Mrs. G.C. Nelson and 3 others; petitioners herein, are successors-in-interest of Mr. G.C. Nelson who died in the year 1960. The dispute relates to the demarcation of the Property House Nos. 4443-A and 4474, situated in Gawalmandi, Rawalpindi. House No.4443/A was transferred in favour of Mr. G.C. Nelson in the year 1948 on his LH---Form on the basis of possession. P.T.O. And PTD were issued in his favour on 8-11-1961 and 18-3-1967, respectively. The petitioners paid entire price of the property.
2. Mst. Sabiha Seemeen Basharat Alvi, respondent No. 1 purchased. House No. 4474, situated in the same area at Gawalmandi Cantt. In open auction on 4-5-1965: PTD was issued in her favour on 27- 6-1966. The location and the demarcation of the two properties, mentioned above, is the subject-- -matter of the present litigation between the parties. Respondent No. 1 Mst. Sabiha Seemeen Basharat Alvi claims that the property in possession of Mrs. G.C. Nelson is in fact Property No.4474 which her predecessor-in-interest purchased through open auction, whereas the case of the present petitioner is that Property No.4443-A is an independent house and was transferred to Mr. G.C. Nelson on the basis of his possession and the respondent since could not locate her property, she is laying her claim on the property of the petitioner without any basis.
3. In the first round of litigation the Deputy Settlement Commissioner before the repeal of the Act demarcated the Property No.4474 of the respondent and recorded the finding that the two properties were owned by some evacuee owner namely Sahib Singh but the same are distinct and separate properties having no nexus with each other. The appeal of the respondent was accepted by the Settlement Commissioner, Rawalpindi vide his order, dated 18-4-1974 and the case was remanded. Thereafter the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) was repealed through Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). The matter was remanded by the High Court to the Notified Officer on 19-4-1989. The High Court observed as follows:-- "Strangely enough; that the order of the Deputy Settlement Commissioner is obviously in violation of-the order of remand and in violation of the respective entitlement of the parties. The respective entitlement of the parties were not in dispute. There is no quarrel with the fact that House No.4443- A was transferred to the petitioners on the basis of their possession, that petitioners had paid price and PTD has been issued while Mst. Sabiha had purchased House No. 4447 through open auction.
The question calling for the examination was to locate the properties of both the parties. The Deputy Settlement Commissioner was required to first locate the house transferred to Mrs. G.C.
Nelson on the basis of her possession starting from a very old time. The number of the property was not material. The confusion actually has arisen because of lack of particulars in the PTD given by the Settlement Authorities to Mrs. G.C. Nelson. This doubt could have been only resolved by examination of the circumstances of possession. Similarly it was a duty of the Deputy Settlement Commissioner to locate the property transferred to the respondents with reference to Survey Register. The Deputy Settlement Commissioner had not done the job. If the authority had failed to take note of relevant facts into consideration and passed an order in disregard of it, the order passed is definitely an order passed without authority. This principle has been enunciated in Siraj Din and others v. Amanullah Qureshi and another (PLD 1980 SC 1)
Following the aforesaid principle, I have come to the conclusion that the order of the Deputy Settlement Commissioner is obviously based upon consideration which were totally alien to the resolution of the controversy and has, therefore, passed an order on the basis of facts which did not exist. Therefore, I accept this petition, declare the order of the Deputy Settlement Commissioner to have been passed without any lawful authority and is of no legal effect. I accordingly remand the case to the Notified Officer who shall decide the case afresh in the light of observation made by me after hearing both the parties."
4. In post-remand proceedings the Notified Officer made an exercise of demarcating the property and through the impugned order, dated 11-7-1996 held that the property marked as 4474 on the survey map of the Cantonment Board bearing Survey Number 119 was in fact allotted to the respondent Mst. Sabiha Seemeen Basharat Alvi and this is the property presently occupied by the petitioner Mr. G.C. Nelson. The Property No. 4443-A which was allotted to Mr. G.C. Nelson forms part of properties numbers 4443, 4443-A to C. The present number which is being used for the properties 4443, 4443-A to C at site is 4443 only." For recording the above-stated finding the Notified Officer has recorded the following reasons:--
(i) Copy of the Survey Map showing House No.4474, Rawalpindi Cantt. Of the year 1956-57, 1961-62 and location of H. No.4474, Rawalpindi.
