' This is a Constitutional Petition filed under Article 199(1)(a) of the Constitution of the Islamic Republic of Pakistan, 1973.
2. The facts leading to this petition are that house bearing No.G/1658 situated in Ward 'G' Tando Tayab Hyderabad, being an evacuee property, was included in the auction list which published in the Daily 'Aftab' by the Deputy Settlement Commissioner, Hyderabad in the year 1960. On 2-7-1960 the acution was held and the said house was auctioned to the petitioner as the highest bidder for Rs.3,700. The Additional Settlement Commissioner, Hyderabad confirmed the said auction on 10-8- 1960 in favour of the petitioner. The petitioner thereon paid the full transfer price on 4-9-1960 to the Deputy Settlement Commissioner, Hyderabad. The Provisional Transfer Order was accordingly issued to him which was followed by the issuance of Permanent Transfer Deed in his favour on 25- 10-1963.
3. One Mst. Chutti, the deceased mother of respondent No.4, being the occupant of the said house, preferred an appeal to the Additional Settlement Commissioner, Hyderabad against the said transfer mainly on the ground that the house in question was not an evacuee property. This appeal was dismissed by his order dated 17-11-1962 for non-prosecution.
4. The petitioner in the year 1963 filed an ejectment application being Rent Case No.154 of 1963 against respondent No.4 and his deceased mother Mst. Chutti on the ground of default in payment of rent. Respondent No.4 and his said mother contested the said ejectment application bearing No.154 of 1963 in the court of Rent Controller, Hyderabad. The learned Rent Controller allowed the said application by his order dated 8-12-1965 directing respondent No.4 and his mother to vacate the house against which no appeal was filed and thus the order of the Rent Controller became final. In the year 1966 the petitioner filed an Execution Application bearing No.121/1966 for getting possession of the said house. The writ of possession was issued by the learned Rent Controller but before this could be executed, one Muhammad Qabil son of Hussain Bux Shidi, a close relation of respondent No.4, moved an application under Order XXI, rule 58, C.P.C. on 27-2-1967 on the ground that he was in occupation of the said house. The said application having been dismissed by the learned Civil Judge, the said Muhammad Qabil filed a Civil Suit on 11-12-1967 being F.C. Suit No.253 of 1967 for declaration and permanent injunction against the petitioner in the Court of First Class Civil Judge, Hyderabad, but the plaint was rejected under Order VII, rule 11, C.P.C. After the plaint in the above suit was rejected, the executing Court again issued a writ of possession for execution of the order of ejectment dated 8-12-1965 passed by the Rent Controller against respondent No.4 and his mother but, again, before this writ could be executed, respondent No.4 (wrongly typed as respondent No.1) filed an application on 27-11-1968 under section 22 of the Pakistan (Administration of Evacuee Properties) Act, 1957 before the Deputy Custodian, Evacuee Property, Karachi and Hyderabad Division for a declaration that the house in dispute was a non-evacuee property and belonged to respondent No.4 (again wrongly typed as respondent No.1). This application being Case No.217 of 1968 was dismissed by the Deputy Custodian vide his order dated 22-8-1969 whereby it was declared that the house in question was evacuee and was liable to be transferred under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
Respondent No.4 (again wrongly typed as respondent No.1) filed an appeal bearing No.22/1969 before the Additional Custodian under section 41 of the Pakistan (Administration of Evacuee Properties) Act XII of 1957 which was also dismissed by the learned Additional Custodian vide his order dated 13-12-1973.
5. It is, however, pertinent to note that the Deputy Custodian, Evacuee Properties while dismissing the application of respondent No.4 by his order dated 22-8-1969 in Case No.217/68 forwarded a copy of the said order to the Additional Settlement Commissioner, Hyderabad under his covering letter dated 25-8-1969 for making an inquiry into the matter as to how the said house was transferred in auction for a petty sum of Rs.3,700 and, if necessary, move the Chief Settlement Commissioner for taking up the matter in suo motu revision. The Additional Settlement Commissioner, Hyderabad sent the said letter of the Deputy Custodian of Evacuee Properties to Deputy Settlement Commissioner, Hyderabad for inquiry and report which was submitted by him to the Settlement Commissioner, Sind at Karachi who observed that it was a fit case for invoking the power of suo motu revision by the Settlement Commissioner (HQR) Hyderabad, vide his order dated 15-3-1973. The case was then entrusted by the Settlement Commissioner, Karachi to respondent No.2 vide his endorsement dated 6-12-1975 who passed an order dated 30-6-1976 whereby he divided the said house into two parts apportioning the same between the petitioner and respondent No.4. This order has been impugned in this Constitutional Petition.
