1986 PLP 447 (MLD)

‑‑‑Art.199‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.2 & 19‑‑Constitutional jurisdiction, exercise of‑ Transfer of property owned by Muslim, as evacuee property being without lawful authority and of no legal consequence, such transfer held, would be null and void‑‑High Court in exercise of constitutional diction set aside impugned order of transfer. Karamat Nazir Bhandari for Petitioners. A.R. Shaukat for Respondents. Date of hearing: 30th November, 1985. The petitioners who are successors‑in‑interest of one Muhammad Din son of Pir Bakhsh brought this constitutional petition to challenge the disposal of property No.8/586 situated in Mohalla Sarai Bhabharian, Sialkot through auction by the Settlement Authorities. For the first time in the year 1959 one Muhammad Shaft son of Hakimuddin occupant of adjacent property bearing No.8/587 submitted a form seeking transfer of property No.8/586 (hereinafter to be called the property in question). On this form the then Settlement Inspector submitted a report to the effect that "there is a vacant site adjacent to house No.8/584‑85 and it appears that during disturbances due to fire or otherwise the site has been rendered without any structure; that the same has not been entered in the record of the Department; that this Khola is in possession of Muhammad Shaft displaced person without any allotment permit". In these proceedings, Muhammad Sarwar petitioner produced a copy of the judgment of the civil Court in support of the claim that the property in question was owned by his father. The then. Assistant Settlement and Rehabilitation Commissioner, Sialkot, after hearing the parties before him vide order, dated 16‑10‑1959 refused to bring‑ the property in question on the record of the Rehabilitation Department observing that on account of aforesaid judgment, it appeared, that the Rehabilitation Department did not enter this property in its record.

2. Despite this order, the property in question; it appears, was included in the auction list arid on 2‑6‑1965 respondent No.3 Amiruddin gave the highest bid of Rs.4,

000. This bid was confirmed by the then Additional Settlement Commissioner on 15‑6‑1965. Amiruddin surrendered his rights on 2‑5‑1968 in favour of his son Abdul Ghafoor who after paying the transfer price obtained P. T. D.

3. Muhammad Sarwar petitioner No.1 on 19‑8‑1968 as attorney of his father Muhammad Din who being an old and ailing man was not in a position to look after his affairs agitated against the transfer of the property in question by filing miscellaneous applications by raising the plea again that the property in question was not an evacuee property as it was owned since before Partition by Muhammad Din this father by virtue of the decision of the civil Court dated 11‑11‑1944. It is pertinent to state at this stage that suit No. 156 of 1943 wherein claim for possession by partition of 44/96 share of the house described in the plaint and demarcated in the site plan attached to the plaint was filed in the civil Court on 5‑3‑1943. The learned civil Judge vide judgment, dated 29‑3‑1944 had granted a preliminary decree for possession of the share of the plaintiffs in the said suit. Aforesaid Muhammad Din as well as Diwan Chand evacuee and other Muslim‑owners were parties to this suit as defendants. Ultimately on deposit of Rs.4,496/8/6 the entire house came to be owned by Muhammad Din as is apparent from the order, dated 11‑11‑1944 of the learned Civil Judge, Sialkot, whereby Muhammad Din son of Pir Bakhsh, predecessor‑in‑interest 'of the petitioners was declared full and absolute owner of the house in dispute. The site plan Exh.A/5 which was available on the file of the civil court fully compares with the site plan prepared by the Rehabilitation Officer on 27‑8‑1959 and is Annexure 'E' with the writ petition. The property in question which was described as Khola in the auction proceedings is, therefore, the same house which in the year 1944 came to vest in aforesaid Muhammad Din. It may further be noted that the identity of the property in question under the aforesaid circumstances was not disputed before me.

4. To complete the history of the controversy, it may be stated that on the application submitted by Muhammad Sarwar petitioner the Settlement Inspector reported on 27‑8‑1968 that despite the order, dated 16‑10‑1959 of the then Assistant Settlement and Rehabilitation Commissioner holding that the property in question was Mulsim‑owned property, it was auctioned on 2‑6‑1965 and was purchased by Amiruddin in whose favour P.T.D. had also been issued. He opined that in view of the decision of the civil court and order, dated 16‑10‑1959 the auction was void as the property in question did not form part of the compensation pool. He suggested that the parties be summoned. The learned Deputy Settlement Commissioner then vide order, dated 27‑8‑1968 directed that the parties be summoned. Thereafter, Superintendent of the office recorded a note saying that the copy of the judgment available on the file related to some house and not to any plot and that on this point the learned Deputy Settlement Commissioner had not said anything. He further remarked that in the record of the Municipal Committee and Excise and Taxation Department, Master Kishan Chand was shown as owner of the plot in dispute. He suggested that the Deputy Settlement Commissioner, Sialkot, be asked to re‑examine the matter and report after consulting all the relevant record. This note was agreed to by the then Additional Settlement Commissioner on 13‑9‑1969. It is also to be noted that Amiruddin in his statement, dated 3‑9‑1968 admitted that the construction of two rooms and a latrine put up by him was all Kacha. Muhammad Sarwar petitioner was ultimately informed vide memo., dated 26‑10‑1971 to seek judicial remedy in a proper forum. Thereafter, Muhammad Sarwar petitioner filed a revision petition but the same was dismissed by the learned Additional Settlement and Rehabilitation Commissioner, Sialkot, on merits as well as on the point of limitation vide order, dated 19‑6‑1976. The observations made in the impugned order are that the petitioner had not put any objection against inclusion of the property in the auction which was published through lists and the same should have been in the knowledge of the petitioner who must have been vigilant enough to put up objection to safeguard his right and that the suit property which was declared by the Civil Judge, Sialkot, to have been owned by the petitioners was having No.44/96 and not the property in dispute. This order was then impugned by the petitioners by filing the present constitution petition.

