P L D 1975 Karachi 153 (PLP)

Through this Constitutional Petition, under Article 98 of the Late Constitution read with Provisional Constitution Order, 1969, the petitioner seeks to challenge the order of Settlement Commissioner dated 24‑5‑1969, to be declared as without lawful authority and of no legal effect as well as auction having taken place on 29‑7‑1967, and the transfer documents in pursuant of the same in favour of respondents Nos. 3 and 4 as illegal, with regard to the shop bearing Custodian No. G‑1, M. R. 7/62, Khori Garden, Karachi, he further prays that the order of Additional Settlement Commissioner in favour of the petitioner to be held legal and operative or in the alternative case may be remanded to Settlement Commissioner, Karachi to decide whether the property in question is Evacuee Trust Property attached to a Charitable Trust.

2. Briefly the facts are that on 14‑7‑1959, the petitioner admittedly being in undisputed occupation and possession of the shop in question since 1948 applied for transfer of the shop in Form C. S. under para. 8 of the Schedule to Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, read with provisions of Ordinance No. L III of 1959, Annex. A. However, on 31‑10‑1959, an intimation was received by the petitioner from the Settlement Commissioner, Karachi that his application dated 14‑7‑1959, was rejected on the ground that the property was an Evacuee Trust Property, `Annex. B'. Counsel for the petitioner has pro duced the original in the Court which is cyclostyled pro forma, the wordings "No allotment order produced. Rejected," are scored off and with pencil on top of it is written that "Ref. Your application Regn. No. KYC/B/65/V C.S.D./14‑7‑1959 property a Trust‑Rejected".

3. After this the petitioner was undisputedly charged rent of the shop first by the Custodian Department up to 1‑10‑1962 and thereafter by the Divisional Evacuee Trust Committee, Government of Pakistan, Karachi, last payment was made in the year 1969. The counsel has produced the receipts with regard to payment of rent to Custodian as well as to Evacuee Trust Committee which are not disputed, Annex. `C'. On 15‑7‑1963 a Gazette Notification bearing No. 1(12)/63 by the Secretary, Divisional Evacuee Property Trust Committee, Government of Pakistan was issued inviting claims in respect of Trust properties, this notification includes the shop in question mentioned at Sl. No. 37 of the Notification Annex. `D'.

4. It is the case of the petitioner that he had obtained an extract from the Jammat Bandi Roll of Karachi Municipal Corporation showing the property as charitable and the property was in charitable use. He also obtained a copy of an extract from the Office of the City Deputy Collector as regard to the status of the property, wherein it is shown that the pro perty was a Trust Property. These are Annexs. D‑1 and D‑

2. Therefore, in the circumstances the petitioner continued as stated earlier paying rent to the Evacuee Trust Committee, Karachi as he treated the property as a Trust Property, Annexs. `E and E‑I' are the bills sent by the Trust Committee to the petitioner to pay the same.

5. It is the case of the petitioner that the Deputy Settlement Commis sioner without notice to him arbitrarily later on treated the property in question as non‑trust evacuee property in utter disregard to his previous order and notice dated 31‑10‑1959 and consequently put the property in auction on 29‑7‑1967 which was purchased by respondents Nos. 3 and 4 for a sum of Rs. 12,100 and auction having been confirmed‑P. T. D. was illegally issued in their favour in 1968, although the petitioner continued to be in possession of the same.

6. Having no knowledge of auction proceeding as well as issuance of P. T. D. in favour of respondents Nos. 3 and 4, it is the case of the petitioner that he was surprised to receive a notice of the respondents dated 31st May 1968, Annex. `F' stating that they were transferred the shop in question in auction and P. T. D. was issued to them on 4‑5‑1968, claiming rent and entitlement of the property. As a result the petitioner filed an appeal on 20‑6‑1968 before the Additional Settlement Commis sioner, Karachi, wherein stating that the property should not have been transferred to anybody else; once it is declared as Evacuee Trust Property and if the same was not Trust Property then it should have been transferred to the applicant on C. S. Form on the basis of his occupation and, entitlement under the relevant laws and requested for cancellation of the transfer in favour of the respondents. Alongwith his appeal an application under section 5 of Limitation Act, 1908 for condonation of delay was also filed supported by necessary affidavit stating that the auction was without his knowledge although he has possession of the property and paying rent to Trust Committee.

7. The Additional Settlement Commissioner after hearing the parties condoned the delay, allowed the appeal and cancelled the auction of the shop in favour of respondents and directed that the auction price be refunded to them with a further direction that the shop in question be transferred to the appellant against his C. S. Form. The operative portion of the order is as under :‑ "However even if it is presumed for argument sake that the appellant's C. S. form was rejected for want of allotment, then in accordance with the instructions which were issued subsequently, all such forms were to be restored and reconsidered on merit as the definition of possession in the Settlement Act was subsequently amended and all such occupants who were in undisputed possession since before 20th December 1958 were allowed to apply in the respective forms, therefore, the appellant was entitled to the transfer of the said property which was in his undisputed possession since before 20‑12‑1958. It is now settled law and there are several authorities on this point that pending the claim of the occupant, a house or a shop could not be disposed of in any other manner, and if a house or a shop is disposed of by auction or otherwise, during the pendency of the occupant's application in the prescribed form, such transfer will be ab initio, illegal and void, and all subse quent acts bused on it, including the issue of P. T. D. will be nullity in the eye of law, and would confer no rights on such transferee. I have, therefore, no hesitation in holding that the auction of the said shop in favour of the respondents was illegal and void ab initio."

