' The two petitioners, Moin Nawaz Jang and his wife Mrs. Afsarun Nisa claim to be the owners of the disputed property known as Mohatta Building situated at Serai Quarters, McLeod Road, Karachi. The said property being an evacuee property originally belonging to R. B. Shivratan B. Mohatta was acquired by Government under section 3 of Displaced Persons (Compensation & Rehabilitation)
Act, 1958 (hereinafter referred to as the Act). The petitioners' case is that the Mohatta Building which comprised of nine tenements as per record maintained in the Custodian Office and was declared by the Chief Settlement Commissioner as a big mansion was purchased by them in an open public auction on 2-9-1959, and P. T.
0. Was issued in their favour on 5-9-1959. The Deputy Settlement Commissioner by his letter dated 26-9-1959 supplied the petitioners a list of the occupants of the tenements of the disputed building, who following the transfer of the property to them had become their statutory tenants.
Somehow the name of the respondent Riaz Ahmed was not included in the list. The municipal assessm ent of the said building as shown in the municipal record for the year 1947-48 was Rs, 592 per month. On payment of the transfer price in full and other dues by the petitioners, P. T. D. Was issued in their favour on 11-4-1966. On the basis of the P. T. D. Their names were also mutated in the City Survey Record.
' In the meantime the respondent No, 1 Riaz Ahmed filed Suit No, 51/ 1965 for declaration that he was lawful tenant of the petitioners and for injunction restraining the latter from disturbing his possession. During pendency of the suit the said respondent moved an application for joining Central Telephone Exchange Karachi as party but the same was dismissed. Ultimately the suit was withdrawn though the Court did not accede to the said respondent's request for permission to file a fresh suit. Subsequent to the withdrawal of the suit on 23-7-1965 the said respondent filed N. C. S. Form on 31-10-1966 praying for transfer of the portion of the disputed property, which was in his possession. The petitioners' allegation is that while making such move the said respondent suppressed the facts and indulged in misrepresentations inasmuch as that the portion of the property in his occupation bore No, G-10 although the whole of the disputed property consisted of only nine tenements. It is further alleged that the Deputy Settlement Commissioner after making a fresh survey created a new tenement No, G-10 by his order dated 10-5-1969 and entered the name of the respondent Riaz Ahmed as tenant thereof at the rate of Rs, 30 per month. According to the petitioners all this was the result of collusion and since the Deputy Settlement Commissioner had no jurisdiction to do so, the impugned order referred to above passed by him was a nullity.
However, in pursuance of the said order the respondent Riaz Ahmed succeeded in getting the newly-created tenement (G-10) transferred in his name vide order of the Deputy Settlement Commissioner, dated 31-12-1973 and the approval accorded to the said order by the Additional Settlement Commissioner on the same date. Following these orders P. T. D. Was also issued in favour of the respondent Riaz Ahmed on 23-1-1974. By this petition the petitioners have sought to challenge not only the order creating the new tenement (G-10) but also the order by which the said tenement was transferred to the respondent Riaz Ahmed and so also the P. T. D. Issued in his favour in respect of the said tenement.
' Learned counsel for the parties were heard at great length and with their assistance I have also gone through the relevant documents.
' Learned counsel for the petitioners raised the following contentions :- (1) That after transfer of the property in dispute to the petitioners and issuance of P. T. D. In their favour, the Settlement Authorities (respondents Nos. 2 and 3) became funetus officio and were left with no jurisdiction to pass any order in respect of the said property and consequently three impugned orders passed by them were without jurisdiction and hence nullity in the eye of law.
(2) That since the disputed property transferred to the petitioners is a big mansion, the settlement authorities have no jurisdiction to carve out a new tenement from the same and transfer it to respondent Riaz Ahmed.
(3) That the said respondent Riaz Ahmed had withheld the material facts from the settlement authorities and had obtained the aforesaid impugned orders through misrepresentation and fraud.
' In reply to above arguments, learned counsel for respondent Riaz Ahmed submitted that in fact no building by name Mohatta Building ever existed and that the property which had been transferred to the petitioners comprised two open plots which were in occupation of various refugees.
According to him one of the said plots was not even evacuee property and was, therefore, illegally transferred to the petitioners. He further submitted that the plots in question were acquired for expansion of Central Telephone Exchange and the Ministry concerned had even accorded its approval to the acquisition of the plots. He averred that the Central Government proceeded to acquire the same plots under section 3 of the Act, although the approval already accorded by the said Government for acquisition of the plots for expansion of the Central Telephone Exchange had not been withdrawn or cancelled. Further, submission of the learned counsel for the respondent Biaz Ahmed was that the said respondent was one of the occupants of the plot bearing No, SR/2/11/2-1 and like other occupants he had also raised certain construction. He further stated that respondent Riaz Ahmed had been running a canteen known as Central Telephone Exchange Canteen on the portion of the plot in his occupation. According to him the said respondent has also been paying all rents, taxes and other dues in respect thereof to the authorities concerned.
