' The petitioner is a claimant displaced person who was in possession of Shop No, B/792/1, a part of City Survey No, B-792 in Tando Allahyar, in respect of which P. T. D. Was issued to him on 28-3-1965.
Shop No, B-792/2 adjacent to his shop in the same Survey No, was in possession of respondent No,
2. The southern portion of the City Survey No, B-792 was numbered B-792/1 and the northern portion on the western side was numbered B-792/2 by the Custodian Department. Respondent No, 2 on 1-4-1960 surrendered his right on the shop in favour of his father Yaqoob Ali Khan and P. T. D.
Was issued in the name Yaqoob Ali Khan for B-792/2 on 8-2-1965. City Survey No, 792 as per records has an area of 26-0 sq. Yds. Or 235 sq. Ft. And consisted of two shops aforementioned.
There is a thalla or platform which is not claimed to be independent of the City Survey No, on which exists a wooden cabin claimed by respondent No,
3. It is significant to note that in the P. T. D.s as issued initially the areas of each of the shop was not shown. It is the case of the petitioner that under advice the mutation was necessary for rights of ownership, he submitted an application to the City Surveyor of Tando Allahyar, alongwith a copy of P. T. D. Seeking mutation of the Record of Rights and the City Surveyor under a Rubkari dated 17-4-1971 advised the petitioner that the total area of the shop transferred to him is 88-6 sq. Ft. And the P. T. D. Required to be corrected accordingly. It is further the case of the petitioner as stated in Para. 9 of the Memorandum of the petition that the Deputy Settlement Commissioner, by his subsequent order dated 4-2-1970 had shown the area as 78 sq. Ft. There is however, nothing on record to show whether an order to amend or correct the P. T. D. Was ever issued and it may here be stated that it is contended on behalf of respondent that the amendment to the original P. T. D. Was carried out surreptitiously without giving them any notice.
2. On the basis of the aforementioned Rubkari it is the case of the petitioner that the area of Shop No, 792/1 transferred to him includes portion of a thalla appurtenant and attached to his shop and the area of Shop No, B-792/2 with the thalla would therefore be 145.16 sq. Ft.
3. The petitioner filed an application before the Deputy Settlement Commissioner, who after giving notice to respondent No, 3 and considering the matter on the record came to the conclusion that portions of thalla appurtenant and attached to the two shops were parts of those shops and stood transferred to the transferees. The aforesaid decision of the Deputy Commissioner is dated 5-2- 1972. It would further appear that Yakoob Ali Khan, filed an appeal claiming the transfer of the thalla in his favour as part of his Shop No, B-792/2 and the petitioner asserts that in this regard objection filed by him before the Additional Settlement Commissioner under his order ,dated 16-6-1972 treated the thalla as an evacuee property and temporary wooden cabin built thereon as evacuee property, assessed it at the rate of Re. 1 per month and directed its disposal according to law.
Against the aforesaid order of the Additional Settlement Commissioner dated 1 ,-6-1972 the petitioner and also Yakoob Ali filed separate revisions before the Settlement Commissioner which came to be decided by his order dated 19-5-1973 by which he set aside the impugned orders of Additional Settlement Commissioner and Deputy Settlement Commissioner with the directive that if the entire thalla is attached to the shop of any of the applicants then the whole thalla will be included in the transfer of that shop and if parts are attached then such parts will constitute a portion of shops of the transferees.
4. When the case went up on remand, the Deputy Settlement Commissioner, after hearing the parties and considering the record and also after holding site inspection came to the conclusion that the thalla was partly attached to the shop of Yaqoob Ali Khan and partly to the shop of petitioner. Against this order respondents Nos. 1 and 2 as legal heirs of Yakoob Ali Khan, who died during the pendency of proceedings after remand, filed a revision application before the Settlement Commissioner which was heard by respondent No. 1. By his order dated 20-6-1974 the Settlement Commissioner accepted the revision application filed jointly by respondents 2 and 3 on the plea raised by the respondents that after issue of permanent transfer deeds the same could not be amended.
