' The dispute relates to property bearing No, SE-38-R-140, situated outside Shah Alam Gate, Circular Road, Lahore. It was transferred to the appellant by the Deputy Settlement Commissioner concerned on 10-11-1959 treating the property to be evacuee. This order was challenged in appeal by the respondent before the learned Additional Settlement Commissioner, who disposed of the same by his order dated 14-10-1964 setting aside the transfer order and remanding the case to the Deputy Settlement Commissioner for fresh decision after hearing the parties with a further direction that if the property was found to be evacuee trust property after proper inquiry and probe t en the P. T. D. Issued in favour of the appellant might be cancelled.
' It may be mentioned that the P. T. D. Was issued in favour of the appellant during the pendency of appeal in January, 1964.
2. The appellant having felt aggrieved against the order of the Additional Settlement Commissioner challenged the same in revision before the learned Settlement Commissioner, who rejected the same. Ultimately a reference (No, P. 2457-Pol/67) was made by the Deputy Settlement Commissioner to the learned Chief Settlement Commissioner under the relevant provision of law for the purpose of deciding the nature of the property. The matter as such was disposed of by the learned Chief Settlement Commissioner under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by his order dated 19-9-1968, holding the property to be evacuee trust property and further holding that the property as such could not be transferred as evacuee property in favour of the appellant. As mentioned above, it had been directed by the learned Additional Settlement Commissioner that if the property was ultimately found to be evacuee trust property then the P. T. D. Issued in favour of the appellant was liable to be cancelled.
The fact however, remains that no such formal order was passed by any competent Settlement authority even after the order of the learned Chief Settlement Commissioner was passed in September, 1968.
3. Thereafter Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) was promulgated on 25-1-1975 providing for the disposal of evacuee trust properties in the country.
Section 10 of the Act with regard to validation of certain transfers provides, that immovable evacuee trust properties situated in urban area if utilized bona fide under any Act for transfer against the satisfaction of verified claims in respect of which P. T. Ds. Were issued period to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner and the sale proceeds thereof shall be reimbursed to the Evacuee Trust Property Board constituted under section 3 of the Act and shall form part of the Trust Pool. Subsection (2) of the said section further provides that if any question arises as to whether a transaction referred to in subsection (1) is bona fide or not. It shall be decided by the Chairman of the Evacuee Trust Property Board whose decision shall be final and shall not be called in question in any Court.
' The question which now requires consideration is as to what is the effect of the order dated 14-10- 1964, passed by the learned Additional Settlement Commissioner, and the order dated 19-9-1968, passed by the learned Chief Settlement Commissioner ; whether in view of the said orders P. T. D.
Issued in favour of the appellant stood automatically cancelled and the appellant ceased to be transferee of the property in question. It has been vehemently argued by the learned counsel for the respondent while relying upon the order of the Additional Settlement Commissioner that after the transfer or der passed by the Deputy Settlement Commissioner in favour of the appellant was set aside the P. T. D. Issued on the basis thereof automatically stood cancelled and remained no more effective. He has argued that the observation made by the learned Additional Settlement Commissioner, while remanding the case to the Deputy Settlement Commissioner, to the effect that if the property in question was found to be evacuee trust property after due inquiry and probe then P. T. D. Might be cancelled has no bearing upon the merits of the case, so far as the cancellation of the P. T. D. Is concerned, which according to him did not remain intact after the transfer order was set aside. He has also referred to various provisions of the Permanent Transfer Rules, particularly rules 2 and 3 thereof, in order to show that P. T. D. Cannot be issued in favour of a party unless the matter with regard to transfer of the property is finally decided and the same can be issued after the final order has been passed and the provisional transferee has paid all the dues. According to the learned counsel, since the P. T_ D in question was issued during the pendency of the appeal before the learned Additional Settlement Commissioner therefore, the said document being otherwise illegal cannot be made basis for the ejectment proceedings against the respondents.
5. A careful examination of the order passed by the learned Additional Settlement Commissioner reveals that the same was conditional and it was not held therein that the property in question was evacuee trust property. It was left to the Deputy Settlement Commissioner to hold inquiry and probe and decide the nature of the property ; and if it was found to be evauee trust property then P. T. D. Might be cancelled. Since there was disp ate with regard to nature of the property, therefore, the matter was liable to be decided by the Chief Settlement Commissioner under section 4 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, being the only competent authority in this behalf. If the transfer order in favour of the appellant had been set aside without there being any condition then the situation might have been different, which however is not the position in the present case. The Additional Settlement Commissioner himself being not sure with regard to the character of the property the matter was sought to be further inquired into. It is clear from the order itself that until the character of the property was finally decided the P. T. D. Was not liable to be cancelled.
