P L D 1984 Supreme Court 3 (PLP)

ZAFFAR HUSSAIN MIRZA, J. -This appeal by special leave seeks to call in question the legality of the judgment and order passed by the High Court of Sind dated 7-10-1978, by which Constitutional Petition filed by respondent No. 1 challenging the orders passed by the Additional Settlement Commissioner, Hyderabad and Settlement Commissioner, Sind, was allowed and the impugned orders were declared to be without lawful authority and of no legal effect.

2. The appellants Mst. Sakina and others are the successors-in-interest of one Genda who occupied a room comprised in property No. D-151, situate in Naipara, Mirpurkhas, while the remaining portion of this property was in the possession of first respondent. On the commencement of the settlement operations the first respondent applied in C. H. Form on 2-11-1959 for the transfer of property bearing custodian No. D-151 and C. S. No. 1240. In this form he had mentioned in column 10 that one room was in possession of Ghulam Rasool. A P. T. O. was issued in favour of the first respondent on 21-11-1959. However, before this on 16-11-1959 Genda had applied for the room in his possession, which according to him formed part of the same property which was transferred to the first respondent but mistakenly described it as custodian No. D-152. An appendix was issued in his favour for No. D-152 on 14-4-1960 followed by a P. T. O. on 30-4-1960. In the meantime on 2-4-1960, however, the first respondent applied for clarification and for treating the portion in possession of Ghulam Rasool as part of the property transferred to him. The Deputy Settlement Commissioner, vide his letter dated 7-4-1960 informed him that the said portion was also included in his transfer documents. Subsequently on 12-12-1964 the first respondent was issued the Permanent Transfer Deed. On the other hand a Permanent Transfer Deed describing the property as bearing No. D-152 was also issued in favour of Genda on 25-1-1965.

3. It is not clear on the present record as to when but admittedly Genda applied for correction of his transfer documents. According to the order of the Additional Settlement Commissioner, Hyderabad Division, Hyderabad dated 30-5-1972, he applied on 15-12-1964, whereupon the Deputy Settlement Commissioner took up the case for inquiry. A report dated 6-1-1965 by the Assistant Accounts Officer revealed that property bearing No. D-151 was a house having only one room which had been transferred to the first respondent and according to the report the inclusion of the portion in the possession of Genda was absolutely illegal and wrong. The Officer recommended that the number of the said portion . should be separately given as D-151/1 which may be transferred to the occupant. As a result of this inquiry the P. T. D. issued in favour of Genda was corrected on 15-9-1969 whereby the .property number was changed from D-152 to D-151 /1.

4. Respondent No. 1 being aggrieved by this modification of the P. T. D. of Genda filed an appeal before the Additional Settlement Commissioner, Hyderabad Division, Hyderabad, -which was dismissed on 30-5-1972 on the finding that the house in possession of the first respondent had nothing to do with the portion in occupation of Genda and could not be treated as part and parcel of the property transferred to the said respondent. A revision filed by the first respondent met the same fate and was dismissed by the Settlement Commissioner, Sind as per his order dated 31-8-1973. These orders were challenged in a writ petition filed by tl:e first respondent, which was allowed by the impugned judgment by a learned Single Judge of the Sind High Court on the short ground that the Settlement Authorities had no jurisdiction even to correct the alleged clerical error after the issuance of P. T. D. in favour of deceased Genda. In reaching this conclusion the learned Single Judge of the High Court has mainly placed reliance on a case of this Court reported as Amin flddin v. Settlement Commissioner (1973 S C M R 624). In this case it was held that after the repeal of rules 6 and 7 of the Permanent Transfer Rules framed under the scheme, "there was no power left in the Settlement Authorities to correct even the clerical mistakes in the P. T. D."

5. Being aggrieved by this judgment the appellants who are the successors of deceased Genda sought leave to appeal, which was granted to examine "the question as to whether the proceedings had assumed finality in regard to this room when in the P. T. D. issued to the first respondent this room was included". The further question which was considered fit for examination was whether "in these circumstances the principle of finality could be invoked having regard to the appellate and revisional powers of the Settlement Authorities under the Act".

6. On behalf of the appellants it has been urged that the entire building of which the disputed portion formed part is not shown to have been transferred to the first respondent as the P. T. D. does not mention any words to the effect that the entire building was transferred to him. It is further submitted that the Settlement Authorities had passed the orders in favour of Genda in exercise of revisional jurisdiction whereby the description of the property was corrected in his P. T. D. On the other hand it has been reiterated on behalf of the first respondent that the order of modification of the P. T. D. issued in favour of deceased Genda was passed without notice to the first respondent and since the P. T. D. had already been issued in favour of the first respondent in regards to the same property, as evidenced by the letter dated 7-4-1960 issued by the Settlement Authorities, there was no jurisdiction remaining with Settlement Authorities to pass further orders having the effect of depriving the first respondent of the property included in his transfer documents.

