The petitioners are the legal representatives of late Syed Sadruddin, a claimant displaced person who was originally transferred a house No. DS/ 1-A/928, in earmarking scheme. Subsequently, this was cancelled as being a non-evacuee motor garage and not a house. He therefore, applied on 30-11-1959, for the transfer of another house in lieu thereof. House No. 1 /A/471 to 475 was included in the auction list maintained in the record of Settlement Office at Nawabshah, but was in actual occupation of one Haji Muhammad Hussain Memon, the son of respondent No. 7 Mst. Fatimah, and father of respondents Nos. 2 to 6. He had applied for the transfer of the same on a LH form.
Respondents Nos. 2 to 6 were also in occupation of Houses Nos. 1-A/541 to 546 and 548, and they had separately applied for the transfer of those on LH forms filed by them. These houses were respectively transferred to the applicants i.e. Occupants in possession and appendices had been issued to them respectively.
Thereafter on an application made by one Abdul Majeed son of Abdul Hameed, the Settlement and Rehabilitation Commissioner, Nawabshah (S. Z. Ahmed) after visiting the site and making an inquiry stated that Haji Muhammad Hussain Memon and his eight family members bad been transferred houses in Janipur Mohallah, Shahdadpur, but in fact Haji Muhammad Hussain was a resident of Shikarpur where he had one shop besides 7 to 8 rouses of his own. He further stated that, premises bearing Custodian No. 1-A/471 to 475 was in fact a plot with some structure on less than 1/4th portion, and its transfer to Haji Muhammad Hussain son of Abdul as a house was illegal.
He recommended that the same be cancelled. On this report the Rehabilitation Settlement Commissioner, Hyderabad and Khairpur Division, Mr. Envir Adil passed a short order on 10-5-1960, cancelled the transfer and ordered the property to be auctioned.
2. Tenements 1-A/544, 1-A/541, 1-A/542, 1-A/548, I-A/545 had been transferred to respondents 1-5 the sons of Muhammad Hussain but these were also cancelled on the ground that they being businessm en could afford to build their own houses.
3. Except Haji Muhammad Hussain Memon, all the other affected parties challenged this order of the Settlement and Rehabilitation Commissioner Envir Adil by filing a writ petition, as a consequence of which house bearing Nos. 1-A/471 to 475 became available for transfer and on 30.5-1960, the Settlement and Rehabilitation Commissioner, Hyderabad, transferred the same in favour of Syed Sadruddin the predecessor-in-interest of the petitioners, and a P. T. O. Was issued in his favour on 1-6-1960 and its transfer price was also paid up on 15-6-1960. Soon thereafter Syed Sadaruddin died and a permanent Transfer Deed was issued in favour of the petitioners, as his heirs, on 30-5-1963.
4. Haji Muhammad Hussain also died on 1-10-61. The petitioners demanded rent of the premises from respondents Nos. 2 to 6, I.e. Taj Muhammad, Shafi Muhammad, Shah Muhammad, Habibullah and Jan Muhammad and served a notice for that demand. On 12-7-1963, the respondents Nos. 2 to 5 filed a- revision petition before the Settlement Commissioner, Karachi which was transferred to the Additional District Judge and Settlement Commissioner, Sanghar, and was numbered as Revision No. 64/1964. Respondent No. 7 also made an application to get herself joined as a party to this revision. However, this revision application was dismissed by him on 8-6-1965, on the grounds that the original file of the cases was missing and it was not clear whether the applicants had approached the Additional Settlement Commissioner in the first instance. He in his order stated that the applicants except Mst. Fatimah, being the sons of Haji Muhammad Hussain had all applied for the transfer of the house to them as his legal heirs, when he died in 1961 but there was no proof that the Additional Settlement Commissioner had passed any orders against the original applicants in appeal. That he was competent to hear the revision application only against the order of the Additional Settlement Commissioner under section 19, clause (c), D. P. Act or against the order of the S. C. If he passed it in appeal. He on 8-6-1965, therefore, gave directions to the parties to first approach the D. S. C. Within a period of 15 days from the passing of the order. The respondent thereupon filed appeals before the Additional Settlement Commissioner, Hyderabad, which the latter dismissed 'by two separate orders passed on 17-7-1965 and 16-8-1965 on the grounds that appealable orders passed by the Deputy Settlement Commissioner were not produced. The respondents Nos. 2 to 6 then filed a revision application before the District Judge and Settlement Commissioner, Sanghar (Mr. Z. H. Shah Hussaini) who by a detailed order dated 16- 3-1966 allowed the same, set aside the transfer made in favour of Syed Sadruddin and others and ordered that P. T. Os. Be issued to the respondents to the extent of their shares as legal heirs of their deceased father Haji Muhammad Hussain.