6. It may also be mentioned that during the pendency of the said appeal before the Additional Custodian, respondent No.4 filed his Form B.S Scheme No. VIII on 15-1-1971 before the Deputy Settlement Commissioner, Hyderabad.
7. I have heard Mr. Shakir Rao Naqshbandi, learned counsel for the petitioner and Mr.Abdul Nasir Khan, learned counsel for the respondent No.
4. The official respondents 1 to 3 have not put in their appearance to contest this petition.
8. Mr. Naqshbandi has raised the following contentions. (i) The reference made by the Deputy Custodian conveying his order dated 22-8-1969 under covering letter dated 25-8-1969 to the Additional Settlement Commissioner was illegal.
(ii) Respondent No.1 had no jurisdiction after the issuance of Permanent Transfer Deed to the petitioner as long back as 1963 and moreso after the repeal of the Displaced Persons (Compensa - tion & Rehabilitation) Act, 1958 to pass the impugned order, as no proceedings were pending.
(iii) The house in question consisted of old scattered construction of four rooms whereas respondent No.4 made construction of three rooms in 1965 after the said house was transferred in auction to him in 1960.
(iv) No action in law could be taken on the Form filed by respondent No.4 under Scheme No.VIII, as he paid no arrears of rent.
9. On the other hand, Mr. Abdul Nasir Khan, learned counsel for respondent No.4 has raised the following contentions.
(i) All that was auctioned was the house bearing Custodian No.G/1658 and not the survey number of the disputed house.
(ii) The impugned order is in the nature of a clarification which falls within the jurisdiction of the settlement authorities.
(iii) The construction raised by respondent No.4 in the year 1965 was not made on the house property transferred to the petitioner.
(iv) The finding of respondent No.1 as contained in his order cannot be challenged in the writ jurisdiction.
10. Before dealing with the contentions raised by the learned counsel for the parties, it may be stated that on the last date of hearing viz. 24-10-1984, the learned counsel for the petitioner had raised a new plea which had not been stated by him in the petitioner, namely, the Settlement Commissioner was not competent to refer the case to Mr. Akhlaq Ahmed, Addititonal Settlement Commissioner as he was not a notified officer. Since this point was not taken in the petition, Mr. Abdul Nasir Khan, learned counsel for respondent No.4 was taken by surprise. The time for making further submission on that plea was granted to both the learned counsel for the parties and the case was accordingly adjourned by me, as requested. Today Mr. Naqshbandi gave up this plea and conceded that the Additional Settlement Commis sioner concerned was a "notified officer" under Act XV of 1975.
11. Arguing the first contention raised by Mr. Naqshbandi that the reference made by the Deputy Custodian to the Additional Settlement Commissioner for an enquiry was illegal, he submitted that there is no provision in the Pakistan (Administration of Evacuee Properties) Act XII of 1957 for making such a reference. In any case, there was no allegation of fraud or misrepresentation either by the petitioner or by the Settlement Authorities. The objection that the property was auctioned in favour of the petitioner for a petty sum of Rs.3,700 cannot be a ground for interfering with the Permanent Transfer Deed. It is conceded by Mr. Abdul Nasir Khan, learned counsel for respondent No.4 that there is no express provision for making reference as urged by the learned counsel for the petitioner. He, however, submitted that there is no bar in Act XII of 1957 to invite the attention of the Settlement Authorities to make an enquiry into inadequate sale price, if deemed necessary. Mr. Naqshbandi has not cited any law to substantiate his submission. I am, therefore, of the view that there was no bar on the part of the Deputy Custodian to write letter dated 25-8-1969 for holding an enquiry into the inadequate auction price. It will, however, he presently seen whether the Settlement Authorities had the jurisdiction to pass the impugned order on the grounds, inter alia, of inadequacy of the auction price.
