P L D 1964 (W (PLP)

"That the property in dispute along with several other Bungalows was to be sold to the Ministry of Defence for public purposes and consequently the Central Government by endorsement No. F. 16 (21)/59‑P‑2, dated February 1959, from the Government of Pakistan, Ministry of Rehabilitation, Karachi, to the Chief Settlement and Rehabilitation Commis sioner, Lahore, intimated that the Central Government was pleased to accord approval for the sale of 48 evacuee Bungalows in different towns of West Pakistan as shown in the list attached in favour of the Ministry of Defence for public purposes subject to the condition that the amount of compensation would be assessed at the current market price in consultation with the Military Engineering Service Autho rities. That the Bungalow in dispute is mentioned in this list. That by means of Notification No. 4‑8‑79/3113, dated the 21st of August 1959, the Government of West Pakistan acquired all evacuee immovable property and the property so acquired, formed part of the compensation pool. That the Central Government in exercise of its powers under subsection (2) of section 3 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958, had asked the West Pakistan Government to acquire evacuee property. It had specifically directed that the property for the acquisition or sale of which sanction of the Central Government under the Pakistan Administration of Evacuee Property Act, XII, 1957 or under any law, for the time being in force for the administration of evacuee property in Pakistan, had been accorded before the date of this notification, shall not be acquired. That as a result of this direction of the Central Government the Bungalow in dispute being such property as regards the sale of which sanction of the Central Government had been accorded, had not been acquired and it did not form part of the compensation pool. Consequently, its transfer, by earmarking, in favour of the petitioner was null and void." It has been further urged by the learned counsel that the Deputy Rehabilitation Commissioner, Lahore, in his letter dated the 9th of April 1959, Annexure `F' (filed by respondent) through a mistake, mentioned 62, Montgomery Road, Lahore, instead of 82, Montgomery Road. That as a result of this, the Settlement Department wrongly included the Bungalow in dispute in the earmarking list. That this mistake was later on corrected by means of memorandum dated the 2nd of March 1960 Annexure `G' (filed by respondent No. 2) wherein it was remarked "please amend 82 instead of 62, Montgomery Road, Lahore Cantt. as stated in the earmarking list referred to above." In this very letter it has also been said that the house may be excluded from the list of category 'B' houses at serial No. 144 and the Appendix II already issued to Mst. Mumtaz Sultana may be cancelled. This letter undoubtedly is after the property had already been transferred to the petitioner in the earmarking.

4. As regards the transfer in favour of respondent No. 2, it has been explained by the learned counsel for her that the Bungalow in dispute was allotted to the husband of the respondent on care‑taker basis, on the 27th of July 1960. That by means of press‑note dated the 6th of September 1960 (page 165 of the Settlement Manual) such occupants were allowed to apply for the transfer of the property in their possession. That the Central Government, had by means of its letter dated the 20th of June 1960, refused to acquire this property. That later on this property had also been acquired by the West Pakistan Government under the Act. That the respondent No. 2 filed a CH form for the transfer of the Bungalow in dispute on the 2nd of August 1960. That the delay in filing the same was condoned by the Additional Settlement Commissioner, and as the respondent's husband was in possession of the property, it was transferred in her favour. Thus the property had been validly transferred to respondent No.

2. The burden of the argument of the learned counsel is that the property at the time it was in the earmarking list did not form part of the compen sation pool so its transfer in favour of the petitioner was illegal and later on as the Bungalow was in possession of the respondent's husband, she as a claimant, was entitled to claim its transfer on her CH form and, therefore, the transfer in her favour was validly ordered. It has been further contended by the learned counsel for respondent No. 2 that since the transfer in favour of the petitioner was void ab initio she had no locus standi to file a writ petition and question the transfer of the Bungalow in favour of respondent No.

