1. ' The petitioner a non-claimant Displaced Person who migrated from East Punjab in the year 1947, seeks to challenge the order dated 18-1-1971 of the Deputy Settlement Commissioner, Hyderabad cancelling the transfer of and resuming house property No, E/2518 and transferring it in favour of respondent No, 1 on the ground that the petitioner had failed to pay the transfer price within time after receiving notice. He also seeks to challenge the order of the Settlement Commissioner (Sale), Karachi dated 19-2-1975 dismissing his application dated 24-6-1974 which was referred by the Deputy Settlement Commissioner, Hyderabad for suo mote revision.
2. ' The facts leading to the filing of the Petition are as under :- ' The petitioner after his migration from East Punjab, since 1952 was in possession of house situated on City Survey No, E/2518 in Melwani Lane, Hyderabad which originally belonged to Motoomal Kirpaldas. One Sharafatullah son of Barkatullah was also occupying a portion of the aforesaid house. The entrance passage to the house was through C. S. E/2516. The house was assessed at Rs, 240 gross annual rental value, half of which was payable by the petitioner and half by aforesaid Sharafatullah. The petitioner filed N. C. H. Form in respect of the aforesaid house for the portion in his possession on 8-8-1959 showing the house to be situated on City Survey No, E/2518. The Form was registered by the Deputy Settlement Commissioner, Hyderabad vide Registration No, H. T. R.
3. 763 and on 9-11-1959 the Deputy Commissioner, Hyderabad issued Appendix assessing the value of the house at 10 times the gross annual rent value, namely, Rs, 2,400 with Rs, 360 as non-claimant surcharge at 15 per cent. Thus, the portion of the house in possession of the petitioner was valued at Rs, 2,760.
4. ' Respondent No, 1 who was in possession of the house on City Survey No, E/2517 and 3/4th part of City Survey No, E/2516 had filed N. C. H. Form for the transfer of the property in his possession in respect of City Survey No, E/2516 and E/2517. Since the passage to the house in possession of the petitioner and Sharafatullah passed through C. S. No, E/2516 respondent No, 1 tried to claim transfer of the building on City Survey No, E/2518. He made such applications to the Custodian Evacuee Property but the same were dismissed. He next made an application before the Settlement Commissioner, Hyderabad which was finally rejected on 4-3-1955 by the Additional District Judge, Hyderabad acting as Settlement Commissioner.
5. ' It is the case of the petitioner'that being unsuccessful in his attempt to acquire the property in possession of the petitioner respondent No, 1 in collusion with the clerical staff of the Settlement Department without notice to him put the house on City Survey No, E/2518 in the list for auction on 20-3-1967, presumably taking the ground that the petitioner who had been granted the property entire City Survey No, E/2518 had made payment of the transfer price only in respect of the portion which had been in his possession but not the other portion which was in possession of Sharafatullah. However, since the property had not been resumed after transfer in favour of the petitioner he approached the Deputy Settlement Commissioner, Hyderabad who got the house deleted from the auction list.
6. ' On 26-7-1967 Sharafatullah, the occupant of portion of the property on City Survey No, E/2518 filed an application before the Additional Settlement Commissioner, Hyderabad who issued a notice to the petitioner calling upon him to show cause why the portion of the property on City Survey No, E/2518 which was in occupation of Sharafatullah should not be transferred to him. It is the case of the petitioner that he appeared before the Deputy Settlement Commissioner, Hyderabad but no decision was taken. Sharafatullah made another application also on the point which is pending with the Settlement Authorities till this day as no decision was taken on it to his knowledge. In the meantime, on 15-3-1971 the petitioner made an application to the Deputy Settlement Commissioner, Hyderabad to discharge the notice of resumption dated 18-1-1971 as the petitioner had paid the entire transfer price of the portion of the house in his possession and Sharafatullah was in possession of the other portion for which he was not responsible. The application was marked by the Deputy Settlement Commissioner to Mr. Zaheer Accountant for report but again it is the case of the petitioner that no such report was made despite repeated approaches made by the petitioner.
7. ' Respondent No, 1 who had so far failed in his efforts, made an application to the Deputy Settlement Commissioner, Hyderabad for transfer of property in possession of the petitioner, but the same was dismissed on 23-6-1973. He then filed an appeal before the Additional Settlement Commissioner, Hyderabad which was also dismissed on 25-9-1973, and the learned Additional Settlement Commissioner held that the resumption of the property and subsequent order in respect thereof was defective.
