' This petition was dismissed by a short order dated 4th September, 1979. Following are the reasons for the aforesaid order.
2. The controversy in this case relates to a shop situated in a composite property consisting of a building containing several shops, godowns and residential premises bearing No, B-1398/1, 2, 3 and B-1401 situated at Sukkur. The building was surveyed by the Custodian Department in respect of each tenement. Some of the occupants of this building had submitted their respective forms for transfer under Settlement Scheme No, l in the year 1959. Bahawuddin respondent No, 3 had filed N.C.S. Form for transfer of the disputed shop No, B-1398/l as recorded tenant of the Custodian thereunder. On 19th November, 1959 respondent No, 1 was issued a P. T.
0. Without payment of price. However, it is common ground that the various applicants for transfer of the respective portions of the building in their possession were each intimated the price of the entire building. The reason for this was that the apportionment of the joint municipal assessment of Rs, 325 for the whole building was yet to be made. According to the petitioner all the applicants declined to obtain the transfer of the portions in their respective possession. Consequently the entire building was put to open auction without cancelling the P. T.
0. Of the respective applicants including respondent No, 3 and the bid for Rs, 50,000 given by one Munawwar Khan was accepted. As the auction of the building for Rs, 50,000 as against the reserve price of Rs, 2,14,560 was considered contrary to law, directions were issued by the Chief Settlement Commissioner to the Settlement Commissioner for enquiry. The latter Officer by his order dated 24th November, 1961 held that the property could not be disposed of to Munawwar Khan at the price offered by him. This order was challenged by Munawwar Khan by a writ petition which was decided by order dated 2nd September, 1965 and the matter was remanded to the Settlement Commissioner for fresh adjudication. The Settlement Commissioner (South Zone), Karachi by his order dated 19th June, 1971 held that the property was not validly transferred to Munawwar Khan by competent authority and directed that any transfer document issued to him should be re-called.
This closed the chapter relating to the auction of the property and Munawwar Khan did not pursue the matter anymore.
3. The petitioner relied upon certain antecedent facts. He pleaded that for a consideration of Rs, 4,000 respondent No, 3 transferred his rights in the disputed shop to one Abdul Aziz on 8th January, 1964 who on his part subsequently on 10th August, 1964 transferred his rights in favour of Muhammad Haroon for Rs, 5,700 and the simultaneously appointed petitioner as his attorney.
4, Since in the meantime Settlement Scheme No, VIII was enforced,. On 12th August, 1971 the petitioner submitted NCS Form under the said Scheme for transfer of the shop in dispute on the basis of his possession under the aforesaid Scheme. On 10th August, 1971 Martial Law Regulation No, 86 known as "The Surrender of Evacuee Property in Unauthorised Possession Regulation" was issued which provided for transfer of evacuee property to unauthorised occupants by an application to the Chief Settlement Commissioner within the prescribed time. The petitioner submitted application for transfer also under Martial Law Regulation No, 68 on 16th February, 1972.
5. Reverting to the narration of facts earlier stated, in pursuance of the order passed by the Settlement Commissioner dated 19th June, 1971 referred to earlier cancelling the auction of the property, the Deputy Settlement Commissioner. Sukkur took up the case for the purpose of apportionment of the joint municipal assessment and transfer of various units to the respective occupants. By order dated 9th December, 1971 the said Officer determined the question as to which tenement is in possession of which occupant and mentioned that the petitioner was in occupation of the shop bearing No, B-1398/3-A comprising an area of 39 square yards. After visiting the site in presence of the parties including the counsel for respondent No, 3 he determined the apportionment for the respective, units and confirmed the same. For the disputed shop Rs, 20 was determined as the assessm ent. In this order the Deputy Settlement Commissioner further considered the application form of the petitioner under Settlement Scheme No, VIII and of respondent No, 3 under Settlement Scheme No, I. He mentioned that the shop in dispute was, therefore, being claimed by the said two parties and ordered that notice be issued to them to appear and produce evidence as to possession over the property as claimed in their respective forms. Pursuant to this order notices bearing the date of 15th December, 1971 were issued to both parties to produce evidence regarding their possession since before the target date of 20th December, 1958. On receiving this notice respondent No, 3 filed appeal before the Additional Settlement Commissioner, Khairpur Division, Sukkur praying that the Deputy Settlement Commissioner be directed to issue revised appendix to him as per apportionment made in the impugned, order and transfer the property to him. This appeal was converted by operation of law into revision and was disposed of by the impugned order dated 20th April, 1974 whereby it was held that the Deputy Settlement Commissioner had no jurisdiction to decide any issue of entitlement between respondent No, 3 and the petitioner in view of the fact that in the year 1959 his predecessor had already upheld the entitlement of respondent No, 3 and issued P.T.O. In his favour.
