' The controversy in this case is between the petitioner and respondent No. 1 who have been transferred various tenements in a multi-storeyed building No, B. R. 5/22/5 & 6 situated at Bunder Road, Karachi. Tenements bearing Nos. 3/1 and 3/2 on the third floor of the building were transferred as one unit to the petitioner in whose favour P, T. D. Was issued on 20-11-1967. On 28-11- 1967 the Deputy Settlement Commissioner, Karachi issued a verified site plan in respect of the aforesaid property transferred to the petitioner alongwith a blue print whereby the open and un- built roof of a room on the second floor was also included as part and parcel of the tenement transferred to the petitioner.
2, The first respondent was transferred tenements bearing No, 2/1, 2/4 and 2/5 on the second floor and a P. T. D. Was issued in his favour on 29-1-1968, Out of the aforesaid tenements transferred to the first respondent tenement bearing No, 2/1 on the second floor comprises of two rooms on either sides with an open courtyard in-between, which is in fact over the roof of tenement No. 1/3 on the first floor which was also transferred to the petitioner. The dispute in this case relates to open courtyard included in the tenements bearing Nos. 3/1 and 3/2 transferred to the petitioner which is over the roof of tenement No, 2/1 transferred to the first respondent.
3. It is common ground that at the relevant time as well as at present there is no access from the second floor to the disputed roof over tenement No, 2/1. However, on 30-6-1970 the first respondent submitted a plan for verification before the Deputy Settlement Commissioner claiming the aforesaid roof exclusively as part of his tenement. The petitioner objected to the plan and claimed that the disputed portion was already included in his site plan as a courtyard of his tenements Nos.
3/1 and 3/2. Simultaneously, the petitioner by way of a counterblast to the first respondent's claim, set up a claim to the open roof of his first floor tenement included in the tenement transferred to the first respondent on the second floor as a roof exclusively as a part of his tenement on the first floor. The learned Deputy Settlement Commissioner (II), Karachi by separate orders dated 5-5-1971 rejected the applications of both parties after site inspection. The first respondent being aggrieved by the aforesaid order filed an appeal before the Additional Settlement Commissioner (Judicial), Karachi, who also after site inspection agreed with the Deputy Settlement Commissioner and held that the open roof in dispute is an integral part and necessary open space to be used by the transferee of tenements Nos. 3/1 and 3/2 which have been transferred to the petitioner. The first respondent then filed a revision before the Settlement Commissioner. During the pendency of the aforesaid revision it seems the petitioner started raising construction over the disputed roof and, therefore, the first respondent filed a suit in the civil Court to prevent him from doing so, but his application as well as his suit were dismissed. However, the Additional Settlement Commissioner, Central Settlement Cell, Board of Revenue, Hyderabad, who eventually disposed of the pending revision petition, allowed the same holding that the disputed portion was the roof of tenement No, 2/1 transferred to the first respondent and ordered the same to be shown accordingly in the demarcation plan. The petitioner now seeks to challenge the aforesaid order by this Constitutional petition.
