In this Constitutional petition legality of order, dated 28-2-1979 passed by the Settlement Commissioner, Rawalpindi Division Rawalpindi on the miscellaneous application filed by respondents, Nos.2 to 4, has been challenged.
2. Nobody has appeared on behalf of respondents Nos.5 and 6. Learned counsel for petitioner submits that they were not impleaded as pro forma respondents but neither at the time of filing of this writ petition nor at present they have been left with any interest in the property, therefore, they may be deleted as parties. Order accordingly.
3. The dispute relates to an evacuee property House No,D/193. It was in possession of Mst. Bego deceased widow of Ghulam Muhammad. She filed C.H. Form under Settlement Scheme No,I seeking transfer of this house. On 8-10-1959 the Deputy Settlement Commissioner considering that she was entitled to the transfer of the said house issued Appendix-X intimating her that it had been decided to transfer the said house to her at the price of Rs, 11,720. She got an amount of Rs,6,634 out of this amount adjusted from her compensation book and balance amount of Rs,5,086 was payable by her. She was issued P.T.O. on 18-11-1959.
4. She did not pay the said balance amount till the promulgation of Settlement Scheme No,VIII in 1966. Under Chapter-II of this Scheme it was provided that any transferee from whom any amount was payable as price of the property transferred to him may be issued notice for payment of the said amount and in case of his failure to do so the Deputy Settlement Commissioner was empowered to cancel the transfer in his favour of the property resume the same which would become undisposed of evacuee property available for disposal as provided in the said Scheme.
On 17-11-1967 this property was shown in the list of those properties which were to be auctioned as undisposed of/available evacuee properties. The said transferee made an application on 27-8- 1970 for the deletion of this property from the said list before the Additional Settlement Commissioner who called report from the Deputy Settlement Commissioner and passed order for maintenance of status quo.
5. On 28-8-1970 an officer of the office of the Deputy Settlement Commissioner made a note that an amount of Rs,5,086 was recoverable from Mst. Bego the transferee towards the transfer price, therefore, the property had already been resumed by the Deputy Settlement Commissioner through order, dated 27-11-1967. When this note came up for consideration before the Deputy Settlement Commissioner he passed order on the same date i,e,, 28-8-1970 that in this case order for maintenance of status quo had already been issued by the Additional Settlement Commissioner, therefore, this property may be deleted for the time being from the said list and report submitted to the Additional Settlement Commissioner.
6. In the year 1971 Mst. Bego the transferee died. With effect from 1-7-1974 the Evacuee Laws were repealed through an Ordinance which was subsequently replaced by an Act. On 16-8-1975 an application was made by Bushra Bibi and Sardaran Bibi who were daughters-in-law of Mst. Bego transferee for substitution of their names for Mst. Bego as transferee being her heirs. The Deputy Settlement Commissioner passed an order for substitution of their names as heirs of Mst. Bego who later on through an association deed surrendered their ownership rights in the property as transferees in favour of Mst. Khurshid Begum, respondent No,5. This association deed was accepted and payment of the said balance transfer price made and P.T.D. issued on 27-4-1976 in favour of respondent No,5. The present petitioner through registered sale-deed purchased the property from Mst. Khurshid Begum.
7. Earlier to this, however, in 1973 this property had been included in the tender list issued by the Settlement Department on 1-2-1973 for disposal thereof on negotiation basis being undisposed of and unattracted evacuee property. Respondents Nos...2 to 4 offered the highest bids for this house and some other properties. The Deputy Settlement Commissioner and the Additional Settlement Commissioner accepted the offers in respect of those properties about which they were empowered to do so and passed orders in favour of the petitioners but since about the property in dispute it was the Settlement Commissioner who was empowered to pass order for acceptance or otherwise of the bid, therefore, the case was put up before him but he did not pass any order either for acceptance or rejection of the offer made by respondents Nos.2 to 4. The said respondents filed a civil suit against the Settlement Commissioner on 1-12-1973 in which the Civil Court passed an order for maintenance of status quo which was communicated to the Settlement Commissioner, Rawalpindi Division Rawalpindi. The Civil Court, however, held that it was not vested with the jurisdiction in the matter and dismissed the suit on which respondents Nos.2 to 4 filed Writ Petition No,624/R of 1976 in this Court. The record of the said writ petition has been put up alongwith this case and is available. It has been examined with the assistance of learned counsel for the parties.
