' KHALILUR REHMAN, J.-As two constitutional petitions (W, P. No, 158/ R-77 and W. P. No, 247/R-77) relate to the same property, we propose to dispose them of by a single judgment.
2. Evacuee Property No, SE-33-R-16, Montgomery Road, Lahore, has been in the occupation of late Malik Ali Akbar, husband of Mst. Amina Begum, fourth respondent in Writ Petition No, 247/R-77 and petitioner in Writ Petition No, 158/R-77 (hereinafter referred to as the fourth respondent) and Iftikhar Ahmad Siddiqi third respondent in Writ Petition No, 247/R-77 (hereinafter referred to as the third respondent). Petitioners in Writ Petition No, 247/R-77 (hereinafter referred to as the petitioners) are collaterals of late Malik Ali Akbar, the first six petitioners being the sons and daughter respectively of his brother Ali Bahadur Malik and 7th petitioner being his sister. Late Malik Ali Akbar and Mst.
Amina Iftikhar wife of the third respondent applied for transfer of the property in their occupation.
Deputy Settlement Commissioner by order dated 21-1-1960 divided the same into two portions, transferring portion A (hereinafter referred to as the disputed portion) in favour of late Malik Ali Akbar and portion `B' in favour of Mst. Amim. Iftikhar, wife of the third respondent. Order of the Deputy Settlement Commissioner was ultimately upheld by the order of this Court dated 25-6-1963 in a constitutional petition (Writ Petition No, 638/ R-61) filed by late Malik All Akbar in his attempt to retain the entire property and the first round of litigation ended thus.
3. Malik Ali Akbar, late husband of Mst. Amina Begum fourth respondent, died on 10-3-1962. Ali Bahadur Malik, father of the first six petitioners and Mst. Iqbal Begum, 7th petitionsr, filed an application with the Deputy Settlement Commissioner concerned for bringing the legal heirs of Malik Ali Akbar on record and correction of the P. T. O. Deputy Settlement Commissioner, instead of passing the order on this application himself, referred the case, under proviso to section 17 of the Displaced Persons (Comp. & Reh.) Act, 1958, to the learned District Judge, Lahore, for adjudication.
As, in the meantime, Settlement Commissioner (Industries) by order dated 30-10-1967, had taken decision in the matter, the learned District Judge vide order dated 1-10-1968 disposed of the reference, observing:- ' but after going through the order of the Settlement Commissioner, which has been shown to me today, I find that the shares of the heirs of the deceased have already been decided and I refrain myself to express any opinion."
' It will be seen that the Settlement Commissioner (Industries) by order dated 30-10-1967 gave one- half share to Ali Bahadur Malik (deceased's brother), predecessor of the first six petitioners ; one- fourth share to Mst. Iqbal Begum, 7th petitioner and one-fourth share to Mst. Amina Begum, fourth respondent. We may observe at the outset that the relationship not being denied, determination of the shares of various heirs is strictly in accordance with the Muslim Law.
4. The dispute regarding the appointment of legal heirs was still pedding determination with the learned District Judge Lahore when the Deputy Settlement Commissioner concerned initiated proceedings for the recovery of the transfer price of the portion in dispute. He, on 22-1-1968, sent a demand notice in the name of "Malik Ali Akbar", who to his knowledge was dead by then, calling upon him to make payment of the transfer price. Petitioners, statedly, had no knowledge' of this notice. They, however, on their own, on 16-4-1968 addressed an application to the Deputy Settlement Commissioner pointing out that the matter regarding the appointment of the heirs was pending adjudication with the learned District Judge, Lahore ; about one-half of the transfer price could be adjusted from the compensation book of late Malik Ali Akbar and that they, on being notified were prepared to pay their share out of the balance of the transfer price. The Deputy Settlement Commissioner then without notice to the petitioners resumed the property by order dated 1-5-1968. Even copy of the order was not served on the petitioners-as a matter of fact proceedings regarding the resumption of the property were taken against a dead person.
5. Petitioners learnt of the order of resumption when the property in January 1969, appeared in the list for disposal through auction. Petitioners then on 9-1-1969 moved an application with the Additional Settlement Commissioner concerned for the deletion of the property from the auction list and requested for a direction to the Deputy Settlement Commissioner to finalise the case regarding the appointment of the heirs of the deceased. He sent for a report from the Deputy Settlement Commissioner and on receipt of the same, ordered the deletion of the property from the auction list.
