' ABDUL QADEER CHAUDHRY, J.--The petitioner is a displaced person and migrated from India. He was allotted a house bearing Municipal No.5-11/34 situated at Patel Road, Quetta by the Assistant Custodian of Evacuee Property Quetta w.e.f. 1-5-1953, and the allotment order was issued on 22-10- 1953, (Annexure-A). The petitioner applied for the transfer of the said house under the Settlement Scheme prepared under Displaced Persons (Compensation & Rehabilitation) Act, 1958 and house in dispute was transferred to the petitioner on 6-2-1962. Copy of the P.T.O is Annexure-B. The petitioner paid the entire amount upto 3-9-1962. It is the case of the petitioner that the house in dispute was in a dilapidated condition, therefore, he applied to the Municipal Corporation for permission to start construction and permission was granted by the Municipal Committee on 6-7- 1968. The respondent No.2 filed an application on 21-6-1978, under section 8 of the Evacuee Trust Property (Management and Disposal) Act, 1975, for declaration to the effect that the property in dispute is evacuee trust property. Notice was issued to the petitioner. The petitioner filed written objections. By means of letter dated 4-5-1963 (Annexure-I) the petitioner was informed that the transfer of property in favour of the petitioner has been concealed by respondent No.l.
2. The petitioner being aggrieved has challenged the order dated 22-4-1981.
3. We have heard learned counsel for the parties. The learned counsel for the petitioner has stated that the petitioner is in occupation of the property in dispute for the last 29 years and P.T.D. Was issued in his favour and by virtue of the said P.T.D. The property in dispute was not the part of Evacuee Trust Property and the order passed by the respondent No.1 is contrary to the instructions dated 17-6-1971. Issued by the respondent No.l. The respondents have admitted that the petitioner is a displaced person and the property was allotted to him. It is the case of the respondents that the property in dispute is an evacuee trust property as per entry in revenue record for the year 1955-56. It was Waqf in the name of Dharam Sala Bhatra and these entries exist in the revenue record till 1978 P.T.O. Or P.T.D. Issued in favour of the petitioner has been done illegally and without appreciating the facts. After the month of June, 1968, if any P. T.O/ P.T.D is issued by any of the authorities, the same will be treated as cancelled.
4. The learned counsel for the respondents has referred to section 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975 which reads as under:-
(1) An immovable evacuee trust property (a) if situated in a rural area and utilised bona fide under any Act prior to June 19.64, for allotment against the satisfaction of verified claims; and
(b) if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be re-imbursed to the Board and shall form part of the Trust Pool."
5. The learned counsel for the respondent has stated that the Permanent Transfer Deed was issued to the petitioner on 27-5-1974, therefore, the respondent has rightly cancelled the transfer in favour of the petitioner. He has stressed that according to section 10(I)(b) if a permanent transfer deed has been issued prior to June, 1968 the property shall be deemed to have been validly transferred.
In the instant case the P.T.D. Had been issued in 1974, therefore, the transfer made in favour of the petitioner has not been saved. He has also relied upon Mst. Hafeez Begum v. Assistant Administrator, Evacuee Trust Property and 11 others PLD 1983 Kar. 374 which supports the contention of the learned counsel. But in the reported case the property was transferred in 1960 in favour of one Masood-ul-Hassan but due to non-payment of transfer price the PTO issued to him was cancelled. Thereafter the said property was included in auction lists published by the Settlement Department and ultimately it was purchased in auction by one Chajjoo on 19-7-1968.
The said Chajjoo surrendered his rights in favour of the petitioner and PTD was issued in his favour on 19-6-1974. But in the present case the disputed property was allotted to the petitioner in the year 1953. PTD was issued on 6-2-1962, and the entire price was paid by the petitioner upto 3-9-1962, therefore, the petitioner had performed his part of the act and nothing further was required to be done from the petitioner. If the Settlement authorities had not issued the PTD even after receipt of the amount, the petitioner was not to be blamed for that. The instructions issued by the Chief Settlement and Rehabilitation Commissioner Pakistan on 17-6-1971, contemplates that the transferees to whom evacuee urban trust properties have been tranferred prior to June, 1968, would not be disturbed. The price of such property, if received from the transferees or the amount of claim against which such properties have been transferred, would be paid by the Settlement Organization to the Evacuee Property Trust Board in due course on receipt of necessary particulars from them. In cases in which full payment has not been made, the Chief Settlement Commissioner would direct the transferees to pay the balance of price direct to the Evacuee Property Trust Board in cash. In the instant case the entire price of the property has been paid and nothing was due against the petitioner. Under section 10(1)(b) of the Evacuee Trust Properties (Management and Disposal) Act, 1973 (hereinafter called as the Act, 1975), the conditions laid down are that it has been utilised bona fide under any Act for transfer against the satisfaction of verified claims. Though the word "Permanent Transfer Deeds' have been mentioned in section 10(1) (D) but we do not consider that there is much difference between the two. Provisional Transfer Order is issued before the payment is made and after the entire price has been made, the Permanent Transfer Order is issued by the competent authority. The relevant terms and conditions attached to Provisional Transfer Order are as under:-
(i) the price of the said property payable by the transferee shall be paid by him in the manner and within the period specified by the Settlement Authorities.
