' The petitioner has challenged the order passed by the Settlement Commissioner, Multan and Bahawalpur Divisions, dated 2nd October, 1973, whereby he confirmed the order passed by the D. S. C. On 22nd June, 1970, taking away certain alleged excess area from Bungalow No, C-1, Burewala, which was transferred to him on 27th January, 1960. P. T.
0. (Annex '13') was issued on 7th March, 1960 and P. T. D. (Annex. 'C' followed thereafter. In both documents 'full house' is mentioned. A perusal of the P. T. D. Shows that public dues were paid on 23rd April, 1966. The Deputy Settlement Commissioner has not mentioned the date of issue of P. T. D.
Under his signatures.
2. Report (Annex. `E') was submitted by the Settlement Inspector on 1st June, 1970, whereby he suggested that "the previous report on the consolidated sketch map drawn by the concerned official of the office shows that there is no excess area available in this bungalow which is absolutely wrong, as an area of 4845 sq. Yards is in excess and available for disposal. The same may be included in auction which is available on the Northern side of the bungalow going from East to West. The transferee may be informed on the above given address." The Deputy Settlement Commissioner on the same day passed the order "include in auction under intimation to transferee." Measurement was again done and the Sub-Inspector made another report on 10th June, 1970 wherein the calculations were different. On the following day the Deputy Settlement Commissioner passed the following order : "The transferee of the property must be informed well before the auction so that consent from him can be obtained that which side of land he is prepared to spare."
' The alleged excess area was auctioned carrying it into two plots which were purchased by one Noor Muhammad and Muhammad Idrees as per Annexure and F-1'. The bid sheet shows that neither the Additional Settlement Commissioner has signed them nor any date is mentioned thereon, The approval of auction thus seems doubtful.
3. The petitioner filed an appeal on 2nd July, 1970, which was dismissed by the Settlement and Rehabilitation Commissioner vide impugned order dated 2nd October, 1973.
4. Mr. M. S. Bashir, learned counsel for petitioner, vehemently argued that the property had gone out of the compensation pool after the issuance of P. T. D. The petitioner was condemned unheard and all these proceedings were taken behind his back. Lastly he submitted that it was a past and closed transaction and under paragraph 19 of Settlement Scheme I, the petitioner was entitled to purchase the excess land, if any, on payment of prevailing market value. He submitted that the case was examined twice before the P. T. D. Was issued by the Settlement Authorities in 1970 in petitioner's absence, and the Department at best could claim the price of the excess land but could not put the property in the auction pool. Reliance is placed on Abdul Hamid Khan v.
Settlement and Rehabilitation Commissioner and others (1) in head note (b) of which it is mentioned "party has no locus standi to object to transfer of excess area to party in possession of house", There is sufficient force in the submission made by learned counsel for the petitioner that the house having gone out of the compensation pool the Settlement Authorities had become functus officio. Aminuddin v. Settlement Commissioner and others (2) and Syed Murid Hussain Shah v. Mufti Muhammad Yousaf All and another (3) are referred. Regarding the last submission that it is a past and closed transaction reliance was placed on Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner etc. (4), Income Tax Officer v. Cement Agencies Ltd.
(5) and Noor Din v. The Chairman Mian Sahib Graveyard Committee, Lahore (6).
5. Learned counsel for the petitioner submitted that the D. S. C. Could not review the order after ten years. On account of amendment made in section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by Ordinance II of 1968, only clerical and arithmetical mistakes could be corrected by the successor-in-office. So far as this power of correction of clerical and arithmetical mistakes is concerned this was interpreted in Muhammad Tufail v. Abdul Ghafoor and others (7). It was held that the authority to exercise power of review was limited and could not determine afresh the rights of the parties.
6. Learned counsel for the auction-purchaser cited a Single Bench judgment of this Court Khan Tufail Muhammad Khan v. Abdul Hamid and others (8) wherein it was laid down that paragraph 19 of Settlement Scheme . I was ultra vires the provisions of the Act, but unfortunately the learned Judge did not take into consideration Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner etc (9).