6. The petitioners on the one hand, were trying to protect their interest when, on the other, Mst.
Amina Iftikhar, wife of the third respondent, tried to obtain transfer of the property. The details of the litigation which ensued at the instance of Mst. Amina Iftikhar, are not necessary for the disposal of these petitions. Suffice it to say that she attempted to join the proceedings initiated on an appeal filed by the fourth respondent but her application was rejected by the Additional Settlement Commissioner vide order dated 29-5-1971 and so also the revision against the appellate order by the Settlement Commissioner on 12-7-1971.
7. Fourth respondent then tried to retain the disputed portion to the exclusion of the petitioners.
Instead of contesting the resumption order, she filed form under Settlement Scheme No, VIII on 5- 5-1968 for transfer of the disputed portion. Her form was rejected by the Deputy Settlement Commissioner with the observation "that she should contest the resumption order " (the quoted portion is taken from W. P. No, 1005/R-73 filed by the fourth respondent herself. She then filed a combined appeal (this is her own case in W. P. 1005 R-73) against the order of resumption as well as the order of the Deputy Settlement Commissioner by which her application form under Settlement ,Scheme No, VIII, was rejected. This appeal came up for hearing before the Additional Settlement Commissioner who passed an interim stay order on the condition that she should deposit a sum of Rs, 20,000 towards the balance of the transfer price. Predecessor of the first six Petitioners and 7th petitioner, also joined these proceedings. This appeal was however, dismissed for non-prosecution by the additional Settlement Commissioner on 21-7-1973. He restored the appeal by 'order dated . 1-8-1973. As the fourth respondent in these proceedings was trying to obtain the transfer of the disputed portion exclusively, the petitioners opposed the restoration of the matter which had been dismissed in default on 21-7-1973. On account of the change in law, the appeal went to the file of the Settlement Commissioner who dismissed the same vide order dated 20-11-1973 taking the view that "the order of Additional Settlement Commissioner dated 21-7-1973 for the dismissal of the appeal in default will therefore, stand". Fourth respondent then filed Writ Petition No, 1005 R-73. This petition was admitted to hearing on 7-12-1973. Petitioners were impleaded as respondents in this writ petition at their own request.
8. Petitioners, on the rejection of the revision petition filed by the fourth respondent by order of the Settlement Commissioner dated 20-11-1973, submitted an application to the Deputy Settlement Commissioner on 1-12-1973 contending that the order of resumption being without notice to the heirs of the transferee, was a nullity and as such non-existent in the eye of law. Request was made to ignore the same and issue Transfer Order in favour of the heirs of the deceased. Deputy Settlement Commissioner on 5-12-1973 recommended the case to the Additional Settlement Commissioner for "restoration of the property in the names of the legal heirs, if agreed". These proceedings were still pending when another development took place. Fourth respondent again on 28-2-1974 applied for the transfer of the disputed portion under revised Settlement Scheme No, VIII.
Without notice to the petitioners, the Deputy Settlement Commissioner transferred the disputed portion in favour of the fourth respondent vide order dated 26-6-1974. She (fourth respondent) then withdrew Writ Petition No, 1005/R of 1973, on 23-7-1974.
9. Still another interesting development, in the meantime, took place. Third respondent and his wife Mst. Amina Iftikhar appeared on the scene claiming that they had also, on 22-10-1973 applied under revised Settlement Scheme No, VIII for transfer of this portion. Deputy Settlement Commissioner took up their case on 3-1-1977 and ignoring the order dated 26-6-1974 by which the disputed portion was transferred to the fourth respondent, transferred the same in favour of the third respondent taking the view that the portion having been resumed from the name of the husband of the fourth respondent, the same could not be transferred to her. According to him order dated 26-6-1974 was nullity and was liable to be ignored.
10. Petitioners in Writ Petition No, 247/R-77 call in question the order dated 3-1-1977 and pray that the Additional Settlement Commissioner be directed to dispose of the case recommended to him by the Deputy Settlement Commissioner on 5-12-1973. Their case is that the order of resumption being nullity, the petitioners and the fourth respondent, are entitled to share the property as Muslim Law heirs of deceased Malik Ali Akbar and the P. T. O. To be corrected accordingly. Fourth respondent in Writ Petition No, 158/R of 1977, similarly, calls in question the order dated 3-1-1977 and prays for the restoration of the order dated 26-6-1974 by which the portion in dispute was transferred to her exclusively.