12. As regards the second contention, Mr. Shakir Naqshbandi learned counsel for the appellant relied on a number of decision namely, S. Anwar Hussain Sani v. Sarfraz Ahmed and 2 others PLD 1971 SC 669, Mirza Hashim Baig v. Settlement and Rehabilitation Commissioner 1984 CLC 1587, Syed Muhammad Usman v. Settlement Commissioner Sind and 6 others 1984 CLC 2087, Mst. Fazal Bibi and others v. Settlement Commissioner and another PLD 1983 SC'163, Mst. Jhando and another v. Settlement Commissioner 1984 SCMR 799, Sanyal Shah v. Asghar Ali and others PLD 1982 Kar. 276 and Syed Murid Hussain Shah v. Mufti Muhammad Yousuf All and another 1974 SCMR 8
13. In the first case PLD 1971 SC 669 relied on by Mr. Naqshbandi it was observed by the Hon'ble Supreme Court that -- "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."
14. The second decision 1984 CLC 1587 is that of a learned Single Judge of this Court who, relying on Nazir and others v. Syed Israr Ahmed etc. 1981 SCMR 829 and Muhammad Ramzan and 2 others v. Abdul Ghani and others PLD 1980 Kar. 99 held that after the issuance of Permanent Transfer Deed the Settlement Authorities became functus officio and order of the authorities passed subsequently with regard to change or addition in P.T.D. was null and void.
15. The third case 1984 CLC 2087 is also that of a learned Single Judge of this Court who relying on the authorities of the Hon'ble Supreme Court reported in Naimuddin v. Settlement Commissioner and others 1973 SCMR 624 and Inayatullsh v. Additional Deputy Commissioner and others 1982 SCMR 1963, observed that after the repeal of rules 4, 6 and 7 of the P.T.D. (House and Shops) Rules 1961, the Settlement Authorities had no jurisdiction to amend P.T.D. or even to correct the clerical mistake.
16. In the fourth case PLD 1983 SC 163 the Hon'ble Supreme Court with regard to the competency of the Settlement Authorities to interfere with the P.T.D. observed that -- "The jurisdiction of the Settlement authorities to interfere with the P.T.D. is not attracted where a complaint is made, but it could be interfered with, if at all on the proof of alleged-forgeries or nullities and not merely for re-examining the case afresh."
17. The fifth decision of the Hon'ble Supreme Court 1984 SCMR 799 seems to be directly relevant to the facts of the present case. The facts of that case related to the disposal of houses Nos. 7, 8 and 9 in Block-II of the D.G. Khan. The dispute was concerned to a portion of the property which at one time was taken to be a part of House No.9 transferred to Mst. Eido but subsequently as part of House No.8 transferred to Abdul Latif and finally as a house by itself (No.8-A) which remained undisposed of. It was thus observed by the Hon'ble Supreme Court as under:- "We find that the record of the Settlement authorities clearly showed that the whole of this property stood transferred to Mst. Eido and she held a P.T.D. for it. The Settlement authorities in treating the portion occupied by Khair Din as a separate property not entered in the record and still awaiting disposal have gone against the records of the survey and taxation department, have acted on surmises and conjectures which do not get support from any quarter and have the effect of reducing the property competently transferred to Mst. Eido to its half."
18. The sixth case PLD 1982 Kar. 276 relied upon by Mr. Shakir Naqshbandi is also that of a learned Single Judge of this Court. The facts of the said case are directly relevant to the facts of the present case. The petitioner, in that case, Sanyal Shah who was then represented by his legal representatives was transferred House No.B/262 correspond ing 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 7-11-1970 and the name of petitioner 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 application 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 respondent No.1 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 filed a Constitutional petition. It was thus observed by the Hon'ble Supreme Court as under:- "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., I 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 area 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 modifications in the description of the properties given in the P.T.Ds."
19. The seventh decision of the Hon'ble Supreme Court 1974 SCMR 8 also seems to be directly relevant in point of law. The Hon'ble Supreme Court observed that-- "It is a well-established proposition that with the issuance of P.T.D. in relation to an evacuee property, it ipso facto goes out of the compensation pool and as such, is no longer subject to the suo motu revisional jurisdiction of the Settlement Commissioner or for that matter the Chief Settlement Commissioner."