5. By this order dated 16-3-1966, which is impugned in this petition, the Additional District Judge, Tharparkar and Settlement Commissioner referred to the LH form issued to late Haji Muhammad Hussain, the Appendix IX dated 15-10-1959, issued to him fixing the valuation at Rs. 5,229 the first instalment of which was paid on 24-10-1959, but which transfer order was cancelled without notice to him on the ground that he could afford to build his own house. Neither the original order nor the notice for cancellation thereof was traceable. However, the cancellation was made on the basis of Circular Memo. No. 7624 Comp -Reh./59, issued by the Chief Settlement Commissioner as dated the 26th November 1959. By this circular the locals were required to file a declaration alongwith their LH form that they had no house of their own and were not in a position to build any. He, however, pointed out that these instructions dated 26-11-1959, were subsequently withdrawn with retrospective effect and it was stated that orders issued in such cases may be reviewed by the competent authority wherever necessary, in accordancewith law, upon an application made by the aggrieved party. Haji Muhammad Hussain did make such an application which is dated 20th September 1961 and was registered as No. 23 dated 28-9-61. He had also sent such an application by registered post on 29-9-1961, to the Chief Settlement Commissioner, praying that the orders of cancellation of his LH form may either be reviewed by him or that his application may be sent to the competent subordinate officer for such action. As per record the Deputy Settlement Commissioner adjourned the hearing of this application to 12-10-1961, whereafter it remained pending without any-- decision. The original application was traceable by the A. D. J. And Settlement Commissioner as existing on the file of D. S. C. Centre No. 1 Nawabsbab. Haji Muhammad Hussain, died by the end of the year 1961, and the respondents his heirs for the first time came to know on 17-6-1963 that the house had been transferred to Syed Saeeduddin and others, when anotice demanding arrears of rent and vacant possession was sent to them. It is, in these circumstances that .The respondents challenged the transfer in favour of Syed Saeeduddin and others as illegal in view of the memo No. 3033-(4)-Reh./61, dated 27-7-1961.
As respondent No. 6, Mst. Ratmab, the mother of Haji Muhammad Hussain wanted to be joined as a party she had also made an application as stated above. The then Additional Sessions Judge and Additional Settlement Commissioner, Sangbar had directed them all to approach the Additional Settlement Commissioner, Hyderabad in the first instance. When so moved the Additional Settlement Commissioner, Hyderabad, dismissed the application on 16-8-1965, on the ground that be had no jurisdiction in view of the fact that no orders were passed by the Deputy Settlement Commissioner nor had any been filed before him. He had said that review petition before the Deputy Settlement Commissioner ought to abate for want of jurisdiction and he himself had no jurisdiction to entertain the appeal.
The Additional District Judge, and Settlement Commissioner, Tharparkar held that in view of the admitted position of the premises having been allotted to Haji Muhammad Hussain and the first instalment having been paid and there being no specific order of cancellation of this LH form of Haji Muhammad Hussain. The report made by the Assistant Settlement Commissioner Centre No. 1, Nawabshah dated 28-5-1960, that the LH form had been cancelled and the house was available for transfer which formed the basis for cancellation of the transfer made to Haji Muhammad Hussain was wrong, in view of the fact that in the first place Haji Muhammad Hussain was not personally heard and secondly that his application for review as stated above was still pending and had not been disposed of.
Mr. S. M. Raza, learned counsel for the respondents referred to the case of Abdul Jabbar Khan v.
