' By this petition under Article 199 of the Constitution, petitioner has sought the following reliefs:---
(a) The impugned' order dated 4-5-1989 is illegal and without lawful authority and is liable to be set-aside:---
(i) That the proceedings initiated by respondent No,2 on the applications dated 17-10-1981 and dated 2-3-1982 filed by late Muhammad Saeed for finalisation of transfer of the property in question and subsequently finalised by the respondent No,2, were illegal, coram nonjudice and consequently impugned order dated 4-5-1989 (Annexure 'U') was passed without lawful authority and was illegal; without jurisdiction, inoperative and nullity in eyes of law and consequently set aside.
(ii) That the application filed by Muhammad Saeed in C.S. Form dated 18-7-1959 (Annexure 'H') having been rejected finally, all subsequent proceedings and/or actions, taken on C.S. Form dated 10-11-1959 (Annexure 'J') illegally filed by Muhammad Saeed, were illegal, without jurisdiction and without lawful authority including the order dated 8-12-1986 (Annexure 'V').
(iii) That the auction held in favour of the petitioner on 28-2-1974 was valid and legal and the transfer of the property in favour of the petitioner being highest bidder subsists and is final.
(iv) That the permanent transfer order dated 8-6-1987 issued to the respondents Nos.3 to 10 in pursuance of the illegal order (Annexure ' V') is also illegal, inoperative and of no legal consequence.
2. Brief facts leading to this petition are that shop No,OT 3/48 situated in Methadar Chowk, Karachi being in occupation of late Muhammad Saeed, he applied for its transfer on C.S. Form on 18-7-1959 which was rejected by the Deputy Settlement Commissioner vide order dated 31-10-1959 for the sole reason that there was no allotment order in favour of the applicant. However, Chief Settlement Commissioner by Notification dated 7-10-1959 revised the transfer policy by waiving the condition of allotment in respect of an application by occupants for transfer of an evacuee house or a shop.
Quite naturally Muhammad Saeed filed second C.S. Form for the transfer of the said shop on 10-11- 1959 on the basis of his occupation. Accordingly letter dated 5-12-1959 was issued to him accepting in principle the transfer of the property to him for a consideration of Rs,15,360 payable in instalments. As the said Muhammad Saeed did not pay up price nor produced his Compensation Book for adjustment of the transfer price, a final notice dated 24-9-1960 was issued to him by the Deputy Settlement Commissioner warning him that unless he accepted offer by making necessary payment either in cash or by presenting his Compansation Book for adjustment of the transfer price within one week of the notice, case will be consigned to record and property disposed of by way of auction. It seems that Muhammad Saeed did not respond to the aforesaid notice and the property was put to public auction in 1971 and 1972 on different dates and finally on 28-2-1974 highest bid of the petitioner was recorded and subsequently accepted.
3. The case of Muhammad Saeed however is that he had submitted his letter of acceptance on 30- 1-1960 by post followed by a reminder dated 12-3-1960 but no action was taken by the Settlement Department. After the auction of the property in favour of the petitioner, Muhammad Saeed on 19- 3-1974 submitted an application to the Deputy Settlement Commissioner requesting him to adjust the transfer price from his own Compensation Book submitted with his "W" Form to the Deputy Settlement Commissioner, Nawab Shah as well as from the Compensation Book of his wife pending issuance with the then Settlement Head Quarters at Lahore. It may however be observed that on the face of the bid sheet there is an endorsement by Settlement Inspector dated 7-3-1974 that no "0" Form had been received.
4. On 2-3-1982 Muhammad Saeed moved an application before the Deputy Settlement Commissioner for issuance of transfer document in his favour while during the pendency of his application petitioner's attorney Muhammad Hayat moved a similar application on 20-3-1982 for issuance of transfer document in his favour in pursuance of acceptance of his highest bid in the public auction duly confirmed by the competent authoity on 7-3-1974. Since the Sttlement laws were repealed with effect from 1st July, 1974 and officers were notified to act under section 4 of the Displaced Persons Laws (Repeal) Act, 1975 (hereinafter referred to as the Act, 1975) Additional Commissioner, Karachi being a notified officer dealt with both these applications and by his order dated 8-12-1986 held that the auction proceedings were ab initio void and nullity in the eyes of law and thus liable to be ignored for the reason that the application regarding transfer of the property of Muhammad Saeed had not been finally disposed of.
5. Aggrieved by this order, petitioner filed C.P.S. 88/1987 which was heard by Ahmed Ali U. Qureshi, J.
(as he then was) who by consent of the parties remanded the case back to the notified officer to find out from the record whether C.S. Form dated 18-7-1959 was actually filed by Muhammad Saeed and order dated 31-10-1959 passed thereon. On remand, notified officer, by his order dated 26-11-1988 came to the conclusion that after the rejection of his first C.S. Form in view of change in the transfer policy a fresh cause of action arose to late Muhammad Saeed who validly filed the second C.S. Form for transfer of the property. Accordingly he held that after the death of Muhammad Saeed his legal heirs were entitled to transfer of the property. This order once again was impugned in C.P. No,S-3/1989. For the second time by consent order dated 26-11-1988 was set aside and the case was remanded to the notified officer for decision on the following issues:---
(1) Whether the auction was held during the pendency of C.S. Form of Muhammad Saeed predecessor-in-interest of the respondents Nos.3 to 10? If so, what is its effect?
(2) Whether the auction was held after notice to Muhammad Saeed?
