The Petitioner, Syed Mumtaz Hussain, has challenged, in the present petition, the transfer of house No. 123, situated at Jhampir, to the respondent No. 2. The petitioner died during the pendency of the petition and his Rs. i. e. Petitioners I to VI, were joined in the petition.
2. The facts leading to the filing of the petition are that the property bearing Custodian No. 123 situated at Jhampir originally belonged to one Jetharam Khdmchand and was treated as evacuee property by the Custodian of Evacuee Property, Sind and Federal Capital during the year 1950. By a notification dated 21-8-1959 this property was acquired and placed in, the compensation pool by the Government for disposal under the Settlement Schemes framed under Act XLVII of 1958 (Displaced Persons (Land Settlement) Act, 1958). One Hamid Hussain got the property in question transferred in his favour on C. H. Form under Settlement Scheme No. 1 but failed to clear the transfer price, in consequence whereof the transfer of property after due notice was cancelled by the Deputy Settlement Commis--sioner, Thatta, respondent No. 1. The property was resumed by respondent No. 1 in the compensation pool for disposal according to law. The said pro--perty was put to auction on 28-12-1967 and 22-1-1968 but could not be dispos--ed of as there was no bid offered. Subsequently on 26-2-1968 after due notice in the third unrestricted auction petitioner's bid was considered to be highest and was accepted. The auction was confirmed by the Additional Settlement Commissioner, Hyderabad on 20-3-1968.
3. The purchase of the property in open auction was from the Com--pensation Book No. 56026 form A No. 29 having deferred balance of Rs. 2,341.87 and which was deposited towards the adjustment of Rs. 730 for the price of the property in question. The petitioner filed application for issuance of P. T. D. But the same remained pending, when however, sub--sequently in the first week of June, 1974, the property was transferred to respondent No. 2. The contention of the petitioner is that subsequent transfer of the property to respondent No. 2 was illegal and that respondent No. 1 acted without jurisdiction. The petitioner made efforts to obtain copy of the order in respect of the transfer of the property but since the Settlement Department was closed from 1-7-1974 he could not get the copy of the said orders passed by respondent No. 1. The petitioner further submits that Act XXVIII of 1958 was repealed and the Settlement Department was closed. He therefore bad no other adequate remedy, he invoked the writ jurisdiction of this Court. His prayer is that the orders passed by respondent No. 1 on 5-6-1974 were illegal and without lawful authority and that same may be declared to be so and be set aside.
4. Respondent No. 1 did not contest the petition while respondent No. 2 has filed his counter affidavit which is at page 51. The counter affidavit recites that the auctions, said to have been held, were fictitious and managed mala fide by the petitioner: The petitioner did not file his Compensation Book and that he was served with a notice to pay up the price of the disputed property which he could not pay and hence the property was transferred to the respondent No. 2 validly. According to the respondent, the petitioner has no case and that the petitioner failed to avail the right of appeal and the right of revision to the higher authorities.
5. The counsel of the petitioner Mr. M. M. Baigh was heard at length. The Advocate for respondent No. 2 was also heard. The proceedings before the Deputy Settlement Commissioner were sent for in this Court and the same were availed of, during the course of the arguments put forward by the counsel of the petitioner. The Advocate of the petitioner has urged that when the third auction namely auction dated 26-2-1968 took place it was the bid of the petitioner which was accepted at Rs. 730 for the price of the property. The petitioner deposited his Compensation Book No. 56026 form A No. 29 at the time when the auction was finalized. The auction was confirmed by Additional Settlement Commissioner on 20-3-1968. During the arguments learned counsel referred to Annexure `E' at page 20, and the same appears to be very important for the purpose of this petition.
It is the certified true copy of the auction held on 26-2-1968 wherein the petitioner gave bid of Rs.
730 which was accepted and confirmed by Additional Settlement and Rehabilitation Commissioner, Hyderabad on 20th March, 1968. At the corner an endorsement appears i. e. "Form No. THT-29". The endorsement in the corner indicates that the Compensation Book was sub-- mitted at the time of auction and it stands as proof that the entire price should have been considered to have been paid because enough funds were available in the Compensation Book.
The definition of W Form in the Settlement Scheme No. VIII is as under :----- "Forth W means the statement of surrender of Compensation Rehabilitation Book submitted by a claimant to the Deputy Settlement Commis--sioner concerned in accordance with the direction of the Chief Settle--ment Commissioner, dated 19th March, 1965."
6. Filing of the compensation book alongwith the proceeding of the auction held on 26-2-1968 is proved by the extract Annexure E available at page 20 in this case. This is not rebutted or controverted by the respondent No. 2, nor even respondent No. 1 who has not contested whatsoever in this petition.
7. Then, attention is drawn by the learned counsel to Annexure G at page 23. The Annexure G reads as under :----- "Order passed by the Deputy Settlement Commissioner, Thatta, on the report of disposal clerk dated 10-6-1974 regarding property No. 123 situated at Jhampir.
"Mr. Mushtaq please transfer"
15-6-1974 (Syed Iqbal Hussain Shah Kazmi)
Dy. Settlement Commissioner, Thatta."
F8. It is to be noted that the order "Please transfer" is dated 15-6-1974. On 27-6-1974 an incharge of the office has submitted the report Annexure F which is at page 21. Now this report is again very important for the purpose of this petition and the same is reproduced as under :----- "In Respect of Property No. 123 Jhampeer.
