' The petitioner has challenged the order of the Additional Settlement Commissioner dated 15th June. 1974 whereby he remanded the case to the D.S.C. To decide afresh the dispute about the transfer of Plot No, 3/70/3/71, Sialkot.
2. The chequered history of this case is that father of the petitioner Allah Ditta took part in auction along with one Jamal Din, which was confirmed by the Additional Settlement Commissioner on 13th May, 1960. Jamal Din claimed that Plot No, 3/71 was part of House No, 3/70, which was transferred to him. Half of the house was transferred to him on his K. N. C. H. Form No, 142 by the Deputy Settlement Commissioner on 22nd November, 1959. He filed an appeal as a result of which whole house was given to him. It is pertinent to mention here that in this appeal he did not agitate the exclusion of Plot No, 3/71. Even be did not implead Allah Ditta as a party. The Settlement Commissioner vide his order dated 1st December, 1966 found that the plot in dispute was owned by one Mohammad Din Mochi in 1944. It was purchased by evacuee ant Ram after construction of the house. The plot bears No, 3/71 here as the house bears No, 3/70. The plot has been described as an pen space and not a courtyard. The Settlement and Rehabilitation commissioner examined the record. The disputed property was entered the Municipal record as a plot and not as part of the house. It has different number. He held that the plot should have been auctioned after tearing it in the auction list. But since the bids were offered for the plot nd the price for which it was auctioned was not inadequate he, therefore, id not-think it advisable to reduction it. In column No, 3 of Annex.
3 (copy of assessm ent register of house tax for the year 1947) against o. 3/70 residential house is mentioned whereas against No, 3/71 en land has been defined. Both these properties at two serial numbers 69 and 70 were owned by one Sant Ram whose name is motioned in column No, 4.
Similar is the position of both the poetries in Annex. `.1' 2, copy of house-tax register of Ward No, 3, Ikot.
3. Against the order of Khan Farzand All Khan, Settlement and habilitation Commissioner dated 1st December, l960, second revision s filed before Malik Fateh Khan, Settlement and Rehabilitation Commissioner with powers of Chief Settlement and Rehabilitation Commissioner, o dismissed the same by his order dated 20th July, 1961 which is produced as under :- "`This petition of Jamal Din must be dismissed inasmuch as Memorandum of revision is not accompanied by a copy of the order. It has been reported by the official that this copy was removed by him at the time of inspection and then he disappeared. The learned counsel for the respondent has submitted that this has been done to save the limitation. If copy of the order had remained on the record, it would have disclosed that the petition is barred by time. 1 would, therefore, dismiss this petition herewith." . Jamal Din filed Writ Petition No, 745-11. Of 1961 throwing nge to the order of Malik Fateh Khan which was withdrawn by his el Qureshi Mahmood Ahmad, J. H.
Rizvi, H. By his order dated February, 1962, granted permission but made an observation "in n the same facts another petition is filed, the petitioner will mention this writ petition ; so that the report received in this writ can be d of." Two reports were submitted in this writ petition, one by ary (Urban) on behalf of the Chief Settlement and Rehabilitation issioner dated 10th January, 1962, and the other by Ch. Aril ood, Deputy Settlement and Rehabilitation Commissioner, Sialkot, are placed on the file as Annex. M-2 and M-1 respectively. In the report it is mentioned that Jamal Din and Nasir- ud-Din applied for transfer of House No, 3/69 and 3/70 through K. N. C. H. Form No, 142 and N. C. H.
Form No,
20. Properties in their respective possession were transferred to them. The A. S. And R. C.
Transferred the entire house to Jamal Din. Revision was filed by Nasir-ud-Din which was dismissed.