2. The fact that the petitioner had no subsisting right on the date the property was transferred to respondent No. 2 was a valid ground for dismissing the present petition. The learned counsel relies on Tariq Transport Company Lahore v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437), wherein it was laid down that a writ can be issued only if the excess or denial of jurisdiction or the irregularity in the prescribed procedure had effected some justiciable right of a party and the party seeking judicial review of administrative or quasi judicial action must show that he had a direct personal interest In the act which he challenges before his prayer for review is entertained. Reliance is also placed on Zaibunnisa Qureshi v. The Chief Settlement and Rehabilitation Commissioner Pakistan and another (P L D 1962 Pesh. 186) wherein it has been remarked that a case under Article 170 of the Constitution of Pakistan 1956 must fail or succeed on its own strength and not on weakness of opponent's case.

5. I will consider these contentions of the learned counsel for the respondents separately. As regards the last contention, I consider that there is no merit in this contention. The Bungalow in dispute was transferred by the Settlement Department in favour of the petitioner. Later on, the transfer in her favour was set aside by the Settlement Authorities. It is, therefore, clear that the justiciable rights of the petitioner had been violated by means of the orders setting aside the transfer in her favour. She had a right to challenge the order cancelling the transfer in her favour. The principles laid down in the two authorities cited by the learned counsel for the respondents do not apply to the facts of the present case. The learned counsel for respondent No. 2 also made a reference to Sh. Rahmat Ullah v. The Deputy Settlement Commissioner, Karachi (P L D 1963 S C 633), brat the facts in that case also are not similar to the present case. As regards the first contention of the learned counsel for respondent No, 2 it has been urged by the learned counsel for the petitioner that the sanction of the Central Government for the acquisition of the property in dispute was not accorded in accordance with law and so it was invalid and the property formed part of the compensation pool. The learned counsel has relied on Messrs Zahid Umar & Company v. The Chief Secretary West Pakistan, Lahore (P L D 1959 Lah. 764). Section 25 (ii) (s) of the Pakistan Administration of Evacuee Property Act, 1957 empowers the Custodian to; transfer any property notwithstanding anything contained in any law or agreement to the contrary relating thereto. Provide that the Custodian shall not under this clause transfer any immovable property or any business or undertaking which in evacuee property except with the previous approval of the Central Government. This clearly lays down that initially it is the Custodian who has to decide whether he would like to transfer any evacuee property to any person. May be that the transferee is another Department of the Government. Nothing has beets brought on record to show that the Custodian was approached by the Defence Department for the sale of the disputed Bungalow and he agreed to its transfer to the Defence Department. After the Custodian was satisfied it was for him to move the Central Government to accord sanction for the sale of the Bungalow to the Defence Department. In the present case the only evidence brought on record is a letter from the Joint Secretary, Government of Pakistan, Ministry of Rehabilitation to the Custodian that in exercise of the powers conferred by section 25 (ii) (s), the Central Government was pleased to accord approval for the sale of 48 evacuee Bungalows in different towns of West Pakistan as shown in the list attached in favour of the Ministry of Defence for public purposes. The powers under section 25 (ii) (s) are in fact the powers to be exercised by the Custodian and if the Custodian decides to exercise those powers he has to obtain the sanction of the Central Government. In the present case there is nothing to show that the Custodian wanted to exercise his powers under section 25 (ii) (s) and h approached the Central Government for granting the required sanction. If the law requires a certain matter to be done in particular manner it has to be done in that manner. Section 25 (ii) (s) runs as follows: "The Custodian may transfer any evacuee property notwith standing anything contained in any law or agreement to the contrary relating thereto." Thus, it is the conscious act and decision of the Custodian which before being given effect to has to be approved by the Central Government. In the present case, the process was reversed. The Custodian had never taken a decision to transfer the property to the Defence Department and the Central Government sent its approval for the transfer. In the letter from the Central Government Annexure `E' (filed by the respondent), this has not even been mentioned that the Central Government approved of the decision of the Custodian to transfer evacuee Bungalows in favour of the Ministry of Defence and this fact clearly shows that the Custodian had never taken any decision to transfer the evacuee Bungalows in favour of the Defence Department. In Zahid Umer's case cited by the learned counsel for the petitioner, it has been remarked that before the order of the Central Government can be held to have been passed under section 26 of the Pakistan Administration of Evacuee Property Act, it should be clear that the terms of that section were kept in view when disposing of the matter which went to the Central Government because if the orders of the Central Government were final the jurisdiction of all other authorities to look into the matter would be ousted and ouster of jurisdiction of authorities ordinarily competent to pass orders should not be interfered unless no other course is open. Section 26 of the Act provided that the Custodian may determine the value of any property vested in him or empowers the Rehabilitation Authorities of the area to do so. Sub‑para. (2) provides that if it appears to the Central Government in any case that the value of the property determined under subsection (1) is not proper, it may make necessary enquiry in the matter and pass such orders as it may think proper and the order so passed, shall be final. In this case the orders of the Central Government were held not to have been passed in accordance with sub para. (2) of section 26. 1n this case the Custodian had given the approval for the sale of evacuee property. The learned counsel for the respondents argued that the fact that although the Custodian bad not initiated the sale in favour of the Defence Department, as soon as the Central Government accorded its approval the property became immune from inclusion in the compensation pool. The learned counsel relies on Syed Ehsan Hussain v. The State (P L D 1961 Pesh. 156). This authority does not support the contention of the learned counsel because in that case it was shown that the Custodian by his letter had conveyed his approval for the transactions of sale. Thus in the case cited by the learned counsel, the Custodian had taken a decision either before or after the approval of the Central Government for the sale of the property In favour of the Defence Department. In the present case, there is nothing on the record to show that the Custodian either before or after the approval of the Central Government agreed to the transfer of the Bungalow In favour of the Defence Department. I am, therefore, of the view that the Bungalow in dispute formed part of the compensation pool at the time when it was transferred by earmarking to the petitioner. The learned counsel for the petitioner further contended that even if for argument sake it be held that the approval of the Central Government permitting the sale of the evacuee Bungalow to the Defence Department was valid and the Bungalow in dispute did not form part of the compensation pool at the time it was transferred to the petitioner the fact that at a later date the Central Government decided against the transfer of the Bungalow to the Defence Department, the property became a part of the compensation pool and since it had already been transferred to the petitioner, the transfer in her favour became a valid transfer. The property in dispute was transferred to the petitioner by earmarking on the 13th of December 1959, as contested by the learned counsel for respon dents that at that time its sale having been sanctioned by the Central Government in favour of the Defence Department it did not form part of the compensation pool, and the title could not validly pass on to the petitioner on that date. However, when on the 20th of June 1960 the Central Government decided not to transfer the property to the Defence Department the property automatically became a part of the compensation pool and its transfer which had already been effected in favour of the petitioner was perfected. The principle embodied in section 43 of the Transfer of Property Act would be applicable in the present case. Section 43 of the Transfer of Property Act runs as follows :‑ "Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for con sideration without notice of the existence of the said option." At the time when the property was put in earmarking due to a mistake in the record of the Deputy Rehabilitation Commissioner Cantt., the property did not form part of the compensation pool, but, however on the 20th of June 1960 much before the respondent No. 2 filed a CH forth for its transfer, the property became a part of the compensation pool. Thus the transfer already effected in favour of the petitioner became a valid transfer on the 20th of June 1960. The learned counsel for the petitioner leas also relied on section 18 (a) of the Specific Relief Act which provides:‑ "When a person contracts to sell or let certain property having only imperfect title thereto, the purchaser or Jesse. (except as otherwise provided by this Chapter) has the following, rights:

(a) If the vendor pr lessor hats subsequently to the sale or lease acquired any interest in the: property the purchaser or lessee may compel him to make good the contract out of such interest." It is urged by the learned counsel for the petitioner that on the 20th of June 1960 when the property became a part of the compensation pool the petitioner could have validly claimed for the specific performance of the contract of sale in her favour which as a matter of fact, had already been completed. That the petitioner was within her rights to ask the Settlement Department to ratify and maintain the sale already effected in her favour. The evacuee property could be transferred by the Custodian under the Pakistan (Administration of Property) Act, XII of 1957. After the property was acquired and had formed part of the compensation pool it was transferable by the Settlement Authority in accordance with the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It has been remarked in P L D 1959 Lah. 764, referred to above, that the Custodian as regards the sale of evacuee property was in no better position than a party to a sale. On the same analogy the Settlement Department when transferring the property to a party is no better than a party to a sale and if at the time when the Settlement Department transferred any property there was any defect in the title and subsequently that defect was removed, the Settlement Department could not refuse to ratify the sale or get out of the already perfected sale as is the case in the present dispute. The Settlement Department is expected to act in a fair and unbiased manner. On the 20th of June 1960 when the property became part of the compensation pool instead of honouring their own previous commitment as a result of which the petitioner had already paid almost the whole of the price of the property by surrendering the claim of her husband and also some payment in cash, to all fairness they should have honoured the previous sale. Instead of that the property is allotted on the care‑taker basis to Mr. S. H. A. Gardezi who by that time had become a Brigadier. The possession is delivered to him and upon a CH form filed by his wife on the 2nd of August 1960, the property is ordered to be transferred in her favour. The learned counsel for the respondent No. 2 relied on the notification of the Central Government dated the 3rd of August 1960, page 165 of the Settlement Manual to justify the transfer of the evacuee property in dispute in favour of respondent No.