On 14-6-1976 respondent No,2 who is an Advocate appeared in the said Constitutional petition in which the following order was passed:--- "According to the report the bid offered by the petitioner has not so far been accepted or rejected.
The concerned Settlement Commissioner is directed to consider the bid and pass an order one way or the other in accordance with law within a month. The case to come up on the 15th of July, 1976."
8. The order passed in the said writ petition subsequently on 15-7-1976 shows that compliance was not made with the said direction as no order upto the said date had been passed by the Settlement Commissioner though the period of one month given to him had expired. On subsequent dates the case continued to be adjourned for one reason or the other. In the meantime, however, the Settlement Commissioner took up the case for considering the case of this property as regards acceptance or rejection of the offer made by respondents Nos.2 to 4 and passed the following order on 10-9-1976:--- "Offers in respect of the above shall also be deemed to have been approved in case they do not stand disposed of before, 5-8-1976. Petitioners be informed of the above orders".
The said writ petition was fixed on 11-4-1978, therefore, respondent No,2 made statement in view of this order which according to him had the effect of acceptance of the highest offer of the said respondents regarding property in dispute, that the same had borne fruit and he did not want to press the same, therefore, it was disposed of as having become infructuous.
9. In order to get the said order, dated 10-9-1976 of Settlement Commissioner implemented respondents Nos.2 to 4 made Miscellaneous application to the Deputy Settlement Commissioner praying that the highest bid of the said respondents having been accepted regarding this property, therefore, documents of transfer should be issued to them. That Deputy Settlement Commissioner through order, dated 18-4-1978 rejected the said application by holding that the acceptance by the Settlement Commissioner of the bid of the petitioner through order, dated 10-9- 1976 was subject to the condition that the property had not already been disposed of. He held that since the same had already been transferred to Mst. Khurshid Begum, respondent No,5, on 27-4- 1976 therefore, the said acceptance was not operative, as such, he through order, dated 18-4-1978 disposed of the said application in the said terms with the observation that the said respondents should seek legal remedy available to them under the law. Respondents Nos.2 to 4 against this order made a miscellaneous application before the Settlement Commissioner, Rawalpindi Division, Rawalpindi which was taken up by him for consideration with reference to the aforementioned Writ Petition No,624/R of 1976 filed by respondents Nos.2 to 4 treating the same as a case remanded to him in the said writ petition in order to assume jurisdiction as a pending case under the repealing laws as notified officer. He held that transfer in favour of Mst. Bego of the house in dispute had already been cancelled on 27-11-1967 on account of non-payment of balance amount of Rs,5,086 of the price of the house, therefore, subsequent orders passed by the Deputy Settlement Commissioner for substituting the names of her heirs as transferees and their act of surrendering their ownership rights in the property in favour of Mst. Khurshid Begum and transfer of property in her name on 27-4-1976 were of no avail. The said misc. application of respondents Nos.2 to 4 was accepted by him through order, dated 28-2-1979 and the Deputy Settlement Commissioner was directed to put up the case of this property for considering it for acceptance of their bid for transfer of the said property.
10. The legality of this order has been called in question in this constitutional petition by the petitioner who is the purchaser through registered sale-deed of the property in dispute -from Mst.
Khurshid Begum.
11. In the written statement filed by the Settlement Commissioner and also by respondents Nos.2 to 4 a common ground has been urged to oppose this petition that on account of Mst. Bego having not paid balance amount of Rs,5,086 of the transfer price, transfer of the property in her name was cancelled by the Deputy Settlement Commissioner on 27-11-1967 as a consequence thereof the property had continuously been included in the list of undisputed of available evacuee properties for auction, therefore, the order of the Addition; Settlement Commissioner on the misc. application of Mst. Bego passed in 1970 for provisional deletion of the property from the said list by interim order did not have the legal consequence of withdrawal or setting aside of the order of cancellation and resumption of property, dated 2711-1967, as such, subsequent orders passed by the Deputy Settlement Commissioner for substitution of names of heirs of Mst. Bego assuming that she was still the transferee did not create ownership rights in their favour and they could not be treated as transferees and further act of surrendering by them their rights to Mst. Khurshid Begum and sale of the same by her in favour of the present petitioner were of no legal effect.