The plot under dispute was adjacent to the house. Petitioner (Jamal Din) demanded the transfer of the plot as part and parcel of the house transferred to him. It was pointed out that Property No, 3/69 was a non-evacuee house which could not be transferred to either of them. Only Property No, 3/70 had been transferred to Jamal Din. According to the Rehabilitation Survey Register the number of the plot under reference was 3/74-A. While assigning the property number of the plot, the Overseer, who prepared the blue print of the plot, followed the Rehabilitation Survey Register. It was accordingly included in the auction list published in April, 1960 at serial No,
94. The details in the list were exactly the same as worked out by the Overseer in the blue print. Probably it was not auctioned in April, 1960. In May, 1960, it was again included in the auction list at serial No,
20. On 12th May, 1960, Allah Rakha son o Ismail moved an application alleging that the actual number of the pl was 3/71 owned by Sant Ram and not 3/74-A as was advertised. H further alleged that the occupant of the plot Nasir-ud-Din had deliberatel misinformed the Overseer. The report of the Rehabilitation Inspector confirmed the allegation of Allah Rakha. According to this report House No, 3/ was transferred to Jamal Din. The Rehabilitation Inspector prepared a 11 sketch which was at page 3 of the Settlement file. The location, specific tion etc. Given by him tally with those stated by the Overseer in t blue print. Accordingly before auction. The number of the plot w corrected and announced to the public in the Pindaar as is cl from the bid-sheet. Jamal Din also took part in the auction. The D. S. Concluded his report with the following words :- "From the above submission it is clear that the plot petitioner advertised before auction."
' The language does not seem to be correct. The word `petitio seems to be redundent. If the word 'petitioner' is substituted word 'was' it can convey the sense that the plot was duly advert before auction.
5. I have the record of Writ Petition No, 745-R of 1961. Report is not on that file. Even Annex `M-l' is not the certified c The other 'report submitted by the Secretary (Urban) for the Settlement and Rehabilitation Commissioner Annex. A-2 is on the of Writ Petition No, 745-R of 1961. In this report it is admitted Jamal Din petitioner had submitted a copy of the order of the I Court with his revision petition but the same was subsequ removed by him at the time of inspection of the file as reported b Ahmad of Ex-Settlement Commissioner. In para. 3 the facts briefly narrated. Jamal Din petitioner in W. P. No, 745-R of 1961 transferred House No, 3/70 Sialkot City by the D. S. C. Conce The plot in dispute being a separate unit and bearing separate number in the survey register was not transferred with the house. Plot in question was duly advertised at serial No, 20 of the list for 1960 as Plot No, 3/74-A. One Allah Rakha submitted an application dated 12th May, 1960, alleging that Jamal Din had got a wrong made by misrepresentation in spite of the fact that he was hims possession of the plot. This entry was corrected to 3/71 after Inspector submitted a report after spot inspection. In para. 4 of the report it is mentioned that auction of the plot was within the knowledge of Jamal Din as he himself took part in the auction which was confirmed on 13th May, 1960 while the appeal against the confirmation was filed on 9th August, 1960. The fact that the appeal was barred by time is evident from the decision of the Settlement Commissioner. Application of Allah Rakha dated 12th May, 1961, is Annex. R-A in the writ petition of Jamal Din.
6. With the written statement 'Annex R-A' copy of the survey list of rent of urban properties has been filed by the contesting respondents. S. No, 73 shows that House No, 3/69, 70 of Sant Ram was in possession of Sir Din and Jamal Din. At serial No, 74 this house has been shown to be in possession of Rehmat Ali, the contesting respondent in the present writ petition. Annex. R-B is the Rehabilitation Form No, I of Rehmat Ali which discloses that he was in possession of three rooms of House No, 3/69-70 adjacent to House No, 3/70 Sialkot, being a refugee from Jammu and Kashmir State. Vide Annex R-C he was allotted the property by the Assistant Rehabilitation Commissioner, Sialkot. On 2nd October, 1953. Since 24th December, 1947, he has been shown in possession. The number of house is mentioned in the Schedule as 3/69-70, Mohallah Shahab, Sialkot.
7. Rehmat Ali has filed attested copy of his K. N. C. H. Annex. R-D in which he has mentioned the number of House as H. 3/69-70. In Column No, 5 he has given the particulars of property desired to be transferred as No, 3/69-70, Ward No, 3, Street Mohallah Shahab, Sialkot. Against name of the evacuee owner it is mentioned 'not known'. P. T.
