1986 PLP 2035 (MLD)

Abdul Majid Khan for Petitioner. Ch. Muhammad Nazir Ahmad for Respondent. Date of hearing: 5th February, 1986. Through this constitutional petition, Jalal Din petitioner (since dead) wanted this Court to declare the order, dated 25‑5‑1978 of the Deputy Settlement Commissioner, to be without lawful authority and of no legal effect. He also requested for direction to the Settlement Department for issuing transfer order to him.

2. The dispute relates to the transfer of House Property No.N‑VII‑13‑S‑2, Badami Bagh, Lahore. The petitioner's case is that the disputed house was in his possession and was transferred to him. P.T.O. was issued in his name on 21‑10‑1960. Subsequently the same was resumed on 19‑12‑1967 from his name and put to auction on 27‑2‑1868 and transferred to Sh. Nidayat Ali the predecessor‑in‑interest of respondents Muhammad Ali and 10 others who was the highest bidder. On his death, Muhammad Ali and 10 others, the respondents were declared his legal heirs vide order, dated 25‑10‑1973 of the Deputy Settlement Commissioner, Lahore Thereafter, the Deputy Settlement Commissioner vide impugned order, dated 25‑5‑1978 directed that the petitioner may seek judicial remedy available to him under, the law against the resumption and auction of the property in favour of Sh. Hidayat Ali, hence this petition.

3. The learned counsel for the petitioner contended that since the disputed land had been transferred to the petitioner and P.T.O. had been issued, therefore, the property could not have been cancelled from his name and resumed. The learned counsel further submitted that the proceedings of the transfer of disputed property to Sh. Hidayat Ali on 27‑2‑19688 are bogus because Sh. Hidayat Ali having died on 19‑1‑1962 could not have offered the highest bid on 27‑2‑1968. The learned counsel for the Settlement Department has supported the impugned order. It may be noted that Muhammad Ali and 10 others respondents the legal heirs of Hidayat Ali have been ordered to be proceeded against ex parte.

4. I have considered the submissions made by the counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that from the entries in the death register, Annexure 'B' and from order, dated 25‑10‑1973 of the Deputy Settlement Commissioner, Annexure 'C' it is very much established that Sh. Hidayat Ali had died on 19‑1‑1962 and as such the question of his offering the highest bid on 27‑2‑1968 with regard to the transfer of the disputed house did not arise. Furthermore, although P.T.O. of the disputed house had already been issued in favour of the petitioner yet he was not given any opportunity of being heard before the disputed property was resumed on 19‑12‑1967. For all these reasons I am convinced that the impugned order is not only illegal but had also been passed without lawful authority. For what has been said above, the writ petition is accepted, the impugned order is declared to be illegal and having been passed without lawful authority and of no legal effect. The parties are left to bear their own costs. H.B.T. Petition accepted.