This petition impugnes the order of the Settlement Commis--sioner dated 26th May 1966, by which he cancelled the final transfer deed and ordered that the disputed plot No. 16, Sheet L. R./7 be put to unrestricted public auction.
2. The petitioner, who is now represented by his legal representatives, purchased 19 kutcha structures for Rs. 2,350 from Hindu Evacuees, Vishram Hirji and others vide unregistered sale deed dated 13th October 1947. These kutcha structures were on the disputed plot and the transaction was subsequently confirmed on 30th September 1950, by the Additional Deputy Custodian.
Respondent No. 13 also purchased one of the structures on this plot and both he and the petitioner jointly applied on P Form for the transfer of the disputed plot as a building site, under Scheme No 6 on 5th November 1960. The Deputy Settlement Commissioner transferred it to them jointly for Rs.
17,293-3-0. Subsequently, a final transfer order was issued in their favour on 10th November 1961. At about the time when the petitioner and respondent No. 13 applied for the transfer of the disputed plot, the petitioner also applied for the transfer of 1/4th share of undivided plot (81 sq. Yards out of 324 sq. Yards) bearing C. S. No 392, Sheet A. M. Situated in Artillery Maidan as building site on Form P. This Form was rejected on 9th May 1960, by the Deputy Settlement Commissioner on the ground that the construction on it was of a temporary nature and did not satisfy the requirement of a permanent building as defined In the Scheme. After the transfer of the disputed plot the petitioner gave notice to the respon--dents 1 to 12 to pay the rent, upon which they filed an appeal before the Additional Settlement Commissioner some two years after the date of the Issue of the final transfer order. Before the Additional Settlement Commissioner, the counsel for respon--dents 1 to 12 admitted that these respondents have not filed any form for the transfer of any portion of the disputed plot. The Additional Settlement Commissioner while holding that the appeal was hopelessly time-barred dismissed it vide order dated 26th December 1963. Against this order, respondents 1 to 12 invoked the revisional jurisdiction and the Settlement Commis--sioner vide order dated 26th May 1966, set aside the final transfer order and directed the disputed plot to be disposed of by way of an unrestricted public auction.
3. Mr. Ajmal Mian, the learned counsel for the petitioners, has urged that after the issuance of the final transfer order the Settlement Commissioner had become functus officio and he could not set it aside by invoking the powers under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, particularly when rules 6 and 7 of the Permanent Transfer Rules had been deleted and there was no allegation of any fraud or misrepresentation. In this connection, the learned counsel invited my attention to the observations in para. 9 of the order as under:- "As it is, this property was transferred to the respondent under para. 13 (page 25 of the latest Settlement Manual) relating to building sites shown in the Schedule attached to the Act. It does not help the respondent in any way, as he is a local and not in possession."
Mr. Abdul Majid Khan, the learned counsel for respon--dent No. 14 also fairly conceded that it is not the case of the Department that there was any fraud or misrepre--sentation in the matter of the transfer of this building site.
4. The controversy centres around the question as to the jurisdiction of the Settlement Commissioner to set aside the transfer in the context of section 20 (3) of the Act. Mr. Ajmal Mian on behalf of the petitioners cited S. Anwar Sani v. Sarfaraz Ahmad and 2 others (PLD 1971SC669) and relied on the following observa--tions at page 673 of the report:- "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. Transfers under the Displaced Persons (Compensation and Rehabilitation) Act are, however, in the nature of a grant and it is open to the grantor to impose such terms and conditions on the ownership right as the law may provide. The relevant provision of law in the instant case are contained in the Permanent Transfer Rules, 1961, framed by the Central Government in exercise of powers con--ferred on it by section 35 of the Displaced Persons (Compen--sation and Rehabilitation) Act, XXVIII of 1958."
He also cited Rahimullah v. District & Settlement Commissioner, Hyderabad and another (PLD 1972 Kar. 60), decided by me on the strength of the above dictum. According to the learned counsel the power of revision residing in section 20(3) of the Act could not, therefore, be invoked to annul a final transfer order having regard to the principle laid down by the Supreme Court. Mr. Abdul Majid Khan on behalf of respondent No. 14 cited Ahmed Abbas Zaidi v. Settlement Commissioner (PLD 1968 Lah. 166) and the unreported judgment of the Supreme Court while refusing leave in Civil Petition No.104/65 (published in the Commentary to the Displaced Persons Act by M. A. Latif at page 446) to support his contention that even where a final transfer order is issued, still the Settlement Commissioner is not denuded of the suo motu power of revision under section 20 (3) of the Act. Mr. Z. U. Ahmed on behalf of respondents 1-12 also adopted this contention to support the order of the Settlement Commissioner.