(ii) Copies of extract from General Land Register (GLR) of Rawalpindi Cantonment Board vide which the extract of House No.4474 gives the following details:--
(a) Said house is located and it bears Survey No.201/320/119 and the total area of this house is 1221- 9 sq. Ft. It is an independent single house and the ownership was duly mutated in the name of the respondent.
(i.e) That House No.4443/A is not an independent nor a single house rather it forms of four houses jumbled together i.e. 4443, 4443-A 4443-B and 4443-C, the area of these houses is 1512 sq. Ft.
(iv) That the allotment of the petitioner pertains to H. No.4443-A which is an upper storey as shown in Settlement Department file. LH Form submitted by the petitioners does not give any detail of the area of the house.
(v) According to assessm ent, the petitioner paid the price to the tune of Rs.2,465 only, where the assess of the House No.4474 done by the department shows that the respondent has paid Rs.9,400 as total price and PTD was issued on 21-7-1966. The petitioner is fraudulently trying to lay claim on much bigger house of the value of Rs.9,400 whereas he is entitled to a smaller house as he has deposited only Rs.2,400 as transfer fee.
(vi) That the PTD issued to the respondent is of 21-7-1966 whereas the PTD issued to the petitioner is of 18-3-1967.
(vii) Certified copies of plan duly approved and passed by the Cantonment Board Authorities. The entries of which clearly state that the site plan tallies with the construction at site.
5. Learned counsel for the petitioners contends that the reasons advanced by the Notified Officer are not supported by the evidence on record. He referred to para. No.4(c) of the order of the Notified Officer vide which he has observed:-- "(c) That the allotment of the petitioner pertains to H. No.4443-A which is an upper storey as shown in Settlement Department file. LH Form submitted by the petitioners does not give any detail of the area of the house: "
This observation of the Notified Officer is in direct conflict with the contents of the document of the Survey Register of the Property No-4443-A. In Column No.2 of Form No.24, Survey List of Rent of Urban properties, Property No.4443-A has been mentioned and evacuee owner 'Sahib Singh son of Mauta Singh" has been shown in Column No.3, but in Column No.4 it has been mentioned:-- Further the Notified Officer has taken into consideration the survey record of the Rawalpindi Cantonment for the year 1956-57, 1961-62 for tracing the present location of House No.4474. This could not have been done because the property which was transferred to the Compensation Pool was on the basis of the Survey register maintained by the Settlement Department. See the case of Muhammad Bashir (1987 SCMR 1999). The total area of the house bearing Survey No.201/320/119 has been shown as 1221.9 sq. Ft. The Notified Officer has not demarcated the property himself but he deputed an officer of the Cantonment Board to prepare the plan and demarcate the property.
There is nothing on the Settlement file on the basis of which it could have been said that the property purchased by the petitioner Mr. G.C. Nelson was bearing No.4474 and was purchased by the respondent. Admittedly, both the properties are situated in the Cantonment Board and were constructed after getting the approval of the plan by the Evacuee owner. The Notified Officer has not examined and seen the sanctioned plan of the Cantonment Board.
6. The petitioner purchased the property on the basis of possession whereas the respondent has obtained the property in open auction, but onus of proof was on the respondent to prove that the property in possession of the petitioner is bearing No.4443-A.
7. Since the Displaced Persons' (Compensation and Rehabilitation) Act (XXVIII of 1958) has been repealed, therefore, it is appropriate that both the parties be given an opportunity to prove the case by producing the evidence before the Court of general jurisdiction, i.e. The Civil Court, which is the ultimate Court of Jurisdiction. There is force in the contention of the learned counsel for the petitioner that the remand order passed by this Court has not been complied with because the petitioner's Property No. 4443-A has not been locates before giving a finding that the property in possession of the petitioner is Property No.4474, purchased by the respondent in open auction.