11. We heard Writ Petition No, 247/R-77 as we were of the view that in the event of its acceptance, it would not be necessary to hear the other petition.
12. It is argued that the original transferee i. e. Malik Ali Akbar had never been issued Appendix X. It is evident from the report of the Accounts Officer dated 3-12-1973 (Annex. 'N') that he was a claimant whose claim for Rs, 25,500 (deferred payment Rs, 14,250) stood verified and the compensation book was under preparation in the headquarters office. His heirs therefore, could legitimately ask for adjustment of the amount available in the compensation book. The transferee or for that matter his heirs could pay the balance on being informed of the amount of each instalment, in 36 equal monthly instalments. The settlement authorities not having informed the original transferee of the amount o' each instalment, neither he nor his legal heirs, in the circumstances could be saddled with any liability for non-payment. There was no question of issuing notice under para. 2 of Settlement Scheme No, VIII. It was then argued that in any case, the departmental authorities being aware of the death of the original transferee, the property could not be resumed unless demand notice was issued to his legal heirs. The notice, admittedly issued after the death of the original transferee, was received by the fourth respondent who was desirous of retaining the property exclusively. In the circumances, there was no valid service of demand notice on the heirs of the deceased. Reliance is placed on Muhammad Hidayatullah v. Settlement and Rehabilitation Commissioner (0. It was emphasised that if once the order of resumption is found to be nullity and non-existent in the eye of law, the subsequent transfer in favour of the
(1) PLD 1971 Lah. 931 third or fourth respondent, as the case may be, will fall with it. Any order passed on the basis of a void order together with the superstructure of rights, will fall with it because such an order has little legal foundation as the void order on which the same is based. Requirement of notice before resumption having been based on absolute provisions of Settlement Scheme No, VIII, further proceedings by one of the heirs and that too with an attempt to retain the property exclusively, is not tantamount to legalizing what is illegal ab initio, Cases reported is Yousaf Ali v. Muhammad Aslam Zia and 2 others (1), Ata Muhammad Qureshi v. Settlement Commissioner (2), Khuda Bakhsh v. Khushi Muhammad and 3 others (3) were cited in support of this proposition.
13. Learned counsel for the third respondent, on the other hand, argued that demand notice though addressed to deceased Malik Ali Akbar, was received by Mst. Amina Begum, one of his legal heirs.
The order of resumption, similarly, was also served on her. This, in the eye of law will be a notice to all the heirs of the deceased. Petitioners, in the circumstances, cannot be allowed to question the order of resumption. Reliance was placed on Chiragh Din and others v. Tariq Jaffery (4). He then argued that in any case the order of resumption based on a demand notice issued in the name of a dead man, will, at best be, a voidable order. Before striking down such an order Court is obliged to take into consideration the conduct of the petitioners and keep in view the consequences of such a decision. It was emphasised that though the petitioners as heirs of the deceased transferee, were not heard before the order of resumption was passed, the omission stood rectified as they were heard in the later proceedings. Reliance was placed on Sharif Ahmad Hashmi v. Chairman, Scrutiny Committee, Lahore and another (5) ; S. Niaz All Shah v. Settlement Authorities and another (6), Zahoor Ahmad v. Mahmood All (7) and Syed Ahmad v. Mst. Umtur Rehman and others (8).
14. Learned counsel for the fourth respondent found himself in a fix. He was unable to take up a definite position vis-a-vis the order of resumption. According to him the fourth respondent was entitled to the transfer of the property on the form filed under reconstituted Settlement Scheme No, VIII and thus, impliedly, supported the order of resumption.