7. After giving, careful consideration to the arguments addressed by the learned counsel and perusing the record of the case I have come to the conclusion that this appeal be allowed. There is now no dispute that the disputed portion which is claimed to have been in the possession of deceased Genda at the time of his application for transfer is a shop and not a house. For this reason the P. T. D. of deceased Genda was corrected to describe this portion as a shop. According to his own admission this portion was described as a shop by the first respondent as early as 9-4-1962 when he instituted ejectment . proceedings against Ghulam Rasool. Even in his notice under section 30 of the Displaced Persons Act addressed to Ghulam Rasool the said respondent described this portion as a shop. In the letter dated 7-4-1960 by the Assistant Settlement Commissioner, addressed to the first respondent with reference to his application for clarification dated 20-4-1960 the portion in dispute has been described as a shop. The application of the first respondent was in form C.H. House in which he claimed the transfer of the house bearing No. 1240 (D-151) and the name of the evacuee owner was mentioned as Sheevaram Moolchand. As already stated, in column 10 of the first respondent mentioned that one room was in the possession of Rasul Bakhsh, and his mother Mst. Sakina. In the P. T. O. and the P. T. D. issued in favour of the first respondent the schedule of property also disclosed "house No. D-151 ". There can, therefore, be no doubt that the first respondent had applied for transfer of the portion of the property bearing No. D-151 as a house excluding the disputed portion which was a shop. Apparently he sought to have this room included in his transfer documents on second thought after learning the fact that this has not, been separately surveyed. These facts were noticed by the Settlement Commissioner, Sind in his order dated 21-8-1973 which states as under "From these documents it is clear that D-151 was surveyed by the Custodian in occupation of the applicant (respondent No. 1 herein) for only one room, and the room in dispute was not included in the Enquiry Card and appears to have been left unsurveyed. Admittedly the applicant (respondent No. 1) is in possession of one room which has been transferred to him under No. D-151. He cannot claim to have the unsurveyed room which was not shown in his occupation even in the Enquiry Card." The conclusion of the Settlement Commissioner that the P: T. O. and P. T. D. issued to the first respondent for the accommodation shown in the inquiry card i. e. one room plus amenities was not in respect of the disputed room, is fully borne out by the materials on the settlement record before him.

8. So far as the deceased Genda is concerned he claimed to be in possession of the disputed shop for which he had applied on N. C. H. Form mistakenly describing the property as No. D-152 and the name of the evacuee owner was shown by him as Moolchand Kewalchand. According to the report of the Assistant Accounts Officer dated 6-1-1965 property bearing No. D-152 was a non-evacuee property and that Genda was actually in possession of the disputed shop forming part of the building of which the portion in his occupation was transferred to respondent No.

1. Since the property had remained unsurveyed a fresh No. D-151/1 was assigned to it.

9. In view of the aforesaid factual position it seems to me that the transfer order passed in favour of the first respondent pertained to the portion in his occupation and did not include the disputed shop. Since actually no modification was made in the P. T. D. issued in favour of the first respondent there is no question of the bar on the power of the Settlement Authorities to modify his transfer documents. However, so far as the transfer documents issued in favour of Genda are concerned since they related to non-evacuee property the Settlement Authorities could make the necessary corrections to modify the P. T. D. so as to exclude the nonevacuee property: The rule that the Settlement Authorities cease to have jurisdiction to deal with the property which is a subject-matter of a P. T. D. after the same is issued proceeds on the principle that after the issuance' of the P. T. D. the property goes out of the compensation pool. Apparently, therefore, if the property mentioned in the P. T. D. does not form part of the compensation pool the Settlement Authorities can correct such an illegal order and exclude the non-evacuee property from the transfer documents. There was no legal embargo to score off property No. D-152 from the P. T. D. of deceased Genda. As far as the inclusion of the property No. D-151/1 is concerned, according to the findings of the Settlement Commissioner, this number was assigned to an unsurveyed property which did not form part of the property transferred to the first respondent and was actually intended to be transferred to Genda by the transfer order passed in his favour. The mere fact that through some mistake instead of correctly describing the property which in point of fact was transferred to Genda, a wrong description was given in the transfer documents, cannot be held in any way to affect the first respondent who had never been transferred this shop. It was so held in somewhat similar circumstances by this Court in Muhammad Hussain v. Muhammad Gulzar (1976 S C M R 308). The position taken by the first respondent that merely because D-151 was transferred to him it also included the shop in dispute since at that stage no separate number was assigned to the shop, is wholly unsustainable in law. It may be pointed out that "house" and "shop" are properties of distinct character separately defined in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and no transferee of the one category of property can claim the other j category of property merely on the basis of an error in the description of the property: It is not the case of first respondent that he was at any time in actual possession of the disputed shop. The case of Amin Uddin relied upon by the learned Single Judge in the High Court is, therefore, distinguishable and the rule laid down therein does not appear to be attracted in the present case. Be that as it may, it appears that the case of the appellants was not properly placed before the High Court since they were absent when the writ petition was heard and decided. The facts which I have pointed out above clearly show that the claim of? the first respondent is unjust on merits and he was merely pressing a rule of law which ultimately has the effect of defeating the ends of justice. It is well-settled that writ jurisdiction cannot be exercised in aid of injustice. The first respondent in obtaining the transfer of the portion in his possession had received his dues and the appellants were, therefore, rightly given by the Settlement Authorities what ordinarily fell within their share of entitlement by virtue of the possession of their predecessor. Reference in this connection may be made to Tufail Muhammad v. Muhammad Ziaullah Khan (P L D 1965 S C 269).

10. This appeal, therefore, succeeds and the judgment of the High Court is consequently set .aside. The result is that the writ issued by the High Court shall be recalled and the orders passed by the Additional Settlement Commissioner and Settlement Commissioner dated 30-5-1972 and 31-8-1973, respectively shall stand restored. The parties are, however, left to bear their own costs. M. z. M. Appeal accepted.