1984 PLP 991 (MLD)

Secretary to Government of Sind, Member, Board of Revenue, (Incharge Settlement Cell), Karachi. The learned counsel for the Notified Officer also produced a photo copy of an Evacuee Property (Residual Work) Disposal Rule 1978 in which it is provided that the Additional Settlement Commissioner and Deputy Settlement Commissioner means respectively an Additional Settle ment Commissioner and Deputy Settlement Commissioner appointed under all or any of the Repealed Acts or in pursuance of these Rules. This shows-that for the purpose of disposing of the work the nomenclature of Additional Settlement Commissioner and Deputy Settlement Commissioner was retained by the Department. The learned counsel for the petitioner has contended that it was in view of these facts that he had only stated as Deputy Settlement Commissioner and omitted to mention the Notified Officer. Mr.Abdul Nasir Khan the learned counsel for the Notified Officer also confirmed that Mr. Mukhtar Ahmed Khan is also known as Deputy Settlement Commissioner. He further stated that besides this he has nothing to say on the merits of the main petition. Mr. Akhtar Mahmood the learned counsel for the respondent contended that the order was passed by the Notified Officer, and therefore, he should have been joined as a party, and in any event the application is belated, arid if at all, it is granted, the. petitioner should be burdened with cost. The omission to mention the words Notified Officer in the title of the petition was due to the Rules, and Notificates which were operating at that time, and it can be termed as a bona fide mistake. As the learned counsel for the respondent No.1 has no objection to the grant of this application, I do not think any valid reason has been made out by the respondents No.2 to 6 for rejecting this application. So far the claim for cost is concerned, it may be pointed out that till the matter was finally argued this objection was never raised by the respondents and therefore, in the facts and circumstances of the case, they are not entitled to any cost. The application is granted. The word Notified Officer should be added in the title of the petition with red ink. [18-10-1984].--The petitioners who are the legal heirs of late S. Anwar Ali have challenged the order passed by the Notified Officer rejecting the NCH Forms filed by him and holding transfer in favour of one Mat. Saeeda Begum the predecessor-in-interest of the respondents Nos. 2 to 6, as proper and valid. The matter was remanded to the respondent No. 1 by a judgment of the Supreme Court, dated 30th August, 1982 in which the petitioners predecessor S. Anwar Ali was the appellant, and the respondents Nos. 2 to 6 were respondents. The facts as stated in the judgment of the Supreme Court are as follows:- "The dispute in this case relates to a property bearing No. VIR-7/48-II-404, situated in Weaver's Line, Khori Garden, Karachi. The Deputy Settlement Commissioner, on the application of S.Anwar Ali issued to him Appendix IX, dated 19-11-1960, for Rs.95,

472. It was the case of Anwar Ali that he accepted the transfer, but since the price shown in the Appendix was exhorbitantly high, he requested for its reduction, but his application was dismissed by order, dated 1-4-1961 by the Deputy Settlement Commissioner. He then filed an appeal, offering to pay Rs.50,000 as the transfer price for the property, but no orders were passed on this appeal, which was kept pending. According to him, however, without cancelling the transfer from his name, the property was included tenament wise in the auction held on 16-7-1968 and 5-9-1968 ,but each time no bid was made for the purchase of the same. It is pertinent to note that the reserved price of the property was fixed at Rs.45,600 in the auction proceedings which seems to have been in accordance with the real assessment of the price of the 'property. Thereafter, one Mst. Zubeda Abdus Sattar and others through their General Attorney filed an application before the Deputy Settlement Commissioner for transfer of the property on payment of 50% of evaluation price which was fixed at Rs.45,600 adjustable against certificate issued in favour of Mst.Saeeda Begum, since deceased, and succeeded by her legal representatives respondents Nos. 2 to

6. On the recommendation of the Deputy Settlement Commissioner for transfer of the property at a reduced reserved price of Rs.22,800 the Additional Settlement Commissioner ordered the transfer on 20-11-1963 for the amount offered by Mst. Saeeda Begum. After the adjustment of the price, a P.T.D. wars, issued on 15-7-1969 in favour of Mst. Saeeda Begum. Mst. Saeeda Begum then filed ejectment proceedings in March, 1972 against the appellant and according to him he came to know about the transfer in her favour for the first time on receipt of the notice of these proceedings. He, therefore, filed objections before the Deputy Settlement Commissioner on 20-3-1972 which were dismissed on 1-4-1972, on the ground that since P.T.D. had already been issued in favour of Mst. Saeeda Begum, the Settlement Authorities had become functus Officio. According to S. Anwar Ali he was informed about the passing of the order rejecting