8. The respondents, however, challenged the above order of Addi tional Settlement Commissioner in Revision before the Settlement and Rehabilitation Commissioner, Karachi, who by the impugned order dated 24th May 1969, Annex. `K' allowed the revision and set aside the order of the Additional Settlement Commissioner mainly on the ground that the petitioner had been guilty of laches, in not persuing his alleged rights according to law, till much after the property was put to open public auction and was purchased by the petitioners who have acquired according to him an unassailable right due to negligence of the respondent, consequently he restored the auction as well as the transfer documents in favour of the present respondents.

9. I have heard Mr. Naimuddin, Advocate for the petitioner and Mr. Ismail Munshi, Advocate for the respondents. The impugned order of the Settlement Commissioner has been challenged inter alia on the ground that the Deputy Settlement Commissioner having rejected the C. S. application of the petitioner on the ground that it was trust property on 31‑10‑1959, was not competent to re‑open the case and disposed of the property as non‑trust evacuee property, as he had no power to review his previous order on the relevant date of 29‑7‑1967. And that the Deputy Settlement Commissioner was not competent to decide that the property in question was attached to charitable trust or not, because such power lies with the Chief Settlement Commissioner under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1.958. He argued that C. S, application was rejected on the ground that it was trust property. It was the duty of Deputy Settlement Commissioner concerned to decide the petitioner's application afresh, but this has not been done. Consequently he further pointed out that the Secretary, Trust Committee, vide his letter No. 8(H)‑5/67/440 dated 6‑5‑1968 had informed the Deputy Settlement Commissioner that the property in question is a trust property which is included in the list vide his letter No. 8(H)‑5/67 dated 30‑4‑1968 and requested the department to stop the transfer of the property. This also according to him goes to show that at least up to that time the property was considered as a trust property and the petitioner being in possession and regularly paying the rent, which was being accepted by the Trust Committee. No copy of this order, however, has‑ been produced in the Court and no counter‑affidavit to the contrary has been bled by‑ the respondents. This also goes to show that the property was being treated as a trust property apart from the Gazette notification referred to earlier. As to the laches on the part of the petitioner, counsel argued that the auction was held illegally behind the back of the petitioner without notice to him who was in possession and it was he likely to be affected as well as the Trust Committee who was claiming property at the same time to be entitled to the property, therefore, it cannot be said that the petitioner was negligent in any way, as held by the Settlement Commissioner in the impugned order. Soon after receiving the notice of the Advocate on behalf of respondents Nos. 3 and 4 with regard to transfer of property and issuance of P. T. Ds. to them the petitioner has filed an appeal which was decided in his favour, therefore, even otherwise the petitioner in abun dant caution had filed an application for condonation of delay under section 5 of the Limitation Act which was duly considered and allowed by the Additional Settlement Commissioner who was competent to do so. Therefore, the Revisional Authority according to counsel has no power to set aside the order in favour of the petitioner on the ground of laches at that late stage. He, therefore, argued that the order of respondent No. 1 dated 24th May 1969, and the P. T. D. dated 4‑5‑1968, in favour of respon dents Nos. 3 and 4 in persuance of illegal auction held in 1967, are illegal and without jurisdiction, as there was overwhelming evidence that the property was Evacuee Trust Property and he ought to have decided first that question but that has not been done, he, therefore, failed to exercise jurisdiction vested in him. He further argued that in any case transfer in favour of respondents Nos. 3 and 4 is illegal and without jurisdiction as order of Additional Settlement Commissioner transferring the shop in favour of the petitioner may be upheld. In the alternative, however, he submitted that the case be remanded to the Settlement Commissioner to decide the question whether the property is Evacuee Property attached to a Charitable Trust and then decide the claim of the petitioner by virtue of C. S. Form which may be treated as pending, He further argued that in case if the property is held to be Evacuee Property then the proper person, who is continuing to be in possession since 1958, and is claimant displaced person, is entitled to the same under the law and his C. S. Form may be treated as proper which was rejected inadvertently by the depart ment treating the property as Trust Property. If the property is a Trust Property, the property could not be auctioned under the law, therefore, any transfer in favour of respondents Nos. 3 and 4 falls to the ground.

10. I find sufficient force in the arguments of learned counsel for the petitioner particularly in view of the overwhelming documentary evidence produced and considered by Additional Settlement Commissioner and which have not been controverted by the respondents particularly with regard to payment of the rent first to the Evacuee Property then to the Trust Committee and continues to be in possession since 1948 and his C. S. Form application and its rejection on the ground that the property is first as a Evacuee Property and then as a Trust Property by the depart ment.

