1984 PLP 2087 (CLC)

‑‑S. 20 (3) (4)‑Permanent Transfer (Houses and Shops) Rules, 1961, rr. 6 & 7‑Repeal of rules‑Settlement authorities, held, had no jurisdiction to amend P. T. D. or even to correct clerical mistakes after repeal of Rules. Anwar Hussain v. Sarfaroz Ahmed P L D 1971 S C 669 not relevant. 1973SCMR624;1982SCM.R1163;PLD 1975Kar 971 ;PLD 1980 Pesh. 204 ; P L D 1982 Kar. 276 ; 1983 C L C 1327 and 1973 S C M R 624 rel. ‑‑S. 2 (3)‑Order passed by authorised officer in respect of pending proceedings under S. 2 (3) of Act, held, not open to revision by Chief Settlement Commissioner‑Remedy open to parties in such matters indicated in 1973 S C M R 624‑Provisional Constitution. Order (1 of 1981), Art. 9.‑[Revision (civil)]. Muhammad Younus v. Muhammad Younus Khan 1981 .S C M R 899 ; 1979 C L C 706 ; P L D 1978 Lah. 1247 and 1983 C L C 897 ref. The property bearing Custodian No. A/3 C. S. No. 1453/Mirwah Road, Mirpurkhas was recorded as an Evacuee property. On this survey number recorded in Custodian's record 3 properties, namely, A/1, A/2 and A/3 were recorded. The dispute relates to A/3. This property was put to unrestricted public auction on 30th December, 1969 with a reserve price of Rs.

720. Muzaffar Hussain submitted a bid of Rs. 730 which was accepted by the Auction Committee and approved by the Additional Settlement Commis sioner. Muzaffar Hussain entered into an agreement of association with the petitioner, surrendering his entitlement, which was accepted by the Deputy Settlement Commissioner by order, dated 13th March, 1970 and accordingly on payment of transfer price and settlement fee P. T. D., dated 9th April, 1970 was issued in favour of the petitioner. In the P. T. D. the brief description of the property was mentioned as House No. A/3 at Mirpur khas but the area of the property was not mentioned in it. The petitioner applied to the Deputy Settlement Commissioner that in the records of C. D. C. the area of property No. A/3 has been mentioned as 362.1 square yards or 3,259 square feet and, therefore, in the P. T. D. this area should be incorporated. The Deputy Settlement Commissioner acceded to the request and by order, dated 15th February, 1971 incorporated the remarks in the P. T. D. that "the area of the house on Plot No. A/3 is 3,259 square feet as per report of the C. S. No. 1453 (portion)". This incorporation was made without hearing any of the parties. On the basis of this amended P. T. D. the petitioner caused a mutation in the Records of City Deputy Collector and Plot No. 1453 was sub‑divided. The portion A/3 was assigned No. 1453il/l. The petitioner served a legal notice on respondent No. 2 calling upon him to hand over possession of part of his property as he was in unauthorised occupation. The respondent No. 2 refused to vacate and pleaded that he has been in possession of this property for the last more than 20 years. The petitioner, therefore, filed Civil Suit No. 5 of 1972 for possession in the Court of Civil Judge, Mirpurkhas. Prior to this, respondent No. 2 had addressed letter to the Additional Settlement Commissioner on 4th June, 1970 seeking transfer of the property which was in his occupa tion. Additional Settlement Commissioner replied that the property had been auctioned. The Settlement Authorities also demanded rent from the respondent No. 2 for the period he has been in occupation. On 29th March, 1974 the Deputy Settlement Commissioner replied to an application of respondent No. 1, dated 18th March 1974 which he had addressed to the Additional Settlement Commissioner that the property had been transferred to the petitioner. The respondent No. 2 thereupon filed a Revision Application on 24th May, 1974. The Settlement Commissioner admitted the Revision for regular hearing and forwarded it to Additional Settlement Commissioner for disposal under section 20 (3) of Act XXVIII of 1958. The Additional Settlement Commissioner by, his order, dated 30th June, 1974 after hearing both the parties set aside the order of the Deputy Settle ment Commissioner, dated 15th February, 1971 and remanded the case for demarcation of Property No. A/3 transferred to the petitioner. The