4. The crux of the contentions raised by. Mr. Akhtar Mahmood, learned counsel for the petitioner was that the Settlement Authorities were not competent in law to entertain the application of the first respondent for approval of Site Plan and to consider his claim to the disputed roof as after the issue of P. T. D. The property goes out of the Compensation Pool and the Settlement Authorities become functus officio as to such property. On the other hand, reliance was placed by Mr. Ismail Munshi, learned counsel appearing for the first respondent on Anwar Hussain v. Sarfaraz Ahmed (1) in which their Lordships laid down the dictum that as a general principle after title has passed on to the person in whose favour a. P. T. D. Has been issued the Settlement Authorities become functus officio to deal with that property, but it was further laid down that the transfers under the Displaced Persons (Comp. And Rehab.) Act are in the nature of a grant and are governed as regards their terms and conditions by the Permanent Transfer (Houses and Shops) Rules,) 1961. Under these Rules, it was pointed out, cases of clerical mistake or error could be corrected even after the issue of P. T. D. Without embarking upon a formal enquiry or holding adverse proceeding. The second category of cases are those dealt with under rules 6 and 7 which deal with transfer or allotment of an evacuee property obtained, by means of misrepresentation or fraud. Under the last-mentioned Rules the Settlement Authorities would be competent to vary, modify or cancel the P. T. D. After holding a proper enquiry. It is in these two categories of cases that the Settlement Authorities could exercise jurisdiction after the issue of P. T. D. It is pertinent to point out, however, that in the case dealt with by their Lordships the dispute arose out of an order passed by the Deputy Settlement Commissioner on 29-.10-1963 on an application for demarcation of a house transferred under the Settlement Law and the decision proceeds on the basis of rules 6 and 7. These two Rules were deleted on 2-3-1964 and 27-12-1964 respectively. In absence of rules 6 and 7 therefore it seems no further power was left with the Settlement Authorities to deal with the property in which title had passed to the transferee under the P. T. D. To attar, vary or amend such P. T. D. Even on the ground of misrepresentation or fraud. However, it is clear from the judgment that the power to be exercised under the aforesaid Rules does not extend to the redetermination of the question of entitlement to any portion of the 1, property transferred by means of a P. T. D. The following observations at page 676 of the report as to the conflicting claims to a portion of the building to two transferees to whom parts thereof were transferred, are very enlightening:- "If the description of the portions transferred to the parties was not correctly given in the P. T. Ds.
Issued to them and this had led to the dispute as to whether the particular portion was included in favour of one or the other party, it fell to the Settlement Authority to correct the error. However, if there was no such omission and the disputed portion stood transferred to one of the parties, he had become entitled to hold and enjoy it under the normal law. An attempt to modify the P. T. D. In his favour would be in the nature of a review which is clearly barred under the Displaced Persons (Comp. And Rehab.) Act and the Permanent Transfer Rules. {{FOOT NOTE}}
(1) PLD 1971 SC 669. {{FOOT NOTE}} '. .. If it is a case of an error such as can be corrected without holding a formal enquiry or undertaking adverse proceedings the Settlement Authorities have the jurisdiction under Part I of rule 6 to remove the error, but if the conflicting claims made by the parties require a full-fledged adjudication consequent upon which substantial variation may be made in the description of the property given in the P. T. Ds., already issued to the transferees, then unless it is a case I of misrepresentation or fraud the jurisdiction of the Settlement Authorities to deal with the properties already transferred is barred under rule 4."
5. In the light of the aforesaid principles it seems to me that in passing the impugned order the learned Additional Settlement Commissioner clearly exceeded his jurisdiction. The perusal of the order shows that he adjudicated the question of the transfer of the disputed roof by means of an enquiry and did not purport to merely correct .An error in the P. T. D. Issued to the first respondent.
This is clear from the fact that he referred to the entries in the Evacuee Property Register and also the respective situations of the portions transferred to the parties. Clearly, therefore, the learned Officer was holding a formal enquiry at the instance of the first respondent in order to determine the entitlement to the disputed roof between the parties for which he had no jurisdiction once the properties were transferred and P. T. D. Issued. There was no allegation' of fraud or misrepresentation which could furnish a ground for enquiry, although at the relevant time by the deletion of rules 6 and 7 even such allegations could not perhaps give jurisdiction to the Settlement Authority to alter or vary the P. T. D.