Submitted Sir, Facts are as under :- Property house No. 123 at Jhampeer, originally transferred on form CH to one Hamid Hussain who failed to clear the transfer price, hence property was resumed in compensation pool on 26-2-1968, vide order the then DSC.
Property in question was tried in open auction to dispose of, and in third auction applicant Murtaza Hussain offered Rs. 730, which was accepted vide bid sheet at page 10 dated 26-2-1968, but due to no payment it was again resumed, since then no any further action appears to have been taken in this regard.
Meanwhile one Muhammad Hussain applied on BS form for transfer of house in question after getting approval from the learned Settlement Commissioner, Karachi on 10-6-1974. He obtained P.
T. O. After making full payment of T. Price and other Government dues on 26-6-1974.
1. The auction purchaser Murtaza Hussain is a claimant and holder of C. B. No. 65026 form "A" No. 29, in which deferred amount of Rs. 2,341.87 is available, and he applied forP.T.D.on30-6-1972 No. 3715.
2. Resumption of the property in presence of available amount in C. B. Seems defective.
Report alongwith property files and form "A" filed (with C. Bs.) for your kind perusal and orders.
(Sd.) T/Incharge 27-6-1974."
9. The last para. In the above report is worth noting and in the part 2 of the factual position, it is noted that resumption of the property in presence of available amount in C. B. Seems defective.
This again is not rebutted factually and there is nothing on record to say that this report is fictitious or forged or that it was managed by the petitioner. The averment in the counter affidavit is that this report was managed. This could not have been so because it is almost in support of Annexure E quoted above wherein it is clear that the Compensation Book was deposited. Any subsequent order without notice to him seems to be without legal authority. So far the notice is concerned reference is made to the original record at page 89 wherein order is made for resuming the property and for disposal under Scheme VIII. It would be interesting to reproduce the entire order; "In The Court of The Deputy Settlement Commissioner, Thatta.
No. SC/THT/70-514 Thatta dated the 6-3-1970.
To, Mr./Mst. Murtaz Hussain son of imam Ali Auction purchase: of House No. 123 Resident of (illegible).
The facts of the case in brief are that House/shop/plot/bearing Custodian C. S. No. 123 situated at Jhampeer District Thatta was purchased by Murtaza Hussain in open auction held on 26-2-1968 for Rs. 730 and intimation of acceptance of his bid was duly communicated to him under his this office letter No. DSC/69-840 dt. 15-5-1969 requiring him to pay the entire auction price within 30 days as per terms and conditions of auction. It has been observed from the record that he paid Rs. Nil only as Earnest money towards auction price leaving an outstanding amount of Rs. 730 which he has failed to clear -despite issuance of final notice under this office No. DSC/THT/70-140 dated 3-6- 1969 requiring him tar pay the balance amount within 30 days. I am satisfied that the auction purchaser has not cared to clear the outstanding amount of the auction price and that being the position, I do hereby cancel the auction proceedings in respect of the property in question, impose- a penalty to the extent of 25 % of the bid money i. e. Rs. 163 which shall stand forefeited from the amount,, if any, paid by him.
Order accordingly. Send a copy of this order to the person concerned free of cost, for his information.
Deputy Settlement Commissioner, Thatta (W. Pak.)
6-3-1969 Copy to the person concerned,"
10. It is to be noted that the notice was issued on 3-6-1969 and the order is passed on 6-3-1969.
This anomaly indicates that these orders were arbitrary without looking into the matter correctly. It is, therefore, to be deemed that no notice for cancellation of the auction was served on the petitioner and the resumption of the property was bad in law. This is supported by the documents already discussed and referred to and there would be no argument whatsoever that the Compensation Book was not available at the time when the bidding of the petitioner was accepted in the auction on 26-2-1968. The learned counsel for respondent No. 2 has not met the points of the documents referred to and is unable to explain them except that he says that they are all forged documents. Such allegation cannot be levelled in so far as the original record is before this Court.
11. The Advocate for respondent No. 2 has further contended that since the petitioner is now dead, the petition does not lie and he has referred to PLD 1964 Kar.
90. It is respectfully submitted that the authority is distinguishable as the petitioner died during the course of writ petition pending in this Court and his L. Rs. Were allowed to be joined and the authority referred to above is not applicable.
12. The second plea raised by the learned Advocate for respondent No. 2 is that the petitioner failed to avail the remedies under sections 19 and 20 as envisaged in the Act XXVIII of 1958. This point was answered very rightly by the counsel of the petitioner that the Act XXVIII of 1958 was repealed and the Settlement Department was closed on 1-7-1974. This Court, therefore, has the jurisdiction to entertain the petition.
13. The contentions raised by respondent No. 2 to meet with the case of the petitioner do not stand to any reason in the face of the documents which speak loudly in favour of the petitioner. The case of the petitioner hinged on two documents namely Annexure E wherein it is proved that the Compensation Book was filed by him and Annexure F the report of the Clerk stating clearly that the resumption of the property was defective. These two facts cannot be controverted and it seems that the learned Deputy Settlement Commissioner the respondent No. 1 has acted without jurisdiction and his order of resumption of the property and then transferring it to respondent No. 2 was illegal and consequently ineffective. Accordingly I allow the petition and declare that the subsequent transfer in the name of respondent No. 2 is improper and illegal and the same may be set aside. The property stands in the name of the petitioner and I direct that further proceed--ings may be undertaken by the relevant authorities. In the circumstances no order as the costs is made.