12.Neither with the written statement of respondent No,1 nor respondents Nos. 2 to 4 copy of order, dated 27-11-1967 has been appended. It is in the report submitted by an officer of the Deputy Settlement Commissioner on 28-8-1970 that a mention was made that the property stood cancelled from the name of Mst. Bego by Deputy Settlement Commissioner's, order dated 27-11- 1967. The fact that property was included in the list of those properties which were undisposed of available evacuee properties for auction and subsequently its inclusion in the tender list issued on 1-2-1973 for disposal on negotiation basis furnishes prima facie strong circumstantial evidence that an order for cancellation of transfer of the same from the name of Mst. Bego under the Settlement Scheme No,VIII, must have been passed therefore, I would proceed to decide the case on that assumption and consider whether in consequence of the said order heirs of Mst. Bego could not be substituted for her as transferees of the property as the decision of the questions raised in this Constitutional petition centres around the decision of this main question.
13.In Settlement Scheme No,VIII an amendment was made on 15-12-1966 through which para 3-A was added providing that in the case of cancellation of transfer of property on account of default of the transferee as regards payment of transfer price and resumption of the same, the said order would be served on the defaulting transferee. If the transferee would make payment of the balance price within 30 days the cancellation of property and resumption order would be of no effect. By another amendment subsequently made in 1977 the appellate authority was empowered to allow the defaulting transferee in such a case to deposit the price within 60 days. From the provisions of para. 3-A added in Settlement Scheme No,VIII on 15-12-1966 before the order for cancellation of transfer of property was made on 27-11-1967 it is abundantly clear that the order for cancellation of the transfer of property in favour of transferee was not treated as final or effective till the same was served upon the transferee and the transferee was entitled to avoid the legal effect of the said order and render the same ineffective by making payment of the price within 30 days.
14.Respondent No,2 today has placed on record copy of a notice issued to Mst. Bego on 18-7-1967 calling upon her to make payment of balance amount of Rs,5,086 as price which was delivered to her personally on 27-7-1967 as her thumb-impression in acknowledgement of the receipt of the said notice is present on the reverse of the same though under her thumb impression the date mentioned is 27-7-1967 whereas under the note of the Process Server that the same had been delivered to Mst. Bego he has put 25-7-1967 as the date though the report of the Process Server of the delivery of notice to the addressee could not precede the date of service. Nothing turns on this as I shall assume that the said notice was received by Mst. Bego. It has neither been pleaded in the written statement by respondent No,1 nor by respondents Nos.2 to 4 that compliance of the mandatory provisions of para. 3-A by serving the order of the Deputy Settlement Commissioner regarding cancellation of transfer of the property from the name of Mst. Bego and of resumption of property was served upon her and she was given 30 days to deposit the amount in order to avoid the legal consequence of the said order. It can safely be concluded that the said order was not served upon Mst. Bego, therefore, she remained entitled to maintain the transfer of property in her favour till the service of the said order upon her and availing of 30 days to make payment of the balance price, as such, the order, dated 27-11-1967 or 24-11-1967 regarding cancellation of transfer of property from her name and resumption 'of the same remained ineffective and did not become final or operative in order to justify the inclusion of this property in the list of those properties which were undisposed of and available for disposal under the Settlement Scheme No,VIII or in the tender list as unattracted property as the same legally never became undisposed of property available for disposal under the said Scheme or any other Scheme. The period of 30 days during which Mst.
Bego was entitled under the law to deposit the balance amount did not start on account of non- compliance of the law as regards service of order of cancellation of property from her name.
