1. ' MUHAMMAD Gut., J.-I his judgment deals with the above two Civil Petitions, which concern the dispute relating to the transfer of evacuee property No, CB. 3/4/93/3-AB, Arbab Road, Peshawar Cantt. Generally known as Modern Press (hereinafter called the property in dispute) for which the two contestants are Muhammad Anwar Khan, the petitioner in both the petitions, on the one hand and Abdul Aziz Khan, respondent 1 in Petition No, 123-P/1974, on the other. For the purpose of clarity, it may also be pointed out that the dispute is confined to the transfer of the building only and not the machinery installed therein, which it is not disputed, already stands transferred to Muhammad Anwar Khan by means of an auction sale held in 1947 and with regard to which there is no dispute.
2. ' Civil Petition No, 116-P is from the judgment of the Peshawar High Court in L. P. A. No, 2 of 1972, dated 22-4-1974, affirming the judgment of a learned Single Judge of that Court dated 21-12-1972 by which Writ Petition No, 57 of 1971 moved by the petitioner herein to call in question the cancellation of transfer of property in dispute from his name, was dismissed. The case of Muhammad Anwar Khan was that the property in dispute was transferred to him "by negotiation", pursuant to an order made by the Chief Settlement Commissioner, communicated by means of memorandum dated 12-10-1964 addressed to the Settlement Commissioner (Policy), Lahore, on the basis of its market value plus 50% which on calculation was assessed at Rs, 78,750, which was paid by means of two compensation books Nos. 294077/LHR and 287195/LHR which were then duly accepted. A P. T.
0. Was issued to him on 6-1-1965 which was followed by a P. T. D. a few days thereafter.
3. ' However, it seems that subsequent to the issue of the P. T. D. In favour of the petitioner, the Enforcement Police seized the two compensation books on the ground that these were forged.
4. Thereupon, two notices were issued to the petitioner to make "fresh payment" of the price. On the petitioner's failure to comply with that direction, the Additional Settlement Commissioner, by order dated 5-10-1966 cancelled the transfer of the property from his name. On appeal by him, that order was set aside by the Settlement Commissioner, who directed an enquiry to be made into the genuineness or otherwise of the compensation books. It appears that except that the matter remained with the Enforcement Police, no step was taken in that direction before any subordinate Settlement Authority, "Fresh payment" of price not having been made, the transfer of property in favour of petitioner was again cancelled on 21-2-1968, but on appeal, that order was again reversed by the Settlement Commissioner who vide order dated 24-7-1968, directed that the petitioner be allowed opportunity to prove the genuineness of the Compensation Books. It appears that the Additional Settlement Commissioner not being satisfied with the genuineness of the Compensation Books, on 11-8-1970 again cancelled the transfer in the petitioner's favour. On yet another appeal before the Settlement Commissioner, the petitioner, it appears offered to make "fresh payment" of price, if he was allowed extension of time. By order dated 21-12-1970, the Settlement Commissioner accepted the appeal and allowed the petitioner to pay the price up to 31-3-1971. It was further directed that the order cancelling the transfer of property will remain "suspended".
5. ' It appears, during all this seesaw in the proceedings before the Settlement Authorities, but for Rs, 19,000 paid by the petitioner in cash, the remaining amount was not paid in cash, as the Additional Settlement Commissioner directed him from time to time.
6. ' For the avoidance of the Settlement Commissioner's order dated 21-12-1970 giving effect to the petitioner's undertaking to make "fresh payment" of the balance, the petitioner moved Writ Petition No, 57/1971 in which among others, the ground taken was that he was informed of the above order only on 30-3-1911, that is to say, just one day before the last day by which he was required to pay the balance in cash. He also disputed his liability to pay the price "for the second time" unless the Compensation Books were declared forgeries by a "judicial order". The Writ Petition was, however, dismissed on a finding that he had sufficient notice. On appeal, the order of the learned Single Judge was upheld in Letters Patent No, 2 of 1972, against which Civil Petition No, 116-P of 1974 is directed.
