' This petition is directed against the order of the Settlement Commissioner, Sind passed on 31-5- 1973.
' The brief facts leading to the filing of the above appeal are that a property bearing Survey No, C/741 situated in Hyderabad was put to auction on 27-6.1968 and the petition was successful bidder inasmuch as his bid for a sum of Rs, 3,600 was accepted. In pursuance thereof a P. T. D.
Dated 15-7-1968 and 5-4-1969 respectively were issued. It seems that after the issuance of the above P. T. D. The petitioner served a notice under section 30 of the Displaced Persons Compensation Act, 1958 on Kadir Bux, the recorded tenant, and thereafter filed ejectment application in 1972. However, it seems that the deceased Mohammad Ramzan, who is now represented by respondents Nos. 3 (a to d) filed a Miscellaneous Application in 1970 before the Deputy Settlement Commissioner, alleging therein, that the property which was transferred to him in pursuance of 1,. H. Form was not Survey No, 739 as was mentioned in his application or in the orders of the Settlement Department but in fact it was property bearing No, C/741 i,e, the property which was purchased by the petitioner. It further seems that the Deputy Settlement Commissioner by his order dated 18-11-1972 forwarded the case to the Settlement Commissioner for taking further action in the matter under suo motu revisional jurisdiction. It may be observed that in the aforesaid order dated 18-11-1972 the Deputy Settlement Commissioner, Hyderabad, on the basis of his personal inspection came to the conclusion that the deceased Mohammad Ramzan was actually in possession of City Survey No, C/741 and a little portion of C/740, and that C/741 was auctioned in favour of the present petitioner though it was not available for auction. He had come to the conclusion that the auction of Survey No, C/741 was void, ab initio and, therefore called for cancellation. After the receipt of the above order of the Deputy Settlement Commissioner the Settlement Commissioner i,e, respondent No. 1 through his impugned order dated 31-5-1973 held that the transfer in favour of the petitioner through auction of the above Survey No, C/741 was illegal inasmuch as the above property was not available for auction. Consequently, he cancelled the P. T. D. In favour of the petitioner. The petitioner being aggrieved by the above order has filed the present petition.
2. (a) In support of the above petition Mr. Ismail Munshi the learned counsel for the petitioner has made the following submissions :-
(i) That after having issued the P. T. D. In favour of the petitioner, the Settlement authorities had become functus officio and, therefore, could not cancel the P. T. D.
(ii) That even otherwise, on merits the property which was in fact transferred to the deceased Mohammad Ramzan was a different property than the property in question which was put to auction and which was purchased by the petitioner.
(iii) On the other hand Mr. Hamid Hussain learned counsel for respondents Nos. 3 (1-a to d) has made the following submissions :-
(iv) That as the P. T. D. In favour of the petitioner was void ab initio, the deletion of rules 6 and 7 of the Permanent Transfer Rules did not affect the jurisdiction of the Settlement Department to recall a void order.
(v) That in fact the property which was transferred to the deceased Mohammad Ramzan was Survey No, C/741 and not Survey No, C/739.
(vi) With reference to the first contention of the learned counsel for the petitioner, it may be observed that Mr. Ismail Munshi has relied upon the case of S. Anwar Hussain v. Sarfraz Ahmed (1), the case of All Mohammad v. Haji Mohammad Hussain and 2 others (2) and the case of Manzoor Ahmed and 4 others v. Chief Settlement and Rehabilitation Commissioner (3) and the case of Mst.
Jehanara Begum v. Bashir Ahmed and another (4).
' On the other hand Mr. Hamid Hussain has relied upon the case of Ch. Nazir Ahmed Bhatti v. Ch. Nur Mohammad and 3 others (5), the case of Mohammad Ismail v. Settlement Commissioner (6) the case of Mohammad Anwar Khan v. M. H. Wasti, Settlement and Rehabilitation Commissioner (7), the case of Syed Ahmed Shah v. Haji Fazal Rahim and others (8), the case of Nur Jehan v. Syed Mohammad Hussain Shah (9) and the case of Mst. Chanda Begum v. Settlement Commissioner and another (10).
(i) Reverting to PLD 1971 SC 669, it will suffice to observe that the above case it was held that after the issuance of a P. T. D. The Settlement Department had become functus officio to deal with the property and that the power to cancel the transfer deed could not have been available in terms of rules 6 and 7 of the Permanent Transfer Rules.
(ii) With reference to PLD 1975 Kar. 971 it may be stated that in the above case it was held by a Division Bench that after the issuance of P. T. D. The property goes out of the compensation pool and the Settlement Authority thereafter becomes functus officio and has no power to cancel the transfer or resume the property or correct the clerical mistake. It was also held that after deletion of rules 6 and 7 of the Permanent Transfer Rules, power contained therein was also not available for the reasons mentioned therein.