0. Annex R-E was issued on 3rd March. 1960 in favour of Rehmat Ali in respect of House No, 3/70 only for the portion in possession. Nasir-udDin filed an appeal regarding Plot No, 3/71 against Allah Ditta transferee, which was dismissed by Khan Atta Mohy-ud-Din Khan, Additional Settlement Commissioner, Lahore Division, vide order dated 16th May, 1963 Annex E. Allah Ditta filed an application for ejectment against Rehm Ali on 3rd July, 1962. In the written statement Annex. 'F'
Rehm Ali raised preliminary objection that the plot in his possession could not be transferred since it was courtyard of House No, 3/70, which had already been transferred to Jamal Din who had filed writ petition against its transfer to the applicant. Moreover, Nasir-ud-Din had also filed Form for transfer under Scheme No, VI which was pending disposal. This reply was filed on 2nd November, 1962. In Annex. F-I Rehm All raised preliminary objection that the property in dispute is a plot which has been purchased by Allah Ditta deceased in open auction. Annex. F-2 is the statement of Rehm An which he made before the Rent Controller on 4th May, 1964 whereby he admitted that he may be ejected and given two months time, he will remove the ma/ha and deliver vacant possession of land, but requested that he may be excused from paying the arrears of rent. He stated that if he does not surrender the possession after dismantling the construction the possession may be taken and he will be liable to pay rent also. Annex. F-3 is the order of Mr. Masood Ahmad Ansari, Rent Controller, Sialkot, dated 4th May, 1964 which was passed in the light of the statement made by Rehm Ali. On 24th February, 1973, Rehmat All made an application before the D. S. C. That he had filed K. N. C. H. Form for property No, 3/71-A. In his K. N. C. H. Form he mentioned the number of the property as 3/69-70. He prayed that he number of the property may be corrected as 3/71 and his K.
N. C. H. Form may be considered. He had, however, forgotten that P. T.
0. (R E) was issued to him on 3rd March, 1969, deciding his claim form on the basis of his K. N. C. H.
Form No, 536 for House No, 3/70 (Only for the portion in his possession).
8. Despite the fact that it was in his knowledge that Jamal Din had been transferred the entire House No, 3/70 in appeal and he was issued P. T.
0. For the portion in his possession of that very house he did not challenge this order before the Settlement Authority. He even did not apply for permission to be impleaded as a party in the writ petition filed by Jamal Din.
9. Jamal Din filed Writ Petition No, 2114-R of 1962 against Allah Ditta. Mahmood Ahmad Qureshi, Advocate sought permission to amend the writ petition and Shabbir Ahmad, J. Vide order dated 29th October, 1962 permitted him to do so within a week. This writ petition was dismissed in limine on 21st March, 1963 by an elaborate order of S. A. Mahmood, J which clearly shows that House No, 3/70 and Plot No, 3/71 were owned by Sant 'Ram evacuee who built house and thereafter acquired the plot bearing No, 3/71 from a Muslim in 1944. The plot bears separate number from that of the house, though it adjoins it. Jamal Din applied for transfer of the house on K. N. C. H. Form No,
142. The Deputy Settlement Commissioner transferred one-half of the house to him. On appeal he was given the whole house The plot was auctioned and purchased by Allah Ditta the highest bidder.
The Additional Settlement Commissioner confirmed the auction oh 13th May, 1960. Jamal Din filed an appeal on 9th August. 1960 which was well beyond the limtation of 15 days. The Settlement Commissioner dismissed it as barred by time and refused to interfere with the auction of the plot even though it was not mentioned in the auction list for the reason that it was auctioned for adequate price. The second revision petition was dismissed by the Chief Settlement and Rehabilitation Commissioner. Jamal Din withdrew his Writ Petition No- 745-R of 1961. Amended Writ Petition No, 2114-R of 1962 was filed on 14th November, 1962. The learned Judge asked the counsel whether Jamal Din had filed his K. N. C. H. Form for property No, 3/70 or for both. The counsel stated that he had instructions that Jamal Din had mentioned both the numbers in his K. N. C. H. Form but he could not substantiate his statement. The learned Judge further observed "It does not appear from the orders of the Additional Settlement Commissioner and the Settlement Commissioner that the petitioner claimed the transfer of both. He could not get the Wine as well as the plot, if they are two separate units". It was further observed "be that as it may, the petitioner himself took part in the auction proceedings and offered bids. This would not have happened if he had treated plot as part of the house. He should have objected to the auction of the plot rather than appeal against the confirmation of the sale in favour of respondent No. 1".
