In this case the contest between the petitioner and the second respondent is in respect of a house bearing Custodian No. 1-C/60A, Gharibabad. Nawabshah.
2. According to the petitioner he was occupant of the house bearing No. 1-C/60A, Gharibabad.
Nawabshah. Previous City Survey Numbers of this house were i-A/1674 & 1675, but subsequently the City Survey Number was changed to A/1669 which covered both the previous City Survey Nos. i.e. A/1674 & 1675. This house was allotted to the petitioner and one Khuda Bux who was a local in the year 1948-49.
3. The petitioner applied on NCH Form for the transfer of the entire house on the commencement of the settlement operations and a Provisional Transfer Order was issued to him on 22nd December 1961, for the whole house. Subsequently, Permanent Transfer Deed was also issued to him. As the other occupant did not apply for the transfer of the house in his favour therefore his entitlements were not considered.
4. On 29th May 1963, one Mst. Mafia, first respondent, applied for the transfer of a portion of the house in lieu of another house which had been transferred to her but was cancelled subsequently.
In her application she asserted that house No. 1-C/60A covered City Survey Nos. 1-C/58, 1-C/59 and 1-C/60 also besides No. 1-C/60A. According to her these were hidden properties and therefore she was entitled to the transfer of the same in lieu. On her application a report was sent for by the Deputy Settlement Commis--sioner and a clerk of the department gave a report whereby he split up the petitioner's, house into three portions and mentioned a separate number against each portion. It was stated in the report that house No. A/1669 covered for Custodian Numbers i.e. 1-C/58, I-C/59, 1-C/60 and I-C/60A. In the report it was further stated that 1-C/60A stood transferred to the petitioner while 1-C/60 was occupied by a widow whose name was not men--mentioned while Custodian Nos. 1-C/58-59 could be transferred to the first respondent.
5. On coming to know that a portion of this house was likely to be transferred to the first respondent, the .Petitioner filed an appeal to the learned Additional Settlement Commissioner which was decided on 28th September 1963. The appellate authority modified the order of the learned Deputy Settlement Commissioner and divided the house into two portions of which one portion was ordered to be given to the petitioner and the other to the first respondent. It was against this order that the first respondent filed a revision to the learned District Judge-cum- Settlement Commissioner. The petitioner also filed cross-objections. The learned Settlement Commis--sioner decided the appeal as well as cross-objections and held that the whole house stood transferred to the petitioner. He took lot of pains in finding out the corresponding City Survey Numbers of Custodian Nos. 1-C/58, 1-C /59 & 1-C/60, and reached the conclusion that these properties belonged to Muslims. Accordingly the transfer documents which had been issued in favour of the first respondent were cancelled by him: At this stage Khuda Bux also intervened but his claim to the transfer of any portion of this house was rejected.
6. The first and second respondent then filed constitutional petitions in this Court. The second respondent appeared on the scene for the first time. His case was that he was occupying the third portion i.e. Custodian No. I-C/60 which also corresponded to City Survey No. A/1669. These petitions were decided by a common order on 3rd December 1971, and the case was remanded back to the Settlement Commissioner with directions that he should examine the claims of the respective parties and pass a fresh order. An LPA was filed against this order but the same was dismissed in limine.
7. After the remand of the case the learned Settlement Commissioner passed an order mainly relying on the report of the said clerk who had stated that the petitioner's house bearing City Survey No. A/1669 correspond--ed to Custodian Nos, I-C/58, I-C/59, 1-C/60 & 1-C/60A. He ordered the transfer of house No. 1-C/58/59 to the first respondent. The House No. 1-C/60 was ordered to be given to the second respondent and in case he was not found entitled to its transfer it was ordered that it should be disposed of through public auction. In this manner he divided the house into three portions and held that City Survey No. A/1669 corresponded to Custodian Nos. 1-C/58, 1-C/59, 1- C/60 and 1-C/60A and not 1-C/60A alone.
8. The learned counsel for the petitioner has contended that the petitioner bad been transferred the entire house bearing City Survey No. A/1669 which corresponded only to Custodian No. 1-C/60A: According to him the other numbers were Muslim properties and had no connection with his house.
The first contention raised by him is that the second respon--dent had no right to the transfer of any portion of the disputed house because he never applied for the same. As far as the claim of the first respondent ,As concerned, he argued that the first respondent had applied for the transfer of the house after the deletion of section 10-B of the Displaced Persons (Com--pensation and Rehabilitation) Act of 1958 and therefore the transfer in lieu of a cancelled house could not be made. I will take up both these contentions separately and give my findings on them.
9. As far as the first contention is concerned, it would be worthwhile ,to reproduce the relevant portion of the order of the learned District Judge-- cum-Settlement Commissioner dated 20th May 1966. After the examination of the entire record the learned Settlement Commissioner had reached the conclusion that the Custodian Nos. 1-C/58, 1-C/59 and 1-C/60 were Muslim ,properties and had no connection with the City Survey No. A/1669. Para. 14 .--f his order reads as under :- "It is admitted by the learned counsel for the parties that at first Enquiry cards of the parties were prepared and on the basis of these cards PSR and assessment register were made by the Custodian department. The learned counsel for opponent Hakimuddin urged that the Enquiry cards do not show that there were 4 separate numbers under C. S. 'No. 1669 ; as had been reported by Mr. Nizamuddin or held by the two lower Courts but by wantuIations in the entries of these records such bifurcation has been made. It bears force. In the enquiry register we find all the enquiry cards pertaining to the numbers in dispute. The first of them is the card bearing D. S. No. 58 of 1950 with owner's name as Pinro. Its C. S. No. Is manipulated. The last digit has been rubbed off but even that rubbed off digit can be read as digit 2 and the entire number can be read as 1969.
