' The petitioner who claims to be a transferee/owner of property C. S. No, B/305 in Tando Mohammad Khan, challenges the order dated 6th October 1973, of respondent No, 2 and order dated 23rd January 1974, of respondent No. 1 in respect of the same. It is the case of the petitioner that the aforementioned property is a separate individual house which was shown in the register of Assessm ent of Buildings and Lands (CUS. 2) as house No, 305 in Ward No. 1.) belonging to the evacuee owner Hiranand Jhamandas in occupation of Piyar Ali, son of Mehar Ali. The area of the house is 82.6 sq. Yards and the rent was initially assessed at Rs, 3 per month. The price of the property was assessed at Rs,' 4;600. It is the case of the petitioner that the property was put to auction on 12th September 1962, 4th October 1963 and 4th November 1965, but every time there was no bid. The petitioner made an application dated 6th November 1966, for the transfer of the property at 50% price i. e. For Rs, 2,300 and the Deputy Settlement Commissioner recommended the case for approval to the Additional Settlement Commissioner who confirmed the transfer by negotiation on 8th December 1965, and after , payment of the full transfer price the property was transferred to the petitioner.
2. On 20th September 1966, the Additional Settlement Commissioner informed the petitioner that since auction was held under Scheme No, XIII, transfer by negotiation could, not be finalised. The petitioner challenged the order of the Additional Settlement Commissioner in appeal before the District and Sessibns, Judge and Ex Officio Settlement Commissioner, which was allowed and the transfer in favour of the petitioner was held to be legal and valid.
3. P. T. D. Was issued in favour of the petitioner on 18th November 1968, and the property record was mutated in the name of the petitioner on 20th October 1971. It is further the case of the petitioner that the house which was originally occupied by Piyar Ali was unauthorisedly handed over to respondent No, 3 who was posing as transferee and had let out the premises to Dr. N. B. Abbasi. The petitioner filed a complaint before the Martial Law Authorities on 23rd August 1971. Respondent No, 3 showed willingness to compromise and to hand over possession of the house but later on wriggled out and avoided to do so. The petitioner, therefore, filed ejectment proceedings against Dr. Abbasi in the Court of Civil Judge and Rent Controller, Tando Mohammad Khan on 27th August 1971.
Respondent No, 3 filed a written statement before the Rent Controller in which he admitted the independent nature of house No, B-305.
4. According to the petitioner respondent No, 3 was in possession of bonse No, B-303 which was evaluated at Rs, 13,800 at the time ; and since he was a local, he was not eligible as transferee of the same on LH-form under Settlement Scheme No, I. The house was put to auction and was purchased for Rs, 13,800 by one Sajid Ali on 18th July 1969. It is contended by the petitioner that the city survey number and the custodian number of property No, 303 was the same. Respondent No, 3 thereafter joined hands with auction-purchaser Sajid All and in collusion with the Settlement Officials, without any recorded order, the auction-purchaser got the amount of transfer price restored in his compensation book and respondent No, 3 concealing all the previous proceedings and orders passed against him, got the transfer of the house No, B-303 for Rs, 5,670 as against the reserve price of Rs, 12,600 vide appendix issued to him on 1 1 th March 1961. The fraud was detected by Accounts Branch as the question arose as to how the confirmed auction for Rs, 13,800 was cancelled and the house No, B-303 was transferred to respondent No, 3 for Rs, 5,670. The matter was referred to the Deputy Settlement Commissioner Judicial who cancelled the transfer in favour of respondent No, 3 who filed an appeal before the Additional Settlement Commissioner which too was dismissed on 29th April 1966. Against the aforesaid order no revision was filed and it is, therefore, contended that the order became final. Respondent No, 3 however managed to get house No, B-303 transferred and got two more houses inserted in his transfer documents on 10th September 1971, by Deputy Settlement Commissioner on the basis of collusive report of an Inspector that Custodian No, B-303 consisted of and corresponded with C. S. Nos. B-305 and B-358.
It is therefore, contended by the petitioner that respondent No, 3 got house B-305 which was in fact ransferred to petitioner, incorporated in No, B-303 without notice and ithout an opportunity of hearing being given to the petitioner imilarly house No, B-358 which was also separate and independent ouse in possession of one Ahmed, son of Sher Khan with a reserve rice of Rs, 18,000 was also inserted in the transfer documents of espondent No, 3 who thereby secured three houses of the total value f Rs, 35,200 for Rs, 12,600 only.
5. It is further contended that after perpetrating the fraud, respondent No, 3 approached the Settlement Commissioner for removal of duplication and against earlier issuance of P.T.D. To the petitioner. The Settlement Commissioner vide his order dated 30th June 1973, after noting that the order dated 10th September 1971, was without notice to the petitioner remanded the case to the Deputy Settlement Commissioner with directions to consider the following two issues :-
(1) Whether house No, B-303 bears corresponding City Survey Nos. 305 and 358 ?
(2) Whether the house No, B-303 was rightly reduced to Rs, 5,670 from Rs, 12,600 ?
6. The petitioner challenged the impugned order of the Deputy Settlement Cnmmissioner dated 6th October 1973, by filing revision which was decided by the Additional Settlement Commissioner on 23rd January 1974, disallowing the same and hence the instant petition challenging the aforesaid orders of the respondents.
