1980 PLP 25 (SCMR)

DORAB PATEL, J.‑The dispute in this petition for leave relates to commercial premises in a town in Tharparkar District. According to Mr. Abbas, the premises consists of two shops No. B‑33 and No. B‑34 and between the shops there is staircase which gives access to the open roof over the two shops. In the events that happened, shop No. B‑33 was transferred to the petitioner when Settlement operations began, whilst the other shop was transferred to some other person. Some years later, according to learned counsel, the passage in which the staircase leading to the roof was situated was illegally given a separate number namely B‑34/1 by the Settlement Department and put up for auction. Now, although according to learned counsel, the Settlement Department had acted illegally in thus treating the passage containing the staircase as a separate building, the petitioner had offered to purchase the said passage and staircase from the Settlement Department for a sum of Rs. 1,

600. This offer‑ was accepted‑by‑ the Settlement Department; but despite the notices of the Settlement Department, the petitioner did not pay the price offered by him, therefore, the Settlement Department transferred No. 11‑34/1 to the first respondent for a sum of Rs. 350 through what‑ is described in the petition for leave as an alleged auction. The first respondent paid the sum of Rs. 350 in due course and a P. T. D. for premises No. B‑34/1 was issued in due course to the first respondent. It was after the issue of the P. T. D. to the first respondent that the petitioner decided to challenge the transfer of B‑34/1 to the first respondent and he made in this connection, an application to the Deputy Settlement Commissioner, which was rejected on 31‑5‑1972 on the short ground that he (the Deputy Settlement Commissioner) had no jurisdiction to cancel the P. T. D. in favour of the first respondent. The petitioner challenged this order in an appeal before the Additional Settlement Commissioner, but it is not surprising that this appeal was dismissed summarily on 21‑11‑1972. Being very resourceful the petitioner challenged the dismissal of this appeal in a revision before the Settlement Commissioner. And the Settlement Commissioner allowed the revision, because he was of the view that the passage and the staircase should not have been numbered as property No, B‑34/1, because it "is not mentioned in the Evacuee Property Register (P. S. R.) or in Cus‑2 register". He, therefore, by his order of 31‑5‑1973 cancelled the P. T. D. which had been issued to the first respondent and directed that .the passage and the staircase should be transferred to the petitioner for, a sum of, Rs. 1,600 as originally offered by the petitioner. The first respondent challenged this order in a writ petition in the Sind High Court and the writ was allowed by a learned Judge of the High Court on. the short ground that the ]carried Settlement Commissioner had no jurisdiction under the P. T. D. rules to cancel the P. T. D. in favour of the first respondent. Aggrieved by thin judgment, the petitioner has filed, this petition for leave. Mr. Abbas submitted that, the Settlement Department had acted without jurisdiction in treating the passage and staircase between the two shops (No. B‑33 and No. B‑34) as a separate building, namely No. B‑34/1. But the difficulty in the way of accepting this plea is that the petitioner had himself agreed to purchase No. B‑34/1 for the sum of Rs. 1,600, therefore, Mr. Abbas stated that this offer had been made by the petitioner under a misapprehension and the petitioner had, therefore; not followed it up. But the petitioner is 'not aggrieved by the Settlement Commissioner's order directing him to acquire No. B‑34/1 for a sum of Rs. 1,

600. Confronted with this difficulty, learned counsel s only submission was that the passage and the staircase between the two shops could not be declared a separate building. But the question was one of fact which was within the jurisdiction of the Settlement Department, and the petitioner does not improve his case by changing his position constantly. 3n any event, the Settlement Department had originally accepted his offer to sell him the premises in dispute for a sum of Rs. 1,

600. He had then, according to learned counsel, changed his mind and had therefore, not complied with the notices by the Settlement Department calling upon him to pay the transfer price result of the failure of the petitioner to fulfil his promise was that the premises which had been legitimately declared by the Settlement Department to be a build ing became available for transfer as there was no claimant for the same. It was in this background that the premises were auctioned to the first respondent and a P. T. D, issued to him. It is obvious to say that the P. T. D. thus issued became final and the Settlement Commissioner had no jurisdiction whatever to cancel it, by his order of 31‑5‑1973. Therefore, the High Court had rightly allowed the first respondent's writ petition against this illegal order. The petition is without merit and is dismissed. Petition dismissed.