Similarly, D. S. N. 59 of 30-8-1950 shows the owner's name as Abdullah and corresponding C. S. No. 1363 that last digit whereof appears to have been changed from some other digit to three by overwriting. Further in the card D. S. No. 60 dated 17-10-1950 the owner's name is -mentioned as Haji Ghulam Hussain in column of C. S. No. 18 is readable as well as 16 but after 16 further digit or digits have been rubbed off. There is another card having D. S. No. 60A corresponding to C. S. No. 1669 bearing the name of owner as Hanumal and occupant Hakimuddin. Further I find that in Enquiry Card of D. S. No. 58 the material and initial relevant entries have been left blank."
10. It is evident from the perusal of the above quotation that Custo--dian Nos. 1-C/58, 1-C/59 and 1- C/60 corresponded to City Survey Nos. 1662, 1663 and 18, whereas' Custodian No. I-C/60-A corresponded to C. S. No. A/1669. The last-mentioned C. S. No. Was transferred to the petitioner permanently and in his transfer documents both the C. S. Numbers, as well as Custodian Numbers had been distinctly mentioned. A further proof of the fact that the Custodian No. 1-C/60A alone corresponded to C. S. No. A/If 69 is provided by the tax receipts filed by the petitioner as Exhs. S/1, S/2 & S/3. These receipts pertained to the years 1960 and 1963. In these documents also C. S. No. A/1669 has been shown corresponding to the Custodian No. I-C/60A. This fact is further substantiated by the perusal of the extract of Form maintained in the office of the Custodian of Evacuee Property. The certified copies of these forms have been filed along with this petition and these forms show that Custodian No. 1-C/60A alone corresponded to C. S. No. 18-A/166 (root fully legible). No. I-C/59 corresponded to C. S. No. 1661/A and No. 58 corresponded to C. S. 18-A/1662.
From the perusal of these Forms also it is manifestly clear that the house of the petitioner was numbered as Custodian No. 60-A and corresponded to C. S.. No. A/1669. The other Custodian Nos.
1-C/58. 1-C/59 and 1-C/60 corresponded to some other C. S. Numbers which were Muslim properties. It would be significant-- to note that the clerk's report which was relied upon by the learned Settlement Commissioner was placed on the record which had been tried to be altered.
This fact is evident from the order of the learned Settlement Commissioner dated 20th May 1966.
The above discussion will show that no portion of the petitioner's house was available for transfer either to the first respondent or to the second respondent.
11. As far as the entitlement of the first respondent is concerned, the-- second argument of the learned counsel is also worthy of consideration. A notification was issued on 7th April 1960, which authorized the Settlement authorities to transfer the house in lieu of the houses drawn in their favour in earmarking and subsequently cancelled without any fault on their part. However with the deletion of section 10-B of Displaced Persons (Compensa--tion and Rehabilitation Act) of 1958 which provided that the Central Govern--ment could lay down any mode for the transfer of the evacuee properties, the transfer could only be mode in accordance with the procedure laid down in the Schedule to the Act or the Scheme made thereunder. Section 10-B was deleted on 13th January 1962, whereas the first respondent was transferred a portion of the petitioner's property in the year 1963 as is evident from the order of the learned Settlement Commissioner. On this score as well, he first respondent was not entitled to the transfer of any portion of the property in occupation of the petitioner. As far as the second respondent is concerned, he never participated in the litigation before. For the first time he filed constitutional petition claiming that he was entitled to the transfer of a portion of the house on the basis of occupation. Since I have held that the whole house bearing C. S. No. A/1669 stood transferred to the petitioner therefore the question of the transfer of any portion of this house to the first or second respondents does not arise.
12. Before I part with the case I may also mention here that the Permanent Transfer Deed had been issued to the petitioner as far back as 3rd February 1962. The Settlement Authorities had threfore, become functus officio and they could not re-open the matter by upsetting the Permanent Transfer Deed and splitting up the house into several portions. I may further add that none of the authorities ever took the trouble of visiting the house in dispute. It was incumbent upon the learned Settlement Commis--sioner to have visited the house after the case had been remanded back to, him by this Court in order to find out as to whether it was a single unit or it could be divided into more than one portions. He also based his order on the report of a clerk which had been blindly followed by the learned Additional Settlement Commissioner who decided the controversy between the parties by holding that the house in question comprised of two portions and not three portions as reported by the said Clerk. The learned Settlement Commissioner went a little ahead and without taking the trouble of inspecting. The house held that it comprised of three portions, In such matters it is always desirable that the Settlement authorities should personally inspect the disputed property before deciding the case so as to gain first-hand knowledge of the facts.
13. For the foregoing reasons I allow the petition and declare that then impugned order is patently illegal and without jurisdiction. The same is accordingly set aside. The parties are, however, left to bear their own costs.