5. The petition was contested by Gulzar Ahmad respondent No.4 only. Amiruddin auction‑purchaser failed to defend the petition. Learned counsel for respondent No.4 submitted that Amiruddin auction‑purchaser surrendered his rights through association in favour of Abdul Ghafoor but he was not impleaded as a party in the petition. It was added that Abdul Ghafoor after obtaining P.T.D. sold the property in question to Gulzar Ahmad son of Muhammad Shafi vide registered sale‑deed, dated 3‑1‑1970 and that after obtaining the sanction of the Municipal Committee a big double storeyed house had been constructed over the plot since before the institution of the petition. Gulzar Ahmad respondent was also present in Court. He conceded before me that Abdul Ghafoor the associate was the son of Amiruddin who is the real brother of Muhammad Shafi his father. This Muhammad Shafi is admittedly the same person who had submitted a form ‑ in the year 1959 and had claimed possession of the property in dispute on the plea that the same was, an evacuee property. It is pertinent to note that in the presence of aforesaid Muhammad Shafi order, dated 16‑10‑1959 was passed by the then Assistant Settlement and Rehabilitation Commissioner holding that the property was Muslim property and that the said property was never entered in the record of the Rehabilitation Department. In these, circumstances it is apparent that Gulzar Ahmad son of Muhammad Shafi cannot claim that he was bona fide purchaser for value and that he was not aware of the order, dated 16‑10‑1959 passed by the learned Assistant Settlement and Rehabilitation Commissioner. It is apparent that his father having remained unsuccessful in his scheme to grab the property brought Amiruddin his real brother in the field and the property in question was some how got included in the auction list and was purchased by Amiruddin for Rs.4,000 whereas in the year 1944 Muhammad Din one of the owners had paid 88.4,496/8/6 against the share of the" other owners for obtaining exclusive rights in the entire house standing on the plot. It is also important to mention that in the written statement the assertion taken is that a big double storeyed house was built after obtaining sanction from the Municipal Committee in the year 1970 anal,' that the contesting respondent was residing in the same since the last six years but before me Gulzar Ahmad respondent conceded that the construction put up by him is only single storeyed and that the same was put up over a period of six years. In the circumstances of this case, the raising of construction is not important especially in view of the fact that the contesting respondent cannot claim the status of bona fide purchaser for value. The important feature to be noted is that admittedly the property in question was not borne on the record of the Rehabilitation Department. Even if any entry in favour of as evacuee existed in the Municipal or Taxation record that would itself be not sufficient to treat the property in question as evacuee property. Again vide order, dated 16‑10‑1959 the then Assistant Settlement and Rehabilitation Commissioner had refused to include the property in question in the evacuee /compensation pool. This being the position the property in question could not be included in the auction list without there being a formal order of a competent authority. The competent authority in the facts and circumstances of this case could, not have intended the property in the compensation pool without providing an opportunity of hearing to Muhammad Din or his successors‑in‑interest the petitioners. The auction of the property in question in the year 1965 was' as such wholly without lawful authority and illegal. No right on the basis of such suction can thus be claimed by the auction purchaser, his associate or Gulzar Ahmad the contesting respondent. The identity of the property in question is not in dispute. The learned Settlement Commissioner misread the judgment of the civil Court when he observed that the property disposed of through auction was different from the property claimed by the petitioners. Had he not misread the judgment of the civil Court his decision would have been quite different. In that frame of mind he would have also given a different decision on the point of limitation. Be that as it may, the property in question being Muslim property did not form part of the compensation pool and as such its disposal as non‑Muslim evacuee property was altogether null and void. In this view of the matter, the question of limitation also loses its importance.

6. The net result of the above discussion is that the disposal of the property in question through auction, the P.T.D. issued as well as the order passed by the learned Additional Settlement and Rehabilitation Commissioner, dated 19‑6‑1976 are declared to have been done and passed without lawful authority and hence of no legal effect. The petition, therefore, succeeds. There shall be, however, no order as to costs. A.A. Petition allowed.