his objections on 11-4-1972 and on 20-5-1972 he filed an appeal before the Additional Settlement Commissioner which was allowed and the transfer in his favour was upheld with a direction that the transfer price should be reduced to Rs.49,280 and that transfer in favour of Mst. Saeeda Begum be cancelled. Aggrieved by this order Mst. Saeeda Begum filed a revision application which was allowed by the Settlement Commissioner vide his order, dated 25-9-1973, agreeing with the view taken by the Deputy Settlement Commissioner that after the issuance of P.T.D. in favour of Mst. Saeeda. The Settlement Authorities had become functus officio and ceased to have jurisdiction .n the matter. The constitutional petition filed by S. Anwar Ali before the Sind High Court failed and was dismissed". The order passed by the High Court was challenged by S.Anwar Ali before the Supreme Court in Civil Appeal No. K-149/80 which was allowed and the case was remanded with the following direction:- "In the result, this appeal succeeds and while setting aside the orders passed by the departmental authorities as well as the impugned order of the High Court, dated 28-4-1979, we direct that the case will be remitted for a fresh decision to the notified officer, appointed under section 2(2) of Act XIV of 1975 in the light of this judgment. It will be open to the concerned officer to take into consideration all the objections that the parties chose to raise before him and determine them according to law. In the circumstances of the case, there will, however, be no order as to costs." The respondent's counsel has frankly conceded that if it is shown that the order of transfer on which P.T.D. is based was passed without lawful authority then the High Court in its constitutional jurisdiction is fully empowered to strike down the P.T.D. The Hon'ble Supreme Court observed that "the Deputy Settlement Commissioner before whom the proceedings were initiated did not go into the question whether the transfer in favour of the appellant was legally cancelled, and as already stated disposed of the matter on the question of jurisdiction. The Additional Settlement Commissioner also did not advert to this aspect of the case, and found nothing on record to indicate, whether any steps were taken to cancel the transfer in favour of the appellant and the property to have been properly resumed in accordance with the Settlement Scheme. But the objection against the order passed by the Additional Settlement Commissioner was that the appeal before him was barred by limitation and no order for condonation of the delay was passed by him. The learned Settlement Commissioner, once again did not enter the merits of the case including the question of the bar of limitation in respect of the order passed by the Additional Settlement Commissioner but disposed of the case on the question of jurisdiction". The case was remanded with direction to dispose of in the light of observation made in the judgment. The respondent No.1 by the impugned order rejected the NCH Form issued in favour of S. Anwar Ali, and maintained the transfer made in favour of Saeeda Begum. The respondent No.1 has observed in the order that it seems that an Appendix, dated 19-11-1960 was issued to S. Anwar Ali but was not on record, and no PTO was issued to him. It was further noted that Anwar Ali had filed an application, dated 30th March, 1961 admitted that Appendix IX was issued to him for Rs.95,472 as transfer price of the building, and he had prayed that the time for payment of price be extended. It was ordered that he should pay the price, through Association by 16-4-1961 but neither it was paid nor there was anything on record to show that he applied for further extention. Mr. Shahenshah Hussain, the learned counsel for the petitioner relying on paragraph 2 and 24 of the Schedule to the Displaced Persons (Comp. & Rehab.) Act hereinafter referred to as the Act and scheme No. 1 contended that on default to pay the price or instalment Appendix IX is not automatically cancelled. According to para. 2(a) house in possession of a non-claimant displaced person which he desires to retain shall be transferred to him on payment of prevailing market value. Paragraph 24 of the Schedule provides that if any person who has been allowed to pay in instalments fails to pay two consecutive instalments the Chief Settlement Commissioner or any other person authorized on his behalf may give notice to pay the arrears within 30 days with penal interest failing which the transfer of property in favour of such person shall be liable to cancellation and he shah be liable to ejectment. Under para. 24 (2) the Chief Settlement Commissioner is authorised to restore the property provided he pays the amount due with penal interest. Scheme No.1 provides a procedure for transfer of house and shop to persons in possession. Para. 4 prescribes the entitlement of persons who can file NCH Form. After the entitlement of the applicant and value of the property has been determined the Deputy Settlement Commissioner in terms of para. 29 shall send a notice of transfer as specified in Appendix IX requiring him to comply with the direction contained in the notice within a