' The facts leading to this petition are that House No, 19, Ward No, S-11, Katchi Abadi, Nusrat Road, Multan, was allotted to one Karam Din father of the petitioner on 26th April, 1952. In support of this, a certified copy of allotment order is Annex. 'A' to the writ petition. Gent was paid upto 12th December, 1959 which fact is supported by two rent receipts (Annex. 'B' and 'B/1' to the petition) Karam Din father of the petitioner filed an L. H. Form No, 694 on 3rd August, 1959 a certified copy of which is Annex. 'C'. According to the petitioner, the house was transferred to his father Karam Din on 8th December, 1959 and in consequence, Appendix IX and P. T. O. (Annexs. And 'F') were issued to Karam Din.
' L. H. Form No, 694 of Karam Din was rejected by the D. S. C. On 4th January, 1960 vide Annex. '0'. On 27th August, 1968 the disputed house was put to auction which fell to the lot of respondent No 3.
The bid was confirmed on 31st August, 1968 and as a consequence, a P. T. D. Was issued in favour of the auction, purchaser on 8th November, 1968. According to the petitioner, respondent No, 3 issued notice to him and Ghulam Muhammad in the year 1971 and he immediately, after the receipt of notice, inspected the file on 28th October, 1971 and thereafter made an application on 1st November, 1971 for setting aside the ex parte order made against the petitioner. The application remained pending for want of any action. However, the petitioner filed an appeal on 11th January, 1972 alongwith an application under section 5 of the Limitation Act for condonation of delay.
Certified copies of the appeal and application are Annexs. 'J' and 'JO' to the writ petition. Appeal of the petitioner was dismissed by the Additional Settlement Commissioner on 29th August, 1972 mainly on the ground of limitation (Annex. 'K'). A revision petition was taken by the petitioner before the Settlement Commissioner on 4th October, 1972. After hearing, the revision petition was dismissed by the Settlement Commissioner by order dated 19th May, 1973 (Annex. 'L') Hence this writ petition.
2. Learned counsel for the petitioner has argued that firstly there was an order of transfer made in favour of petitioner's father, in consequence of which Appendix IX and P. T. 0, were duly issued in his name. These documents as well as the transfer order could not be cancelled without observing the principle of natural justice embodied in the maxim audi alteram partem. It has been alternatively argued that even if it is assumed that there was no order of transfer in favour of petitioner's father, his L. H. Form No, 694 was still pending and the order passed by the D. S. C. On 4th January, 1960 was void altogether and a nullity firstly because it was passed without affording any opportunity to the petitioner and secondly the order was in matter violation of Paragraph 10 of Scheme No, l to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Learned counsel for the petitioner has further agued that the order dated 4th January, 1960 being a void order was not required to be set aside formally. The point of limitation also according to the learned counsel, could not be a hurdle in the way of the petitioner and the same could not be passed against him. In this behalf, learned counsel has relied on Hussain Bakhsh and others v. Settlement Commissioner and another and Ali Muhammad v. Hussain Bakhsh and others. It is further argued by the learned counsel for the petitioner that all orders and proceedings subsequent to the order dated 4th January, 1960 were void as they were based upon an order which was itself a nullity.
3. Learned counsel for the contesting respondent on the other hand, has argued that there was no order in existence for the transfer of the house in favour of Karam Din and, therefore, P. T.
0. And Appendix IX, if issued, were altogether illegal because they were entirely dependent upon an order of transfer. He has further argued that the file was tampered with and, therefore, the P. T.
