' This constitutional petition is directed against order dated 12-8-1984 of learned Administrator (Residual Property) Rawalpindi Division, recalling transfer of property from the names of two minors namely Hamad bin Khaleeq and Saad bin Khaleeq and ordering its transfer to the Education Department on a price to be fixed/determined by the Deputy Administrator (Residual Property)
Rawalpindi. The petition arises in the following circumstances:- ' Evacuee property bearing Survey No.0/1101 A and B, Kartarpura, Rawalpindi City was transferred in the first instance, in the name of Niamat Rasool. Provisional Tranfer Order was also issued in his favour. Since, transfer price, was not paid, transfer from his name was recalled and the property was then transferred to Islamia Khizria Ruhania Mission, Rawalpindi (headed by Pir Sahib of Deval Sharif) at the determined transfer price of Rs.1,65,600. Since Mission too failed to pay the transfer price, despite repeated reminders from the Department, once again the transfer was cancelled.
With resumption, it became available property to be dealt with under section 3 of Act XIV of 1975 and Scheme for the Management and Disposal of Available Urban Properties (Gazetted on 31-1- 1977). Hamad bin Khaleeq and Saad bin Khaleeq sons of Khaleeq Ahmad Siddiqui applied for the transfer of the evacuee available property on the basis of their alleged possession. Delay in the submission of the form was condoned by the Administrator (Residual Property). The property was consequently transferred to these minors on 29-9-1979. Transfer price is stated to have been deposited and documents conferring ownership rights have also been issued to the transferees on 4-2-1980. This transfer of evacuee property seriously displeased the Education Department of the Province of Punjab who took exception to its transfer in favour of the minor petitioners, on ground of the possession being with the Education Department where the Girls High School was housed. Girls High School housed in the Evacuee Property was nationalized under provisions of Martial Law Regulation 118 and in this way the institution and the building both vested in the Government. Chief Settlement Commissioner Punjab was moved with request to cancel/recall the transfer as the same was obtained by collusion and misrepresentation. After usual processing of the case, the matter came before the Administrator (Residual Property) for exercising of suo motu revisional jurisdiction under para. 31 of the Scheme for the Management and Disposal of Available Urban Properties. After hearing the parties and examining the records, vide order dated 12-8-1984, learned Additional Commissioner/ Administrator (R.P) Rawalpindi cancelled the transfer and ordered that the property be transferred to the Education Department on the payment of price as noted above.
2. Mrs. Jamal Siddiqui, mother of the minor transferees was Headmistress Jamia Khizria Girls High School since 1966. After nationalization of the educational institutions, she was absorbed in Government service and was allowed to continue as Headmistress of the institution. She was allowed residence, in that capacity, in upper portion of the building. Minors were also residing with their parents and had no independent status nor possession. Consequently finding lack of possession which was a necessary ingredient sine qua non for claiming transfer of available urban evacuee property, the transfer order was recalled vide order dated 12-8-1984. It is this order which is under challenge in constitutional jurisdiction at the instance of two transferees through their father as next friend.
3. I have heard Mr.Samad Mahmood, learned counsel for the petitioners. Following contentions were raised by him in support of the writ petition : -
(i) The order passed by the Administrator Residual Property was without jurisdiction. There was no power available with the Chief Settlement Commissioner to direct the Administrator (R.P) to exercise suo motu revisional jurisdiction under para. 31 of the Scheme.
(ii) Administrator (R.P) could not have interfered as delay in the submission of form was condoned by him after attending to the merits of the case.
(iii) The Department was estopped by their conduct to question the transfer in favour of the writ petitioners. It was stated that the property after transfer was requisitioned in presence of the departmental representative who did not raise any objection to the transfer.
(iv) Minors were in possession of the property and on the basis of their settled possession could validly lay claim to the transfer of the property. Even if it be assumed that their mother was in possession of the property, they could take advantage of the possession of their mother for purposes of seeking transfer.
(v) After transfer documents had been issued in favour of the writ petitioners, and price paid, the matter became immune from interference in revisional jurisdiction under para. 31 of the Scheme.
Learned counsel placed reliance on Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali and another 1974 SCM R 8, H.M.Fazil Zahir v. Kh.Abdul Hamid and others 1983 SCM R 906.
