ZAFFAR HUSSAIN MIRZA J.--The dispute in this case relates to a shop bearing No.E/1720, which forms part of a building situated on city survey Nos. 1720, 1721, 1722 and 1723 Ward E, Fakir Ka Pir.
Hyderabad. This building comprises the ground flour .Consisting of four shops including the disputed shop and a residential portion on the first floor. The first floor of the building having been in possession of the respondents, they filed a C . H . Form for the transfer of entire building, which was allowed by the Assistant Settlement Commissioner, Hyderabad. However, on a reference by the Deputy Settlement Commissioner, Hyderabad, to the Additional Settlement Commissioner, Hyderabad, that the transfer of the residential portion alongwith shops was irregular, the latter by his order dated 7th September, 1960, modified the order of transfer in favour of the respondents with the result that they were allowed the transfer of only the first floor tenement to the respondents. By this order it was further directed that the four shops be put to auction; accordingly the said' four shops were put to auction and were purchased by different persons. Out of these shops the disputed shop was purchased by one Mst. Batool Bibi wife of Umrao Khan in the aforesaid open auction. The respondents being aggrieved, challenged the order passed by the Additional Settlement Commissioner in a revision before the Settlement and Rehabilitation Commissioner, Hyderabad. It is the case of the appellants that this revision application was filed under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, but Mst. Batool Bibi the auction purchaser of the disputed shop was not impleaded as a party.
However, alongwith the purchaser of the other shops, namely, Ch. Muhammad Siddiq one Umrao Khan without disclosing his parentage was impleaded as a party This revision was disposed of by the learned Settlement and Rehabilitation Commissioner by his ' order dated 11th December, 1962, in which the learned Officer rejected the claim of the respondents for transfer of all the ground floor shops on the ground that the rules provided that only one shop of the ground floor can be combined with the residential portion on the first floor in a predominantly residential area. He, therefore, directed that "the auction of the only one shop which is adjacent to the stair case leading to the 1st floor should be treated as cancelled. It was further directed that the said shop be transferred to the respondents at the same price at which the auction purchaser had purchased the same but if the respondents were not willing to pay the same price the auction sale would stand.
2. Being aggrieved by the rejection of their claim for transfer of the remaining three shops, the respondents challenged the order dated 11th December, 1962, passed by the learned Settlement and Rehabilitation Commissioner, in a constitutional petition in the High Court of Sind but this petition was dismissed. It is pertinent to observe that Mst. Batool Bibi was not made a party even in the constitutional petition. However, when Umrao Khan her husband, died during the pendency of the constitutional petition, Mst. Batool Bibi was substituted as his legal representative.
3. In the meantime, the auction sale in favour of Mst. Batool Bibi had already been confirmed on 21st December, 1960, even before the order passed by the Settlement and Rehabilitation Commissioner dated 11th December, 1962. Mst. Batool Bibi was issued a PTD in her favour on 21st December, 1962, and on the basis of title thus acquired by her she transferred the disputed shop in favour of appellant No.1 by means of a registered sale-deed dated 3rd February, 1963. It may further be stated that pursuant to the order of the Settlement and Rehabilitation Commissioner dated 11th December, 1962, the Additional Settlement Commissioner, Hyderabad, took up proceedings for the implementation of the said order, on the application of the respondents. He passed an order dated 9th May, 1966 holding that the shop near the staircase as described in the order dated 11th December, 1962, was Shop No. E/1720 and called upon Mst. Batool Bibi to surrender the transfer documents issued in her favour for cancellation, so that the said shop be transferred to the respondents. By a further order dated 16th July, 1966, he cancelled the transfer in favour of Mst.
Batool Bibi.
4. In the year 1967, the respondents finally filed a suit in the civil Court against Mst. Batool Bibi, the auction-purchaser and the appellants (appellant No.2 being the attorney of the appellant No.1), for declaration and possession of the shop in question on the plea that they were the lawful transferees of the shop by virtue of the order dated 11th December, 1962, passed by the Settlement and Rehabilitation Commissioner. As Mst. Batool Bibi had already transferred her rights in the property she did not contest the suit, but the appellants denied the claim of the respondents, mainly on the ground that order dated 11th December, 1962, passed by the Settlement and Rehabilitation Commissioner was void and without jurisdiction inasmuch as Mst. Batool Bibi, the auction purchaser of the shop was not made a party in the revisional proceedings in which the said order was passed. The further plea taken by the appellants was that after the issuance of the P.T.D. The Additional Settlement and Rehabilitation Commissioner, Hyderabad, had become functus officio and possessed no power to cancel the same. On 29th October, 1971, the V Extra Joint Civil Judge, Hyderabad, in whose Court the suit was received by transfer, decreed the same, rejecting the pleas taken by the appellants. However the appellants succeeded in appeal, as the learned Additional District Judge, Hyderabad, set aside the decree passed by the trial Court and dismissed the suit of the respondents by his judgment dated 11th April, 1973.