0. And Appendix were obtained by fraud.
4. The contentions raised by the learned counsel for the petitioner have considerable force. It is undoubtedly established that Karam Din was an allottee of the house. He was also in possession before the target date. He also cleared the rent upto 12th December, 1959 and there was no other claimant for the transfer of the house except Karam Din. Even if it his assumed that there was no order of transfer in favour of Karam Din, as pointed out by the Settlement Commissioner in his order, yet the fact remains that his L. H. Form No, 694 was illegally rejected in utter violation of Para. 10 of Settlement Scheme No, 1 to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It may be beneficial to quote the relevant provisions from the Scheme which will make the point more clear :- "10. Inquiry where entitlement is not clear.-
(1) If the applicant does not appear to be entitled to retain the house or shop, either wholly or in part, the Deputy Settlement Commissioner shall issue a notice of fifteen days in the form as specified in Appendix VIII to the applicant stating the points requiring clarification. The notice shall state the place and date for the appearance of the applicant and shall warn him that if he does not appear on the appointed date his case shall be decided ex parte. The notice shall also direct the applicant to produce all documents in his possession on power upon which he relies in support of his case.
(2) ..
' It has been admitted by the learned counsel for the contesting respondent that no notice was issued to Karam Din before the order dated 4th January, 1960 was passed. It has now become crystal clear that the D. S. C. Who passed the order rejecting the L. H. Form of the petitioner's father acted without lawful authority because he had failed to comply with the mandatory provisions of Para 10, particularly the issuance of fifteen days, clear notice. It would be better to refer to the order passed by the D. S. C. No reasons were recorded for rejecting the form of Karam Din by the D. S. C.
Except that it is noted "Local. No allotment. To go to pool." This order obviously is void order and the1 2 subsequent auction as well as the issuance of P. T. D. Will also be void and nonexistent. It was held in Yousaf Ali v. Muhammad Aslam Zia and 2 others(at page 116) :- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within' the power of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it in the eye of the law such orders being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
In the present case no negligence can be attributed to the petitioner it was a clear mistake committed by the Department itself in no disposing of the form of Karam Din, petitioner's father, in accordance with the provisions of Paragraph 10 of Settlement Scheme No, 1 an thus, the Settlement Authorities have not properly applied their mind to the real point in dispute between the parties. The appeal was dismissed on the main ground of point of limitation but it was overlooked by the Settlement Authorities that the original order cancelling the form of the petitioner was without lawful authority and a nullit and that order being without jurisdiction and void it need not be set aside formally. No question would, therefore, arise to hold that the matter cannot be considered on merits on account of any bar of limitation. See Hussain Bakhsh and others v. Settlement Commissioner an another. This view was also affirmed by the Supreme Court in Ali Muhammad v. Hussain Bakhsh and others.
5. The argument of the learned counsel for the contesting respondent that there was no order of transfer in favour of Karam Din will not affect the real merits of the present case. Even if it is assumed that there was no order of transfer in favour of Karam Din, the hard fact remains that the L. H. Form No, 694 of Karam Din was not disposed of in accordance with the provisions of law and, therefore, the order dated 4th January, 1960 was a nullity in the eye of law. His form would still be considered to be pending. Mere issuance of a P. T. D. On the basis of a void order of auction will not make the entire proceedings lawful. As earlier pointed out, any superstructure raised thereupon is bound to fall to the ground.
6. The last point by the learned counsel for the respondent that the issuance of Appendix IX and P.
T. D. Was obtained by fraud does not seem to be correct, neither it has been taken note of by any of the Settlement Authorities. It appears that this argument was never put forward by the contesting respondent. Therefore, the argument is altogether irrelevant at this stage.
7. The upshot of the above discussion is that I declare the order dated 4th January, 1960 as having been passed without lawful authority and the subsequent order of auction, issuance of P. T. D. And other proceeding including the order passed in appeal by the Additional Settlement Commissioner dated 29th August, 1972 and that of the Settlement Commissioner passed in revision dated 19th May, 1973 are also declared to have been passed without lawful authority and are nonexistent. In consequence, the form of the petitioner remains to be disposed of. The case is remanded to the notified officer for disposal of the form of Karam Din in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The writ Petition, therefore, is accepted but there shall be no order as to costs. PLD 1960 Lab. 1039 PLD 1976 SC 37 PLD 1958 SC (Pak.) 104 P D 1969 Lab, 10393 4 5 1 2 3 4