Additional Settlement and Rehabilitation Commissioner, Hyderabad (PLD 1964 Kar. 365), where in similar circumstances his Lordship Wabeeduddin Ahmad. J. Relying upon a previously decided case Chief Settlement Commissioner v. Altaf Hussain and others has held: "In my opinion if any property is auctioned at a time when the applications of the persons claiming it are still pending the auction cannot bind the rightful claimant. If later on, on the application of such a person the auction is set aside it will not be considered to be an order passed in review jurisdiction. On the other hand it will be considered to have been passed on the appellate or revisional jurisdiction as the case may be.
PLD 1968 Kar. 669) wherein also the very filing of the LH form was initially disputed, but subsequently it was found out to be in evidence on record, it has been observed "Be that as it may, on the face of the record and on the admitted position the petitioner was entitled to the transfer of the property in dispute and since admittedly no reasons have been assigned for rejecting his LH form and since there was no other claimant for this house, he was entitled to the transfer thereof, and in that position, therefore, his claim was due for consideration and had riot been properly disposed of when the property was auctioned to respondent". His Lordship also referred to the same Lahore case and quoted the observation therefrom.
"In those cases where the Settlement Authorities failed to dispose of the application for transfer of house and transferred the property in some other manner, such orders are liable to be quashed."
The learned counsel also relied on the case of Atta Muhammad Qureshi v. The Chief Settlement Commissioner, Lahore (PLD 1971 SC 61), which also supports him as the principle laid down was that "Even if an opportunity of being heard is availed of later on, yet where an order is passed in contravention of an absolute requirement of a statute it is a nullity".
The only argument raised by the learned counsel for the petitioners in support of his petition was that the impugned order was a nullity as being without jurisdiction the same having reviewed the order of the Settlement Commissioner without obtaining prior permission to do so. According to him the P. T. O. Issued in favour of Haji Muhammad Hussain had been duly cancelled and had not been challenged. He, relied on the case of Haji Rao Muhammad Dawood Khan v. Mould Bux and others (PLD 1961 Kar. 222) wherein it had been held on an interpretation of section 11, clause 5 of the Pakistan Rehabilitation Act XLII of 1956, that "The provision of law is very clear, the Settlement Commissioner and Rehabilitation Commissioner had no jurisdiction to review the order passed by the Additional Rehabilitation Commissioner as the order in question cannot be said to have been passed by him". It was further said "it would appear that the Set--tlement Commissioner could review his own order or that of his predecessor and not that of the Additional Settlement Commissioner".
On a plain reading of the facts of this case it would be clear that the above observations do not apply to the present case. The LH form filed by deceased Haji Muhammad Hussain had been validly accepted but had not been validly cancelled. The Settlement Commissioner had merely acted on the report sent to him by the Deputy Settlement Commissioner, who had followed the report of the Assistant Settlement Commissioner. The reports were passed on a circular which had been cancelled retrospectively and had no sanctity in law. The only requirement was that the aggrieved person had to make an application for review which in the present case had been made not only to the Deputy Settlement Commissioner but also to the Chief Settlement Commissioner.
These facts were found to exist on the record. The orders transferring the property to the petitioner by any manner without giving him an opportunity of hearing were therefore, obviously void ab initio. It is an unquestioned position of law that an order which is void ab inltio as stated above and is a nullity does not require to be set aside in appeal or in any other proceedings. The impugned order is passed by the Additional District Judge, Tharparkar, and Settlement Commissioner, Sanghar in revision who in assuming the jurisdiction in the matter stated "since the Deputy Settlement Commissioner had failed to pass any orders for a sufficiently long time, it amounted to refusal of the application and the Additional Sessions Judge and Settlement Commissioner, Sanghar was right to direct the applicant to move the Additional Settlement Commissioner in the first instance. It is not correct for the Additional Settlement Commissioner to say that be had no jurisdiction as no orders of D. S. C. Have been produced before him".
The facts of the case are crystal clear and show that without disposing of the application of deceased Haji Muhammad Hussain, the property to which he was entitled under the law had been transferred by an order which was a nullity in law, and I have, therefore, no hesitation in dismissing this petition but with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.