5. The respondents challenged the judgment and decree passed by the appellate Court in a revision before the High Court of Sind. The appellants contended before the learned Judge that order dated 11th December, 1962, passed by the Settlement and Rehabilitation Commissioner, on which the suit was based, was a nullity in law inasmuch as no notice of the revision proceedings was issued to Mst. Batool Bibi as required by the mandatory provisions of law. -However, the learned Judge rejected this contention on the ground that Umrao Khan the husband of Mst. Batool Bibi was impleaded as a party in revision before the Settlement and Rehabilitation Commissioner, as well as in the writ petition earlier filed in the High Court. Then the learned Judge made an astounding observation as under: "Assuming that the shop was purchased at the auction in the name of Mst. Batool Bibi and that she was the party concerned, service of the revision upon her husband living with her was not improper."
Holding thus that order dated 11th December, 1962, was binding on Mst. Batool Bibi, learned Judge further held that the P.T.D. Issued in her favour contrary to the said order was null and void.
Therefore, the civil Court was competent to declare it as such, even though the Settlement Authorities were incompetent to set aside the P.T.D. On deletion of rule 7 of the Permanent Transfer Rules. In this view of the matter by judgment dated lath December, 1978, the learned Judge accepted the revision and set aside the judgment and decree passed by the learned Additional District Judge, with the result that the trial Court's decree stood restored.
6. Leave was granted in order to examine the submission that the learned Judge in the High Court had erred in holding that the order dated 11th December, 1962, cancelling the auction sale in favour of Mst. Batool Bibi without impleading her, was effective so as to furnish basis for the decree in favour of the respondents.
7. We have heard the learned counsel appearing for the parties. We find that the transfer of the disputed shop in favour of Mst. Batool Bibi and subsequently in favour of appellant No.1 by sale, has been nullified on the basis of order dated 11th December, 1962, passed in revision by the Settlement and Rehabilitation Commissioner, Hyderabad. It was by this order that the auction sale in respect of the disputed shop was cancelled and the same was transferred in favour of the respondents.
Therefore, if this order was validly passed the appellants will have no case because the very basis on which the P. T. D. Was issued in favour of Mst. Batool Bibi would disappear and with it the P.T.D.
Would also become nullity. However, if the said order is itself invalid, the original order passed by the Additional Settlement Commissioner, Hyderabad, dated 7th September, 1960, in pursuance of which the auction sale was held would be fully effective in law, with the result that the P.T.D. Would likewise be absolutely valid and legally effective. The appellants all along contended that Mst.
Batool Bibi was not impleaded as a party in the revision before the Settlement and Rehabilitation Commissioner, nor was any opportunity of hearing provided to her before passing the said order.
This fact seems to have been admitted position between the parties. In any event the record amply supports the contention of the appellants. Firstly, the copy of the order of the Settlement and Rehabilitation Commissioner, dated 11th December, 1962, itself shows that Mgt. Batool Bibi was not impleaded as a party although the learned Officer was fully aware of the fact, as reflected in the said order, that the shops on the ground floor were put to auction. He, however, mistakenly assumed that the respondents before him namely, Ch. Muhammad Siddique and Umrao Khan were the auction purchasers. In the subsequent order passed by the Additional Settlement Commissioner dated 16th July, 1966, while implementing the first mentioned order, it was clearly mentioned that Mst. Batool Bibi was not a party before the Settlement Commissioner but her husband Umrao Khan was made a party. Even in the memo. Of their revision application in the High Court the respondents admitted that Mst. Batooi Bibi was not Impleaded as a party or served notice but her husband was joined as a party on the alleged ground that he was acting as her attorney on her behalf before the Settlement Authorities. We have, therefore, no hesitation to hold that Mst. Batool Bibi was given no opportunity of hearing before the order dated 11th December, 1962, was passed. The view of the learned Judge in the High Court that service on Umrao Khan was sufficient service on Mst. Batool Bibi as he was her husband was living with her, is rather over- stretching of facts without there being anything on the record. We have not seen any evidence on which the learned Judge assumed that Umrao Khan was living with Mst. Batool Bibi. According to subsection (5) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, no order under that section could be passed affecting any person without giving him a reasonable opportunity of being heard. This in our opinion is a mandatory provision and, therefore, the order sought to be challenged in revision could be modified only after giving Mst. Batool Bibi notice of the proceedings and hearing her. This provision is in recognition of the rule of natural justice and it is well-settled that violation of such provision renders the order passed or action taken by statutory authority non est in law. The auction was confirmed in favour of Mst. Batool Bibi and, therefore, notice if any served on Umrao Khan would not be sufficient compliance of the requirements of law.
Therefore, the order dated 11th December, 1962, passed by the Settlement and Rehabilitation Commissioner, which was made the foundation of the decree passed in favour of the respondents, was a nullity in the eye of law and was not capable of creating any right in favour of the respondents. It follows from this that there was no impediment in the way of issuance of P.T.D. In favour of Mst. Batool Bibi which was a validly issued document. She was, therefore, entitled to transfer her rights in favour of appellant No.1. We, therefore, hold that the learned Judge in the High Court was not justified to interfere with the decree passed by the appellate Court below. In the result this appeal is allowed with costs and the judgment, dated 16th December, 1978, passed by the High Court is set aside.