period of 15 days. If the proposed transferee appears and after adjustment of the amount of deferred payment anal sum remains payable the Deputy Settlement Commissioner shall fix the amount of instalments in cash to be paid on due dates and hand over to him the Instalment Order as specified in Appendix XI and Provisional Transfer Order in forum specified an Appendix XII. Sub-para. 5 of para. 28 of Scheme No.1 provides that if after service of notice of Transfer the transferee-in-possession does not appear the Deputy Settlement Commissioner shall presume that the transferee desires to retain the property on payment of pries; cash without utilizing the Compensation Book. On that basis the Deputy Settlement Commissioner shall issue the instalment order in Appendix XI and P.T.D, in Appendix XII. In this regard para. 34, 35 and 36 are also relevant which show that the instalment is to be paid in 12 monthly instalments failing which the transferee can be ejected after notice, but possession can be restored on payment of the due amount as well as the interest within 60 days. Mr. Akhtar Mahmood the learned counsel for the respondent No.2 to 6 contended that mere notice of transfer does riot confer any right on the applicant unless Provisional Transfer Order has been issued. Mr. Akhtar Mahmood has referred to Mst. Bakho v. Mst. Saire P L D 1963 Lah. 72 where after referring to Scheme No. 1 and permanent Transfer Rules, it was observed that "the simple fact that tine Chief Settlement Commissioner had passed an order of transfer on 30th December, 1959 will not by, itself take the property out of the compensation pool as contemplated in section 10 of the Act and the argument of the learned counsel for the petitioner that this section was a bar to the entertainment of the application of the respondent is, therefore, not tenable. The learned counsel wanted to show that the order of transfer passed by the Deputy Settlement Commissioner Is not amount to a transfer itself and it does not create any right in tire Appendix holder. The learned counsel for the respondent has also referred to Murree Hill Transport Company Ltd. v. Ghulam Jeelani PLD 1970 Lah. 864 and Ataul Haq and two others v. H. Electric Company PLD 1971 Lah. 1007. All these cases relate to the right of a transferee with relation to section 30 of the Act and his right to eject the tenant from the property. All these authorities no doubt hold that unless P.T.O, is issued a person does not become a transferee of the house, but there is nothing to indicate what are the rights of a person holding Appendix IX. According to the learned counsel for the respondent such person does not have any right in the property. From the Act and the Scheme relevant provisions of which have been summarised above, it is clear that a person who is entitled to a transfer and Appendix IX has been issued has a right to claim the transfer of that property on fulfilment of the conditions specified in Appendix IX. As contemplated by the Act his right for transfer of the property will have priority over the rights of other persons claiming transfer of the same property. Scheme I and the Schedule to the Act do not specifically provide that on non-payment of price Appendix IX will be automatically cancelled. Under the Scheme if in pursuance o notice of transfer the applicant does not appear before the Deputy Settlement Commissioner then it shall be presumed that he has agreed to pay the price in cash and the instalment order in Appendix XI and P.T.O. shall be issued in his favour. Therefore, on such default he is deprived of the opportunity of utilizing the payment through Compen sation Book, but the presumption is that he wants to retain the property. The consequences of nun-payment of the price are that a notice is to be issued to him and if he fails to pay the price with penal interest he is liable to be ejected. The provisions of law have shown such leniency that even after ejectment opportunity has been provided to such applicant to apply for restoration of possession within 60 days and make the payment with penal interest, whereupon the house shall be restored to him. This clearly demonstrates that the intention of the legislature is not to easily disturb entitlement and possession of the holder of Appendix IX. The object of the Act is to rehabilitate a. person and not to disturb or eject without reasonable cause or justification. The learned counsel for the petitioner has referred to Mohammad Moosa v Settlement and Rehabilitation Commissioner and 3 others 1974 S C M R 352 where it has been held that "sub para. 1 of para. 24 of the Schedule makes the auction sale only liable to cancellation, and there cannot be any automatic cancellation, and the matter rested with the discretion of the appropriate authority, whether or not, to cancel the auction of the sale on the default in payment of any instalment within the due date". It was further held that "expression liable to cancellation envisages an application of mind by the appropriate authority who had discretion in that behalf". The learned counsel also referred to Muhammad Umar Khan v. Chief Settlement Commissioner Pakistan and others P L D 1963 Pesh. 85 where para. 