8. ' It is the case of the petitioner that the Deputy Settlement Commissioner, Hyderabad issued final notice dated 12-2-1974 calling upon the petitioner to pay the transfer price up to 30-4-1975 completely overlooking the aforesaid order of the Additional Settlement Commissioner dated 25- 9-1973. It is further the case of the petitioner that his signature was forged showing receipt of the notice which in fact he never received. On 28-3-1974 the property situated on City Survey No, E/2518 with the passage through Survey No, E/2516 was put to auction at the instance of respondent No, 1 and transfer of the same was arranged in favour of respondent No, 1 .Secretly. At the so-called auction there was only one bid and that of respondent No,
1. It is therefore his contention that the retire procedure adopted and the so-called auction were mala fide. But in spite of that the Deputy Settlement Commissioner Hyderabad issued P. T. D. In favour or respondent No, I, hastily in disregard of the fact that the dispute in respect of resumption of the property and its transfer by auction was pending.
9. ' On 24-6-1974 the petitioner approached the Deputy Settlement Commissioner, Hyderabad for setting aside the aforesaid order of transfer by auction to respondent No, 1 and the Deputy Settlement Commissioner was pleased to make a reference to the Settlement Commissioner, Hyderabad for necessary action by way of suo motu revision. The Settlement Commissioner, Hyderabad, at Karachi, however dismissed the reference holding that the matter could not be considered as pending within the meaning of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. It was only on 18-6-1975 that the Deputy Settlement Commissioner Hydeiabad informed the petitioner about the order of the Settlement Commissioner and the petitioner immediately applied for certified copy of the same which was supplied to him 29-7-1975.
10. He then filed Civil Suit for declaration and injunction. But in spite of waiting for more than a year he did not get any relief and his application for injunction was dismissed on the ground that P. T. D.
11. Had been issued by the Settlement Authorities in favour of respondent No, 1.
12. ' Since the impugned orders were illegal and ultra vires being without lawful authority and since the interim relief sought had been refused, he filed the instant petition.
13. ' The main contentions raised on behalf of the petitioner areas . Under :-
(1) That in respect of the property in his possession he had paid the full transfer price as shown in the appendix and the amendment of the transfer price as shown in the Appendix was without any legal and proper orders as the entire value of the property, including the portion in possession of Sharafatullah had been arbitrarily fixed by mere cutting of the original transfer price shown in his Appendix.
(2) That; in any case, for making any change in the transfer price as shown in the Appendix, it was necessary for the Settlement Authorities to give him and others associated with him in making payment of the price previously fixed; a notice and the change in the transfer price, therefore, was illegal being in contravention of the principle of natural justice.
(3) That he has also argued that even in the final notice alleged to have been served on him for making payment of the transfer price, which is alleged to have been issued on 12-2-1974 but was never received by him, the time for payment up to 30-4-1974 had been fixed and therefore the alleged auction could not have been. Held before the expiry of the aforesaid date 28-3-1974.
(4) That under the rules made under Settlement Scheme No, VIII a final notice for resumption of the property had to be served by registered post acknowledgment due, but no such procedure was adopted, and there is no acknowledgment receipt, attached to the file, as required by the rules, which could be the only proof about final notice having been served by registered post acknowledgment due.
(5) That with regard to the impugned order of the Settlement Commissioner that at the time of the application of the petitioner being referred to him by the Deputy Settlement Commissioner, Hyderabad there was no matter which could be considered as pending, it has been argued that the dispute of Sharafatullah with the petitioner over the transfer of the portion of the building in possession of Sharafatullah and payment for the same, and the dispute of respondent No, 1 with the petitioner over apportionment of the transfer price of Survey No, E/2516 which, as already mentioned, yet remained to be decided and the contention of the petitioner that he had fully paid the transfer price had yet to be finally decided, and therefore the application made by the petitioner pointing out the aforesaid deficiencies dated 24-6-1974 which were referred by the Deputy Settlement Commissioner for suo motu revision before the date of repeal of the Acts and Regulations under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 should not have been considered as not pending by the Settlement Commissioner in his impugned order and there should have been a decision of the point which would have been in accordance with the law.
14. ' There is evidence on record, namely, certified copy of P. T. I. Ward E which shows that the house on City Survey No, E/2518 which originally belonged to Kishanchand, Mithradal Pritamdas and Ramchand the sons of Motoomal was in possession of the petitioner Muhammad Ramzan and Sharafatullah son of Hafeez Barkatullah who used to pay Rs, 24 annual rent for each of the portions.
15. The gross annual rent of the building is shown to be Rs, 240. The certified copy of City Survey No, E/2518 separately shows the transfer price of Rs, 2,760 against the name of Muhammad Ramzan petitioner and Sharafatullah. A reference to the certified true copy of Appendix issued in favour of the petitioner shows that at first the transfer price was shown as Rs, 2,700 which was however scored off and Rs, 5,520 inserted. There is no indication from the certified true copy as to under what orders and circumstances the correction, if any, was carried out after a lapse of about 11 years. The petitioner has also produced certified copies of the agreements of association with Ziauddin Siddiki, respondent No, 4 and others. In all the aforesaid agreements it was mentioned that the petitioner who was occupant of house No, E/2518, Melwani Lane, Hyderabad had already received Appendix for valuation price of Rs, 2,760. On the other hand, official respondents Nos. 2 and 3 have chosen not to defend this petition and therefore there is no explanation and no contest about the assertions made and the proof adduced by the petitioner.