7. ' It is, however, important to point out that throughout the ups and downs in the above proceedings by Muhammad Anwar Khan, firstly before the Settlement Authorities and then in the writ jurisdiction, the petitioner did not implead Abdul Aziz Khan respondent No, I in Civil Petition No, 123- P, who, to his knowledge, was the purchaser of the property in dispute, at an auction sale held on 6- 3-1960 and in whose favour P. T. O. Had also issued on 8-4-1960. This fact is all the more remarkable that the petitioner had filed an appeal and revision against the confirmation of auction sale in favour of Abdul Aziz and the issuance of P. T.
0. In his favour, which however, were dismissed respectively on 4-12-1961 and 28-11-1962. This was much prior to the memo dated 12-10-1964 issued by the Chief Settlement Commissioner addressed to the Settlement Commissioner (Policy), which is the sheet anchor of the petitioner's claim for the transfer of the property to him.
8. ' Civil Petition No, 123-P of 1914 on the other hand is a sequel to Writ Petition No, 145 of 1965 moved by Abdul Aziz Khan, for setting aside the transfer of the property in favour of the petitioner herein.
9. Abdul Aziz Khan based his claim on the auction sale in his favour held on 6-3-1960 for Rs, 68,000 as against reserve price of Rs, 60,375. The auction sale was later confirmed and a P. T. O. Was also issued in his favour on 8-4-1960.
10. ' It appears that the Chief Settlement Commissioner's memo dated 12-10.1964 addressed to Settlement Commissioner (Policy), which is the sheet anchor of the petitioner's claim, was issued on a miscellaneous application by the petitioner to the Minister for Rehabilitation, after his appeal and revision for setting aside the transfer of the property in dispute in favour of Abdul Aziz Khan had failed. The Minister, by an administrative order directed the transfer of the property to the petitioner on payment of market value plus 50%. The memo dated 12-10-1964 issued by Me Chief Settlement Commissioner, gave effect to the Minister's direction. In his Writ Petition (No, 145/65). Abdul Azle Khan, besides the Settlement Authorities, made the petitioner also a party. The petitioner on the other hand sought the transfer of the property in dispute as "industrial concern" he being its occupant and also auction-purchaser of the printing machinery installed therein. Another learned Single Judge, after what appears to be careful consideration of the matter and the perusal of the settlement file, set saide the sale in favour of petitioner as being without lawful authority. The learned Judge took the view that on 27-11-1962, the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner dismissed revision filed by the petitioner herein and that order became final, which could not have been reviewed subsequently on 12-10-1964 when the Chief Settlement Commissioner purported to order sale of the property in dispute to the petitioner "by negotiation", persuant to the direction received from the Rehabilitation Minister.
11. ' It appears, that the confirmation of auction sale in favour of Abdul Aziz Khan was also questioned by the petitioner on the basis of the Full Bench decision of the late High Court of West Pakistan (Peshawar Bench) in the case of Fazal Karim and others v. Settlement Commissioner ani others (1).
12. The learned Single Judge however, held that the jurisdictional defect was cured by section 3 of Ordinance XIII of 1964, which though came into force on 28-12-1964, operated retrospectively to cure all previous defective confirmations of auction sales by the Additional Settlement Commissioners. Therefore, the confirmation of auction sale in favour of Abdul Aziz Khan was validated ex post facto.
13. ' The learned Single Judge also found : " According to the inspection of files, it transpired that no order had been passed by the Chief Settlement Commissioner on 12-10-1964, rejecting the highest bid of the petitioner and directing the property to be transferred in favour of Muhammad Anwar."
14. ' The above finding was upheld in Letters Patent Appeal No, 2 of 1972 filed by the petitioner, who now seeks leave to appeal in this case also.
15. ' Learned counsel for the petitioner raised two-fold contentions. First: the Enforcement Police seized the two Compensation Books on mere suspicion that these were forged. But the matter was not enquired "judicially" nor were the Compensation Books otherwise declared forgeries notwithstanding the orders in the petitioner's successive appeals against the orders of the Additional Settlement Commissioner requiring the petitioner to make "fresh payment", muchless there was any "judicial" finding on the point. That being so, the price must be deemed to have been fully paid by the acceptance of the two Compensation Books, and that fact cannot be altered by the mere incident of the Enforcement Police having seized the Compensation Books on the mere suspicion that these were forgeries.