20. Mr. Shakir Naqshbandi in support of his submission that the learned Additional Settlement Commissioner had no jurisdiction to pass the impugned order after the repeal of. The Displaced Persons (Settlement and Rehabilitation) Act, 1958 after the First July, 1974, placed his reliance on a judgment of the Hon'ble Supreme Court reported as Mst. Jaleesa Begum v. Iqbal Ahmed Qureshi PLD 1982 SC 396, wherein the Hon'ble Supreme Court, though in a different context, observed on the effect of the repeal of the said law that "When a repeal takes place, the situation, but for the provisions like section 6 of the General Clauses Act, is as if the repealed law never existed".
21. On the other hand Mr. Abdul Nasir Khan, learned counsel for respondent No. 4 relied on the following decisions, namely, Salahuddin v. The Settlement Commissioner and others 1984 SCMR 1441, Haji Muhammad v. Haji Habib and 3 others 1983 SCMR 714, Hadi Hassan Jafry v. Additional Settlement Commissioner and others 1983 SCMR 967, Gulab Din v. Settlement Commissioner, Lahore Division, Lahore and others 1982 SCMR 1073 and Rahim Bakhsh v. Dost Muhammad and another 1982 SCMR 665.
22. All the above cases relied upon by Mr. Abdul Nasir Khan, are distinguishable on facts. The facts of the first case 1984 SCMR 1441 were that there was a composite property consisting of two shops and a godown on the ground-floor and two rooms on the first floor on top of the shops and the godown. The shops were disposed of by auction and there was no dispute about them. The rest of the property, that is, the godown on the ground-floor and the two rooms on the first-floor, were in possession of one Muhammad Shafi. The "residential portion" was put to auction on 19-2-1970 and was purchased by the petitioner in whose favour P.T.D. was issued on 2-4-1970. Subsequently, the godown was put to auction on 25-7-1970 and was purchased by Muratib All (respondent No.4) and P.T.D. issued in his favour on 28-8-1970. He, therefore, served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) on Mubarik, the occupant of the godown. On coming to know of it, the petitioner, claiming that the godown had formed part of the residential portion already auctioned in his favour and that Mubarik was his tenant, agitated the transfer of the godown in favour of Muratib Ali, first, by filing Writ Petition No.206/R of 1971 and when the same was dismissed for the reason that the matter involved factual inquiry, by filing a revision petition but the same too was dismissed by the learned Settlement Commissioner, for the reason that P.T.D. having already issued, the Settlement authorities ceased to have jurisdiction and that the petitioner had not objected in time to the auction of the godown.
The petitioner again invoked the constitutional jurisdiction by filing Writ Petition No.711/R of 1975, which was dismissed. The Hon'ble Supreme Court of Pakistan on petition for Special leave observed that-- "Neither the auction list nor the transfer documents show clearly that the godown had been included in the auction. The question being primarily of fact, the decision taken by the Settlement authorities is not ordinarily to be interfered with in the constitutional jurisdiction of the High Court.
We, therefore, do not find it to be, a fit case for grant of leave. The petition is dismissed."
' The case, as would appear from the rationale, goes against respondent No.4 as his objection/Appeal, against the auction confirmed in favour of the petitioner had been dismissed as long back as November 1962.
23. In the second case 1983 SCMR 714 the dispute between the parties related to transfer of roof and it was observed by the learned Single Judge that the roof serves a dual purpose, namely, as roof of the tenement under it, and clarification with regard to the transfer of roof is to be made by the Settlement Authorities even after P.T.D. has been issued. It was on this view of the matter that the learned Single .Judge of the High Court referred the dispute relating to the transfer of the roof in that case to the Settlement Authorities for making the clarification. This direction was endorsed by the Hon'ble Supreme Court with the observations that on the facts and circumstances of the said case, it was for the Settlement Authorities to clarify the exact portions of the properties transferred to the parties under the P.T.D. issued to them. This case is quite distinguishable. In the instant case the Additional Settlement Commissioner has modified the P.T.D. to the extent that the entitlement of the petitioner under the P.T.D. has been reduced almost to half.