10. Rehmat Ali filed an application Annex. G-1 on 8th March, 1973, wherein he alleged that Plot No, 3/71 was not mentioned in the auction list ; Allah. Ditta had secured P..T. D., correction may be made so far as his Claim Form K. N. C. H No, 536 was concerned on the basis of which P. T.
0. Of the portion of House No, 3/70 in his possession was issued to him. House No, 3/70 has been transferred to Jamal Din and House No, 3/69 is non-evacuee. He slept over for Almost twelve years and the D. S. C. Passed the order on 9th March, 1973 that P. T. D. Had been issued, no action can be tat en at this stage. The aggrieved party may seek judicial remedy in the proper Court of law if desired, Inform him (sic).
11. Major Ishaq Muhammad Khan learned counsel for Rehmat Ali has referred to various docuMents annexed with the written statement and the miscellaneous application, the most important of which according to him are the bid-sheets R. G. And R. G. 1, lists of auction of the properties held in May, 1960, R. J. And R. J./1 and application of Rehmat Ali for prosecution of the petitioner, on which Ch. Mumtaz Muhammad Khan, Special Judge Anti-Corruption Lahore, convicted him under sections 468 and 109, P. P. C. And sentenced him to one year's R. L by judgment dated 18th September, 1978. He has also annexed statement of Ch. Aril. Mahmood, Advocate Sialkot Annex. C.
M. B. Which he made before the Special Judge, Anti-Corruption, Lahore. Learned counsel pointed out that in the bid-sheet the number of Plot No, 4/I-A bas been crossed and 3/71 has been substituted. Annex. R. H. Dated 16th May, 1960 relates to the auction of Plot No, 4/1-A, Sialkot. Annex.
R. H,/1 is another bid-sheet regarding Plot No, 4/1-A, which has been shown after cutting No 118/139.
In the auction list Annex R. J. Property No, 3/71-A has been scored which belonged to Jagan Nath.
The name of Mistri Allah Ditta has been mentioned. The petitioner has also filed Annex. 'A' the list of the plots, in which at page 10, Plot No, 3/71 belonging to Sant Ram has been shown to have been added with date of auction as 13th May, ' 1960.
12. Learned counsel for the contesting respondents vehemently argued that since that is a case of fraud in which the petitioner has been convicte and the case has been remanded, no exception can be taken to such an order. He placed reliance on Muhammad Anwar Khan v. M. A. Wasti.
Settlement and Rehabilitation Commissioner, Peshawar and others (1) ; Qutubuddin and others v.
Sardar Hidayat Ullah Khan Mokal and another (2) and Chief Settlement Commissioner Lahore v.
Mohammad Fazil Khan and others (3) and argued that the Settlement Auhtorities .Re competent to re-open the case where fraud is alleged even if the P. r. D. Is issued. 'There is no quarrel with this proposition because fraud vitiates the most solemn proceedings on God's earth. The Supreme Court ha also held in Aminuddin v. Settlement Commissioner, and others (4) tha there is no power left in the Settlement Authorities to correct clerical mistakes in P. T. D. The aggrieved person may seek declaration in civil Court in such circumstances In Sved Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another (3)*it was held that property goes out of compensation pool after issuance of P. T. D. Revisional jurisdiction of Settlement authorities cannot be exercised in respect of property afte issuance of P. T. D. He submitted that since the fraud has been alleged and conviction has been recorded and the Settlement Authorities ar competent to remand the case. Be that as it may, the auction in favour o the petitioner's father has been examined and approved by the Settlemen Commissioner Khan Farzand Ali Khan, despite the fact that almost similar allegations were raised before him by Jamal Din transferee of the {{FOOT NOTE}}
(1) 1975 SCM R 372 (2) 1976 SCM R 524
(3) PLD 1975 SC 331 (4) 1973 C M R 624 (3) 1974 SC MR8 {{FOOT NOTE}} house who wanted to have the plot in dispute as courtyard of his house. A report was called by J. H.