' There is no doubt that the matter was finally decided by the learned Chief Settlement Commissioner in September, 1968 but the fact remains that no formal order had been passed for the cancellation of the P. T. D. And even if any such order had been passed it would not have any effect in view of the provision as contained in section 10 (b) of Act XIII of 1975, providing that any property in respect of which P. T. D. Had been issued prior to June, 1968, shall he deemed to have been validly transferred. Section 31 of the Act provides that the provisions of the Act or any rule, scheme or order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of such law ; meaning thereby that the provisions of Act XIII of 197.5 would prevail and be effective even against inconsistent provisions as contained in any other law for the time being in force. Section 32 of the Act further provides that anything done, action taken or order passed under the provision of either Act immediately before the commencement of this Act shall be deemed to have been done, taken or passed under this Act and shall have effect accordingly.
6. It means that even if the P. T. D. Issued in favour of the appellant had been cancelled in compliance with the order passed by the Chief Settlement Commissioner in September, 1968, the same would not be deemed to have any effect in view of the provision of section 10 (b) of the Act, as referred to above. The said provision aims at validating the P. T. Ds. Issued prior to June, 1968, irrespective of the fact whether they were cancelled thereafter for one reason or the other ; provided the evacuee trust property was bona fide transferred againt the satisfaction of verified claim. In the present case P. T. D. Was admittedly issued in January, 1964. In view of the provision as referred to above the evacuee trust property in relation to which it was issued stands validly transferred in favour of the appellant.
7. The determination of the question whether the P. T. D. Issued in favour of the appellant in violation of rules 2 and 3 of the Permanent Transfer Rules is valid or not is beyond the jurisdiction of the learned Controller and similarly of all the higher Courts deciding the matter under West Pakistan Urban Rent Restriction Ordinance. This view has been taken by me in Hablbullah v. Mahmud Ahmad Khan (1). The Rent Controller is only empowered to see to Provisional Transfer Order or the Permanent Transfer Deed/Order as the case may be, issued in favour of a particular party. Even if it is inconsistent with the order proposing transfer its rectification, if any, can be made by the competent Settlement authority and thereafter at some other higher forum. The Rent Controller in such a case cannot rely upon any other order, except the P. T. 0 or P. T. D , issued in favour of a person. It ho ever does not mean that if a party contesting the ejectment application urges before the learned Controller that the P. T.
0. Or P. T. D., as the case may be, having been cencelled, the same is no more effective and as such the petitioner in an ejectment application being no more transferee of the
(1) PLD 1973 Note 109 at p. 165 property cannot file the said application, the Controller will have no jurisdiction to decide such matter. According to law he will be obliged to decide as to whether the P. T. O or P. T. D. Stands cancelled or not and determine the fate of the ejectment application accordingly. He however cannot examine the validity or otherwise of any such Transfer Order which is the exclusive jurisdiction of the competent Settlement authority.
8. The view expressed above gains strength from Rahim Bakhsh v. Ch. Ahmad Bakhsh (1). Mehdi Hassan v. Ghulam Muhammad etc. (2), Ghulam Rasool v. Ch. Din Muhammad (3) and All Muhammad v. Makhdoom Sirajul Haq Qureshi (4). It was held in 1964 SC that a P. T.
0. Holder was competent to file ejectment application against the occupant of the property under the law if he failed to comply with the notice issued under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. According to the said judgment the P. T.
0. So issued in favour of a particular person must have its full force and occupant of the property becomes a statutory tenant under the P. T.
0. Holder. According to 1961 Lab. Statutory relationship of landlord and tenant comes into being between the transferee and occupant of property on issue of P. T.
0. And under the law transferee is not required to lead any other evidence, except the production of the transfer order to establish such relationship. This view has also been taken in Akhtar Ali Pervaiz v. Altalur Rehman (5) wherein it has been held that by transfer of the property under the Settlement Law the tenancy is created between the transferee and the occupant by the operation of the Statute.
' The view taken in 1964 Lah was followed in 1967 Lah. Holding, that question with regard to validity or otherwise of the transfer order cannot be canvassed before the Rent Controller who is a tribunal of limited jurisdiction. The question with regard to the property being trust property and as such not liable to be transferred as evacuee property can only be entertained by the Chief Settlement Commissioner under section 4 (3) of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958. According to the facts of the case reported in PLD 1967 Lab. The appellant in that case moved the Settlement Commissioner for declaration under section 4 (3) of the said Act to the effect that the swop in question was a trust property but his application was dismissed. It was held that such order, unless set aside by the competent Court was binding and the Controller had no jurisdiction to go behind that.
9. In 1975 SCMR the petitioner before the Supreme Court entered into an agreement of association with one Abdul Ghafoor with regard to property bearing No, P-88, situated in Ward No, 7, Montgomery Bazar, Lyallpur, for the purpose of getting the property permanently transferred on payment of Rs, 14,000. However, on information supplied by the respondent before the Supreme Court the P. T.
0. Was cancelled and property was transferred to the informant. Abdul Ghafoor challenged the said order, but he failed in his efforts to get any relief up to the Supreme Court. After the writ petition of Abdul Ghafoor was dismissed by the High Court the respondent in the case was issued P. T. D. By the Settlement authority concerned, who issued notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act to the petitioner which was duly received by him.