15.It has been held in the judgment reported as E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) that if doing of a particular thing is made lawful doing of something in conflict of that will be unlawful. It has also been held in the case reported as Malik Abdul Aziz v. West Pakistan Publishing Company (Pvt.) Ltd. (PLD 1965 (W.P.) Lahore 82) that where a power is given to do a certain thing in a certain way the thing must be done in that way and other methods of performance are necessarily forbidden. The compliance of the provisions of para. 3-A in Settlement Scheme No,VIII was necessary in order to deprive Mst. Bego and her heirs after her death of the ownership rights in the property as transferees, therefore, non issuance and service of order of cancellation of property from the name of Mst. Bego had rendered the said order itself and subsequent orders for inclusion of the property in the list of auction and tender list are void being superstructure raised on the void and ineffective orders and based on erroneous assumption as if the property had become available under the law.
16.Apart from what has been discussed hereinbefore it may significantly be mentioned here that the Settlement Commissioner while passing the impugned order, dated 28-2-1979 erroneously treated the case pending before him on account of remand made by this Court in Writ Petition No,624/R of 1976. As I have already mentioned above in the said writ petition no order for remanding the case to the Settlement Commissioner as such was passed. It was only in one of the interim orders, dated 14-6-1976 that the Settlement Commissioner was directed to consider the bid of the petitioner and pass order one way or the other in accordance with law within a month.
Subsequently when the Settlement Commissioner passed order on 10-9-1976 for treating the bid of the petitioner as accepted on the condition if the property had not already been disposed of that the said interim order stood complied with and the said writ petition was disposed of as having become infructuous through order, dated 11-4-1978.
17. After the repeal of Settlement Laws no Officer under the Repealing Act was vested with the power to deal with any case unless it was a pending case as defined in the said Act. Any case remanded by this Court for disposal was also to be treated as a pending case but in this case in Writ Petition No,624/R of 1976 as noted above no remand was made as such, whereas according to the final order the writ petition was disposed of as having become infructuous as respondents Nos.2 to 4 felt satisfied with the order, dated 10-9-1976 passed by the Settlement Commissioner, therefore, the Settlement Commissioner, Rawalpindi Division, Rawalpindi was not vested with the jurisdiction to pass any order in the case, as such, order, dated 28-2-1979 impugned in this Constitutional petition is without jurisdiction on this ground also.
18.The Deputy Settlement Commissioner for the foregoing reasons was vested with the jurisdiction to substitute the heirs of Mst. Bego as transferees, for, as discussed above the order for cancellation of transfer of property from the name of Mst. Bego had not become effective and attained finality and was of no legal efficacy. Mst. Bego had throughout been the transferee of the property for the purpose of further proceedings till such time order for cancellation of property from her name was served upon her or her heirs in the manner provided in para. 3-A of Settlement Scheme No,VIII and they had failed, thereafter, to deposit the balance amount within 30 days. They had the right to deposit the said amount within a further period of 60 days if permitted by the Additional Settlement Commissioner to which officer they could approach. This being so the surrender of their rights in the property in favour of Mst. Khurshid Begum and transfer of the same in her name on the deposit of the balance amount was perfectly valid, for, the period of 30 days as envisaged by para. 3-A of Settlement Scheme No,VIII had not expired on account of failure of the department to serve order of cancellation of property from the name of Mst. Bego on her, as such, sale of the property by Mst. Khurshid Begum the transferee in favour of the present petitioner was not open to any legal objection, as such, the property stood already disposed of validly before the order, dated 10-9-1976 was passed by the Settlement Commissioner, as such, as per terms of the same the offer of respondents Nos.2 to 4 for property in dispute as highest bidders shall be deemed to have never been accepted and rightly so held by the Deputy Settlement Commissioner in his order, dated 18-4-1978 through which the application of respondents Nos. 2 to 4 was rejected.
19. For the foregoing reasons this writ petition is accepted. Order, dated 28-2-1979 passed by the Settlement Commissioner, Rawalpindi Division Rawalpindi, is hereby declared to have been passed without lawful authority, jurisdiction and of no legal effect and is hereby quashed. The parties are left to bear their own costs.