11. When confronted with this situation, learned counsel for respondents Nos. 3 and 4 Mr. Ismail Munshi vehemently argued that once P. T. Ds. have been issued to the respondents Nos. 3 and 4 in the year 1968 the Additional Settlement Commissioner had no power whatsoever to interfere with the same. He also argued that the appeal was time barred and the petitioner was negligent, therefore, the Settlement Commis sioner rightly set aside the appellate order on that ground but he has failed to satisfy me that whether any notice was issued to the petitioner, neither the record shows that such a notice has been issued to him with regard to the auction or any such notice has been issued even to the Trust Committee by the Settlement Department because they were claim ing the property as such and receiving the rent. Thus in my view, the' Deputy Settlement Commissioner could not under the law put the property to auction behind the back of the necessary parties who were likely to be affected by any such auction as it has been done in this case. Mr Ismail Munshi relied on S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others (P L D 1971 S C 669), as well as Aminudduz v. Settlement Commissioner and others (1973 S C M R 624) and Mst. Hajri Bai and another v. Settlement and Rehabilitation Commissioner, Karachi and another (1974 S C M R 235) as well as unreported judgment in Ali Muhammad v. Haji Hussain and others L. P. A. 214 of 1966. In Anwar Sani's case their Lordships of the Supreme Court held that the Settlement Authorities become functus officio once P. T. D. was issued and they can interfere only under the P. T. D. Rules 1961 on question of clerical mistake, fraud or mis representation. As P. T. D. Rules Los. 6 and 7 later on had been deleted it was held by their Lordships of the Supreme Court in the later judgment that even a clerical mistake cannot be corrected by the department. The judgment of L. P. A. 214 of 1966, cited by the learned counsel is also on the same point and follow the principles laid down by ;heir Lordships of the Supreme Court. However in my opinion these judgments in no way advance the case of counsel for the respondents because the principle laid down in the above‑cited judgments is directly concerned with the powers and jurisdiction of the Settlement Authorities and not the powers under. Writ Jurisdiction of this Court. This Court can interfere in my opinion in a fit case where the initial order is void ab initio. It was held, in Haji,'' Abdul Rahim Haji Abdullah and 2 others v. Commissioner of Income‑tax (P L D 1967 Kar. 681), a Division Bench Decision, that the litigant cannot be made to suffer for ]aches and inaction of any department. Their Lordships relied on Piare Zal v. Karta Ram (A I R 1936 Lah. 550), quoted the judgment of Agha Haider, J., which I reproduce here "A litigant cannot be made to suffer for the laches and inaction of any Department connected with the administration or justice, hence there is no reason why in the present case the defendant-appellant should lose his right of appeal for the dilatory methods of the Copy ing Department. I have already laid down in 37 P L R 784 (Rura Mal v. Ram Chand 1936 Lah. 200) that the Copying Depart ment is not the agent of the applicant‑for copies but of the particular Department of the Government which is in charge of the Deputy Commissioner."

12. It was not the fault of the petitioner, in my opinion, that the petitioner had failed to file the appeal after time for limitation expired, even that has been condoned by the Additional Settlement Commissioner, because as has been shown earlier that the petitioner filed his C. S. form which was rejected not on the ground of non‑allotment but on the ground that the property was a Trust Property and, the Trust Committee all along having been receiving rent from him. Under the law no trust property could be auctioned by the Settlement Department, therefore, theta petitioner could not in the circumstances imagine that the Settlement Department without any notice to him or bringing the same to the know ledge of the Trust Committee could auction the property and issue the' transfer deed to somebody else. Such an auction in my opinion, in the circumstances is grossly illegal of which the Deputy Settlement Commis sioner has no power. On the other band I find sufficient force in the argu ments of learned counsel for the petitioner that if the property is to be held as an Evacuee Property then the initial rejection of Petitioners C. S. form on the ground that the property is a Trust Property is illegal because the petitioner is a claimant and in possession of the same and he was entitled against any other person. On the other hand if the property is a Trust Property even then the property cannot be auctioned under the law and the auction‑purchaser has no right to transfer of such property. But this question has yet to be decided as the proper authority under the law is the Chief Settlement Commissioner.

13. For the reasons given above I find sufficient force in the arguments of counsel for the petitioner and accept this petition and set aside the impugned order of Settlement and Rehabilitation Commissioner dated 24‑5‑1969 and hold that the auction proceedings and the subsequent transfer in favour of the respondents are null and void and of no legal effect. However, I remand this case to the Chief Settlement Commissioner. Sind to decide whether the property is Trust property attached to a charitable trust, and if he comes to the conclusion that the property is not a Trust property attached to a charitable institution then it will be the petitioner who will be entitled to the property against his C. S. form which was rejected illegally, but make no order as to costs. Order accordingly. S. A. H. Petition accepted.