1983 PLP 905 (CLC)

Ss. 10 & 11-Transfer of property-Agreement between petitioner and respondent providing that-. permanent transfer to be made in favour of respondent-Petitioner clearing entire transfer price and settlement fee, on behalf of respondent and Settlement Authorities preparing record of transfer and issuing Permanent Transfer Deed in favour - of respon dent-Contention that issuance of Permanent Transfer Deed to respon dent without hearing petitioner violated principles of natural justice; held, without force.-[Natural justice, principle of]. (c) Constitution of Pakistan (1973)- Art. 199 read with Displaced Persons (Compensation and Rehabilita tion) Act (XXVIII of 1958), Ss. 10 & 11 -Petitioner not challenging orders of Additional District Judge in writ petition and orders attaining finality by lapse of time and respondent acquiring vested right-Oral request of petitioner to treat writ petition as appeal/revision Rejected.-[Appeal (civil)-Revision (civil]. Mushtaq Memon for Petitioner. Sayed Madad Ali Shah for Respondent No.

1. Date of hearing : 15th December, 1982. The petitioner has challenged in this. petition the order of Settlement Commissioner dated 31st May, 1973, dismissing his revision application. The admitted facts of the case are as follows :- Respondent 2 who is a non-claimant displaced persons' applied for transfer of House No. A-96/2582 Hirabad, Hyderabad on N. C. H. form through her guardian Mrs. C. L. Singh which was transferred to her for a sum of Rs. 6,900 and Appendix IX dated 20-5-1959 was issued in her favor. She applied for payment of transfer price in instalments and deposited first instalment in cash. In the meantime the Chief Settlement Commissioner permitted non-claimants and locals to pay the transfer price of properties transferred to them under the provisions of D. P. Act through association with claimant displaced persons by adjustment of price from the compensa tion book of such claimants. The guardian of respondent No. 2 taking advantage of the above concession entered into an agreement with the petitioner for payment of the balance of transfer price of the property through compensation book on 20-3-1960 which was allowed by the Settlement Authority on 22-3-5

962. Thereafter the balance transfer price of the property was partly paid by the present petitioner through the compensa tion book of one Tasadduq Hussain Shah and the remaining price was paid in cash. After payment of the total transfer price as aforesaid and the settlement fee the permanent transfer deed was issued in the name of respondent No.

2. The petitioner at this stage applied to the Settlement Commissioner in exercise of his revisional jurisdiction for cancellation of P. T. D. issued to respondent No. 2 on the ground that under the terms of agreement dated 20-3-1960 she was entitled to get the property transferred in her own favour. The revision application of petitioner was however dismissed by the Settlement Commissioner on 31st May, 1973 with. the observation that the agreement relied upon by the, petitioner was not an agreement of association as contemplated under the settlement laws but was an agreement of the nature which could be enforced only through a Civil Court. The petitioner, after dismissal of his revision application instituted Civil Suit No. 179 of 1973 for declaration and injunction before the civil Judge, Hyderabad, but the plaint in the suit was rejected under Order VII, rule 11, C. P. C. by the Civil Judge on the ground that the jurisdiction of the civil Court is barred under section 22 read with section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the order of Civil Judge rejecting the plaint was upheld in appeal, In paragraph 19 of the petition it is stated that the petitioner is filing a second appeal/revision challenging the order of the Civil Judge and that of the Additional District Judge, Hyderabad but Mr. Mushtaq Memon the learned counsel for the petitioner is not aware of the fate of that proceeding. Alongside the Civil suit the petitioner filed the present petition challenging the order of Settlement Commissioner dated 31-5-1973. At the hearing of this petition the learned counsel for the petitioner firstly contended that Mr. Wasim Hamid Rizvi who passed the impugned order was not a Settlement Commissioner specially empowered to hear the revision as required under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and as such the order passed by him is an order without jurisdiction. It is contended that Mr. Wasim Hamid Rizvi was appointed as the Additional Settlement Commissioner only. The certified copy of the impugned order Annexure "G" however, shows that Mr. S. Hamid Rizvi was appointed Settlement Commissioner, Sind at Karachi. By Notification No. 1326 PL-REH-60, dated 18-1-1960 issued by the Chief Settlement Commissioner all Settlement Commissioners in West Pakistan and Karachi in their respective jurisdiction were authorised to exercise power under subsection (3) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Since Mr. Waseem Hamid Rizvi has worked as Settlement and Rehabilitation Commissioner, Sind at Karachi he was entitled to exercise jurisdiction under section 20(3) of the Displaced Persons Act within the limits of his territorial jurisdiction. The first contention of Mr. Mushtaq Memon accordingly fails. It is next contended by the learned counsel that the agreement dated 20-3-1960 entered into between the petitioner and the guardian of respondent 2 was in substance an agreement of associa tion and, therefore, the same having been accepted by the Settlement Authority the petitioner was entitled to the issuance of P. T. D. in her own name. This contention is equally without force. It is an admitted position that the transfer of the property was not paid through the compensation book of petitioner. According to petitioner's own showing she purchased the compensation book of one Tassadduq Hussain for payment of the transfer price of the property which was partly adjusted from the compensation book of said Tassadduq Hussain and the remaining transfer price was paid in cash by the petitioner. Apart from it paragraph (b) of the agreement relied upon by the learned counsel itself provided that the terms and conditions of the agreement would be enforceable after the property was permanently trans ferred in the name of respondent

