1. NASIM HASAN SHAH, J.--This appeal, by leave of this Court, is directed against the judgment dated 7-4-1980 passed by the High Court of Sind at Karachi in L.P.A. No. 162 of 1971.
2. The facts forming the background of this appeal are that house bearing No.1416/1/B situate at Larkana, Sind, was formerly an evacuee property and after its acquisition under Section 3 of the displaced Persons (Compensation and Rehabilitation) Act, 1958, (hereinafter called the Act) fell to be disposed of under the provisions of the Act and the Scheme made there under. The appellant is a practising lady doctor at Larkana. She obtained possession of this house from its occupant on 12- 4-1958 and started running Clinic in the said premises. On the commencement of the Settlement Operation in July, 1959, she applied for the transfer of the premises on Form LH, as she was a local.
3. However, the evaluation price of the house was more than Rs.10,000 and she could not have obtained transfer of the house on her LH form but as she had converted the premises into a clinic she simultaneously submitted an application on 6-8-1959 to the Chief Settlement Commissioner that the said premises be transferred to her as a Clinic.
4. Fortunately, for her in Para 20 of Settlement Scheme No.I, framed under the provisions of the Act, the Chief Settlement Commissioner was empowered to determine whether a property had been converted to another type of property after 14th August, 1947 , upto 20th December, 1958, the crucial date for the purposes of the Act. The provisions of Para 20 aforesaid are as follows;- "20. Conversion made in evacuee property if a building which was a house or a shop on 14th August, 1947, has been converted to some other use, the Chief Settlement Commissioner shall determine whether it is a house or a shop or any other type of property."
5. The appellant followed her application of 6-8-1959 by another application to the Deputy Settlement Commissioner with a copy to the Chief Settlement Commissioner. In pursuance thereof the Deputy Settlement Commissioner, by his letter dated 6-10-1959, forwarded this application to the Additional Settlement Commissioner (Policy) with the following remarks:- "The evaluation price of the said property is Rs.12,000 according to the Municipal Assessment of 1946 and she is a local. Therefore, according to law, it is out of jurisdiction to transfer the said house in her name. This town is a backward and there is acute shortage of qualified lady doctors in this town so in the interest of civic population her case deserves sympathetic consideration.
6. It is, therefore, requested that necessary instructions may kindly be issued in this case."
7. It appears, however, that in the meanwhile the LH form submitted by the appellant was rejected (without hearing her) presumably on the ground that she was not entitled to it as the value of the premises was more than Rs.1d,000. The house thereafter was placed for disposal in the earmarking list and Mst. Khadija Begum (the predecessor-in-interest of respondents 2 to 8) was successful in drawing the said house in the lots drawn for this purpose on 29-12-1959 and Appendix 'X' (Notice of Transfer) was issued in her favour on 6-1-1960.
8. Sometimes thereafter, on 3-5-1960, the Chief Settlement Commissioner issued a Press Note with the approval of the Central Government on the subject of disposal of properties converted into some other use after 14-8-1947 and in clause (ii) of Para 3 of this Press Note it was provided:- '3. As a general principle, the property will be disposed of according to the use to which it was being put on 20th December, 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in the public interest according to its status at the time it became evacuee property: The following broad principles have, however, been laid down by the Chief Settlement Commissioner for the guidance of the Additional Settlement Commissioners:- (i).........................
(ii) A house, a shop or a small industrial concern converted into a hospital or a clinic, may be transferred to the person or authority running such hospital or clinic on payment of the prevailing market value, if the Additional Settlement Commissioner is satisfied that it is necessary in the public interest to continue the premises as a hospital or a clinic--------- The appellant, thereupon, submitted another application on 13-5-1960, for transfer to her of the premises in question on the basis of the Orders issued on 3-5-1960. The Additional Settlement Commissioner found merit in this prayer and recommended the transfer of the premises to her on the ground that she was running a hospital in the ' premises (vide note dated 21-5-1960) and the Settlement Commissioner, Hyderabad by his order dated 24-5-1960 approved the recommendation for the transfer. A P.T.O. Was then issued to her on 8-8-1960. In the meanwhile, on 26-7-1960, a P.T.O. Had also been issued to Mst. Khadija Bagum, the transferee of the house under the Earmarking Scheme.
9. Since two P.T.Os. Could not be issued for one and the same premises the Additional Settlement Commissioner by his letter dated 31-8-1961 addressed to the Deputy Settlement Commissioner (with a copy endorsed to the appellant and one to Mst. Khadija Begum) conveyed the opinion of the Settlement Commissioner to both the parties that as the house had earlier been transferred to Mst. Khadija Begum it could not be transferred to the appellant.