(iii) In PLD 1975 Lah. 1331 it was held by a learned Single Judge of the Lahore High Court that after the issuance of a P. T. D. The Chief Settlement Commissioner was not competent or reopen the case.
(iv) Whereas in 1975 SCMR 401 it was held by the Supreme Court that after the deletion of rule 7 the power to cancel the P. T. D. On the ground of being obtained by fraud or misrepresentation or in contravention of any provision of Act is not available.
(v) Reverting to 1970 SCMR 716, it will suffice to observe that in the above case it was held that the revisional power of the Settlement Department provided in section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 remained available in respect of C H form for the transfer of the property. It may be observed that in the above case the effect of deletion of rules 6 and 7 was not considered.
(vi) With Reference to 1973 SCMR 407 it was held by the Supreme Court that the Settlement Department was not deprived of the jurisdiction to adjudicate in respect of the property regarding which P. T. D. Had been issued and that the appellate and revisional jurisdiction provided for under sections 19 and 20 of the Act remained intact. It may be pertinent to mention that the facts of the above case are distinguishable from the instant case inasmuch as in the above case a regular appeal and revision {{FOOT NOTE}}
(1) PLD 1971 SC 669 (3) PLD 1978 Lah. 1331
(5) 1970 SCMR 716 (7) 1975 SCMR 372 (9) P L I3 1979 Kar. 796
(2) PLD 1975 Kar. 971 (4) 1975 SC MR 401
(6) 1973 SCMR 407 (8) 1975 SCMR 268 (10) PLD 1970 SC 503 {{FOOT NOTE}} ' were filed against the transfer order, which could not have been barred on account of the deletion of rules 6 and 7 of the Permanent Transfer Rules. It may also be observed that at the time when the dispute in the aforesaid case arose between the parties the above rules were intact and therefore, the above case has no direct bearing to the instant case.
(vii) Whereas in the case reported in 1975 SCMR 372 it was held that the question whether P. T. D.
In petitioner's favour was issued in proper exercise of the Settlement Commissioner's Authority is open to judicial scrutiny and that the deletion of rule 7 does not foreclose the jurisdiction of the Settlement Authorities or of the High Court to uncover the cases of forged or illegal deed even after the issuance of P. T. D.
(viii) With reference to 1975 SCMR 268 it may be observed that it was held by a Division Bench of the Supreme Court that the contention that the P. T. D. Once issued, of the jurisdiction and it is open for further inquiry.
(ix) With reference to 1979 Kar. 796, it may be observed that the learned Single Judge of this Court held that a P. T. D. Issued in respect of a shop in violation of law being a nullity and wholly without jurisdiction could be recalled by the Settlement Department irrespective of the deletion of rule 7 of the Permanent Transfer Rules.
(x) Whereas in 1977 SC 503 it was held by the Supreme Court that the word 'final order' referred to in para. 2(b) means the transfer order issued by a competent authority in accordance with law. It may be observed that in the above case there is no discussion about the effect of the deletion of rules 6 and 7 of the Rules.
3. (a) It may be observed that in most of the above-cited and discussed cases it has been held that once P. T. D. Has been issued, the Settlement Department becomes functus officio. But if some appeal or revision were pending at the time of the issuance of a P. T. D. Notwithstanding deletion of rules 6 and 7, the P. T. D. Would be subject to the result of such appeal or revision. However, in one or two of the above discussed cases, it has been held that if P. T. D. Had been issued in violation of the provisions of the law or it is void for the reason that it could not have been issued, the Settlement Department can examine the above question. But the preponderance of the ratio decidendi is that subject to the appellate or revisional power within the statutory period, the Settlement Authorities become functus officio after the issuance of a P. T. D.
(b) In the instant case from the documents on the record, namely, the Deputy Settlement Commissioner order dated 18-11-1972, it seems that Survey Nos. C/739 and 741 were two different Survey Numbers. Whereas according to the L H form and the order of the transfer in favour of the deceased Mohammad Ramzan, he was transferred Survey No, 739. The question as to whether in fact the property in possession of the deceased Mohammad Ramzan was City Survey No, C/741 or Survey No, C/739, was a disputed question of fact calling for a detailed enquiry. In my view the Settlement Department after having issued P. T. D. In respect of City Survey No, C/741 in favour of the petitioner could not have reopen the case, for determining the above disputed question of fact in the absence of any power contained in any law or the Rules. The competent forum was a civil Court.
4. In this view of the matter the impugned order cannot be sustained. I, therefore, declare the same as being without lawful authority and of no legal effect. It may be observed that I have refrained from expressing myself on the merits of the case of the parties in order not to pre-empt the decision which a competent Court may give upon filing of competent legal proceedings.