through compensation book No.194913 LHR IV C.B.1273, therefore, proprietary rights of the property be granted to him after completion of CSCF Register. This application was supported by affidavit by Abdul Rehman Khan that there was no appeal, revision, review or application was pending against the transfer whereupon a challan of Rs.11040/- was issued by the Accounts Officer of the Settlement Department on 05.05.1962 noting that the entries had been made in the . No.527/DPII.
10. There is a page in the file that reads:
"508
Abdul Rehman Khan son of .....Fateh Khan
Address in India before migration
Present address in Pakistan SE 3 R 71
File received
PTD Issued
Compensation Book .."
(Emphasis provided)
The above words though not signed by anybody yet being part of the original file coupled with other documents mentioned hereinbefore and hereinafter loudly speak that PTD No. 508 regarding property SE-3-R-71 was issued in favour of Abdul Rehman Khan son of Fateh Khan and that the file of the case was received by Abdul Rehman Khan or some other body on his behalf.
11. There is an office note dated 09.05.1970 written on the application dated 25.11.1969 filed by one Muhammad Sharif for transfer of the property which reads that:
"According to ... dated 27/6/60, (P-35-36), this property stands transferred to Mr. Abdul Rehman Khan in association with Messrs Mohd. Abdullah Mohd. Nazir. PTD has also been issued in the case on 8/5/62 on the basis of assessment of Ex. T deptt. for the year 1956-5... which however requires verification in order to know the actual assessment of this property for the year 1946.
DSC may like to summon the applicant as well as Mr. Abdul Rehman Khan in this case.
Submitted please."
(Emphasis provided)
The referred note clearly reflects that an application was filed for transfer of the property by Muhammad Sharif whereupon office reported that the property had been transferred and PTD also issued in the name of Abdul Rehman Khan.
12. The case file contains order dated 15.06.1970 passed by Mir Iftkhar Ali, the then Deputy Settlement Commissioner, Lahore. This order appears to have been filed by some contestant of Abdul Rehman Khan namely Muhammad Sharif (as is reflected from order dated 14.11.1973 referred to hereinafter) whose name is missing in this order due to burning of the file. Relevant portion of this order is reproduced below:
"...this property No.SE-3-R-71 situated at Shalimar Link Road (Lahore) was originally transferred in the name of Muhammad Abdullah and Muhammad Nazir who surrendered their rights in the property in favour of Abdul Rehman. The PTO and PTD has since been issued. in the name of Abdul Rehman....
However, I am not satisfied about the recovery of transfer price. The actual value according to M.C. comes to Rs. 10880/-whereas only an amount of Rs.11040/- has been recovered from him. The alleged assessment of Excise and Taxation produced by Mr. Abdul Rehman is not that of 1946 but that of the year 1956. This being so the balance amount is to be recovered from him which comes to Rs.5840/-."
(Emphasis provided)
This order again reflects that the PTO and PTD were issued in favour of Abdul Rehman Khan, however, the Deputy Settlement Commissioner was not satisfied with the price deposited by Abdul Rehman Khan, therefore, he desired that a sum of Rs.5,840/- more be recovered from Abdul Rehman Khan.
13. As per case file, Abdul Rehman Khan through an appeal under section 19 of the Displaced Persons (Land Settlement) Act, 1958 challenged order of DSC dated 15.06.1970 on the premise that since the PTD etc. have been issued in his favour, DSC could not ask him to pay a sum of Rs.5,840/- over and above the amount he had already paid. The said appeal was dismissed by the then Additional Settlement and Rehabilitation Commissioner, Lahore while observing that the DSC could do so. Though date and month of the order is illegible but the year 1970 is clearly present thereupon. However, the same is clearly present as 26.11.1970 in order dated 14.11.1973 passed by Additional Settlement Commissioner referred to hereinabove. Having said that the PTD was issued to Abdul Rehman Khan after he had made payment and then a sum of Rs.5840/- was further demanded from him on account of lesser evaluation of the property.