24. In the third case 1983 SCMR 967 the Hon'ble Supreme Court refused to gant leave against an order of the revising authorities, determining the extent of the property which was subject-matter of the auction which the petitioner had not challenged and thus had become final against him. The same being finding of the facts the superior Court were not under any duty to interfere with the decision taken by the Settlement Authorities. The case is distinguishable as in the instant case, there could legally arise no question of determining the extent of the property, as full rights of the evacuee in the property in dispute had been transferred in auction to the petitioner as long as back as 1960
24. In the fourth case 1982 SCMR 1073 the dispute related to 54 feet long verandah attached to the House No.1/2 Chawinda, District Sialkot. The said house was transferred to Gulab Din petitioner and Firoz Din respondent No.3 in almost equal portions. The Settlement Authorities also equally divided the area of the verandah between the said parties. The Hon'ble Supreme Court held that the Settlement Authorities had jurisdiction to divide the evacuee premises and declined to grant leave.
These facts of the case are apparently distinguishable.
25. In the fifth case 1982 SCMR 665 the petitioner was transferred a shop by the Deputy Settlement Commissioner. A P.T.D. was also issued in his favour. Subsequently, the Additional Settlement Commis sioner transferred the same shop to the respondent. The parties then agitated the matter before various officials in the heirarchy of the Settlement Department and finally before the Settlement Commissioner Sargodha, who maintained the order in favour of respondent No.1. The petitioner then filed a Writ Petition before the Lahore High Court, which was dismissed. The Hon'ble Supreme Court also dismissed the petition for Special Leave to Appeal. Relevant observation reads as under:-- "The only point urged by the learned counsel for the petitioner before us was that after the P.T.D. had been issued in the petitioner's favour, the shop in question was no longer amenable to the jurisdiction of the Settlement Authorities. There is no force in this contention and we are inclined to agree with the observations of the learned High Court Judge that this principle would not apply in this present case, because the issuance of a P.T.D. does not take away the appellate and revisional jurisdiction of the relevant Settlement Authorities under sections 19 and 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, if the same had not yet been exercised, as in the present case."
'The point decided in the case was that the issuance of P.T.D. is subject to order passed in appeal and revision under regular jurisdiction, whereas in the instant case, the appeal of respondent No.4 had already been decided by the Additional Settlement Commissioner by his order dated 17-11- 1962. Thereafter, no revision was filed by respondent No.
4. The transfer order passed in favour of the petitioner thus became final. The case could not be re- opened and referred by the Settlement Commissioner on 6-12-1975 for suo motu revision, and the impugned order dated 30-6-1976 could not be passed under suo motu revisional jurisdiction on a complaint made by the Deputy Custodian on the ground of the alleged inadequacy of the transfer/auction price, for reasons discussed above and moreso after the repeal of the Displaced Persons (Compensation & Rehabilitation) Act, 1958.
26. Adverting to the third contention, Mr. Shakir Naqshbandi has referred to certified copy of Property Tax-I (P.T-I) which was filed by him alongwith his affidavit in rejoinder as Annexure 'D'. This form is in respect of the house in question. It inter alia, mentions the name of the evacuee owner, the area of the land of the house as 667.4 sq. yards with four rooms' construction thereon. This copy has been supplied to the petitioner on 25-1-1963, which according to petitioner's affidavit, pertains to the assessm ent made in the year 1959. As admitted by Mr. Abdul Nasir Khan, the construction on the land was made by respondent No.4 in 1965 i.e. much after the transfer of the said house to the petitioner. If factually this is correct that the house transferred to the petitioner consisted of only four rooms and the three additional rooms were constructed by respondent No.4 or his mother, the question of the inadequacy of the price loses its significance as the new construction, which has prevailed with the learned Settlement Commissioner had been made by respondent No.4 after the said house was transferred to the petitioner. Respondent No.4 being a statutory tenant, his rights and liabilities in making structural additions in the house let out to him will be governed by the Transfer of Property Act, 1882. This, in no case, can give jurisdiction to the Settlement Authorities to hold the auction price as inadequate or under assessed because at the time when the house was transferred i.e. in 1960, it consisted of four rooms only. The inspection carried out in 1973 or 1975 and the finding that certain additional construction has been made by respondent No.4 cannot turn it to be a separate evacuee property liable to be transferred to respondent No.4 under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Admittedly the construction was made by respondent No.4 in or about 1965 and it cannot be said that the said construction is on an area of the house which was not transferred to the petitioner inasmuch as it is an admitted position that the total area of the land in question is 667.4 square yards which existed and transferred to the petitioner with construction thereon. It is nobody's case that the total area of the land under the house transferred to the petitioner was more than 667.4 sq. yards. Mr.Abdul Nasir Khan has further submitted that the entire construction on the plot of 667.4 sq. yards was raised by respondent No.4 or his mother. Be that as it may, admittedly the construction was made much after the transfer of the house in question to the petitioner and as such respondent No.4 cannot claim the transfer of property the basis of the entire construction or any part thereof under the Settlement Scheme No.VIII.
