JUDGMENTMIAN ALLAH NAWAZ, J.--The dispute in this Constitution petition relates to the transfer of a portion of house bearing No. B-VIII-S-i-11 situated in Nankana Sahib, Sheikhupura between Muhammad Ali Hassan (herein petitioner), Fateh Muhammad and Fazal Din (herein respondents).
The disputed portion comprises of two rooms and is admittedly in possession of Fateh Muhammad and Fazal Din- the successors in iinterest of Farid Bakhsh who was in the first instance in occupation of this portion(herein referred to as the disputed property).
2. A few facts necessary for the disposal of this petition are; that the house No. B-VIII-S-i-ll(herein- after referred as the house) was transferred to Mst. Zainab Bibi and Mst. Bushra in earmarking scheme on 4.8.1960. These transferees surrendered their rights in favour of Abdul Razzaq(herein respondent No.3) by agreement of association accepted by the Additional Settlement Commissioner vide an order dated 24.6.1969. After the payment of price the P.T.D. Was issued to Abdul Razzaq on 18.9.1969.
3. On 30.11.1969 Farid Bakhsh submitted an application under the Scheme No.VI for the transfer of disputed premises. The Deputy Settlement Commissioner vide an order dated 28.12.1970 rejected the application by coming to the conclusion that the disputed premises was the part of the house and already stood transferred to Abdul Razzaq. On 15.11.1969 Muhammad Ali Hassan (herein petitioner) purchased the house vide a registered sale deed dated 15.11.1969. In year 1970 Fateh Muhammad re-started his claim for transfer of disputed premises;. Meanwhile Farid Bakhsh died and his grievance was taken up by Fateh Muhammad and Fazal Din. On 18.12.1970 the Settlement Inspector after visiting the spot made report to the effect that the disputed premises stood transferred in favour of Abdul Razzaq. The Deputy Settlement Commissioner vide an order dated 20.12.1970 appended a note"approved".
4. Muhammad Ali Hassan filed eviction application against Fateh Muhammad before the Rent Controller in the year 1971. This application was accepted with the consent of Fateh Muhammad vide an order dated 30.6.1971 while Fazal Din another legal heir of Farid Bakhsh executed rent note in favour of Muhammad Ali Hassan in the year 1971 acknowledging himself to be tenant of the petitioner.
5. However, Fateh Muhammad and Fazal Din were not satisfied in respect of transfer of disputed premises and approached the Settlement Commissioner, Lahore Division to this effect. The Settlement Commissioner vide an- order dated 24.4.1976 directed the Deputy Settlement Commissioner, Sheikhupura to pass a self-contained order dealing with the application of late Farid bakhsh. In pursuance of this order, the Deputy Settlement Commissioner passed order dated 31.7.1976 by which he came to the conclusion that the disputed premises was not the part of the house transferred to Mst. Zainab Bibi and Mst. Bushra and was capable of transfer in favour of applicants. Muhammad Ali Hassan has challenged the validity of this order in this Constitution petition.
6. The contentions of the petitioner can be summarised as follows:- i) That the P.T.D. Was issued to Abdul Razzaq on 18.9.1969 and after the issuance of the P.T.D.,the property ceased to be evacuee property and Settlement Authorities had no jurisdiction * 1 deal with this property in any manner. On this strength of this ground it was represented that the impugned orders passed by the Deputy Settlement Commissioner as well as the Settlement Commissioner were totally void and without legal effect. Reliance was placed on S. Anwatr Hussain Sani vs. Sarfraz Ahmad and 2 others (PLD 1971S.C. 669), Ch. Abdul Hague Vs. Mst Mustaiab Bano and others (1982 SCM R 1103) and Mst. Fazal Bibi and kothers. Vs Settlement Commissioner and others (PLD 1983 S.C.163).Ii) Secondly that the Deputy Settlement Commissioner proceeded to undertake the task of division of house on the basis of totally irrelevant and extraneous considerations.Iii) It was finally contended that this property could not be transferred toFateh Muhammad and Fazal Din under Scheme No. VIII as the property stood transferred in favour of Abdul Razzaq and was no longer available evacuee propery under Scheme No.VIII.Reliance was placed on Ch. Abdul Hague vs. Mst.
Mustaiab Bano and others (1982 SCM R 1103).
7. Learned counsel appearing on behalf of Settlement Department supported the submissions of the petitioner It was urged that after the issuance of the P.T.D. The Settlement Authorities were functus officio and had no authority to re-open the matter.
8. On the other hand the learned counsel for the respondents defended the impugned orders. It was urged that the petitioner had no right to file the petition in respect of disputed premises. It was stated that the petitioner was a vendee and was only transferred house exclusive of disputed premises. From the contents of the registered deed it is evident that he was transferred only two rooms.
9. It was next contended that as a matter of fact Fateh Muhammad and Fazal Din had filed revision petition before the Settlement Commissioner in which the Settlement Commissioner gave a direction. According to him the Deputy Settlement Commissioner,was therefore, competent to decide the application of respondents whose grievance was still pending.
10. I have heard the arguments of the parties and perused the record.
11. The questions calling for consideration are;:- i) Whether the Settlement Commissioner had any legal authority to give adirection to the Deputy Settlement Commissioner for the examination of application of Fateh Muhammad in 1976.
Ii) Whether the Deputy Settlement Commissioner had the jurisdiction todetermine the contentions of the parties and pass the impugned order.11. Hereon will proceed to determine the aforesaid contentions. There is no dispute with the fact that the Evacuee Property and Displaced Persons Laws (Repeal) (Act XIV of 1975) was enforced on 28.1.1975 with retrospective effect from 1st of July, 1974. All the laws and regulations relating to Evacuee properties were repealed from first day of July, 1974 and so stood erased from the Statute Book. Therefore, all the Settlement Authorities constituted under the Repealed Acts ceased to have authority under these Acts. I have no doubt in my mind that neither the Settlement Commissioner nor the Deputy Settlement Commissioner had any authority to ententain the grievance of Fateh Muahmmad and Fazal Din in any manner. The net result is that the Deputy Settlement Commissioner, therefore, had no authority to pass the impugned order which is, therefore found to have been passed without any legal authority whatsoever.
12. There is yet another aspect of the case, Fateh Muhammad and Fazal Din's application was rejected. It was held in 1970 by the Deputy Settlement Commissioner that the property in dispute was the part of house. A.P.T.D. Was issued, after the issuance of the P.T.D. Even under the Repealed Laws the Settlement Authorities had no right to re-open the matter until and unless it was shown that the P.T.D. Was obtained by mis-representation and fraud. The ratio in S.Anwar Hussain Sani vs. Sarfraz Ahmad and 2 others (PLD 1971 S.C. 6691.Ch. Abdul Hague Vs. Nst. Mustaiab Bano and others (1982 SCM R 1103) and Mst. Fazal Bibi and others Vs. Settlement Commissioner and others (PLD 1983 S.C.163), is the authority for the said proposition.
13. There is another agle from which the case is to be looked, Fateh Muhammad and Fazal Din accepted themselves to be tenant under the petitioner, therefore, it is surprising how did they change their mind and re-started the feud with the transferee. I am clear in my mind that the Deputy Settlement Commissioner definitely abused his authority in resurrecting the dead causes.
14. In the light of fore-gone analysis I am very clear in my mind that the impugned orders passed by the Settlement Commissioner and the Deputy Settlement Commissioner are without any lawful authority, devoid of any legal efficacy. Hence these orders are declared as such and are set aside.
15. In result the petition succeeds and the requested declaration is granted to the petitioner. There shall be no order .As to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.