1988 PLP 1196 (CLC)

P L D 1973 SC 236ref. (b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑ ‑‑‑S.2(2)‑‑Validity of transfer‑‑Determination of‑‑Question whether property in dispute was related to a charitable and religious trust which should not have been transferred through open auction, was a matter which should be considered by Settlement Commissioner ‑‑Case remanded to Settlement Commissioner to decide matter afresh after notice to all concerned parties . Heard Mr. Nasrullah Awan for petitioner, Mr. Abbas Zia for respondent No.6 and Mr. Abdul Majid Khan for Respondent No.l and Kazi Imdad Ali for A.‑G., Sind for respondents Nos. 2, 3 and 5 Mr. Bashir A. Shaikh stated that no instructions for respondent No.4. Petitioner had purchased the disputed property in 1977 from respondent 4 by registered sale‑deed. Respondent No.4 had purchased the property from Settlement Department in auction in 1963 which was confirmed and later on price was fixed by respondent 4 and P.T.D. was issued to him on 24‑1‑1964. The Settlement Commissioner, Sind, has, by order, dated 22‑5‑1978, set aside the transfer of property in favour of respondent No.4 on the ground and the transaction of sale in his favour being based on fake and false entries which were forged. Even signatures of some officers were found to be forged. The Settlement Commissioner, has noted that property had been transferred by respondent 4 to the present petitioner but she had not issued any notice on the ground that her address was not disclosed in the sale‑deed executed in her favour. The S.C. has also noted that although this property is shown to be owned by Acharya Devendra Prasadji but there is nothing in the record to show that property was attached to any charitable or religious trust. Since the petitioner had not been issued any notice before the transfer in favour of respondent 4 was set aside, therefore, petitioner has been condemned unheard although she had vested right in the property and was entitled to a notice as transferee of the property from respondent No.4. Mr. A. Majid Khan had submitted that respondent 4 had played fraud and, therefore, the order could not be interfered with but I find that in view of the finding of fraud against respondent No.4 it was necessary that present petitioner should have been issued notice, as she was to be directly adversely affected by the order passed against respondent No.4. She was an interested party and since it was brought to the notice of the Settlement Commissioner that she was the transferee from respondent No.4, therefore, all the more it was necessary that she should have been heard. It could be possible that if notice was issued to the present petitioner she might have been able to show to the Settlement Commissioner that the transfer in favour of the respondent No.4 could be justified. In this view of the matter there is more than enough reason to set aside order of the Settlement Commissioner and remand the case back to him for fresh decision after notice to the present petitioner. Mr. Abbas Zia, learned counsel for respondent No.6 had submitted that the property had never been treated as evacuee property, and therefore, it could have never been transferred to Dawood, respondent No.4, and hence any transfer by Dawood to the petitioner was of no effect. He, therefore, submitted that even if the petitioner was not given any notice by the Settlement Commissioner, the order should not be interfered with, as it would work injustice to respondent No.6. He relied upon P L D 1973 SC 236, where it was held that in order to invoke discretionary power of a Court it must be shown that the order sought to be set aside had occasioned some injustice to the parties and if it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked. But in this case the Supreme Court held that where the Claims Officer had misinterpreted and misapplied the circulars then he had no doubt decided wrongly but not without jurisdiction. I am satisfied that in the present case before me case of Raunaq Ali cited above is distinguishable, because the petitioner's case is that she has been condemned unheard and the decision against her by the Settlement Commissioner is coram non judice and, therefore, she is entitled to be heard again. In fact no prejudice will be caused to respondent No.6 by remanding the case back to the Settlement Commissioner for decision where the present respondent No.6 can take up all the positions and also press before the Settlement Commissioner that the property was related to a charitable and religious trust and, therefore, it should not have been transferred. In fact the finding of the Settlement Commissioner so far in the impugned order is against the respondent No.6, where it was observed that there was nothing to show that the property was related to a charitable trust. Probably this matter would require consideration from the Settlement Commissioner again and, therefore, it may be as a whole B in the interest of respondent No.6 itself that the matter is remandedi to the Settlement Commissioner afresh. Consequently, this petition is, allowed and impugned order, dated 25‑5‑1978 is declared to be a nullity and the case is remanded back to the Authorized Officer under section 2(2) of the Act 1975 for fresh decision after notice to all the parties. H.B.T./F‑50/K Case remanded.