6. Mr. Ismail Munshi, learned counsel appearing for the first respondent, however, relying on Mian Muhammad Din v. Sh. Muhammad Ishaque Gaba (1) contended that even after the issue P. T. D. The Settlement Authorities have jurisdiction and power to demarcate the properties transferred to the respective transferees. The rule laid down in the cited decision was examined by their Lordships in the case of Anwar Hussain and the correct position was elucidated _in the passage reproduced in para. 4 supra. It cannot, therefore, he held that the Settlement Authorities can re-open the case while purporting to carry out demarcation of the respective properties transferred C under the P. T. Ds. So as to modify one or the other P. T. D. In any case the jurisdiction of the Settlement Authorities extended only to the correction of an error if there was any in the description of the portions transferred to the respective parties. Even if this rule is applied to the present case it seems to me that when the Deputy Settlement Commissioner approved the site plan of the petitioner on 28-11-1967 he was merely correcting the error in the description of the property transferred to the petitioner. The important thing to note is that on the said date the other portion was not yet transferred to the first respondent in whose favour the transfer was made on 29-1-1968. Before that the P. T. D. Issued in favour of the petitioner was also endorsed on 20-12-1967 in regard to the area included in his transfer as per the plan approved as stated. Consequently it cannot be said that there was any ambiguity regarding the roof in dispute forming part of the portion transferred to the petitioner as an open courtyard. This therefore is not a case of incorrect description in both the P. T. Ds. Which required any correction. Therefore, there was no further necessity to demarcate the respective portions to the parties. The first respondent did not file any appeal against the approval of the site plan by the Deputy Rehabilitation Commissioner but instead made a separate application for approval of his site plan. He cannot, therefore, now be allowed to challenge {{FOOT NOTE}}
(1) PLD 1965 Leh. 507 {{FOOT NOTE}} ' the approval of the site plan. When the Settlement Authorities had already included the disputed roof as an open space in possession of the petitioner it does not appeal to reason that the subsequent transfer was intended to cover the roof as the exclusive property of the first respondent. Clearly, therefore, there was no error in the P. T. D. Of either party.
7. For the foregoing reasons, I have come to the conclusion that the right of the petitioner to the use of the disputed roof as an integral part of the portion transferred to him on the third floor could not be taken away. Indeed in identical circumstances the first respondent has been allowed to retain the open space over the roof of the ground floor tenement transferred to the petitioner. The impugned order of the Additional Settlement Commissioner dated 21-7-1975 is, therefore, in excess of his authority and is liable to be quashed.
8. The matter does not, however, conclude here. As already pointed out during the pendency of the dispute between the parties before the Settlement Authorities the petitioner seems to have raised construction on the disputed roof and, therefore, the question is whether any clarification was necessary by the Settlement Authorities as to the use of the open roof in dispute given to the petitioner. As observed by their Lordships in Anwar Hussain's case the roof serves a dual purpose, namely, as roof of the tenement under it and as courtyard of- the first floor. As in the reported case the building in this case also belonged to one evacuee owner and obviously, therefore, the original owner did not make any distinction between the roof of the second floor and its use as a courtyard of the third floor. Also similarly it appears structurally too the roof was intended to be used for both these purposes. It was, therefore, for the Settlement Authorities to determine whether the roof will be exclusively the property of the petitioner or that it will be common property of both parties and to be used only as a courtyard of the third floor. The proper course to be adopted in such a situation was suggested by their Lordships in the following passage : "Perhaps in the circumstances the proper order to pass in the case was to declare that the roof will belong to the respondent but the appellant will have the right to use it as part of the courtyard of the first floor. Neither party would in that case be authorised to demolish the roof or build over it. It can, therefore, be said that there was an error or an omission in the P. T. Ds., issued to the transferees within the scope of rule 6. The Settlement Commissioner, however, did not advert to this aspect of the case and proceeded to determine ownership of the roof as if the transfer of the shop and the first floor was being made in the first instance. This was certainly not permissible in law.
These two properties already stood transferred to the parties and only a clarification was needed as to their joint interest in the roof."
' In the reported case on the' aforesaid reasoning their Lordships referred back the case to the Settlement Commissioner for making clarification as indicated by them. In the view that I have taken that the disputed roof has been included as an open courtyard for the use of the tenement transferred to the petitioner, it seems eminently just and proper to refer this case also for making clarification of a similar nature in respect of both the roofs, namely, the disputed roof and the roof of the first floor which has been included as a courtyard in the portion transferred to the first respondent.
9. In the result, the petition is allowed and the impugned order is set aside and the case remanded to the Officer notified under section 2(2) of Act XIV of 1975 for redetermination after notice to parties in the light of this judgment. In the circumstances of this case, there will be no order as to costs.