As to the claim of the petitioner the learned Additional Settlement Commissioner was of the view that since the disputed property already stood disposed of in favour of respondent No, 3 it was not available for transfer under Settlement Scheme No, VIII.
6. It may be mentioned that the application for transfer by the petitioner under M.L.R. 86 was processed by the Office of the Deputy Settlement Commissioner, Sukkur and it was reported that the property was previously in possession of respondent No, 3 but was presently in occupation of the petitioner. Thus the property was reported by Deputy Settlement Commissioner as available for transfer. Consequently by notice dated 29th February, 1972 the petitioner was intimated the transfer price as Rs, 9,600 and was required to give his acceptance within seven days and pay up the price within thirty days. On the same day the petitioner intimated his acceptance and undertook to pay the entire price within the stipulated period. According to the petitioner he attempted to pay the price but payment was not received by the concerned officials and eventually the Deputy Settlement Commissioner (Administration), Hyderabad in his letter dated 20th February, 1974 observed that as the transfer price was not paid within the stipulated period and as the petitioner had submitted application under Scheme No, VIII, the transfer under M.L.R. 86 did not subsist. Copy of this letter was sent to the petitioner.
7. The petitioner has now challenged the legality of the order passed by the Additional Settlement Commissioner dated 20th April, 1974 in this petition.
8. Mr. Maroof Ali Khan, learned counsel for the petitioner first contended that the record shows that the P.T.O. Issued in favour of respondent No, 3 in the year 1959 stood cancelled without demur on his part and, therefore, he was not entitled to transfer of the property. In this connection he referred to document (Annexure 'F') which is an Office Note by the D.S.C. (Judi), Sukkur dated 30th November, 1960 submitted to the Additional Settlement Commissioner, Khairpur Division., This note states that the PTOs issued to the various occupants including the respondent No, 3 were subsequently cancelled on receipt of their refusal in view of the high evaluation price, with the result that the property was included in the auction list. Counsel also referred to document (Annexure `H') which is the letter of the D.S.C. (Judi) dated 23rd December, 1960 addressed to seven occupants of the building including respondent No, 3 intimating to them that they had refused to retain the property, as a result of which the Additional Settlement Commissioner had ordered cancellation of their P.T.Os. And the property had been auctioned. It was argued that the respondent No, 3 did not challenge this order. As against this. It was pointed out by Mr. Akhtar Mehmood, learned counsel for the respondent that the fact remains that highly excessive evaluation price equal to the value of the whole building in the sum of Rs, 2,14,560 was demanded from each of the occupant. There was no warrant for demanding such an exorbitant and unjustified price from the applicants. Nevertheless, Annexure 'F' clearly shows that there is no refusal note from the respondent on the record. Also it is clear that the cancellation of the PTO was based on the auction in favour of Munawwar Khan. This is clear from the perusal of documents (Annexures 'F' and 'H'). The position has been summed up by Mr. Mauj-ud-Din Khan, Settlement Commissioner, Karachi in his order dated 19th June, 1971 in the following observation :- "At least 7 occupants of this property had applied for transfer of their units in appropriate forms.
