1. ' NASIM HASAN SHAH, J.--The appellant was transferred, on his LH form, a part of the upper portion of premises No, B-1806, which is a part of a building bearing No, B/100-1806 situate in Moolchand Giani Lane, Hyderabad, by the Assistant Settlement Commissioner and a P.T.O. Was issued in his favour on 4-5-1960. One Muhammad Usman, respondent No,3 herein, (now represented by his legal heirs as he has since passed away), who was occupying quite a different property, namely, House No,B/19-854 in Chandi Rehmani Gali, Hyderabad, submitted an application to the Settlement & Rehabilitation Commissioner, Hyderabad & Khairpur Divisions, Hyderabad that the aforesaid property had turned out to be a trust property and that he was likely to be ejected therefrom and that he being a displaced person and a claimant may be transferred some other house, from the ear-marking list to prevent him from being thrown on the streets, after being ejected from the trust property aforesaid. On this application, the learned Settlement and Rehabilitation Commissioner passed the following order on 17-10-1960 to the effect:-- "If any house still remains undisposed of, transfer the same to the applicant by negotiation".
2. (underlining is ours)
3. ' In pursuance of this direction, it appears that the portion transferred in favour of the appellant (namely Unit No, B-1806) alongwith the lower portion of the premises which consisted of a school and the office of the Inspector of the Education Department was transferred, on negotiation basis, to respondent No,3, Muhammad Usma n Khan, on 5-1-1961 and on 6-1-1961 a notice was issued to the appellant by the Deputy Settlement Commissioner, Centre No,1 & 1-A, Hyderabad cancelling the Appendix and P.T.O. Earlier issued in his favour. In this notice it was said that the upper portion of the premises No,13/1805/1806 was not an independent and self-contained unit as it has no separate entrance and was a part and parcel of the ground-floor of Sardar Bahadur Government Primary School. Hence the Appendix and P.T.O. Issued to him were being "nullified" and the appellant was further directed to surrender the same at once. This nullification, which tantamounted to cancellation of the P.T.O., it may he mentioned, was passed without any prior notice or opportunity of hearing being provided to the appellant.
4. ' The appellant, therefore, challenged the aforesaid order of the Deputy Settlement Commissioner by an appeal (Appeal No,533 of 1962) before the Additional Settlement Commissioner but this appeal was dismissed on the ground that as a P.T.D. Had, in the meanwhile, been issued in favour of respondent No, 3 accordingly he (the Additional Settlement Commissioner) was functus officio.
5. The revision filed by the appellant against the said order of the Additional Settlement Commissioner also failed, whereupon he filed a writ petition in the Sind & Baluchistan High Court to challenge the orders of the Settlement Authorities. This petition was allowed by a consent order dated 31-5-1972 passed by a learned Single Judge of the said learned Court. In this order, it was observed that the Additional Settlement Commissioner should dispose of the appeal, which was earlier filed by the appellant before him (Appeal No, 533/62) on merits after due opportunity and notice to both the parties and he should consider the question of divisibility of the house.
6. ' In pursuance of this order of the High Court the Additional Settlement Commissioner re-examined the question of the divisibility of the house but found that it was indivisible. In this view of the matter, he proceeded to consider the question whether the premises should be transferred to respondent No,3 or to the appellant. In this connection, he observed:-- "On the point of validity of the order of transfer I am not competent to look into under the law. The P.T.D. Having been issued the Settlement Authorities become functus officio."
7. ' Accordingly, in view of the finding that the property in dispute was indivisible and that he was not competent to look into the validity of the order of transfer in favour of respondent No, 3 he dismissed the appeal by his order dated 24-1-1973.
8. ' The appellant thereupon challenged the last-mentioned order in revision before the Settlement Commissioner but he too was pleased to dismiss the same. The appellant was then again compelled to file a writ petition in the Sind High Court to challenge the orders of the Additional Settlement Commissioner and the Settlement Commissioner passed in the second round of the proceedings but his writ petition was dismissed on 21-11-1976 by another learned Single Judge of the High Court on the ground that he could, not interfere with the concurrent findings of fact recorded by the Settlement Authorities to the effect that the premises in dispute were indivisible.
9. Hence this appeal, by leave of this Court.
10. ' We have heard the learned counsel for the parties and are of the opinion that this appeal is liable to be accepted on the short point that the portion in dispute, which was allotted to the appellant on 4-5-1960 was not available for transfer to respondent No,3 on 5-1-1961 and the order dated 6-1-1961 cancelling the P.T.O. Dated 4-5-1960 standing in his name was a nullity at law and that all further orders based on the said illegal order are of no legal efficacy.
11. ' It will be recalled that the portion in dispute was transferred to the appellant on his LH form by.The order of the Deputy Settlement Commissioner dated 4-5-1960. This ordej was not questioned by any one in appeal or revision and had become fmal. Respondent No,3 was not an occupant of any part of the property beating No,B/100,1806. He was in occupation of a. Totally different property bearing No,B/19-854 in Chandi Rehmani Gali, Hyderabad. Since he was apprehensive that he might be ejected from that property, as it had turned out to be a trust property, he 'was desirous of getting some other house from the earmarking list and had submitted an application for this purpose. His request was granted by the Settlement and Rehabilitation Commissioner to the extent that if any house still remain undisposed of it may be transferred to him on negotiation basis.Thus any other house, which was still undisposed of, could he transferred to him but not a house in respect of which a P.T.O. Already stood issued. The property in dispute, namely, Unit No, B/1806 in Mool Chand Giani Road, Hyderabad, stood allotted to the- appellant and was -not available for transfer as it had already, been disposed of. Hence the question of-its allotment to respondent No,3, in the presence of a valid P.T.O. Subsisting in favour of its occupant, was completely illegal and 'a nullity at law. Consequently, the order of the Deputy Settlement Commissioner dated 6-1- 1961 nullifying the allotment of the appellant (albeit without hearing him or serving any prior show- cause notice) to accommodate respondent No,3 was itself a nullity at law and all the subsequent orders based on this void and illegal order arc of no legal efficacy, (see Yousuf Ali v. Muhammad Aslam Zia & others PLD 1958 SC 104.
12. ' The result is that this appeal must succeed. The impugned orders passed by the Settlement Authorities and the order of the High Court dated 21-11-1978 upholding the same are, accordingly, set-aside and the P.T.O. Issued in favour of the appellant dated 4-5-1960 is declared to he valid and operative. The result is that the transfer of the unit in dispute in favour of the appellant vide P.T.O. Dated 4-5-1960 is found to he valid and respondent No, 3 is found entitled only to the transfer of the units located in the lower portion of the property. A fresh Transfer Order shall be issued to him accordingly.
13. ' The upshot is that this appeal succeeds and is allowed hereby, with costs.