10. The appellant feeling dissatisfied with this communication filed a review petition to challenge it but the review application was rejected on 24-1-1963. She then filed a Constitutional Petition (bearing No.620 of 1963) in the High Court of Sind at Karachi to challenge the orders dated 31-N-11161 and 24 I 196:1.
11. The learned Chief Justice of the then High Court of West Pakistan (sitting singly) accepted the Constitutional Petition by his order dated 1-11- 1966 observing as follows:- "The main point urged by the learned Advocate for the petitioner is that the transfer in favour of his client was cancelled without giving her any show-cause notice. On the other hand, Mr. Masud Hussain, the learned Advocate for the heirs of Mst. Khadija Begum, respondent, submitted that the order transferring the house to the petitioner was passed without any notice to them (heirs of Mst.
12. Khadija Begum). The learned Advocates for the parties agree that the claims of the parties should be disposed of on merits by the Settlement Commissioner. I would like to make it clear that the heirs of Mst. Khadija Begum would be entitled to take all .The legal pleas that were open to them at the time when the property was disposed of in favour of Mst. Khadija Begum. I would, in these circumstances, quash the orders passed by the Settlement Commissioner dated 31-8-1961/4-9- 1961 and 24-1-1963 and would remand the case to the Settlement Commissioner, Larkana, or any officer authorised to act as Settlement Commissioner in relation to matters pertaining to Larkana to dispose of the matter according to law."
13. The matter was heard by Mr. Mauj Din Khan, Settlement and Rehabilitation Commissioner, South Zone, Karachi, on remand. The said learned Officer by his order dated 3-4-1971 held that the appellant had no case for transfer of the premises on the grounds that Mst. Khadija Begum had been transferred the house before the Press Note dated 3-5-1960 was issued and further that the appellants had shifted her clinic to the house built by her deceased husband on Survey No. 1961/29/C. Larkana and as such the premises in dispute were no longer used as a clinic and it was not in public interest to treat them as a converted property.
14. Feeling dissatisfied. The appellant challenged the order of the learned Settlement Commissioner dated 3-4-1971 by filing a Constitutional Petition (C.P. No.188/1971) in the High Court. This was dismissed in limine by a learned Single Judge vide order dated 13-9-1971. A Letters Patent Appeal (No. 162 of 1971) was thereupon filed by her to challenge the order of the learned Single Judge. This too was dismissed by the Division Bench, vide order dated 7-4-1980. Hence this appeal, by leave of this Court.
15. We have heard Mr. Akhtar Mehmood, learned counsel for the appellant as well as Mr. Hasan A.
16. Shaikh on behalf of the heirs of Mst. Khadija Begum and perused the available papers with care.
17. We may observe in the first place that so far as the finding of the learned Settlement Commissioner that the appellant had shifted her clinic from the premises in dispute to another premises and the disputed premises were no longer needed for her in the public interest is concerned, the appellant produced before us a certified copy of the ejectment application filed by the heirs of Mst. Khadija Begum under Section 13 of the Urban Rent Restriction Ordinance in which they themselves had stated that "the opponent (the appellant before us) has without the consent of the applicants converted it into a lodging house where she . Keeps her patients who come to Larkana from villages and that she has committed breach of the terms of lease and is liable to be evicted". Furthermore, the appellant in the Constitutional Petition filed by her in the Sind High Court (C.P. No.118/1971) submitted on solemn affirmation that the premises had been converted into a medical clinic and that it continued to be a clinic upto date. We, therefore, think that the consideration that the premises were not being used as a clinic today could not be put into the scales by the learned Settlement Commissioner, while deciding as to which of the two parties was entitled to the transfer of the premises.
18. The basis and more important circumstance, however which prevailed with the Settlement Commissioner and also the learned Judges of the High Court to hold in favour of Mst. Khadija Begum was that the transfer, which was made under the Earmarking Scheme in her favour, was made on 29-12-1959, much before the appellant had applied for the transfer of the premises under the Press Note dated 3-5-1960. The appellant's argument that her LH form had been rejected without any notice to her and that the said order was void and a nullity hence her application for transfer had not been decided in accordance with law and that unless her form was disposed of in accordance with law the premises in question could not be disposed of under the earmarking process, was rejected on the ground that admittedly the value of the premises was more than Rs.10,000 and could not, in any case, have been transferred to a local. Moreover, the appellant in her application dated 13-5-1960 (seeking transfer of the premises on the basis of the Press Note dated 3-5-1960) had stated that the premises had been transferred to someone else. In the meanwhile. Since she was aware of the transfer of the property to the respondents she should have challenged the order in their favour by way of an appeal. It was also observed that as the provisions of the Press Note dated 3-5-1960 were not retrospective they were of no avail to her after the property in dispute had already been transferred, in the meanwhile in favour of Mst.