(ii) Pending the permanent transfer the transferee shall not alienate in any manner except that he may lease out or mortgage it.
(iii) In the event of transferee's failure to pay the sum due from him, he could be liable to ejectment from the said property. The P.T.D. Issued in favour of the petitioner lays down the following conditions: -
(1) This transfer order shall be final only when the transfer price, Settlement fee and all other public dues, specified in Schedule "A" have been paid in full.
(2) The balance amount of transfer price, Settlement fee and public dues if any, shall be paid in the manner and within the period shown in Schedule "D" through Treasury challan (s).
(3) Till such time, the transfer price, Settlement fee and public dues, are paid in full, the transferees shall not alienate the property in any manner except that he may lease it out or mortgage it.
(4) Any amount payable by the transferee shall be the first charge on the property.
' The petitioner has paid the entire price in the year 1962, and nothing was due when PTD dated 27- 5-1974, was issued as is clear from Schedule "A" therefore, Schedule "B" does not apply to the case of the petitioner. The certificate about the payment has also been issued by the Board of Revenue.
The bear perusal of the terms and conditions of Provisional Transfer Order and the Permanent Transfer Deed would make it clear that there is no difference between the terms and conditions of the two documents. The same terms and conditions have been mentioned in PTO and PTD by mere referring to the PTD in the Act, 1975 would not change the nature of the disputed property and, therefore, the property came out of the compensation pool for all intents and purposes. It could not be cancelled by respondent No.l. Under Rule 3 of the Permanent Transfer Rules, 1962, when a property has been previously transferred under the Act or Scheme and:
(a) the order of transfer is a final order; and
(b) the proposed or provisional transferee has paid in full
(i) the transfer price or the auction price of the property.
(ii) Settlement fee; and
(iii) all public dues.
' A record of permanent transfer of the property in the name of the proposed or provisional transferee shall be made by the Deputy Settlement Commissioner of the area in a register to be kept and maintained in the Form given in the Schedule to those rules and thereupon the property shall stand permanently transferred to the transferee free from all encumbrances. Under Rule 4 a transferee in whose favour a record of permanent transfer has been made under Rule 3 shall be entitled to hold and enjoy the property and all the rights, title and interests appurtenant thereto transferred to him, and to transfer or alienate the same in accordance with the normal law. Rule 7 of these rules was omitted by the notification dated 27-12-1964. As observed earlier the petitioner was provisionally transferee that order of transfer C was final. He had paid in full the transfer price and nothing was due against him.
6. The property was not available at the time when the impugned notification was issued.
7. On 28th August, 1968 the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was amended by the Displaced Persons Amendment Ordinance, 1964. The amendment introduced subsections (3) and (4) in section 4 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958. The new subsections are as follows:- ' Subsection (3).--If a question arises whether an evacuee property s attached to a charitable, religious or educational trust or institution or not it shall be referred to the Chief Settlement Commissioner whose decision thereon shall be final and shall not except as provided in subsection
(4) be called in question in any Court: ' Provided that no order under this subsection shall be passed without giving the persons interested a reasonable opportunity of being heard.
' Subsection (4).--Any person aggrieved by an order under subsection (3) may within thirty days of this order, prefer an appeal to the High Court.
' In Pakistan through Secretary, Ministry of Refugees and Rehabilitation and another v. Devachand Muljimal and others PLD 1968 Kar. 107 it has been held that subsections (3) and (4) in section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is not retrospective. In the present case the property had been transferred to the petitioner E in 1962 and the entire price has been paid in the same year.
8. We have taken the view in Haji Seth Wall Muhammad and 4 others v. Member III, Board of Revenue, Baluchistan, Quetta and 5 others PLD 1984 Quetta 131 that the land was permanently settled in favour of the petitioner in lieu of their claim and had thus ceased to evacuee property.
We have relied upon in support of such view on PLD 1973 SC 347. As such the property in dispute has ceased to be evacuee property and on this score also the action taken by the respondents cannot be sustained.
9. Here it may be mentioned that the respondent has relied upon the entry in the revenue record, recorded in the year 55-56 where it is mentioned as Waqf Property. It has not been shown what was the actual position in 1947. No document has been placed on record to show that the disputed property was Evacuee Trust Property and the entry to that effect was made in the revenue record in the year 1947 onwards.
10. The learned counsel for the respondents has stated that the petitioner had an alternate remedy by way of filing revision to the Member Board of Revenue and, therefore, this petition may not be accepted. We see no force in this contention. The order impugned in this petition is illegal and without lawful authority and it cannot be sustained on any ground, therefore, it is not necessary to dismiss this petition on this ground.
' For the aforesaid reasons, we accept this petition, set aside the impugned order, dated 22-4-1981 (Annexure 3), cancelling the transfer order in favour of the petitioner as illegal and without lawful authority. The parties to bear their own costs.