Rizvi. J. As he then was a Judge of this Court and the petition was withdrawn on 13th February, 1962, but the learned Judge mentioned in his order that in case on the same facts another petition is filed the petitioner will mention about this writ petition so that the report received in the writ petition can be availed of. Writ Petition No, 2114-R of 1962 on the same facts was again filed by Jamal Din which was amended and on the amended writ petition S. A. Mahmood, J. Passed a detailed order dismissing the writ petition in limine. He found that the plot was auctioned without its being in the auction list and the highest bid was of Allah Ditta. The auction was confirmed in his favour by the Additional Settlement Commissioner on 13th May, 1960. Jamal Din petitioner appealed against this order but this appeal was filed on 9th August, 1960, which was well beyond the limitation of fifteen days provided for an appeal and was dismissed on this ground. The Settlement Commissioner also held that the two properties bore different numbers since before Iniependence. Sant Ram evacuee built the house. This did not form compound of the house and could not, therefore, be treated as part of the house. He refused to interfere in the auction of the plot even though it was not mentioned in the auction list for the reason that it was auctioned for adequate price. A second revision petition was filed which was also dismissed and Writ Petition No, 745-R of 1961 was withdrawn. Thus it is clear that the auction of the plot in disptue in whatever circumstance has been approved by the Settlement Authority and upheld by this Court is final. The impugned order amounts to review of the order of his predecessor Khan Farzand Ali Khan dated 1st December, 1950 on merits which is incompetent. Reliance is placed on Muhammad Tufail v. Abdul Gafoor, etc. (1) and section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which has been repealed. The power of review on merits was also taken away by deleting subsections (1) and
(2) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by virtue of the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance, 1962, with effect from 13th January, 1962. Moreover, the petitioner cannot be allowed to approbate and reprobate by taking a different stand before the Rent Controller in his written reply and his statement in the ejectment application filed by Allah Ditta deceased wherein he had admitted that Allah Ditta deceased had purchased the plot in auction and Rent Restriction Ordinance does not apply to plots. By his statement he prayed for two months' time on 4th May, 1964, to vacate the property. He had also stated that it was also within his knowledge that Jamal Din had filed writ petition regarding this plot in the High Court as mentioned in paragraph 3 of the written reply Annex. 'F'. He has taken the somersault even regarding his own, K. N. C. H. Form No, 536 in which he had asked for transfer of House No, 3/69-70 and P. T.
0. Had been issued to him for House*No, 3/70 on 3rd March, 1960, for the portion in his possession.
This P. T.
0. Is Annex. R. E. Filed with the written statement. He kept mum upto 8th March, 1913, despite the fact that entire House No, 3/70 was transferred to Jamal Din, his neighbour, long before and he had not taken any step. Against that transfer. His prayer in the application was that the amendment made regarding the number of the property auctioned in the bid-sheet does not disclose any order of the competent authority and in the auction list the number of {{FOOT NOTE}}
(1) PLD 1958 C 201 {{FOOT NOTE}} Plot No, 3/71 was not published. Twelve long years after the death tip Allah Data, father of the present petitioner, reopening of the case on suet? An application, which had attained finality in the circumstances of this case, is absolutely uncalled for. Somewhat, similar allegation has already been dealt with by the Settlement Commissioner by order dated 1st December, 1960, who approved the auction taking into consideration the stand of Jamal Din who is obviously Rehmat Ali's neighbour and to whom House No, 3/70 has been transferred for half portion of which the petitioner has the P. T.
0. The Settlement Commissioner found that the property was auctiohed for adequate consideration and he did not think it advisable to order its re-auction. The prosecution of the petitioners is hardly relevant for the decision of this petition, for criminal liability has to be determined on its own merits. Surely they would not affect the transfer of the plot in the name of his father in 1960, the auction of which was approved by the Settlement Authorities and upheld right upto the High Court.
13. The petition succeeds, the order of remand is quashed. Parties are left to bear their own costs.