6. For the second time after the remand of the case, notified officer by his order .Dated 4-5-1989 concluded that after the transfer of the property in favour of Muhammad Saeed it went out of the evacuee pool and was no more available for transfer in any manner unless its entitlement order was cancelled and property resumed for fresh disposal. He further held that the chapter of transfer proceedings in respect of C.S. Form filed by Muhammad Saeed remained open till 8-6-1987 when transfer order No,KYC/DC/EP-22057 was issued in favour of legal heirs of late Muhammad Saeed.
On the question of auction he held that it was held without any notice to Muhammad Saeed which was not necessary. He concluded that the auction conducted on 28-2-1974 in favour of the petitioner related to property which was never available for disposal on the date of auction which could be termed as illegal, void, ab initio and nullity in the eyes of law. Consequently the notified officer upheld the transfer of property in favour of legal heirs of Muhammad Saeed. It is as against this order that the present petition was filed with the prayers reproduced here in above.
7. Mr. Shakil Ahmed learned counsel for the petitioner has raised the following contentions:---
(i) That second C.S. Form filed by late Muhammad Saeed for transfer of the shop was not warranted by law as he did not prefer appeal from the order rejecting his first C.S. Form.
(ii) That the deceased had misdeclared before the Settlement Authorities while submitting his second C.S. Form that he was in occupation of the property.
(iii) That the cancellation of acceptance of the highest bid offered by the petitioner without a show-cause notice is illegal and nullity in the eyes of law.
8. On the other hand, Mr. Ahmed Yousuf Ali Rizvi learned counsel for the contesting respondents supported the impugned order for the reason that the same was passed after due consideration of the facts on record and the available evidence.
9. Dealing with the first contention of the learned counsel for the petitioner, it may suffice to say that though right of appeal was available to deceased Muhammad Saeed after the rejection of his first C.S. Form for the reason that there was no allotment order in his favour. The fact however remains that with the change in transfer policy in respect of evacuee properties available for disposal waiving the condition of producing an allotment order late Muhammad Saeed had acquired a valid right to apply for transfer of the property under the revised policy. It may be pertinent to observe that his first C.S. Form was rejected vide order dated 31-10-1959 whereas the Chief Settlement Commissioner by notification dated 7-10-1959 had issued the revised transfer policy thereby waiving the condition of producing an allotment order. In view of the announcement of revised policy it was neither incumbent upon late Muhammad Saeed nor necessary for him to prefer an appeal from the rejection order as the same was likely to fail for the simple reason that he could submit a fresh Form for transfer of the property on the basis of his occupation even without an allotment order in his favour. There is thus no substance in the argument advanced which is fallacious and without any merit on the face of it.
10. Adverting to the second condition, it may be observed that this point was not raised before the Settlement Authorities and more particularly before the notified officer during the proceedings in connection with the issuance of transfer order in favour of the deceased or the petitioner.
Additionally, it may be observed that there is hardly any evidence to conclude that the deceased was not in occupation of the property on the date of application for its transfer on the basis of his occupation. Learned counsel when called upon to substantiate his arguments referred to photocopy of an extract from PT-I Register maintained on the basis of Assessing Authority's order dated 30-6-1968. In this extract Muhammad Saeed is shown to be the owner of the property whereas Feroze Hosiery with Ferozuddin as its proprietor is shown to be the occupier. To my mind, the document on the face of it is neither authentic nor conclusive evidence to prove the occupation of a person other than the deceased. Besides these entries are maintained for fiscal purposes in order to collect revenue from the owner of the property. At any rate curial date of occupation in respect of immovable property would be 20-12-1958 or later as extended from time to time. Mere entry in the name of Ferozuddin in the column relating to occupier in the record maintained by the Excise and Taxation Department would not by itself be sufficient to disentitle the deceased to seek the transfer of the property on the basis of occupation. It is a matter of common knowledge that all evacuee properties were surveyed by the authorities under the Settlement and Evacuee laws and in all probability Settlement Authorities are supposed to have consulted their records while accepting C.S. Form for transfer of the property on the strength of occupation. There is thus no substance in this contention as well which must fail.
11. Reverting to the last contention raised on behalf of the petitioner, it would suffice to say that the petitioner was heard at length by three different notified officers before setting aside the auction proceedings, in his favour which did not mature by non-issuance of transfer documents in his favour. It was rightly observed by the authorities acting and the provisions of Act, 1975 that in view of pendency of the proceedings relating to transfer of the property on the basis of C.S. Form submitted by late Muhammad Saeed, the property could not be resumed and disposed of under the Settlement Scheme through a public auction. There is no denial of the fact that notwithstanding delay in the payment of transfer price on the part of the deceased, his entitlement was neither cancelled nor recalled. Thus the property continued to remain available for transfer to him notwithstanding inaction on the part of Settlement Authorities. There is no gain saying that the property was available for disposal to displaced persons within the meaning of para. 1(2) of Settlement Scheme No, VIII notified in the Gazette of Sindh, Part I, dated 16th August, 1973.
12. In the peculiar facts and circumstances of the ease in my view respondent No,1 was perfectly justified in setting aside the auction proceedings which were undertaken in a haphazard manner and without the least regard for the provisions of law dealing with the property available for disposal. Since the petitioner was heard at length in all possible manner he can have no grievance to say that he was condemned unheard. Needless to observe that no transfer document having been issued in his favour perhaps he could not claim a notice. At the most after the auction proceedings having been found to be ab initio void and nullity in the eyes of law he would only be entitled to seek refund of the auction money, if paid by him.
13. For the facts and reasons discussed above, there is no merit in this petition which must fail and is hereby dismissed with costs.