16. ' Secondly, P. T. D. In respect of the property it dispute having once issued in favour of the petitioner, it ceased to be evacuee property and, therefore, was no more amenable to the jurisdiction of the Settlement Authorities. In support of this argument, a number of judicial precedents were cited which proceeded on the deletion of rule 7 of the Permanent Transfer Rules, 1961, vide Notification dated the 27th December 1964.
17. I have carefully considered the argument of the learned counsel but in my opinion, it is devoid of substance. For one thing, the first limb of the argument entirely overlooks the fact that Abdul Aziz Khan had become auction-purchaser of the property in dispute on a date much earlier than the purported transfer of negotiation and issuance of the P. T. D. In the petitioner's favour. A P. T.
0. Had also issued in favour of Abdul Ails Khan on 8-4-1960 and therefore, he indisputably acquired a legal title in the property and, that being so, no order adversely affecting that title could have possibly been made without affording him an opportunity to show cause. As pointed out earlier, the ultimate foundation of the P. T. D. Issued in favour of the petitioner is the Chief Settlement Commissioner's memo. Dated 12-10-1954 addressed to Settlement Commissioner (Policy) which was a sequel to a miscellaneous application addressed to the petitioner to the Rehabilitation Minister seeking the transfer of the property as "industrial concern" on the ground of his occupation.
18. It is not the petitioner's case that any notice was issued to Abdul Aziz Khan in whose favour a P. T. 0 had already issued, nor was any notice issued to him when the Chief Settlement Commissioner purported to issue direction to the Settlement Commissioner (Policy) vide memorandum dated 12- 10-1964; nor was any notice issued to Abdul Aziz Khan later, when the property in dispute purported to have been actually transferred to the petitioner in defeasance of the P. T. Q. Already standing in favour of Abdul Aziz Khan. Therefore, the entire proceedings beginning from the miscellaneous application addressed to the Rehabilitation Minister culminating in the P. T. D. In favour of the petitioner were ineffective as against the title inhering in B Abdul Aziz Khan oa the basis of the P. T.
19. O. Issued in his favour on 8-4-1960. I consider that the question going to the root was whether in the circumstances referred to above the property in dispute was validly transferred to the petitioner. This question, in my view, is more fundmental than the genuineness or otherwise of the two Compensation Books which the petitioner tendered in payment of the balance of the price. The dispute as to the genuineness or otherwise of the Compensation Books which remained confined between the petitioner and the Settlement Department will pale into insignificance, if once the transfer of the property in favour of the petitioner is struck down as it has been done by the High Court.
20. ' The second limb of the argument, namely, that after the issuance of the P. T. D. In the petitioner's favour, the matter could not have been re-opened, conveniently overlooks the further well settled proposition that in the circumstances of the case, the question whether P. T. D. In favour of the petitioner was issued in proper exercise of the authority of Settlement Commissioner, is open to judicial scrutiny. There is abundant authority in support of the view that the deletion of rule 7 of the 1961 Rules, does not c foreclose the jurisdiction of the Settlement Authorities or for that matter the High Court to uncover the cases of fraud or illegalities, even after the issue of P. T. Ds. See for instance the Court's judgment in Civil Petition for Special Leave to Appeal No, K-104 of 1965 Muhammad Ismail v. Mst. Shamsunnisa) and in Anwar Hussain v. Sarfraz Ahmed (1). It is also well settled that the deletion of rules 6 and 7 of the 1961 Rules does not repeal Chapter VI of Act XXVIII of 1958, which provides for appeals and revisions. Indeed some of the judgments relied upon by the petitioner's learned counsel expressly excepted the cases of fraud and lack of jurisdiction as valid grounds for the cancellation of a P. T. D. Notwithstanding the deletion of rules 6 and 7 of the 1961 Rules. The present case, in my opinion, is that exceptional case.
21. ' For the foregoing reasons, in my opinion, both the cases were rightly decided in the High Court and the petitions should be dismissed.