5. The petitioner in this petition has challenged the aforesaid order of respondent No. 1 dated 20-6- 1974 mainly on the grounds :
(1) That the initial of shop No, B-792/2 in favour of respondent No, 2 was result of misrepresentation and fraud and concealment of material facts.
(ii) That there had not been any amendment in the P. T. D. Issued to the petitioner but only area of the shop transferred has been incorporated with the view of the demarcation and determination of the property.
6. With regard to ground No. 1 the assertion that there was any concealment or misrepresentation on the part of respondent No, 3 for getting transfer of the shop in his favour has been denied and it has been stated that an extract from CSC-IV Register of the Deputy Settlement Commissioner, Hyderabad, would show the property in respect of which the P. T. D. No, 256 was issued in favour of respondent No, 2 was described as H-Godown, 11-45 and not shop as stated by the petitioner.
Column II of the aforesaid copy (which has been produced) mentions that application No, NCS-93 which is enough to show that respondent No, 2 has not applied for transfer of the property in question as claimant. He has also produced true copies of page 43 of CSC-1V Register of Deputy Settlement Commissioner, Shikarpur and Jacobabad which describes the property No, 11-45 to be H-Godown-11-45 in respect of which P. T. D. No, 256 was issued on 10-7-1963. He has also produced true copy of notice dated 2-1-1960 in respect of House No, 11-45 which is shown in the notice to be a house.
7. Mr. S. Jamali, learned counsel for respondent No, 2 has further referred to proviso No, 2 clause (12) of section 2 of the Displaced Persons (Comp. & Rest)) Act, 1958 which defines "shop". Under the aforesaid proviso when building or premises consists of both residence and business units the Chief Settlement Commissioner has option to specify and part or parts thereof to be deemed to be a shop or a house.
8. Copies of documents on record would show that Shop No, B-792/2 of Tando Allahyar forming part of City Survey No, B-792 was permanently transferred on 29-9-1959 to respondent No, 2 on form CS-193 who surrendered full rights in favour of his father Yakoob Ali Khan on 1-4-1960.
9. Ground No, 2 stated above is of utmost importance inasmuch as it has to be determined whether the P. T. Ds. Were amended or even corrected to the extent that such correction is not permitted under the law. According to the petition the Settlement Authority have power of demarcation after issue of P. T. D. As already stated in the original P. T. Ds. Issued to petitioner and respondent No, 2, the area of the shops in question was not mentioned. The dispute over the area transferred under the two P. T. Ds. Was aggravated by the fact that respondent No, 3 was in occupation of thalla. The demarcation and mention of the area in the two P. T. Ds. Therefore would amount to coming to a decision which would be adverse to one (or) other party and consequently the demarcation and mention of area in P. T. Ds. Could not be done without proper enquiry into their right on the basis of facts to be agitated by the parties.
9-A. The learned counsel for the respondents has referred to the decision of the Supreme Court in Civil Appeal No, 16/59. Anwar Hussain San! v. Sarfraz Ahmad and 2 others (1) in which it was inter alia held that there can be no dispute with the general principle that after title has passed on to the person in whose favour a P. T. D. Has been issued the Settlement Authorities became functus officio to deal with that property. It was further observed that transfer under the Displaced Persons (Comp. And Rehab.) Act, are however, in the nature of a grant and it is open to the grantor to impose such terms and conditions on the ownership rights as the law may provide. The relevant provisions of law in respect of transfer of properties under the Displaced Persons (Comp. And Rehab.) Act, 1958 are contained in the Permanent Transfer (Houses and Shops) Rules, 1961, framed by the Central Government in exercise of powers conferred on it by section 35 of the Displaced Persons (Comp. And Rehab.) Act, 1958. It was further observed that two types of case are envisaged in the rules in which the Settlement Authorities may interfere even after issuance of P. T.