7. The important legal point which arises for decision in this case is whether the order of Settlement and Rehabilitation Commissioner, Sind, dated 30th June 1973, remanding the case to the Deputy Settlement Commissioner for holding enquiry and determining the issue whether the house No, B- 303 bears corresponding Survey Nos. B-305 and 358 was competent in respect of property No, B- 305, in respect of which P. T. D. Has been issued in favour of the petitioner. If the aforesaid order of the Settlement Commissioner was without jurisdiction, the order of Deputy Settlement Commissioner dated 6th October 1973, and the order of the Additional Settlement Commissioner dated 21st January 1974, which were based on it were passed without jurisdiction and are of no legal effect.
8. It is admitted position that Permanent Transfer Deed in respect of B-305 was issued in favour of the petitioner by the Settlement Department on 18th November 1968. No proceedings challenging the transfer directly or indirectly were pending. P. T. D. In respect of house No, B-303 was issued in favour of respondent No, 3 on 10th September 1971, in which it was shown that the house No, B-303 Custodian No,, corresponded with C. S. No, B-305 and B-358. It has been pointed out on behalf of the petitioner that in the register of Assessment of Buildings and Lands house No, B-305 is shown as owned by evacuee Hiranand Jamandas whereas house No, B-303 is shown as owned by evacue Pohumal Isardas and the name of occupier of house No, 305 is shown C as Piyar Ali, son of Maim.
Ali and occupier of house No, 303 as Abdul Rehman, son of Mohammad Ramzan (respondent No, 3). It is further pointed out that in the written statement filed by respondent No, 3 before the Rent Controller he had admitted that house No, B-305 was a separate and independent house.
However, without going into the controversy, it is evident that long before the issue-of P. T. D. In respect of house No, B-303 in favour of respondent No, 3, P. T. D. Of house No, B-305 had been issued in favour of the petitioner. In Aminuddin and others v. Settlement Commissioner and others
(1) where there was {{FOOT NOTE}}
(1) 1973 SCMR 624 {{FOOT NOTE}} over-lapping of C. S. Numbers which appeared to be common to more than one property and the Additional Settlement Commissioner excluded the C. S. Numbers from P. T. D. Issued to one of the parties and the High Court took the view that Additional Settlement Commissioner had acted beyond his jurisdiction because after the issuance of P. T. D. He had no power to modify it, particularly since Rules 6 and 7 of the Permanent Transfer Rules framed under the Scheme which gave such power to the Settlement Authorities had been repealed by notifications issued on 2nd March and 27th December, 1964 respectively. The Supreme Court confirmed the view of the High Court and held that after the repeal of Rules 6 and 7, no powers remained with the Settlement Authorities even to correct clerical mistakes in the P. T. D.
9. The controversy with regard to the power of the Settlement Authorities to cancel transfer or resume the property after issuance of a P. T. D. Stands concluded by various decisions of the Supreme Court, which were considered by a Division Bench of this Court in All Mohammad v. Haji Hussain and 2 others (1) (L. P. A. No, 214/66, decided on 1st February, 1974). It is now settled law that after deletion of rules 6 and 7 of the Permanent Transfer Rules, 1961, if Permanent Transfer Deed had been issued, the Settlement Authorities cannot resume the property or cancel transfer even on the ground of misrepresentation, fraud or contravention of any provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, nor to correct any clerical mistake in the Permanent Transfer Deed. Reference was made to a case of transfer of property to several persons and Miscellaneous application by a transferee for demarcation. It was held that Settlement authorities have no power to increase area or add to property transferred to one person by cancelling transfer of property to another. Since the order issuing P. T. D. In favour of the petitioner was not challenged either in appeal or in revision under the Displaced Persons (Compensation an Rehabilitation) Act, 1958, there was no power left with the Settlement Commissioner to deal with the property to which such deal relates and it could, therefore, be said the aforesaid property was no longer in the Compensation pool after issuance of P. T. D. It has been contended b Mr. Hussain Adil Khatri, the learned counsel for respondent No, 3 that the instant case is of identification of property and the P.
T. D. Issued is not being challenged. As already observed, the P. T. D. Makes clear mention about the property and the Lumber of the property in Register of the Custodian and, therefore, no weight can be given to the contention as by questioning the very identity of the property the rights of the person in whose favour the P. T. D. Was issued are clearly affected.
10. For the reasons given above the impugned order dated 23rd January 1974 passed by respondent No. 1 and order dated 6th October, 1973 passed by respondent No, 2 on which the aforesaid order of respondent No, I is based, are declared to be without lawful authority having no legal effect and are hereby quashed. The petitioner continues to be lawful transferee of property shown in Register of Custodian as 13-305 belonging to evacuee owner Hirananad Jhemandas. The petition is accordingly allowed with no order regarding costs.
11. Respondent No, 3 had filed Constitutional Petition No, 1558 of 1974 in which he challenged the order dated 23rd January 1974 passed by the Additional Settlement Commissioner, Hyderabad on revision petition of {{FOOT NOTE}}
(1) PLD 1974 Note 124 at p. 178 {{FOOT NOTE}} ' Mst. Khadija Begum, only to the extent that the direction that disposal of C. S. No, 358 which is separately assessed in Custodian record should be taken up separately. The petition was heard alongwith the main petition.
' It is obvious that there was no decision against respondent No, 3 who is petitioner with regard to C.
S. No, 358 and, therefore, he is not an aggrieved party within the meaning of Article 199 of the Constitution. But since the aforesaid impugned order dated 23rd January 1974 has been quashed, C. P. 1558 of 1974 has become infructuous in any case and is dismissed as such with no order as to costs.