Appendices IX and X were issued to the entitled appellants occupying different units, but strangely enough very high prices were quoted in these appendices according to which transfer prices vary from Rs, 1,23,600 to Rs, 2,24,784 for each of them. The Office of the Deputy Settlement Commissioner explained that erroneously the price of the whole property was mentioned even for a part thereof.
But again it could not be explained why the total evaluation price of the entire premises should be different and not the same. The entitled applicants were still wondering about abnormally high prices quoted to them and declining to accept when the whole property was put to auction obtaining the highest bid of Rs, 52,000 from respondent Munawwar Khan."
9. Additionally it was pointed out by Mr. Akhtar Mehmood that the allegation to the effect that the P.T.O. Issued in favour of respondent No, 3 was cancelled is belied by the fact that Munawwar Khan had impleaded all the transferees including respondent No, 3 as parties to his writ petition, After that the Deputy Settlement Commissioner in his order dated 9th December, 1971 passed in pursuance of the Settlement Commissioner's order dated 19th June, 1971 finally cancelling the auction in favour of Munawwar Khan, also the entitlement of respondent No, 3 has been considered. The respondent No, 3 in his counter affidavit in this Court has repudiated the allegation that he had declined the offer of transfer or that his PTO was cancelled. In view of what has been stated no exception can be taken to the conclusion arrived at by the Additional Settlement Commissioner in the impugned order that the transfer in favour of the said respondent was in fact subsisting all along.
10. However, it was contended by Mr. Maroof Ali Khan that no rights were created in favour of respondent No, 3 since P.T.O. Issued without payment of at least one instalment of the evaluation price had no legal sanctity. The argument is not well founded. The perusal of para. 29 o the Settlement Scheme No, I which lays down the procedure for the issuance of the P.T.O. And para. 22 of the Schedule to the Displaced Persons (Corn. And Rehab.) Act, (hereinafter referred to as the Act), clearly makes out that the validity of a P.T.O. Does not depend upon prior payment of price even partly. The amount is payable in equal monthly instalments.
11. It was next contended on behalf of the petitioner that the effect of order dated 19th June, 1971 (Annexure H/I) passed by the Settlement Commissioner was not to recreate the right of P.T.O.
Holders but the property had to be auctioned after the auction in favour of Munawwar Khan was cancelled. It may be stated that the order in question is still in the field and was not challenged by any party. There is nothing in the order as contended for. On the contrary the learned Officer made observations in the aforesaid order that excessive evaluation price was intimated to the occupants of the building and that instead of correcting this mistake of quoting each occupant the price of the entire property the Deputy Settlement Commissioner Mr. Abidi recommended bid of Munawwar Khan. In the opinion of the learned Settlement Commissioner there were interpolations made in the record to the effect that the auction should stand. It, therefore, appears to me that upon cancellation of the auction in favour of Munawwar Khan, at any rate, the right of respondent No, 3 under the P.T.O. Stood fully restored and he was entitled to the transfer of the disputed property.
12. It was next contended on behalf of the petitioner that the property became available for transfer for the first time after the apportionment of the evaluation assessment was done by the Deputy Settlement Commissioner by his order dated 9th December 1971. It was argued that the consequence was that the entitlement to transfer of the property must be determined with reference to this date and on that date the. Respondent No, 3 was no longer in possession whereas the petitioner was in possession of the property. On the basis of his possession therefore, counsel went on to argue, the petitioner applied for transfer under Martial Law Regulation No,
86. This argument has not impressed me. As already discussed the transfer in favour of respondent No, 3 continued to be operative and merely because the relevant authority did not determine and communicate the proper evaluation price to the occupants does not in any way detract from the validity of the transfer in their favour.
13. Lastly the learned counsel for the petitioner pressed his case on the order of transfer in favour of the petitioner under M. L. R.
