Petitioner has assailed, in this Constitutional petition, orders of Settlement Authorities cancelling the transfer of House No. B-207, Bhakkar. District Mianwali, further praying that he is lawful transferee of the disputed house.
2. Briefly the facts of the case are that the D.S.C. Mianwali by his order dated 16-11-1959 transferred the house in question in favour of one Azam Ali as against his CH Form eliminating Yousaf Khan, respondent No.l a non--claimant displaced persons, and appendix was also issued when on the application dated 24-11-1959 of Azam Ali, transfer of house was resumed as transferee was not willing to retain the same being unable to pay transfer price. The house was placed in auction pool twice but was not auctioned and this gave a chance to one Rahim Bakhsh for the transfer of house on negotiations basis which was refused by order dated 16-10-1968 of D.S.C. when the house was actually put to auction on 10-11-1968 in favour of one Azmat for a sum of Rs.5,000 with PTO dated 13-11-1968 in his favour. Subsequently he entered into an agreement of association with the petitioner and after the payment of total sale price PTD was issued in his favour.
3. Respondent No.l, Muhammad Yousaf, one of the occupants of house, made an application dated 23-11-1968 for the transfer of house in question but his request was rejected by Memo dated 6-1- 1969 on the ground that no form was submitted by him. Thereafter he filed another application before the Additional Settlement Commissioner agitating that property was auctioned in his absence and that he had - already submitted the Form for the transfer thereof but this application was also rejected on 21-5-1969 on the ground that house was put to auction thrice but without any objection by the petitioner and that the same has already been purchased by one Azmat and documents issued. Finally the case was taken up and by order dated 2-7-1970, Additional Settlement Commissioner passed following order:- "In view of above discussion I am constrained to hold that the form of the appellant is still pending disposal. I, therefore, remit the case to the Deputy Settlement Commissioner, Mianwali with the direction that the form of appellant be traced out from the office record and disposed of on merits and the property be transferred in the name of appellant against his form according to law. In case the form is not traceable in his office duplicate of the same be obtained from the appellant. The documents issued to the respondent in presence of the form are held as illegal and are hereby cancelled as according to the certain rulings of High Court structure based on the illegal and wrong order automatically falls to ground after it is held as illegal by a competent authority. The remand order is disposed of accordingly."
Present petitioner filed revision petition which was decided by order dated 28-6-1971 of the Settlement and Rehabilitation Commissioner, Mianwali with observation that "it would be proper for the petitioner to approach the Additional SC in appeal and get the order of the D.S.C. set aside".
4. In pursuance of above, the D.S.C. on 21-1-1971 ordered that form of respondent No.l, Muhammad Yousaf, be traced out and if it is not forthcoming, he be allowed to file duplicate and thereafter there is a report dated 26-1-1971 that form of respondent No.l is registered on 30-10-1959 at page 5 but the same was returned with certain objections and thereafter it was not refiled. The D.S.C. vide his order dated 30-1-1971 accepted the duplicate form and property in question was transferred in favour of respondent No.l who subsequently died and his legal heirs were brought on the record.. It emerges from record that legal heirs of respondent No.l entered into an agreement of association with one Ghulam Hussain, s/o Muhammad which was subsequently cancelled by order dated 24- 12-1980 of D.S.C., Sargodha and the property remained transferred in the names of legal heirs.
5. On the other hand, petitioner filed an application before the D.S.C. that he was the lawful transferee of the property on account of PTD having been issued in his favour and this was accepted by order dated 28-10-1976 of the D.S.C. This order was held to be of no legal avail to the petitioner and this is so held by D.S.C. Sargodha in his aforesaid order dated 24-12-1980 where all aspects of the case are dealt with.
6. Learned counsel for petitioner has submitted that property was transferred in favour of Azam Ali., in the first instance, and this order having not been challenged, is final for all intents and purposes and that in any case the auction in favour of Azmat also became final and, therefore, the agreement of association in favour of petitioner by the auction-purchaser is valid and could not be interfered with by the Settlement Authorities at a very belated stage by transferring the house in favour of respondent No.l. Learned counsel for respondent No.l, vehemently contends that respondent No.l had already filed form for the transfer of disputed property and it could not have been put to auction after it was surrendered by Azam Ali and, therefore, it was the first choice of petitioner to have the same transferred in his favour. Reliance is placed on PLD 1976 SC 41 "Mst.
Abida v. Haji Muhammad Boota" where it is held that transfer of property without disposal of form is illegal.
7. After hearing the learned counsel for the parties, I find that property was transferred to one Azam Ali who surrendered the same and his transfer was cancelled by order dated 7-12-1959 and thereafter the property became available for transfer. It was the duty of D.S.C. to consider the form of respondent No.l before placing the same into auction pool and that having not been done, the entire proceedings regarding auction are nullity in the eye of law. Admittedly, respondent No.1 was the occupant of property and after his death, his legal heirs and it is highly unjust to deprive them from the property in question when they are still in possession of the same. It is correct that there are several orders passed in the case by the same D.S.C. for and against the parties but the basic question is same as to whether respondent No.l could have been deprived of the property in question without proper disposal of form submitted by him. In view of this, in exercise of my discretionary relief, I am not commenting on the action of D.S.C. having passed different orders at different times in respect of the same property. The fact of the matter still remains that respondent No.l, at relevant time, was in occupation of the property and after his death, his legal heirs and in view of this, the same was rightly transferred in favour of respondent No.l.
For the foregoing reasons there is no merit in this petition which is dismissed with no order as to costs.