1986 PLP 2581 (MLD)

‑‑‑Ss. 10 & 11‑‑Settlement Scheme No.I, pares. 37 & 38‑‑Issuance of Permanent Transfer Deed (P.T.D.) on basis of P.T.O.‑‑Refusal to‑ Transferee of shop in dispute otherwise entitled in all respects to get shop transferred in his name was issued P.T.O. but due to inadvertent omission of Settlement Authority, name of such transferee could not be entered in respective judicial transfer order‑‑Omission being inadvertent Settlement Authority, held, should have corrected transfer order and issued P.T.D. to transferee on basis of such P.T.O. instead of placing shop in dispute in "pool" making same available for further transfer, wrongly assuming that P.T.O. issued in favour of petitioner/ transferee was not preceded by judicial order. Ch. Khurshid Ahmad for Petitioner. Muhammad Ahmad Hassan Khan for Respondent No.1. Akhtar Ausaf Ali for Respondent No.2. Date of hearing: 28th January, 1986. Dispute between the parties out of which the petition in constitutional jurisdiction has arisen, relates to at one time evacuee shop No. IV‑SR‑11, Naya Bazar, Kasur. Muhammad Sharif alongwith Mst. Bakhtawar Bibi, his mother submitted form C.S. Shop for transfer of the property in dispute. Case was processed by the Settlement Department. Muhammad Sharif was also shown occupant of the shop. Names of other occupants are also provided in order dated 25‑11‑1959. Various portions of the property bearing No. IV‑5R‑11 were transferred to their occupants by the D.S.C. Provisional Transfer Order was issued in favour of Muhammad Sharif petitioner and Mst. Bakhtawar Bibi also. This is evident from "schedule of transferee" given on the reverse of the Provisional Order. Mst. Bakhtawar is stated to have died and Muhammad Sharif, her son, was the sole heir. Petitioner applied for issue of a Permanent Transfer Deed. At this stage, it was discovered by the Settlement Department that entitlement of the petitioner was not finally determined and that the P.T.O. issued was not based on any judicial order. In these circumstances, shop‑in‑dispute was placed in the pool. It also appears that the shop‑in‑dispute at some stage of proceedings was included in the transfer documents of the respondents. Error, however, was corrected and the shop was excluded from the transfer documents issued in favour of respondents. Against order dated 7‑6‑1979 of the Deputy Settlement Commissioner, Muhammad Sharif approached this Court for redress of his grievance in constitutional jurisdiction. Petition was admitted on 20‑8‑1979 and has come up for hearing today in presence of the learned counsel for the parties. They have been heard and with their assistance, record has also been examined. Ch Khurshid Ahmad, learned counsel for the petitioner submitted that the shop‑in‑dispute was in possession of Muhammad Sharif since partition and that the petitioner also submitted requisite form for its transfer. The fact that the form was submitted was not disputed in the impugned order. Counsel also referred to Annexure 'B' and submitted that Muhammad Sharif was shown as occupant of the shop. Issuance of P.T.O. and the payment of price were also not disputed. In this background, learned counsel contended that it was a case of mere omission and instead of rectifying the mistake and supplying the omission, Deputy Settlement Commissioner, in an illegal exercise of jurisdiction, recalled transfer from the name of petitioner and placed it in pool. Counsel further submitted that the respondent had no entitlement for the shop in dispute. That part of the order by which the shop in dispute was excluded from their transfer documents had not been challenged by the respondents. Mr. Ahmad Hassan, Advocate, supported the impugned order and submitted that on Settlement record, submission of form and its receipt by the Settlement Department is not proved. He referred to Annexure 'B' and pointed out that in the order of transfer, name of the petitioner is found missing. However, in the course of his address he conceded that present was a case of a mere omission of name in the transfer order and stated at bar that in case the entitlement of the petitioner is confined to the shop‑in‑dispute, he would have no objection to offer. In the circumstances, in the result of this fair concession, learned counsel submitted that the respondents had no objection if the impugned order qua the shop‑in‑dispute be set aside and declared to have been made without lawful authority. Apart from the fair and candid concession made by learned counsel for the respondents in the high traditions of legal profession, there is adequate material to show that Muhammad Sharif who was in possession of the shop‑in‑dispute, applied for its transfer and submitted the requisite form in time. His entitlement to get the shop was beyond dispute for he was a claimant‑in‑possession. In depth examination of the record reveals that the shop in dispute was transferred to him and it was due to an inadvertent omission that his name could not be entered in the transfer order. This is amply supported by the succeeding events inasmuch as not only the P.T.O. was issued, but transfer price was also received by the Settlement Department without any objection. In the circumstances, learned Deputy Settlement Commissioner was not right to hold that the P.T.O. issued in favour of the petitioner was not preceded by a judicial order. In the circumstances, omission could have been supplied and the transfer order corrected. Since the shop had already been transferred to the petitioner, it could not be placed in "pool" and be made available for further transfer. In the result, I find and hold that the impugned order cannot be allowed to stand. It is set aside and is declared to have been made without lawful authority. Result is that shop‑in‑dispute stands transferred to the petitioner. It may, however, be clarified that the transfer of shop in favour of the petitioner shall in no manner affect the civil suit pending before the civil Court, which shall proceed and be decided on its own merits. Learned counsel for Settlement Department addressed no arguments and offered no resistance to the acceptance of writ petition. Since respondents had conceded the claim of petitioner, I would‑not like to burden them with costs of this petition. H.B.T. Petition accented.