15. Contentions raised by the learned counsel for the repondents have not impressed us. The fact not being denied that no demand notice was issued to the heirs of the deceased notwithstanding that the Deputy Settlement Commissioner was fully aware of the death of the transferee, the order of resumption is in clear violation of the mandatory provisions of Settlement Scheme No, VIII. Case is fully covered by the principle laid down in Muhammad Hidayatullah's case. We have therefore, no hesitation in holding that there was no proper resumption of the property in dispute from the name of the original transferee and therefore, the same was not available for transfer to either of the contesting respondents. We are not prepared to accept the contention of the learned counsel for the third respondent that notice having been served on one of the heirs, would be deemed to be notice to all the heirs. Chiragh Din's case cited by the learned counsel for the third respondent, is distinguishable. In this case there was no conflict of interest inter se the heirs of the deceased
(1) PLD 1958 SC (Pak.) 104 (2) PLD 1971 SC 61
(3) PLD 1976 SC 208 (4) 1976 SCM R 65
(5) 1978 SCMR 367 (6) Law Notes 1968 SC 5
(7) PLD 1977 Lah. 1377 (8) Law Notes 1967 N U C (Lah.) 31 before the excess allotment was withdrawn from the name of their deceased predecessor. In the instant case, as fully made out above, the fourth respondent had always tried to retain the property to the exclusion of the petitioners and therefore, even if she had accepted notice of demand, the same cannot be deemed to be notice to the remaining heirs.
16. The only question therefore, that remains to be seen is if the petitioners had disentitled themselves for the grant of relief on account of their conduct or to avoid the consequences detrimental to an innocent third party. Learned counsel for the third respondent, tried to make capital out of the circumstance that the petitioners joined proceedings initiated on an appeal by the fourth respondent against the order of resumption. In our view, nothing turns on them. As already noticed, fourth respondent had no stage of the proceedings taken the petitioners into confidence. There are, rather, indications that the order of resumption was a manipulated one.
'Property was resumed by order of the Deputy Settlement Commissioner dated 1-5-1968, and within four days of which i,e, on 5-5-1968, fourth respondent applied for transfer of the disputed portion under Settlement Scheme No, VIII. It was only on the pointing out of the Deputy Settlement Commissioner that she should contest the resumption order that she "per force" (the words quoted are used by the fourth respondent in W. P. No, 1005/R-73), filed appeal against the order of resumption. This was a joint appeal i,e, both against the order by which her form under Settlement Scheme No, VIII was rejected and the order of resumption itself. Petitioners, in the circumstances, justifiably opposed this appeal. Petitioners case had all along been that the initial order of resumption is void and non-existent in the eye of law. Soon after the dismissal of the appeal of the fourth respondent, they submitted an application to the Deputy Settlement Commissioner for the issuance of the Transfer Order in favour of all the heirs of the deceased transferee as according to them the order of resumption based on a notice in the name of a dead person, was a nullity.
Deputy Settlement Commissioner, as already noticed, by order dated 5-12-1973, had recommended their case to the Additional Settlement Commissioner for suitable orders. In the circumstances, it Cannot be said that the petitioners had disentitled themselves to the relief by their conduct. We are equally conscious of the consequences of the order we propose to pass. As noticed above, the house was divided in to two portions. Portion 'B' had already been transferred to the wife of the third respondent and there is no dispute with regard to it. The third respondent or his wife should rest content with the transfer of portion `B' to them. It is strange that the Deputy Settlement Commissioner in his order dated 3-1-1977 has taken pains to hold that the order dated 26-6-1974 is void and liable to be ignored but has failed to refer to the order of resumption which is equally bad in law and passed in utter violation of the mandatory provisions of the scheme and the rules of natural justice.
' On the legal plane there cannot be any dispute with the proposition that a void order is always to be struck down regardless of the consequences of such a decision and without keeping in view the conduct 8 of the petitioners.
17. For the foregoing reasons we accept Writ Petition No, 247/K-77. The order of resumption dated 1- 5-1968 is declared to have been passed without lawful authority and of no legal effect. Needless to say that the subsequent orders transferring the property in dispute to the third respondent will fall with it, the property in dispute not having available for transfer under Scheme VIII, Writ Petition No, 158/R-77, therefore, fails and is dismissed accordingly. The result is that the case shall go back to the Deputy Settlement Commissioner or an Officer notified under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, to deal with such cases, to issue the title documents to heirs of deceased Malik Ali Akbar, giving them shares as determined in the order of the Settlement Commissioner (Industries) dated 30-10-1967 after realising the proportionate transfer price. If compensation book, has by now been issued, all the heirs in the same way would be entitled to the benefit of the deferred payment available.
18. The third and fourth respondents will bear the costs of this petition.