86. The material facts in this behalf are that this Regulation came in force on 10th August 1971 and the petitioner applied for transfer thereunder on 16th February 1972. As already mentioned the Deputy Settlement Commissioner, Sukkur reported on this application that the property was available and on the basis of this report the Authorised Settlement Commissioner on the same day, viz. 29th February 1972 ordered issue of nolice. In pursuance of this a notice was issued on the same day to the petitioner intimating to him that the value of the property had been determined as Rs, 9,600 and that he may give his acceptance within seven days and pay up the entire amount in lump sum within 30 days. On the same day the petitioner intimated his acceptance and undertook to pay the entire price within the stipulated period. By a letter dated 9th March, 1972 the Authorised Settlement Commissioner informed the Deputy Settlement Commissioner, Sukkur to recover all the dues and issue transfer documents accordingly. The petitioner alleges that thereafter he attempted to pay the amount but the Deputy Settlement Commissioner refused to accept the same on the ground that he had no record with him. Subsequent efforts of the petitioner to pay the amount proved fruitless and ultimately he was served with a copy of the letter dated 20th February, 1974 from Deputy Settlement Commissioner (Administration), Headquarter Officer, Sind, Hyderabad to Additional Settlement Commissioner, Khairpur Division wherein it was revealed that the petitioner's right to transfer under M. L. R. 86 no longer subsisted owing to his failure to pay the transfer price within the stipulated period of 30 days and in view of the fact that he had filed application for transfer under Scheme No, VIII. It was contended that the Deputy Settlement Commissioner had no jurisdiction to review and set aside the order for transfer passed by the Authorised Settlement Commissioner under M. L. R. 86 and that the order passed by him was a nullity in law having been passed without hearing the petitioner.
14. I have considered the submissions of the counsel and find no substance in them. In the first place it may be pointed out that the so-called order of transfer under M. L. R. 86 was passed during the pendency of the appeal filed by respondent No, 3 before the Additional Settlement Commissioner in pursuance of his claim for transfer against order of the Deputy Settlement Commissioner dated 9th December, 1971. This appeal was filed on 29th December, 1971 and the R & P of the case relating to this property was called for which was despatched on 15th February, 1972.
The application for transfer under M. L. R. 86 was submitted on the next day. Notwithstanding the fact the respondent No, 3 was pressing for his rights to the transfer of the property, the Deputy Settlement Commissioner strangely informed the Authorised Settlement Commissioner that the property was available for transfer under the Regulation. In this connection the learned Additional Settlement Commissioner in the impugned order has observed that respondent No, 3 complained to the Chief Settlement Commissioner regarding the illegal action and when these facts were found out the petitioner made an application to be impleaded as a party in the appeal filed by respondent No,
3. It was in pursuance of the aforesaid complaint that the Chief Settlement Commissioner passed the order attributed to the Deputy Settlement Commissioner that the transfer in favour of the petitioner under M. L. R. 86 was no longer operative. The contention can, therefore, be disposed of on the basis of these facts. However, there is another aspect of the case which is fatal to the claim of the petitioner on the basis of M. L. R.
86. The Regulation in paragraph 3 required every person in unauthorised possession or occupation of any evacuee property which was not, before the commencement of the Regulation, disposed of under the Settlement Commissioner upon notice issued in that behalf. However, the authorised occupant was given a right to apply before such notice was issued or within 15 days from the date of such notice to vacate, for transfer of such property upon payment of the evaluated price. It will,, therefore, be seen that the Regulation was attracted only in case of evacuee properties which were not disposed of, inter alia, under the Displaced Persons (Comp. & Rehab) Act, 1958. Obviously in cases where P. T.
0. Had already been issued the provisions of the Regulation were not applicable. In this case the P.
T.
0. Had already been issued to respondent No, 3 as held by me and, therefore, clearly this property was not subject to the provisions of M. L. R.
86. The learned Additional Settlement Commissioner was, therefore, right in holding that no action could be taken on the basis of such palpably void order.
15. For the foregoing reasons, this petition fails and is accordingly dismissed with costs.