This petition impugns the orders passed by the Additional:- Settlement Commissioner, Hyderabad, and Settlement and Rehabilitation Commissioner, Karachi, dated 10-11-1972 and 30-6-1973 respectively, as being illegal and without lawful authority.
2. Briefly the facts leading up to this petition are that the petitioner Sanyal Shah who is now represented by his legal representatives was trans--ferred House No. B/262 corresponding to No. B/944 in new Hala Town, District Hyderabad, by permanent transfer deed dated 12-3-1970. One Muhammad Ahsan was also transferred House No B/263 corresponding to B/943, situated adjoining to the above-mentioned house of the petitioner by a Permanent Transfer Deed. He subsequently, transferred it to one Atta Muhammad son of Rustam Khan by a registered Sale Deed dated 18-6-1965 and the name of Atta Muhammad was mutated in the City Survey Record. The said Atta Muhammad sold the same to the petitioner vide Registered Sale Deed dated 7-I1-1970 and the name of the petitions; was mutated against it in the City Survey Record. Consequently, the two City Survey Nos. 943 and 944 stood permanently and exclusively transferred and conveyed in favour of the petitioner. Subsequently, respondent No. 1 Asghar Ali moved an appli--cation before the Deputy Settlement Commissioner that he was transferee of City Survey No. B/261 which corresponded to portions of City Survey Nos. 943 and 944 and claimed an area in all 65.1 sq. Yds., being in possession of it, from the two survey numbers. The Deputy Settlement Commissioner dismissed his application on the ground that after the issuance of P. T. Ds. He had no jurisdiction in the matter. An appeal was filed by the respon--dent No. I against the order before Additional Settlement Commissioner which was allowed by the order dated 10-11-1972. A revision against the order was preferred before the Settlement Commissioner who dismissed the same. The petitioner being aggrieved by the two orders passed by the Additional Settlement Commissioner and the Settlement Commissioner has come in this Constitutional petition.
3. Mr. Muhammad Shafi Rajput, the learned counsel for the petitioner, has urged at the very outset that after the issuance of the P. T. Ds. The Settlement authorities had become functous officios and they could not set aside the same by invoking the powers under section .',0(3x41 of the Displaced Persons) (Compensation and Rehabilitation) Act, 1958, particularly when rules 6 and 7 of the Permanent Transfer Rules have been deleted and there was no allegations of any fraud or misrepresentation. He has also urged that it is not a case of an error such as can be corrected without holding a formal enquiry or undertaking adverse proceedings but conflicting claims made by the parties require a full-fledged adjudication consequent upon which substantial variation may be made in the description of the properties given in the P. T. Ds. Already issued to the transferees, which cannot be done, unless it is a case of misrepresentation or fraud.
4. The facts of the case as stated above have not been controverted on behalf of the respondents as no counter-afiidavit appears to have been filed. It has also been fairly conceded that it is not a case of the respondents that there was any fraud or misrepresentation in the matter of transfer of the property. The controversy, therefore, centres around the question as to whether the Settlement Authorities could alter or amend the P. T. D. By altering tale area of the properties which were transferred by the P. T. Ds. Reliance in that respect has been placed on behalf of the petitioner on the cases of S. Anwar San! v. Sarfraz Ahmed and 2 others (PLD 1971 SC 669and Mst. Hajiani Fatima and 6 others v. Ibrahim and 13 others (PLD 1972 Kar.-610). In the former case the following observations have been relied on at page 673 of the report ; "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 become functus officio to deal with that property. Transfers under the Displaced Persons (Compensation and Rehabilitation) Act, are, however, in the nature of a grant and it .Is open to the granter to impose such terms and conditions on the ownership rights as the law may provide. The relevant provisions of law in the instant case are contained in the Permanent Transfer Rules, 1961, framed by the Central Government in exercise of the power conferred on it by section 35 of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958."
In the latter case it has been observed as follows :-.- 'There is no escape from the conclusion that once a final transfer deed is issued, the Settlement Commissioner becomes functus officio. This is apparent from the observations of their Lordships of the Supreme Court cited above. It, therefore, follows that it is only under the rules that the power can be invoked to set aside the transfer on the grounds mentioned in it. This being the legal position section 20(3) of the Act loses its efficacy and cannot be invoked to set aside the transfer.
Mr. Ajmal Mian invited my attention to the fact that rules 6 and 7 of the Permanent Transfer Rules did not exist on the date the Settlement Commissioner passed the impugned order as they were deleted and therefore even under the Permanent Transfer Rules the power to .Set aside the transfer did. Not exist, much less the power under section 20(3) of the Act. This contention has force, for the Permanent Transfer Rules provided the foundation for the exercise of that power and in the absence of the relevant provisions, that power could not be exercised. The principle enunciated in Ahmed Abbas 2;aidi (ibid) cannot prevail against the view taken by the Supreme Court in Syed Anwar Hussain Sani (ibid) as under Article 63 of the Constitution it is the law laid down by the Supreme Court which prevails."
The authorities above-mentioned lay down a very clear proposition that, once a P. T. D. Is issued the Settlement Authorities becomes functus ofclo; unless fraud or misrepresentation is alleged, which is, admittedly not alleged in' the instant case.
5. The argument on behalf of the respondent No. 1 by his learned counsel Mr. Akhtar Mahmood, that only a formal correction with regard to the area of the survey numbers of the petitioner and the respondent No. 1 for the purpose of clarification has got to be made and it would not amount to any alteration or amendment of any substantial nature in the description of the properties, given in the P. T. D., 1 am afraid has no force. The variation in the area of the survey numbers of the petitioner and the respondent No. 1 is claimed only on the basis of the report of the City Survey Officer, which could not have been available without full-fledged enquiry and that the altering or modifying the aera of these survey numbers would result in a substantial variation in the description of the properties transferred in consequence of P.T.Ds. Already issued in favour of the transferees. Accordingly, there is no force in the contention that variation in the area of the survey, numbers transferred in favour of the petitioner would result only in a formal clarification and not a substantial modification in the description of the properties given in the P. T. Ds.
6. In the result, the impugned orders passed by the Settlement Authori--ties are set aside and the petition is allowed with no order as to costs.