8. I am conscious of the fact that this case is going to be remanded for the second time and it is the Civil Court which will determine the rights of the parties this time and there are reasons for doing so. Firstly, both the properties, claimed by the respective parties, have gone out of the compensation pool. The question of demarcation has to be decided under section 10 and the Schedule of the Displaced Persons (Compensation. And Rehabilitation) Act. It is well-settled principle of law that after the issuance of PTD the property goes out of the Compensation Pool and the Settlement Authorities have become functus officio to determine and demarcate the property except to the extent provided in the PTD or Rules. In case reported as Anwar Hussaiw Sani v. Sarfraz Ahmad etc. (PLD 1971 SC 669) their Lordships have given the categories of cases in which the Settlement Authorities may interfere even after the issuance of the PTD. Firstly, the cases which suffer from an error of a type which can be corrected without embarking upon a formal inquiry or holding adverse proceedings. The cases of clerical mistake or errors of the like nature will fall within this category of cases. Second type of cases dealt with under rule 6 or 7, are those in which transfer or allotment of an evacuee property was obtained by means of misrepresentation or fraud. The Settlement Authorities may under the second part of rule 6 or 7 verify or modify or cancel the PTD issued to a transferee if on holding a proper inquiry and giving the transferee an opportunity of hearing, it is found that he has been guilty of misrepresentation or fraud. This provision of the rules has the merit of avoiding the situation in which the Settlement Authorities or the Central Government would have had to make recourse to a Civil Court for cancellation of a Permanent Transfer Deed on the basis of misrepresentation and fraud. It is a case of an error such as can be corrected without holding a formal inquiry or undertaking adverse proceedings the Settlement Authorities have the jurisdiction under Part I of rule 6 to remove the error, but if the conflicting claims made by the parties require a full-fledged adjudication consequent upon which substantial variation may be made in the description of the properties given in the PTDs., already issued to the transferees, then unless it is a case of misrepresentation or fraud, the jurisdiction of the Settlement Authorities to deal with properties already transferred is barred under rule 4.
9. This view was again supported by the judgment of the Hon'ble Supreme Court in case of Abdul Hamid v. Gulab Khan (1988 SCMR 188) and Abdul Haq v. Mst. Mustajaba Bano etc. (1982 SCM R 1103) wherein while interpreting section 10 of Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) and Transfer of Property Rules, 1961, it was ruled that the "property" goes out of the compensation pool after issuance of the P.T.D.---Settlement Department, held, becomes functus officio to determine and demarcate property."
10. The case of Muhammad Bashir (1987 SCM R 999) was exception to the general rule that after issuance of the PTD the property goes out of the compensation pool and the Settlement Authorities become functus officio to determine and demarcate the boundaries except to the extent provided for in the PTD and the Transfer of Property Rules, held, to be not of universal application, and it was also held that in all cases after the issuance of the PTD the Settlement Authorities become functus officio to make any type of demarcation because it would depend upon the circumstances of each case whether the Settlement Authorities were competent to demarcate/identify and clarify the position in regard to the property transferred. In that case of Muhammad Bashir (supra) both the parties had themselves gone to the Settlement Authorities for identification of the property transferred to them.
11. In this case, the petitioners have not purchased the property in auction, but were already in possession when the property was transferred in their favour on the basis of the possession and also the property transferred to the respondent was not identified. Moreover, reliance was placed on the relevant record of Municipal Corporation and Excise and Taxation Department Survey Rules framed by the Department having not been considered while demarcating, the order of demarcation by the Settlement Authorities was quashed as passed without lawful authority.
For what has been discussed above, this writ petition succeeds. The impugned order, dated 11-7- 1996 passed by the Notified Officer, respondent No.2, is set aside. The parties may approach the Civil Court for determination of their rights qua the disputed property.