4 of the Schedule to the Act read with Settlement Scheme No.V was under consideration, and it was held that the word 'transfer' in para. 4 is not to be understood in the sense of a final and complete transaction' of an alienation of the property, but in the sense of transfer of a claimant subject to the several provision of the Act. From these authorities it is clear that even where a notice on transfer has been issued to have applicant some right is conferred' on him creating interest in the transfer of the property, and such notice of transfer is not automatically cancelled on failure to pay the price. In the absence of any provision for automatic cancellation for non- payment of price within the specified date on mere default in payment Appendix IX will not stand cancelled. If Appendix is not invalidated or ceases to have legal effect on non-payment, the question arises whether, the property in respect of which it has been issued can be made available, for transfer by auction or otherwise? Mr.Akhtar Mahmood the learned counsel for the respondent has contended that in Appendix IX issued to S. Anwar Ali a condition was added that in case the Appendix holder fails to pay the instalments the premises will be auctioned. The learned counsel contended that this was a sufficient notice to the petitioner, and therefore, on failure to pay the instalment it was available for auction. Admittedly Appendix IX is issued in a prescribed Form under Settlement Scheme No.1 which prescribes the conditions. A procedure for issuance of Appendix IX, XI and P.T.O., and consequences for non-payment of instalments have been specifically provided. It does not provide that in case of failure to pay the instalment, the property shall be put to auction. The addition of such a condition in the appendix IX by inserting it by hand by the Deputy Settlement Commissioner is completely illegal, and he has no authority to insert a condition, which has not been prescribed by the Scheme or the Act. Therefore, the condition for auction on failure to pay the instalment was not binding on the petitioner's predecessor Anwar Ali. The properties which could be auctioned have been dealt with by Scheme NO.VIII. It defines the words "available property" as follows: "Available properties means, houses, shops, buildings, sites, industrial concerns, and cinema houses (whether allotted by the Industries Rehabilitation Board or not) and big mansions and hotels which have not yet been transferred to any person or which may in future become available for transfer on presumption made under Chapter, II of this Scheme". Paragraph 2 of the Scheme VIII requires a transferee, who has defaulted in payment of two consecutive instalments and where no instalment has been allowed, has defaulted in payment of transfer price, requiring him to pay the whole of the outstanding amount. Such demand is to be issued by registered post A/D., and acknowledgment due receipt when received back from the addressee is required to be pasted on the file of the demand notice. After such notice has been served in this manner, if payment is not made as specified in the demand notice the Competent Authority will cancel the transfer of the property forfeit 25% of the amount paid and resume the property by ejecting the defaulter. It is further provided that a copy of the order will be sent to the defaulter by post. Para. 3A provides that within 30 days of the order of cancellation, the defaulter may apply for setting aside the order and on payment of price in lump sum, property may be restored to him provided in the meantime, it has not been auctioned or transferred to any other person. According to para. 4 it is after the cancellation of transfer that the property will be available for disposal in the manner prescribed in the Scheme. These provisions of Scheme No. VIII clearly establish that the property will not be available for transfer or auction unless the transfer is cancelled and due notice has been served on the transferee. No such notice was served on the petitioner. The contention of Mr. Akhtar Mahmood that the word transferee used in para. 2 of the Scheme and cancellation of transfer of property in para. 3(1) (a) refers to transfer to such persons to whom P.T.O. or P.T.D. has been issued. I am not inclined to give a narrow interpretation to the word transferee because if it was intended to cover transfer by P.T.O. or where transferee had paid instalments then it would have been specifically stated in its, Para. 2 requires notice to be issued to such transferees whom instalment has not been granted and have defaulted in payment of price. Therefore, it is not necessary that only P.T.O. holders are to be treated as transferees. The word transferee is therefore: used in a wider sense to include even such persons to whom Appendix IX has been issued. Admittedly the procedure laid down by Scheme NO. VIII has not been followed therefore, the property was not available for auction. Mr. Akhtar Mahmood the learned counsel for the respondents has contended that no reference can be made to Scheme No.VIII as it was enforced on 16-11-1965. According to the learned counsel the case is to be governed by the law applicable