' Contentions raised, when examined in the light of available facts, and law applicable have no serious merit. Mrs. Jamal Siddiqui wife of Khaleeq Ahmad Siddiqui, mother of the two minor transferees of the property was Headmistress of Jamie Khizria Girls High School being run in the disputed property since 1966. When the property was transferred to the Mission she was even then the Headmistress and continued to be so even after the educational institution was nationalized on 1-10-1972, under M.L.R.
118. Vide Punjab Government Notification, dated 24-10-1972 Exh.P.A/1, Government of the Punjab appointed Mrs. Jamal Siddiqui as Headmistress of the School. The building in question consisted of in all 15 rooms. She lived in a portion of the upper storey of the building in the capacity of Headmistress of the school where her children also may be living with her. She was in full know of the facts that the Government of the Punjab was in possession of the building where Government Girls High School was being run by it, she being the Headmistress of the institution. Her minor 'sons had no independent status. They were merely residing with their parents. Taking advantage of their temporary stay in a part of the upper storey of the building in dispute they applied through their father seeking transfer of a huge valuable building. Without participation/association of the Education Department, Government of the Punjab, the property was transferred to these two minors without even verifying their actual physical possession on site. Had the officer charged with duty of determining the petitioners' entitlement relating 'to transfer of evacuee property taken the trouble of looking to the spot or even documents, it would have clearly dawned on him that the possession being asserted on behalf of two minor sons who had no independent status or resources of their own, had no props to stand upon. Admittedly, after nationaliza tion of the Educational institution, the Girls School was housed in the building and the petitioners' mother Headmistress of the institution, could not in derogation of the rights of Government, take a turn and put forth her two minor sons for seeking transfer of the valuable property showing possession of the minors which in fact did not exist at all. She being a Government servant was bound to protect the interests of her employer. Both, mother and father, have ignored this all important duty. The property which became available after resumption had to be dealt with under the provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Under para. 6 of the Scheme for Management and Disposal of the Available Urban Properties, house, shop or a building site having construction, can be transferred to a person in possession, if he applies in this behalf. "Possession" has been defined in definition clause para 1(i), which reads:- "Possession" means, possession obtained on or before the First day of January, 1976 by any person and includes his successors in-interest and assignee."
' There is no denying the fact that after 1972, the major portion of the building was in possession of the Education Department and a small accommodation on the upper floor of the building was being enjoyed by the Headmistress, the mother of the two minors, claiming transfer of the property.
In this view of the matter, petitioners' possession did not exist at all and the transfer order passed in favour of the petitioners was not only illegal but seems to be the result of some clever move, may be in collusion with the Settlement Staff. Government, therefore, was rightly vested with the right to object to such a transfer, moreso, when its posselsion was visible to all except the Deputy Administrator (R. P . ) . Learned Additional Commissioner/Administrator (R.P.), therefore, had ample jurisdiction in his suo motu revisional jurisdiction to step in and find out as to whether the transfer of the School Building in favour of the two minor sons in such circumstances could be upheld. It has been observed by him that the transfer has been made fraudulently, illegally and in utter violation of the Settlement Laws. When such were the facts, no insuperable hurdle stood in his way when exercising his revisional jurisdiction under para. 31 of the Scheme to recall the transfer order. The delay in submission of form condoned in the absence of the respondent, could not, operate to deprive the respondents of their rights to claim transfer of the property. Transfer documents issued, in violation of the law regulating the transfer of avilable property cannot be allowed to stand. They were subject to the revisional jurisdiction of the Administrator. Even otherwise, the finding was that the transfer has been obtained by fraudulent means. That proved, would provide an additional ground in favour of the respondents. Looking at the facts of the case as presented before me at the Bar and gleaned from the available material one reaches to an irresistible conclusion that the transfer in favour of the petitioners was clearly manipulated. In this view of the matter, I am not inclined to assist the writ petitioners to retain the ill-gotton gains which theyC have succeeded with the help of their mother and father. Admittedly, the respondent Education Department, was not associated in the proceedings culminating in the transfer order. 1, therefore, see no) force in this writ petition. It fails and is dismissed in limine.