19. Khadija Begum.
20. We regret we cannot agree with this approach The appellant contemporaneously with the filing of her form LH had submitted an application to the Deputy Settlement Commissioner with a copy of the Chief Settlement Commissioner, that the premises should be transferred to her as a clinic. Under Para 20 of Settlement Scheme No.I the Chief Settlement Commissioner was required in case of a property converted to some other use from that in which it was being used on 14-8-1947 to determine as to what type of property it now was. Hence without such determination the appellant's application for transfer was to be deemed to be still pending disposal and until this determination was made the property could not be put in the earmarking list. The view expressed that the order of transfer in favour of Mst. Khadija Begum should have been challenged by regular proceedings overlooks the circumstance that the earlier order of the Deputy Settlement Commissioner whereby the LH form of the appellant was rejected was a nullity at law and was a void order. Under Para 10 of Settlement Scheme No.I "the Deputy Settlement Commissioner is required to ascertain the entitlement of the applicant to retain the property applied for transfer and if his entitlement is not clear he shall issue a notice of 15 days to the applicant stating the points requiring clarification".
21. If the Deputy Settlement Commissioner had issued the necessary notice the applicant could have explained that she had applied for the house not as a house simpliciter but as a converted property.
22. Hence non-issuance of the notice to her had clearly caused her prejudice and, in any case, in so far as a mandatory provision of the law had been violated, the resultant order of the Deputy Settlement Commissioner, rejecting the LH form was void and a nullity.
23. Moreover, in the order passed by the High Court dated 1-11-1966, the case was remanded to the Settlement Commissioner for disposal on merits which clearly implied that all the earlier orders passed in favour of both the parties stood set-aside and the case had to be disposed of on merits i.e. On the basis of the entitlement of the contestants. No doubt, the High Court had observed that the heirs of Mst. Khadija Begum would be entitled to take all the legal pleas that were open to them at the time when the property was disposed of in her favour. Thus, Mst. Khadija Begum or her heirs could take all the pleas available to them on 29-12-1959 when she was transferred the house through earmarking. This meant that she could take plea that the Press Note on the basis of which the appellant was claiming transfer of the premises as a converted property was not in existence on that day. This no doubt is true. But Para 20 of Settlement Scheme No.I (which had been promulgated on 19-5-1959) had already provided that "if a building which was a house or a shop on 14th August, 1947, has been converted to some other use, the Chief Settlement Commissioner shall determine whether it is a house or a shop or any other type of property". As the appellant had approached the Chief Settlement Commissioner with the claim that this house was no longer a house but had been converted into a clinic, the property could not be said to be available for transfer under the earmarking process until the Chief Settlement Commissioner had determined the status of the property.
24. It is an admitted position that by 29-12-1959, when the house was transferred under the earmarking scheme the Chief Settlement Commissioner had not made any determination about the character of the property, which he was required to do in view of the provision of Para. 20 of the Scheme. Thus, even on 29-12-1959, Mst. Khadija Begum could not have been transferred the premises under the earmarking process.
25. It is also an admitted position that no determination of the character of the property was made by the Chief Settlement Commissioner even upto 3-5-1960, when the relevant Press Note was issued.
26. As the appellant was found entitled to the transfer of the premises under the provisions of this Press Note, the order of the Settlement Commissioner dated 24-5-1960 could not be set aside on the ground that an order of transfer of this very premises lead earlier been made In favour of Msl.
27. Khadija Begum on 29-12-1958 because the said order, as already discussed above, could not have been passed until the appellant's LH form had been disposed of in accordance with law i.e. After hearing her and hence the said order of 29-12-1959 was of no avail to tier.
28. The result is that this appeal succeeds. The order of the Settlement Commissioner dated 24-5-1960 transferring the premises it favour of the appellant is restored and declared to be the operative order in the field. She should, therefore, be issued the necessary transfer documents of the premises in accordance with law.
29. The appeal is allowed in the above terms. Since the Settlement Department is responsible for this imbroglio the parties, however, are left to bear their own costs.