7. His next submission was that the registered notice was issued to the petitioner. Assuming if the notice was not served the principle laid down in Single Bench's judgment of this Court reported as Mst. Bakho v. Mst. Sairan and another (10) to the effect that a person having been heard {{TABLE}}
(1) PLD 1966 SC 719 (3) 1974 SCMR 8
(5) PLD 1969 SC 322 (7) PLD 1958 SC 201 (9) P LD 1966 S 719 (2) 1973 SCMR 624 (4) P L 13 1968 SC 101 (6) PLD 1973 SC 17 (8) PLD 1967 Lah. 1058 ((0) PLD 1963 Lab. {{TABLE}} ' by a higher authority could not make any grievance, would be attracted. Much stress was laid that the P. T. D. Was void since it was based on an order which was illegal the property had not gone out of the compensation pool, the matter was not a past and closed transaction and the case law cited by the learned counsel is not attracted. I am afraid, I cannot agree with the submissions made by the learned counsel for the simple reason that the right of transfer in respect of the excess land, if any, was available to the petitioner. All that the Settlement Authorities could do was to recover the market value of the land. Transfer of house surely is a past and closed transaction.
Reliance was placed on Yousaf All v. Muhammad 4slam Zia and others (1) and Ali Muhammad v.
Hussain Bakhsh and others (2). In the latter case the principle laid down in the former case was reiterated. The learned Judges of the Supreme Court in these cases held that a party was not precluded from challenging such an order in the High Court. The jurisdiction of the civil Court was also referred to in the judgment of Yousuf All's case. He relied on another Division Bench judgment of the Supreme Court reported as Muhammad Anwar Khan v. M. A. Wasti S. & R. Commissioner etc.
(3) in support of his submission in which an observation was made that the jurisdiction to question the legality of transfer after the issuance of P. T. D. Is not taken away from the Settlement Authorities or the High Court, but the case is obviously distinguishable, for, it has dealt with the transfer of the property on a forged Compensation Book.
8. The trend of authorities is in favour of the petitioner on the point that Settlement Authorities become functus officio so far as the reopening of the case is concerned.
9. The next point raised by learned counsel for the respondent was that there was delay of about five months in filing the writ petition, it having been filed on 5th March, 1974 whereas the impugned order was passed on 2nd October, 1973. It was argued that it was hit by the principle of aches. No period of limitation is provided for filing the writ petition. In my view lapse of 5 months can hardly be considered as delay in approaching the Court. .
' Further it was contended that the petitioner having alienated the property was no more an aggrieved party to approach this Court for relief. There is hardly any substance in this objection as well, for, even if the property has been alienated by the petitioner and his right of transfer has been challenged he has a vested right to approach this Court, which cannot be taken away from him.
10. Lastly it was argued that since the petitioner had filed a suit and had withdrawn it he cannot invoke the extraordinary jurisdiction of this Court. The party cannot be deprived of the right to move the Court eve " if a civil suit is pending. This was so held by Shabir Ahmad and Anwarul Hag, JJ. In Mst. Sattan and others v. Group Captain Masroor Hussain (4) wherein it was observed that even the pendency of civil suit would not deprive the person of invoking the extraordinary jurisdiction of this Court. This principle was upheld in Salahuddin and others v. Frontier Sugar Mills & Distillery Ltd. (5) another judgment of Anwarul (1) PLD 1958 SC (Pak.) 104 (2) PLD 1976 SC 37 (3) 1975 SCMR 372
(4) PLD 1962 Lah. 151 (5) PLD 1975 SC 244 Haq, J. Wherein this question was elaborately discussed.
No other point was raised.
11. The upshot of the discussion is that the petition succeeds, the orders passed by the Settlement Authorities are quashed. However, if, the Settlement Authorities find that there is an excess land which has been transferred to the petitioner he shall be subjected to pay the market value of such area, if any. Since complicated questions of law are involved, the parties are left to bear their own costs.