14. Muhammad Sharif preferred appeal against order dated 15.06.1970 (against Abdul Rehman Khan) wherein Additional Settlement Commissioner Lahore vide order dated 14.11.1973 held that:
"He, however, found that the paid transfer price less by Rs.5,840/- and ordered that notice to the petitioner "to make the loss good within one month" No.317/LHR/70 dated 11-3-1970 moved against this order by the respondent Abdul Rehman, has since been dismissed by my learned predecessor order dated 26.11.1970.
The present appeal/Revision Petition has been filed by petitioner, Mohammad Sharif. The original order dated 27-6-1960 whereby the property in dispute stands transferred to the respondent has not been challenged by him and he has, therefore, no locus standi to agitate against the impugned order whereby the Deputy Settlement Commissioner has ordered that notice be issued to the respondent to make the loss in transfer price good within a month. The petitioner did .... prove that he had filed 'NCH' Form for the transfer of the property in dispute in 1959. He.... alleges to have filed a Form for its transfer in 1966, when the property was not available for disposal, having already been transferred to the respondent in 1960."
(Emphasis provided)
This order also unambiguously shows that the property was transferred in the name of Abdul Rehman Khan before 1966 when Muhammad Sharif filed 'NCH' Form for transfer of the same.
15. There is notice dated 05.01.1976 issued by DSC to Abdul Rehman Khan for deposit of Rs.5,840/- with the warnings that:
"(a) you will be liable to ejectment,
(b) The P.T.O./T.O. issued in you name will be cancelled, and
(c) The amount paid by you will be forfeited, under the rules."
16. After dismissal of his appeal, Abdul Rehman Khan filed application in January, 1978 for deposit of Rs.5,480/- as ordered by DSC on 15.06.1970 stating therein that though the demand of the department was illegal yet he in order to avoid further litigation was prepared to pay the amount of Rs.5,480/-. On the said application, the Settlement Office wrote the following note (blank space shows burnt part of the page):
"Property No.SE-3-R- ..
Link Road Lahore
The above noted .. has been transferred in name of Mr. Abdul Rehman son of Fateh Khan and P.T.D. already been issued. Difference of transfer price was worked out by the DSC's order dated i.e. Rs.5840/-.
Now the transferee the balance transfer .in lump-sum and for 10% rebate (i.e. 5840-584-5256/-), which be allowed.
Submitted."
(Emphasis provided)
Upon this noting, the then DSC allowed Abdul Rehman Khan to deposit the difference of price vide orders dated 24.01.1978 and 26.01.1978. In pursuance thereof, Abdul Rehman Khan deposited the said amount, i.e. 5840-534=5256/- through Challan on 14.01.1978, a copy of which duly exists in the original case file of the department. The stamp thereupon duly reflects that a sum of Rs.5256/- was paid by Abdul Rehman Khan on account of balance price of the property, i.e. SE.3.R.71. This challan further contains signatures of somebody with date of 19.1.1978 in blue ink which further strengthens its veracity and authenticity. Since this challan form is part of the original file which remained with the department throughout, it can neither be presumed nor is the case of the department that this copy of the challan is fake or bogus having been placed by the petitioner in the original file, therefore, I am of the considered opinion that the further payment of Rs.5,840/- as demanded by the department was also made by Abdul Rehman Khan, whereafter no question could be raised by the department upon the PTD, already issued in favour of Abdul Rehman Khan.
17. Original file contains an application form submitted by Abdul Rehman Khan through his lawyer Hashmat Khan for issuance of Naql PTD on 07.12.1977 which was allowed by the competent authority in the following words:
"Allowed under rules.
Sd/- 8.12.77"
18. Another order in the file (since having burnt from sides and corners; it cannot be ascertained as to who and when the order was passed) reads as under:
"Ref. appl.No.DSC IV/533 dated of Mr. Mohd. Sharif son of Noor and DSC's orders therein.
I have gone through the relevant records. The transfer case of this property stands decided vide order dt. 14/11/73 of the Addl. SC. PTD has also been issued in this case since 8/5/62. The transferee of this property has paid the balance of Rs.5,840-584=5256- vide Challan No.11/12 of 14/1/78."
(Emphasis provided)
This order which is part of the original file very loudly speaks that not only the PTD was issued to Abdul Rehman Khan on 08.05.1962 but he also paid the differential of Rs. 5840/- with rebate of 10% which comes to Rs.5256/- with the department, as directed by DSC later on vide order dated 15.06.1970.