Deputy Settlement Commissioner after hearing both the parties and inspecting the site by his order, dated 3rd May, 1975 held that in the site plan prepared by the Deputy Commissioner, 3,260 square feet were allocated against No. A/3 which was incorporated in the P. T. D. On this basis he held that the incorporation of the area did not amount to any illegality and the petitioner is the owner of A/3 with an area of 3,260 square feet. The respondent No. 2, therefore, filed a Revision Application before the Settlement Commissioner, who by the impugned order, dated 2nd February, 1976 allowed it. It was held by him that the petitioner was transferred only one house and the inclusion of 3,260 square feet in the P. T. D. was illegal. He directed the Deputy Settlement Commissioner to inspect the site and find out the actual area of the house which should be mentioned in the P. T. D. The petitioner has challenged this order of the learned Chief Settlement Commissioner in this petition. Mr. Maroof Ali Khan, the learned counsel for the petitioner has contended that the Deputy Settlement Commissioner while passing the order, dated 3rd May, 1975 had relied upon evidence and record of the Deputy Commissioner and as no new evidence was brought the determina tion of the area by the Deputy Settlement Commissioner could not be reversed. The learned counsel relied on Anwar Hussain v. Sarfaraz Ahmed (P L D 1971 S C 669). This authority is not relevant to the present case as the Hon'ble Supreme Court has made observation with reference to rules 6 and 7 of Permanent Transfer Rules, 1961 which have been deleted on 2nd March, 1964 and 27th December, 1964 respectively. Mr. Abdul Naseer Khan, the learned counsel for the respondent No. 2 has contended that after issuance of P. T. D. and repeal of rules 6 and 7, the Settlement Authorities have no jurisdiction to amend the P. T. D. There is string of authorities to support this contention. Reference can be made to 1973 S C M R 624, 1982 S C M R 1163, P L D 1975 Kar. 971, P L D 1980 Pesh. 204, P L D 1982 Kar. 276, 1983 C L C 1327. In 1973 S C M R 624 it was held that "after the repeal of rules 6 and 7 there was no power left in the Settlement Authorities to correct even the clerical mistakes in the P. T. D.". It, therefore, seems clear that the amendment made by the Deputy Settlement Commissioner on 15th February, 1975 and thereafter its determination by the Deputy Settlement Commissioner on 3rd May, 1975 was illegal and without jurisdiction. Mr. Maroof Ali Khan, the learned counsel then contended that the order of the Chief Settlement Commissioner, the respondent No. 1 is patently illegal and without jurisdiction as no revision is competent against an order passed by an Authorised Officer under section 2 (3) of Act XIV of 1975. It is not denied that the order passed on 3rd May, 1975 was in respect of a pending proceeding by an Authorised Officer as defined by section 2 of the said Act. It is clear that this order could not be revised by the Chief Settlement Commissioner and this contention finds support from section 2 (3) of the said Act. In this regard the learned counsel has referred to Muhammad Younus v. Muhammad Younus Khan (1981 S C.M R 899), 1979 C L C 706, P L D 1978 Lah. 1247 and 1983 C L C 897. 1n view of the aforesaid' authorities it is clear that the impugned order passed by the respondent No. 1 is without lawful authority. The result is that both the orders lack validity and legal sanction. I, therefore, declare both the orders, dated 3rd May, 1975 and 2nd February, 1976 without lawful authority and of no legal effect. The remedy open to the parties has been indicated in the case of Aminuddin v. The Settlement Commissioner and others (1973 S C M R 624) in the following manner; "This petition is, accordingly, without any merit and is dismissed. The petitioner can, however, if he is so advised, seek his remedy by suit in a competent Court and have it cleared that C. S. Nos. 556 and 557 really appertain to property bearing Custodian No. B/80 which has been transferred to him under the agreement of association by the Settlement Department." M. B. A. Petition accepted.