1983 PLP 130 (CLC)

Ch Abdul Aziz for Respondent No.

1. Shahzad Jehangir for Respondent No.

2. Date of hearing : 19th June, 1982. This writ petition has been filed by Hafeez Ahmed who claims to be a transferee of property No. E‑2598, Rang Mahal, Lahore on the basis of association with the original transferee. He assails the subsequent order of the D. S. C. dated 20‑3‑1974 whereby the property in question has been transferred to respondent No. 1 on the basis of form dated 19‑2‑1974.

2. The brief facts of the case are that the property in question was originally transferred to Mst. Saadat Begum by order of the Settlement Commissioner dated 26‑11‑1962. The transferred entered into association with the petitioner on 7‑1‑1963 which was allowed and consequently a P. T. 0. was issued in favour of the petitioner on 14‑1‑1963. This transfer and P. T. O. were challenged by Mehraj etc. occupants of the premises by way of Writ Petition No. 1196 of 1969 which was admitted to regular hearing and status quo order was passed on 30‑7‑1969. This petition is being heard together with the present petition but disposed of by a separate order.

3. It is further submitted that the respondent No. 1 on 19‑2‑1974 filed a form under reconstituted Settlement Scheme No. VIII treating the property in question as a shop. It is complained that without hearing the petitioner, the property which already stood transferred to the petitioner vide order of the D. S. C. dated 20‑3‑1974 was purportedly re‑transferred in favour of respon dent No.

1. While doing so, the D. S. C. relied on the mere statement and affidavit of respondent No. 1 that the property was still an available property. This order of transfer has been challenged by way of the present writ petition.

4. I have seen the order of the D. S. C. dated 20‑3‑1974 and find that he had acted upon the bald statement of respondent No. 1 to the effect that the said property had not been transferred to any one under any Settlement Scheme or as a plot. It is on this sole consideration that he passed a con ditional order to the effect that property he transferred in favour of respondent No. I subject to the condition that the said property had not already been transferred in any manner.

5. Mr. Shahzad Jehangir, Advocate, appearing for the Settlement Depart ment submits that there is present on the file of this property a resumption order dated 21‑1‑1968. It is further submitted that the validity or the genuine ness of this resumption order is already subject‑matter of enquiry by the D. S. C. Farid Kot House, Lahore and the petitioner has also been summoned in that enquiry and if it is not a valid or genuine order the Settlement Authority would so hold. On this basis it is being urged that a disputed question of fact has arisen which this Court in exercise of its constitutional jurisdiction as a matter of rule would not go into. It is further submitted that since the respondents are already before the departmental forum and in the presence of alternative remedy and the pendency of the proceedings, the writ petition would be barred. The learned counsel for the department elaborates that the proceedings which he is referring to commenced on the application of Hafeez Ahmed and three others. After consulting the record, the learned counsel for the department further states that this application was given some time in early 1981. This inference he draws from the proceedings on the order‑sheet though the application does not bear any date. The learned counsel in view of these circumstances submits that the petitioner should approach this Court after an adjudication in this respect has been given by the D. S. C. The learned counsel has made available to me the record and I had the advantage of perusing the so‑called resumption order.

6. There are short points involved in this case. Firstly whether the method, mode and manner adopted by the Deputy Settlement Commissioner in re‑transferring an already transferred property was permissible under the law. The second question is whether the resumption order of 1968 which was based on a notice of resumption dated 15‑8‑1965 has any factual basis. In so far as first question is concerned, Mr. Shahzad Jehangir, learned counsel for the Settlement Department has very frankly conceded that no transfer of an evacuee property could be made on the mere statement of an interested person that it was not previously transferred to any other person and was available. The jurisdiction of the functionaries was dependent upon the finding that the property in question was an evacuee property and was also available property' and that it did not stand transferred to anybody previously. There is no scope in law for passing a conditional order of the kind which was passed in this case. I am inclined to agree with this aspect of the submission. The functionary was required to act in the matter with open eyes and satisfy himself that the requirements of existence of jurisdictional facts were fulfilled in this case. He did not even care to consult his own record to find out that the property stood transferred long ago. It is settled law that a property already transferred cannot be re‑transferred to any other person without first lawfully cancelling the previous transfer. This was not done nor the previous transferee heard in the matter. The impugned order was passed on a mis statement and wrong assumption which lacked factual basis. The result is that the order of transfer dated 20‑3‑197.1 on this score alone is liable to be struck down and‑declared as being without lawful authority and of no legal effect.

7. Next question has been subject‑matter of a debate. The stand taken by the learned counsel for the Settlement Department is that the enquiry regarding factual aspects as to whether the order of resumption was the result of fraud and forgery should in ordinary course be allowed to be decided by the notified officer who is already seized of the matter. In normal situation this would have been a very valid plea. However, the attack of the petitioner is directed against the basic document which is a notice of resumption dated 15‑8‑1965 on which reliance has been placed for the purpose of resumption of property. The precise submission of the petitioner is that no notice under Settlement Scheme No. VIII could conceivably have been issued on 15‑8‑1965 because the Settlement Scheme No. VIII had been promulgated on 16‑11‑1965 The resumption order dated 26‑1‑1968 has been examined by all the learned counsel for the parties and they agree that there is no eraser, interpretation or tempering in so far as date of notice of resumption dated 15‑8‑1965 is concerned. That being the admitted position of the case, the enquiry which, is now being conducted by the notified officer would be confined to the criminal proceedings which the department may like to initiate as regards the act of alleged forgery and interpolation made in the resumption order of 1968. For the purpose of this writ petition, on the basis of admission of the parties that purported notice of resumption under Settlement Scheme No. VIII is dated 15‑8‑1965 when the Settlement Scheme No. VIII itself had not come into existence or seen the light of the day, I would hold that the resump tion notice cannot but be supurious. The consequential order of resumption dated 26‑1‑1968 based upon such a fictitious notice would be equally devoid of legal effect. I feel no hesitation in holding it to be so with the result that the original transfer in favour of the petitioner subsists and was never effectively impeached or set aside by a competent authority.

8. The property in question could not have been dealt with under Settlement Scheme No. VIII unless it was an available property which either was never disposed of till the promulgation of the sail scheme or became available on a lawful resumption. These conditions had not been fulfilled. In, view of the above circumstances, I would accept this writ petition with costs and declare the impugned order dated 23‑3‑197‑1 as being without lawful authority and of no legal effect. S. A. H. Petition accepted.