19. As per Office noting on application filed by Abdul Rehman Khan for grant of proprietary rights of the property, the entry was made on (Page) No.527/DPII. The other page referred to by learned Additional Advocate General regarding the concerned entry is 517 of DP-II. The DP-II has been presented before this Court along with original case file to show that no entry exists on Page 527 or 517. At the outside of the said register, there is written "DP I 2". This shows that it was initially DP I which has later on been converted to DP 2 by writing so outside and inside. Furthermore, perusal of Page 527 referred to by the department reveals that this page has been numbered not once or twice but thrice as it shows three page marking containing three Page Numbers, i.e. 219, 439 and 527. From the page marking, it appears that '527' is the last page marking which might have been made in recent few years/months whereas the entry of the PTD in question at Page 527 of DP-II was made as back as on 05.05.1962. Same is the situation with page 517 which contains three page numbers, i.e. 214, 429 and 517. In addition, the DP register produced before this Court pertains to areas of Dharampura and Mayo Road, Lahore whereas the property in question situates on Shalimar Link Road Ramgarh (Mujahidabad), Mughalpura, Lahore. From the aforesaid, one can easily infer that the relevant DP register, i.e. DP II, containing correct pages 517 and 527 having entry of PTD in favour of Abdul Rehman Khan has not been produced before the court. This appears to be mischief of the department. Although CSC-V and CSC-F registers have not been produced before this Court, but in para 5 of the impugned order, the Notified Officer has noted that "CSC-F register at page No.185 reflects the name of Abdul Rehman Khan". In this view of the matter, I have reached the conclusion that neither the correct original register DP-II having correct pages Nos.517 and 527 containing entry of PTD of Abdul Rehman nor original CSC-V and CSC-F registers have not been produced before this Court, therefore, the pages referred to by the department are of no consequence and cannot substantiate the argument of the department that since the entry does not exist in the register, the PTD was not issued to Abdul Rehman Khan, as such, the photocopy of PTD available with the petitioner is bogus one. I am astonished that as to how the Notified Officer while merely relying upon absence of entry of PTD in favour of Abdul Rehman Khan in the wrong register held that the PTD in favour of Abdul Rehman Khan, predecessor of the petitioner, was bogus when there is overwhelming evidence in shape of original record/file available with the department which clearly and undoubtedly establishes that the PTD was issued in favour of Abdul Rehman Khan. The impugned order is illegal, absurd and against the record, therefore, it cannot sustain.
20. The epitome of the whole discussion is that predecessor of the petitioner namely Abdul Rehman Khan, having associated with the original allottees namely Muhammad Abdullah and Muhammad Nazir, was transferred the property through PTO No.075184 dated 13.07.1960. At request of Abdul Rehman Khan, he was also issued PTD No.508 dated 08.05.1962. Later on, in application by one Muhammad Sharif, Deputy Settlement Commissioner vide order dated 15.06.1970 directed that a sum of Rs.5,840/- be recovered from Abdul Rehman Khan. Abdul Rehman Khan contested the said order but after dismissal of his appeal, he filed application that in order to cut short the litigation, he wanted to deposit the said amount with permissible rebate which was allowed by the then Deputy Settlement Commissioner vide orders dated 24.01.1978 and 26.01.1978. Ultimately, the differential of Rs.5,840/- with 10% rebate (i.e. 5840- 584=5256) was deposited by Abdul Rehman Khan through challan No.H/12 dated 14.01.1978 whereafter the dispute even regarding difference of price was settled between the parties. Since the PTD had already been issued on 08.05.1962, there arises no question of issuance of PTD after the payment of differential on 14.01.1978. Therefore, the PTD in favour of Abdul Rehman Khan, having been established from the original record of the Settlement Department, is indeed original and genuine one, therefore, the petitioner is entitled to get certified copies of the same from the department. Accordingly, this writ petition is allowed, the impugned order of Notified Officer dated 27.02.2018 is set aside and the Settlement Department is directed to complete/ reconstruct his record while making necessary entries therein and issue certified copies of PTO and PTD to the petitioner as soon as possible but not later than one month commencing from the date of receipt of certified copy of this judgment.
MH/F-8/L Petition allowed.