The learned counsel for the respondent Riaz Ahmed further submitted that the said respondent applied for transfer of the portion of the plot in his possession and the settlement authorities after making due inquiry restored the portion in his possession on record and then transferred the same to him and also issued P. T. D. In his favour.
' The P. T. D. Relied upon by the petitioners shows that the property transferred to them consists of two survey numbers : SR/2/11/2-1 and SR/2/11/2-2. It is not disputed that respondent Riaz Ahmed claims to be in possession of a portion of the plot bearing No, SR/2/11/2-1, which, according to him, has been transferred to him. His claim finds support from Transfer Order (Annexure XXXIII), dated 23-1-1974 which has been produced by the said respondent alongwith his counter-affidavit. Now that the disputed portion which is part of the above disputed plot is shown to have been transferred to respondent Riaz Ahmed, it has to be ascertained if the whole of the disputed plot was transferred to the petitions prior to the transfer of its disputed portion (G-10) to respondent Riaz Ahmed and if so whether the transfer of the disputed portion was valid. In this connection the petitioners have relied upon a number of documents.
' Before referring to the said documents it may perhaps be necessary to dispose of the objection raised by the learned counsel for respondent Riaz Ahmed with regard to acquiring by Government of the survey numbers in question under section 3 of the Act. His objection was that since Central Ministry of Refugees and Rehabilitation had already accorded its approval to the acquisition of the said survey numbers for the purpose of expansion of Central Telephone Exchange, the same survey numbers could not be acquired under section 3 of the Act without cancelling or withdrawing of the said approval. If this objection is upheld and consequently the acquiring of the disputed land under section 3 of the Act is regarded as illegal, then in that case even the transfer of the disputed portion of the said survey number in favour of respondent Riaz Ahmed would also automatically become illegal. After considering the above argument of the learned counsel in the light of the material available on record, I am of the view that it does not appear to be correct.
' No doubt a copy of the letter No, F-16(38)/51-P, dated 20-11-1951 (Annexure XII) which has been produced by respondent Riaz Ahmed shows that Central Government bad conveyed its approval to acquisition of the land mentioned in the letter for expansion of Central Telephone Exchange, to the. Administrator, Karachi. But the question that arises for consideration is whether the approval so conveyed was availed of and acted upon by the authority concerned. It would appear from the letter of approval that Central Government had given its approval on certain conditions. First condition was the payment of fair compensation in consultation with the Custodian Evacuee Property and in accordance with the principles laid down in the Act and the other condition was that the occupants of the plot to be disturbed would be provided alternative accommodation.
Although the learned counsel for respondent Riaz Ahmed has placed reliance on the letter of approval referred to above, he has not been able to show if the conditions on which the approval was based were fulfilled. In absence of such evidence the letter of approval could not be taken to prove that the land was not available for the purpose of acquiring under section 3 of the Act. On the contrary it would be interesting to note that respondent Riaz Ahmed himself has taken a stand that by notification No, F-137/REV, dated 9th June, 1966 the Administrator Karachi had cancelled earlier notifications with regard to acquisition of the disputed land for expansion of Central Telephone Exchange. Thus, even according to him the land in question stood released and was available for acquiring under section 3 of the Act.
' The next point to be considered is whether whole of number SR-2/11/2-1 was transferred to the petitioners. In support of their claim the petitioners have placed reliance on two important documents namely P. T.
0. Dated 5-9-1959 (X-2) and P. T. D., dated 11-4-1966 (X-4). Perusal of these documents leaves no doubt that not only survey number in dispute but also No, SR-2/11/2-2 with total area of 1,158 sq.