27. Regarding the fourth contention Mr. Shakir Naqshbandi has urged that the filing of the form under Settlement Scheme No.VIII by respondent No.4 was not competent inasmuch as he had not paid any rent to the Custodian or the Settlement Authorities in respect of the same. As it is evident from the applications moved by respondent No.4 and his mother, it has been their stand that the house in question was non-evacuee and could not be transferred under the Settlement Scheme to the petitioner. There is nothing on record to show that respondent No.4 had made any payment towards rent either to the Custodian or to the Settlement Department, before submitting his form under Scheme No.VIII. In any case, the said transfer could not be made in respect of a part of the house/property to respondent No.4 as it was not available for transfer having been already transferred in auction as far back as 1960. Reliance is placed on a case reported as Nazar Ali v.
Settlement Commissioner 1975 SCMR 55. Mr. Abdul Nasir Khan, learned counsel for respondent No.4 in reply has submitted that the contention is wholly misconceived inasmuch as that the property in question was not a house but a building site,. I reject this plea of Mr. Abdul Nasir Khan as it is not borne out from the record except that respondent No.4 appears to have filed a form as a building site under Settlement Scheme No.VIII in 1971. It has been the case of the department throughout as well as respondent No.4 and his mother that it was a house and was accordingly listed in the auction list as a house and so it was transferred to the petitioner. It may also be mentioned that respondent No.4 had himself filed L.H. form, according to his own showing before the learned Controller in Rent Case No.154/63 referred to above, and produced a P.T.O. issued in his favour which turned out to be forged.
28. Now to deal with the contentions raised by Abdul Nasir Khan, learned counsel for respondent No.4, they are untenable on facts and in law.
(i) With regard to his first point suffice it to say that the evacuee house No.G/1658, in full, situate on an area of land measuring 668.4 sq.yds. was put to auction and transferred to the petitioner, and not a portion thereof, as urged by him. There is no other area of land under the said Custodian Number of the property or its Survey number except the area of 667.4 sq. yds. which already stood transferred to the petitioner. The contention of Mr. Abdul Nasir Khan is entirely misconceived and fallacious.
(ii) His second point is also not supported by the facts on record. The impugned order dated 30-6- 1976 passed by the Additional Settlement Commissioner can, by no stretch of imagination, be said to be an order in the nature of clarification of his earlier order dated 25-10-1963 by which the auction in favour of the petitioner was confirmed. It is an order that has taken away a major portion of the area of land already transferred to the petitioner by auction, for which he had no jurisdiction as discussed above.
(iii) His third point is also without any substance. The construction was made by respondent No.4 on the area of land already transferred to the petitioner as is evident from his form VIII which refers to an area of 667.4 sq.yds. which stood already transferred to the petitioner alongwith House No.G/1658.
(iv) The fourth point is also of no merit. The learned Additional Settlemrnt Commissioner has given a finding which suffers from an error apparent on the record. It is entirely wrong to say that the petitioner was transferred only a portion of House No.G/1658 to the extent of the area of land on which old construc tion stood. In fact, the petitioner was transferred the entire House G/1658 in full with whatever constructions were standing thereon. The property, having once been validly transferred as House, in full, was not available to be bifurcated as building site or otherwise and a portion thereof transferred to respondent No.4, which the Additional Settlement Commissioner was not empowered at all.
29. For the reasons discussed above, the impugned order dated 30-6-1976 is declared as void passed without lawful authority and of no E legal effect. There will, however, be no order as to costs.