Since the requirement of the notice was not complied with, therefore, ejectment application was filed which was accepted by the Controller.
(1) PLD 1964 SC 189 (2) PLD 1964 Lab. 649
(3) PLD 1967 Lab. 665 (4) 1975 SCMR 33
(5) PLD 1963 Lah. 390 ' However, the order passed in this behalf was not upheld up to the level of the High Court.
Consequently the respondent filed a suit for possession of the house against the respondent as well for recovery of Rs, 14,000 as mesne profits. The suit was decreed and the judgment and decree passed in favour of the respondent was upheld to the level of the High Court. Special Leave to Appeal was sought against the said judgment and decree of the High Court but the leave was refused by the Supreme Court on the ground that the transfer order passed in favour of the respondent had become final as the same had not been set aside on the Settlement side up to the level of the High Court and as such the respondent being transferee/owner of the property was competent to file the suit.
10. Even the very language of section 30 of Compensation and Rehabilitations Act shows that on the basis of the transfer order passed by the Settlement authority concerned transferee of the property becomes landlord and occupant thereof tenant by operation of law. The point as to whether any such- order should have been passed in favour of the transferee such question can only be gone into by the competent Settlement authority under the relevant provisions of the Act and not by the Controller who cannot go behind the order passed by such authorities. In the present case it has been held by the learned lower appellate Court that since the transfer in favour of the appellant is not bona fide, or in other words the property in question has not been utilized bona fide under the Act for transfer purpose, therefore, the P. T.
0. Issued in favour of the appellant being invalid cannot be effective.
I am afraid, this finding in view of the discussion made above cannot be maintained. The special enactment i. e., Evacuee Trust Properties (Management and Disposal) Act, 1975 lays down in section 10 thereof that if any cities on arises-whether transfer of a trust property under section 10 (1) of the Act is bona fide or not the same shall be decided by the Chairman of the Evacuee Trust Board whose decision shall be final. The Controller or any other authority has not been given any jurisdiction to go into the question of bona fide of such transaction. A special forum has been provided for that purpose by Legislature and such question, therefore, can only be agitated there.
Since the P. T. a in the present case was never cancelled, and even if cancelled such order being ineffective under section 10 of Act XIII of 1975, therefore, the same cannot be but treated as a valid document conferring right of ownership with regard to the property unless set aside by the competent authority as contemplated by the Act itself. The impugned order passed by the learned Additional District Judge, therefore, is not maintainable.
11. It may be mentioned at this stage that the learned Chief Settlement Commissioner issued certain instructions as contained in Memo. No, 406-Sett. C. S. & R. C./61 dated 9-9-1961, to various Settlement authorities laying down the procedure as to how the provisional transfer orders with regard to properties, which were later on found to be trust properties, might be cancelled under sections 21 and 22 of Compensation and Rehabilitation Act. It was stressed upon the Deputy Settlement Commissioners and other Settlement authorities concerned that orders with regard to such properties might be passed after hearing the parties. In the present case this procedure was followed by the Deputy Settlement Commissioner after the case was remanded to him by the Additional Settlement Commissioner and consequently he made a reference to the learned Chief Settlement Commissioner to pass necessary orders in this behalf who was competent to do so under section 4 (3) of the Act.
' It is argued by the learned counsel for the respondents that the said instructions having no force of law are not liable to be complied with and the effect of the order passed by the learned Chief Settlement Commissioner holding the property in question to be trust property was cancellation of the P. T. D. Issued in favour of the appellant. I have already dealt with this aspect of the case above.
' The validity cry otherwise of the instructions issued by the Chief Settlement Commissioner apart, the fact remains that according to section 10 of Act XIII of 1975 any evacuee trust property in respect of which P. T. D. Had been issued prior to June, 1968, is deemed to have been validly transferred. In the present case, as mentioned above, P. T. D. Was issued in favour of the C appellant in January, 1964 and under the said provision of law it stands validly transferred in his favour. The question whether it was transferred bona fide or not is beyond the jurisdiction of the Controller to the dealt with.
12. According to the appellant, as alleged in para. 4 of his ejectment application, the respondents have failed to pay rent since 31-1-1964, when the P. T. D was issued, and even thereafter when notice under section 30 was served upon them. They have totally denied the relationship of landlord and tenant in their written statement jointly filed before the learned Controller. They have stated that since the property being evacuee trust property has been illegally transferred in favour of the appellant, therefore, he is not entitled to payment of rent. The above discussion would show that the property stands validly transferred in favour of the appellant and in spite of the intimation duly conveyed to the respondents they have failed to pay rent thereof. In view of the fact that they have denied the title of the appellant it would be futile to give them any opportunity to show whether they have paid the rent or not They cannot be allowed to blow hot and cold in the same breath. Their written statement also shows that they have not pail the rent after the notice was served upon them.
13. In the circumstances the impugned order passed by the learned Additional District Judge is hereby set aside, the appeal is accepted with costs and the order passed by the learned Rent Controller is hereby upheld. The respondents would hand over the vacant possession of the property to the appellant within a period of one month.