in the year 1960-61 and not in the year 1965. The admitted position is that the property was transferred to the respondent on 30-11-1968 when Scheme NO.VIII was in force, therefore, the entitlement of respondents No.2 to 6 or the availability of the property could have been decided only with reference to the provisions of Scheme 'No. VIII and not with reference to any other provision. The learned counsel for the respondents referred to para. 4 of the Schedule to the Act which provides that a house not transferred under paragraphs, 1, 2, 3 and 4 shall be sold to the highest bidder in an unrestricted public auction. According to the learned counsel as the petitioner failed to pay the price the Settlement Authorities could have auctioned the property as far back as in the year 1961 under paragraph 6 of the Schedule. This argument is based on the reasoning that due to non-payment of price by S. Anwar Ali the notice of transfer automatically stood cancelled. As discussed above, the legal position is otherwise, and the property was not auctioned under para. 6 of the Schedule. As the property was put to auction in 1968 the provisions of Scheme No.VIII were applicable and the disputed property was not available for' transfer. Mr. Akhtar Mahmood the learned counsel for the respondent has contended that the action suffers from laches and the petition is liable to be dismissed. The learned counsel has pointed out that on 30-3-1961 the petitioner had filed an application for extention of tinge for making payment and the petitioner was allowed to make payment till 2-11-1965 but as no payment was made, the respondent purchased 'the property by negotiation. It was further contended that the respondent is a bona fide purchaser for valuable consideration and has paid full price as far back as on 22nd November, 1968 and P.T.D. was issued on 15-7-1969 and it was only when the ejectment case was filed against the petitioner that he started agitating the matter. In these circumstances, the learned counsel for the respondents Nos. 2 to 6 contended that the demand of justice is not to issue a writ against the respondent. He further contended that as held in Abul Ala Maududi's case P L D 1964 S C 673 "the function of judicial review is to act as a check against excess of power in derogation of private right, not to supplement them. Accordingly if on a point of law, the Administration has adopted a construction which is possible one, the Court will support the action". The principle laid down in P L D 1964 S C 673 and P L D 1975 S C 331 clearly indicate the limits and the jurisdiction within which the superior Court can exercise the Constitutional Jurisdiction. However, in the present case, the question, whether the property could have been transferred to Mst. Saeeda Begum cannot be decided in the affirmative and the action of the Settlement Authorities cannot be justified, therefore, as the action of the Settlement Authorities to transfer the property to Saeeda Begum is void and not in accordance with law. Nor Court would like to support it in derogation to the petitioner's right in the property. No doubt there has been some delay on the part of the petitioner, but in the facts and circumstances of the case it is not proper to disentitle him from the relief sought by him. It is true that a writ cannot b issued in aid of injustice, but merely because, the respondent No.2 Claims to be the bona fide purchaser for valuable consideration, the rights of the petitioner cannot be superseded, because, he is in possession of the property, and has taken all steps from the very beginning for its transfer, but it seems that due to the actions taken by the Settlement Authorities he has been deprived of his valuable right. At this stage it would be advantageous to refer to the following passage from the Karachi Electric Supply Corporation v. Labour Union P L D 1967 S C 513:- " . to place a true construction upon laws and legal instruments of all kinds is the special and peculiar responsibility of the superior Court, and if a subordinate judicial or quasi judicial authority should be found to have placed an untenable construction upon a legal instrument, which is in operation as between citizens, the special responsibilities of these Courts is attracted for rectifying the matter. The exercise of lawful authority is subject to the necessity of interpretation of a law which is being applied, and where that is wrongly interpreted the action cannot be otherwise than devoid of lawful authority". The Settlement Authorities and the respondent No.1 have not correctly interpreted the relevant provisions of law -relating to then legal right of the petitioner as holder of appendix IX and passed the order of transfer in favour of Saeeda Begum in complete disregard o the Displaced Persons (Comp. a Reh.) Act -and Scheme framed under it. I, therefore, declare that the impugned order has been passed by the respondent No.1 without lawful authority and is of no legal effect. I direct that proper transfer order in respect of the: disputed property be issued in favour of the petitioners if they comply with conditions of the transfer. The parties to bear their own costs. M.Y.H. Petition allowed.