2. Paragraph (b) of the agreement is as follows "(b) That when the entire dues of the value of the house are paid oft and the house is transferred permanently in the name of the said I O N A Sylvester, it shall automatically be deemed to vest in thename of Dr. Mrs. Noor Bano Alvi and in lieu thereof Mrs. C. L. Singh, the 2nd part and 10 N A Sylvester, shall be allowed to reside in the said house rent-free that is no rent shall be charged from them till the life-time of Mrs. C. L. Singh as on latter's death I O N A Sylvester is to live under the care, protection and custody of the missionaries of her religion as was wished by her deceased mother before her death. If deemed necessary by said Dr. Mrs. Noor Bano Alvi the 2nd part namely Mrs. C. L. Singh if she is alive, if not the one keeping charge and care of the said minor 10 N A Sylvester at the moment shall execute deed of conveyance and register the same in the Registration Department, Hyderabad." Since the agreement dated 20-3-1960 contemplated permanent transfer of disputed property in favour of respondent 2 and thereafter the title of the property was to vest in the petitioner in accordance with the terms of the agreement the Settlement Commissioner rightly held that the agreement was not an agreement of association within the meaning of Settlement Laws and i could be enforced only through a Civil Court. Mr. Mustaq Memon also contended that issuance of P. T. D. to respondent 2 without hearing the petitioner violated the principle of nature justice. I am unable to under stand how the petitioner was entitled to hearing before issuance of P. T. D. to respondents

2. It is not disputed that the provisional transfer order of the property (P. T. O.) was issued by the Settlement Authority in favour of respondent No. 2 and no appeal or revision was pending against the transfer order issued to respondent

2. The entire transfer price of the property and the settlement fee was also cleared by the petitioner on behalf of respondent

2. After payment of entire transfer price and the settlement fee the Settlement Department was bound to prepare a record of permanent transfer in favour of transferee under the rules. I have already referred clause (b) of agreement dated 21-3-1960 which provided that permanent transfer of property was to be made in favour of respondent

2. In these circumstance I am unable to understand how the petitioner could claim -notice of hearing before Issuance of P. T. D. to respondent 2. 1, therefore, reject this contention of Mr. Mushtaq Memon. At the conclusion of his argument Mr. Musntaq Memon made an oral request that the petition may be treate as an appeal,/revision against the order of III Additional District Judge, Hyderabad dated 12-4-1975 and may be disposed of as such. This ore request of the learned counsel cannot be granted at this stage. Firstly the orders passed by the Civil Judge and the Additional District Judge were not challenged at all in this petition and by allowing the oral request of learned counsel the nature of proceedings will be completely changed. Secondly the c order of Additional District Judge dated 12-4-1975 has attained finality. by lapse of time and respondent No. 2 has acquired a vested right. Apart from it according to the averments made in paragraph 19 of the petition, the petitioner had preferred appeal/revision against the order of Additional District Judge, Hyderabad. 1, therefore, reject the oral request made by Mr. Memon for conversion of this petition into an appeal/revision. The petition is accord ingly dismissed but there will be no order as to costs. M. Y. M. Petition dismissed.