5. I have examined the contention in the light of the above decisions. There is no escape from the conclusion that once a final transfer deed is issued, the Settlement Commissioner becomes functus officio. This is apparent from the observations of their Lordships of the Supreme Court cited above. It, there--fore, follows that it is only under the rules that the power can be invoked to set aside the transfer on the grounds mentioned in it. This being the legal position section 20 (3) of the Act loses its efficacy and cannot be invoked to set aside the transfer. Mr. Ajmal Mian invited my attention to the fact that rules 6 and 7 of the Permanent Transfer Rules did not exist on the date the Settlement Commissioner passed the impugned order as they were deleted and therefore even under the Permanent Trans--fer Rules the power to set aside the transfer did not exist, much less the power under section 20 (3) of the Act. This contention has force, for the Permanent Transfer Rules provided the found--ation for the exercise of that power and in the absence of the relevant provisions, that power could not be exercised. The principle enunciated in Ahmad Abbas Zaidi
(ibid) cannot prevail against the view taken by the Supreme Court in Syed Anwar Hus--sain Sani
(ibid) as under Article 63 of the Constitution, it is the law laid down by the Supreme Court which prevails. As for the unreported decision of the Supreme Court only this much be said that the final transfer order was issued while the question of the entitlement of the contending party was sub judice and it was in that context that their Lordships hive observed that the issuance of the final transfer order would not be a bar to the exer--cise of the power under section 20 (3) of the Act. The distinction is apparent and the ratio decidendi of that case will not be applicable. The contention of Mr. Ajmal Mian, therefore, prevails.
6. Mr. Ajmal Mian also invited my attention to certain mis-statements in the order which I need not consider at this stage since on the question of jurisdiction his plea has prevailed and it would be futile to consider the order on merit when it has no force at all. Mr. Abdul Majid Khan, however, contended that the disputed plot should have been transferred as a house and not as a building site as the deceased peti--tioner, Rahmatullah, had himself stated in the P. Form that the kutcha structures were raised before partition. This dis--closure appears against the entry "whether any charge has been created in favour of the applicant in respect of the amount spent by him."
Whatever may be the implication of it there is also the mention of the amount spent on the kutcha const--ructions and it is the case of the deceased petitioner that he had renovated them at that cost. At least this much be said that the Deputy Settlement Commissioner had regarded it as building site and there was no dispute at that stage. It was not raised in appeal and the Additional Settlement Commissioner impliedly held the respondents to have no locus standi to challenge the transaction. Mr. Z. U. Ahmad states that he had taken the above plea and pursuant to it the Settlement Commissioner had inspected the site and thereupon reached the conclusion that the structures were raised prior to partition. Be that as it may, it is not possible to say anything on this aspect of the case from what has been urged before me. This objection should have been taken before the Deputy Settlement Commissioner who had transferred the disputed plot to the petitioner and it was be who could have determined this issue upon evidence. Having slept for over three years after the issue of the provisional transfer order and two years after the final transfer order this plea is of no avail to annul the transfer when the disputed plot could not be dealt with by the Settlement Commissioner.
7. Mr. Abdul Majid Khan contends that the transfer cannot be upheld also on the ground that in the absence of a registered sale deed no title passed to the petitioners and the Additional Deputy Custodian therefore erred in confirming the transaction in their favour. No such objection was raised before the Additional. Deputy Custodian and if there is a legal infirmity the proper forum to agitate this objection will be that of the Custodian and not before me. In this context Mr. Z. U.
Ahmad points out that he has filed an appeal before the Custodian against the said confirmation of the transaction which was filed as far back as in January 1963 and final decision is still awaited. If this be so, then respondents 1 to 12 can take such legal steps to avail the transfer as they are advised but certainly this objec--tion cannot prevail at this stage particularly when the petitioners derive title under the final transfer deed.
8. In the result, for the foregoing reasons the impugned order lacks legal validity and is therefore declared as without, lawful authority and of no consequence. The petition is accepted' with no order as to costs.