Ds. Firstly cases which suffer from an error of a type which can be corrected without embarking upon a formal inquiry or holding adverse proceedings. Cases of clerical mistakes or errors of like nature. Second type of cases dealt with under rules 6 and 7 are those in which transfer or allotment of an evacuee property was obtained by means of misrepresention or fraud. The Settlement Authorities may under the second part of rule 6 and rule 7 vary, modify or cancel the Permanent Transfer Deed issued to such a transferee if on holding a proper inquiry and giving the transferee an opportunity to be heard it is found that he is guilty of misrepresentation and fraud.
10. As already stated the so-called error sought to be rectified or corrected is with regard to the demarcation of the areas of the properties in respect of which there were conflicting claims and therefore the same could not be corrected without holding formal enquiry or undertaking adverse proceedings. The amendment of PTD issued to the petitioner in the year 1972 incorporating the area was therefore rightly considered to be illegal by the learned Settlement Commissioner in the impugned order dated 20-6-1974 specially when rule 6 of the Permanent Transfer Rules, 1961 was deleted by Notification No, SRO-192 (K)/64 dated 2nd March, 1964 and rule 7 deleted by Notification No, SRO-127/R-64 dated 27th December, 1964. No power therefore, was available {{FOOT NOTE}}
(1) P L 1) -1971 SC-669 {{FOOT NOTE}} ' to the Settlement Authorities to make any amendment or even correction of the PTDs. The learned counsel for respondent No, 2 has referred to the decision of this Court in the case of All Muhammad v. Haji Hasan and 2 others (1) wherein a D. B. Of this Court held that on issuance of permanent transfer deed in respect of property it goes out of the compensation pool and the Settlement Authorities are thereafter functus officio and not competent to cancel property or resume property or even correct clerical mistakes. In that decision the various decisions of the Supreme Court with regard to the controversy about powers of the Settlement Authorities to cancel transfer or resume a property after issuance of a permanent transfer deed were considered and the following observations were made :- "In or view the several decisions of the Supreme Court may perhaps be said to lay down these rules :
(i) an order for issue of Permanent Transfer Deed may be subject to appellate or revisional jurisdiction of the Settlement Authorities before the Permanent Transfer Deed is issued
(ii) but if such order is not challenged either in appeal or revision under the Displaced Persons (Comp. And Rehab.) Act, 1958 and a Permanent Transfer Deed is issued, then no power is left with the Settlement Authorities to deal with property to which such deed relates as the property goes out of the compensation pool on the issuance of Permanent Transfer Deed.
' We Settlement Authorities retain jurisdiction to deal with a property which the subject-matter of a Permanent Transfer Deed, if such deed is issued during the pendency of validly and properly instituted proceeding for final determination of the rights of the parties to such property in which case the Permanent Transfer Deed will be subject to the final order made in such proceedings, this rule resting on the principle that_ Permanent Transfer Deed should not be issued if the rights of the parties are under dispute in validly and properly instituted proceedings before Settlement Authorities, and
(iii) after deletion of rules 6 and 7 of the Permanent Transfer Rules, 1961, if Permanent Transfer Deed has been issued, the Settlement Authorities cannot resume a property or cancel transfer even on the grounds of misrepresentation, fraud or contravention of any provisions of the Displaced Persons (Comp. And Rehab.) Act, 1958 nor to correct any clerical mistakes in the Permanent Transfer Deeds."
11. The order of Deputy Settlement Commissioner dated 5-2-1972 with regard to demarcation of area for the reasons given above being void a& initio and a nullity the subsequent orders resting on the same also are of no effect as held by the learned Settlement Commissioner (Headquarters) in the impugned order dated 20-6-1974.
12. Under the circumstances stated there would appear to be no reason for interference with the impugned order of the Settlement Commissioner. The writ petition is dismissed with no order as to costs.
' Writ . {{FOOT NOTE}}
(1) PLD 1975 Kar. 971 {{FOOT NOTE}} revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.