Yards have been transferred to the petitioners. The P. T. D. Further shows that 100% evacuee interests in both the survey numbers have been transferred to them. Further support is sought by the petitioners from respondent Riaz Ahmed's own Suit No, 51 of 1965 vide plaint in the said suit (X- 5). It is admitted in the plaint filed by respondent Riaz Ahmed that he has been running a canteen on the disputed portion of the plot bearing No, SR-2/11/2-1 which has been allotted to the petitioners. He has further admitted that in 1960 he was called by the petitioners and told by them that the plot in question was allotted to them whereupon he agreed and continued to pay Rs, 25 per month to them. It is the said respondent's own admission that he made payment for the disputed portion of the plot in his possession to the petitioners upto 1963 and thereafter, as they avoided giving receipts for the payments made by him, he stopped making further payment to them. Consequently, the said respondent has averred, the petitioners started harassing him. It was for these reasons that he filed a suit with prayer that he be declared as lawful tenant of the petitioners and the latter may be restrained from disturbing his possession. Obviously these admissions on the part of respondent Riaz Ahmed go a long way to support the petitioners' case that whole of the disputed Plot No, SR-2/11/2-1 was transferred to them including the disputed portion in possession of the said respondent.
' According to the case of respondent Riaz Ahmed, the petitioners employed fraudulent means and managed with bureaucracy to have the disputed plot transferred in their favour. These are obviously vague allegations and the said respondent has produced no evidence to support his assertions. However, he has referred to the written statement (Annexure XXIX) filed by the settlement authorities in the Constitutional Pation No, 30/1970 which was filed by the petitioners. Of course the written statement shows that only Survey No, SR-2/11/2-1 was purchased by the petitioners in open auction and the other Survey No, SR-2/11/2-2 was included in the transfer documents through inadvertence. It appears from the written statement that the latter survey number was declared as non-evacuee property and, therefore, could not be auctioned. Be that as it may, the written statement does not support the allegations of respondent Riaz Ahmed that the petitioners got the disputed property transferred in their names through fraudulent means.
' Having arrived at the above conclusion it is to be considered whether Settlement authorities were justified in carving out the disputed portion in possession of respondent Riaz Ahmed from the disputed plot transferred to the petitioners. On this point the petitioners' contention is three-fold : Firstly that the plot in dispute consisted of only nine tenements whose occupants did not include-- respondent Riaz Ahmed and, therefore, the creation of tenth tenement and transfer thereof to the said respondent is the result of collusion between the said respondent and the Settlement authorities. Secondly after transfer of whole of the disputed survey number, the Settlement authorities had no power to disturb such transfer by carving out the disputed portion therefrom and transferring it to respondent Riaz Ahmed. Thirdly the Settlement authorities could not do so also for the reason that the disputed property was transferred to the petitioners as a big mansion.
' The petitioners' assertion that the disputed property consisted of only nine tenements does not appear to be correct. Even according to the extract of the E. P. R. (X-1) produced by them apart from eight tenements expressly specified the entries with regard to two other tenements are shown to have been torn. The same position is reflected in the extract of E. P. R. Produced by respondent Riaz Ahmed alongwith his counter-affidavit. I am, therefore, of the view that even the disputed portion claimed by respondent Riaz Ahmed to be in his possession was a part and parcel of the disputed Survey No, SR-2/11/2-1 and was correctly designated as tenement No,
10. Thus, the disputed property consisted of ten tenements and not nine as has been contended by the petitioners' counsel.
' The important question, however, is whether the tenement No, 10 said to be in possession of respondent Riaz Ahmed could be transferred to him after whole of the disputed survey number including the said portion was transferred to the petitioners. The argument of the learned counsel for the petitioners was that after disposal of the disputed property in favour of the petitioners the Settlement authorities became functus officio, having no jurisdiction to deal with the said property.
In support of his argument the learned counsel placed reliance on celebrated authority of Supreme Court reported as Anwar Hussain v. Sarfaraz Ahmed (1) wherein it was held :- "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."
' In the same judgment their lordships of the Supreme Court further observed :- "Two types of cases are envisaged in the rules in which the Settlement Authorities may interfere even after issuance of P. T. Ds. Firstly cases which suffer from an error of a type which can be corrected without embarking upon a formal inquiry or holding adverse proceeding. Cases of clerical mistakes or errors of like nature will fall within this category of cases. Second type of cases dealt with under rule 6 and rule 7 are those in which transfer or allotment of an evacuee property was obtained by means of misrepresentation or fraud. The Settlement Authority may under the second part of rule 6 or rule 7 vary, modify or cancel the Permanent Transfer Deed issued to such a transferee if on holding a proper inquiry and giving the transferee an opportunity to be heard it is found that he has been guilty of misrepresentation and fraud."