16. On behalf of the respondent No, 1 it is admitted position that the petitioner filed N. C. H. Form for property No, E/2518 and the same was transferred to him charging half assessed transfer price of Rs, 2,760. However, before I deal with the legal position vis-a-vis the contentions raised on behalf of the petitioner, it is necessary to consider the legal contention raised on behalf of respondent No, 1 that since the petitioner had filed a suit for declaration and injunction in a Civil Court with regard to the same subject-matter, there was alternate remedy available to him and, therefore, the remedy by way of writ is not open.
17. ' Mr. Riaz Ahmed, the learned Advocate for the petitioner, has relied on the Supreme 'Court decision in the Murree Brewery Company Limited v. Pakistan and two others (1) wherein it was inter alia observed that the rule that High Court will not entertain Writ Petition when other proper remedy was available was not a rule of law barring jurisdiction, but a rule by which Court regulates its jurisdiction and further that if order of statutory authority was attached on the ground that it was wholly without authority, partial, unjust and mala fide, the High Court bad the power in its writ jurisdiction to grant relief to the aggrieved party.
18. ' In Mubarak Khan v. The Rehabilitation Commissioner, Multan and Bahawalpur Divisions and three others (2) where it was contended that, after withdrawal of Civil Suit, the petitioner cannot invoke the extraordinary jurisdiction of High Court, it was held that a party cannot be deprived of right to move Court even when Civil suit is pending. In that decision reliance was placed on the decision of the Supreme Court in Safahuddin and another v. Frontier Sugar Mills and Distillery Ltd. (3).
19. Reverting to the merits of the case it is apparent that before the change in the transfer price no proper notice was given to the petitioner who was in actual physical possession of the property in question nor was such notice given to respondent No, 4 who was associated with him in payment of the transfer price. The aforesaid order therefore, if at all passed, and there is nothing on the record to suggest that it was so passed, is hit by the principle of natural justice that a person likely to be adversely affected must be given a hearing before such adverse order is passed. It is also clear that with regard to sharing of the transfer price in respect of the portion occupied by Sharafatullah, although efforts were made by the aforesaid Sharafatullah and there was dispute between him and the petitioner, no proper and legal orders were passed, and the matter was kept pending.
(1) PLD 1972 SC 279 (2) 1980 CLC 1980
(3) PLD 1975 SC 244 It is also apparent that the final notice, as prescribed by the rules before cancellation of transfer and resumption of property, was not served on the petitioner and the acknowledgement receipt of any such letter is not on the file. The cancellation of transfer and resumption of the property, therefore, should not be considered to be by a legal and proper order in exercise of c jurisdiction given by the law. The same being a nullity, the P. T. D. And transfer papers issued in favour of respondent No, 1 are of no legal effect. Needless to add that the order of transfer being invalid cannot give the transfer incidence of finality. The position would be the same with regard to property bearing C. S. No, E/2518 and also the portion of No, E/2516 which is being used as passage for reaching the property No, E/2518. It is apparent that the portion of No, E/2516 in possession of the petitioner was held to be a passage by the learned Deputy Settlement Commissioner, the learned Additional Settlement Commissioner in his order passed on 4-3-65. The question whether Sharafatullah was assessed against C. S. No, E/2520 or he was assessed for the aforesaid number and also the portion of No, E/2518 in his possession jointly is not being considered in these proceedings specially as Sharafatullah is not a party. In any case, it is for the authorities concerned to look into that matter as it is apparent that the petitioner was charged the transfer price initially only for the portion of Survey No, 2518 in his possession. It is evident that no orders of permanent transfer of the property had yet been passed in favour of the petitioner, and although it appears to be per se illegal to change the transfer price of the property after such a long time, the question as to the rights of Sharafatullah and the petitioner having interest in the property situated on City Survey No, 2518 etc. Have to be determined which, for obvious reasons, cannot be done by this Court during these proceedings. It is, therefore, considered in the interest of justice to remand the case to respondent No, 1 or any officer notified by the Provincial Government under section 2, subsection (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 for passing the requisite orders, after giving a proper hearing to the parties concerned, as provided by the law.
20. ' The petition is accordingly allowed and the impugned orders, namely, order of the Deputy Settlement Commissioner, Hyderabad, dated 18-1-1971 cancelling the transfer of house in question in favour of petitioner and transferring the same in favour of respondent No, 1 and also the order of the Settlement Commissioner dated 19-2-1975 dismissing application of the petitioner dated 24-6- 1974 are hereby quashed being of no legal effect. In the circumstances of the case, no orders are being passed with regards to costs.