It is clear from the above authority that once P. T. D. Has been issued in respect of any property, the Settlement authorities cease to have any jurisdiction in relation to that property unless it is necessary either to rectify C some clerical error or undo the wrong resulting from misrepresentation or fraud. As pointed out above no material is available on the record of the instant case to show that petitioners had obtained the P. T. D. In their favour by any dubious methods. In fact at no stage of the long-drawn litigation respondent Riaz Ahmed ever challenged the authenticity of the P. T. D. Issued in favour of the petitioners or attempted to get it cancelled. On the contrary be had filed a suit wherein he recognized the ownership of the petitioners over the disputed plots. It was also clear from the suit that it was only after the petitioners did not pull on well with him and started creating difficulties for him that he made efforts to get the disputed portion of the plot in his possession transferred to him. Obviously such transfer' could not be made when the P. T. D. Issued in favour of the petitioners for whole of the plot including the disputed portion claimed by the said respondent remained intact and was not in any way modified.
' The other argument of the learned counsel for the petitioners was that the disputed plot was transferred to the petitioners as a big mansion and, therefore, the Settlement authorities had absolutely no power to carve out the disputed portion from the same and transfer it to respondent Riaz
(1) PLD 1971 SC 669 ' Ahmed. "Big Mansion" is defined in para. 16 of the Schedule to the Act. It reads as under :- "(16) Every building or premises, whether residential or commercial, declared by the Chief Settlement Commissioner or an officer authorized by the Central Government in this behalf to be a big mansion or hotel, shall be disposed of by unrestricted public auction ' Provided that no building the monthly rent of which in 1946, was less than five hundred rupees shall be declared to be a big mansion or hotel."
' It is not controverted even by respondent Riaz Ahmed that the plot in question was transferred to the petitioners through unrestricted public auction. His objection, however, was that the property in dispute was not a big mansion but it was open plot. He also questioned the quantum of rent allegedly fetched by the said plot. In order to resolve the controversy as to the status of the property being big mansion reference may be made to two transfer documents : namely, P. T.
0. And P. T. D. Para (iv) of the P. T.
0. Is to the following effect :- "(iv) The transfer of the said property to the transferee shall be subject to the provisions of the said Act and of the scheme for auction of big mansions and hotels prepared by the Chief Settlement Commissioner under section 16 (1) of the said Act."
' Again at the bottom of the P. T.
0. The property known as Mohatta Building is designed as big mansion. Similarly reference to P. T. D.
Reveals that the property in question has been described as big mansion. However, as mentioned in proviso to para. 16 of the Schedule, referred to above, if the monthly rent of the building in 1946 was less than Rs, 500, it would not be declared as a big mansion. In order to show that the property in dispute fetched more than Rs, 500 as monthly rent the petitioners have relied upon the extract from the E. P. R. (X-1) which clearly shows that the rent of the disputed property was Rs, 592 in 1947-
48. This finds further support from the letter of Deputy Settlement Commissioner dated 26-9-1959 by which h had forwarded to the petitioners the list of tenants of the disputed property. The list reveals that the total monthly rent of all the tenements comprised in the disputed property is Rs,
592. As against the above documents respondent Riaz Ahmed has produced the extract from E. P.
R. Along with his affidavit to show that total rent of all the tenements contained in the' disputed property was far less than Rs, 500, In fact he referred to the column showing the monthly rent for each tenement as fixed by the Custodian which is, however, not the requirement of para. 16, referred to above. According to the said para the monthly rent as fixed in 1946 is to be considered for determining the status of any property as big mansion. Obviously the Custodian's Office had no existence in that year and as such the rent fixed by the Custodian is not the rent intended to be taken into consideration under para. 16.
' Another argument raised on behalf of respondent Riaz Ahmed was that the disputed property was not a building but it was an open plot and, therefore, it could not be declared or transferred as big mansion. Reference to para. 16 would show that not only building but any premises residential or commercial was capable of being declared as big mansion and as such his argument has no force.
The petitioners have also placed reliance on S.M. Fakhir and 6 others v. Abdus Sattar and 4 others
(1) wherein the view taken was that whole property declared as big mansion cannot be disposed otherwise than by an unres tricted auction and further that the Chief Settlement Commissioner was no competent in law to dispose of only a portion of big mansion by unrestricte public auction without first declaring the portion itself to be a big mansion. Judging the instant case in the light of the above Supreme Court authority it cannot but be held that since the disputed survey number which was transferred to the petitioners as big mansion through an unrestricted public auction, the Settlement authorities including the Chief Settlement Commissioner had no power to dispose of the disputed portion thereof to respondent Riaz Ahmed without first declaring the said portion to be a big mansion. As this was not done the transfer of the disputed portion to respondent Riaz Ahmed was obviously without lawful authority. For the foregoing reasons the petition is allowed and the impugned orders are held to be without jurisdiction and hence void.
(1) PLD 1971 SC 438