2. The notification clearly lays down that such property can be transferred only if no other person is otherwise entitled to the transfer of such house in pursuance of a final order passed by a competent authority. In the present case, the house had already been transferred by earmarking in favour of the petitioner, by means of final orders passed by competent authority. On the 2nd of August 1960, there was nothing to prevent the Settlement Authorities from declaring that the transfer already made in favour of the petitioner even if it was at a time when the property did not form part of the compensation pool had become a valid transfer from the 20th of June 1960, when the Central Government had decided not to transfer the property to the Defence Department. This was not done for reasons best known to the Settlement Department. The delay in filing the CH form was condoned by Lt. Col. J. D. Malik on the telephone when it should have been done by means of a written order. Lt. Col. J. D. Malik was the officer who had conveyed infor mation of the transfer of the Bungalow to the petitioner as Additional Settlement and Rehabilitation Commissioner and later on he cancelled the transfer from the name of the petitioner. However, when the matter came up, in appeal before Major Mukarram Khan, he, in a very lucid order, upheld the transfer in favour of the petitioner but this order was set aside by Ch. Ali Ahmad, Settlement and Rehabilitation Commissioner on two grounds which have already been discussed, were absolutely untenable. It was contended by the learned counsel for the it respondents that the CH form of the respondent was not belated form as it would be deemed to have been filed under the Press‑note of 3rd of August 1960. This contention of the learned counsel has also no footing because the Chief Settlement Commissioner invited the applications in pursuance of this notification of the Central Government on the 6th of September 1960, while this CH form was admitted on the 2nd of August 1960 much before the Rehabilitation Commissioner had called for applications under that notification. It is, therefore, clear that the Settlement Departments for reasons best known to them acted in an extraordinary manner in this case. I may mention here that Major Ishaq Muhammad Khan, Rehabilitation Commissioner (Legal) contended that the property did not automatically form part of the compensation pool as soon as the Central Government on the 20th of June 1960, decided not to transfer the property in favour of the Defence Department. That it was necessary for the Provincial Government to issue a notification to include this property in the compensation pool. That in fact the West Pakistan Government issued a notification on the 11th of August 1961 and it was after that that property became a part of the compensation pool. It is urges by the learned counsel that the transfer of the Bungalow in dispute in favour of respondent No. 2 was invalid so far as the orders of the Deputy Settlement Commissioner are concerned. That the first valid order of transfer in favour of respondent No. 2 was the one which was passed by the Settlement and Rehabi litation Commissioner on the 22nd of October 1963, as by then the property had become a part of the compensation pool. However, the learned c6unsel for respondent No. 2 does not agree with this contention of the learned counsel for respondent No.

1. In his view the property became a part of the com pensation pool as soon as the Central Government decided not to transfer it in favour of the Defence Department and no second notification was necessary for the acquisition of this! property. I am inclined to agree with the learned counsel for respondent No. 2 on this point. The Custodian had power to transfer evacuee property under the Pakistan Administration of Evacuee Property Act. After the Displaced Persons (Compensation and Rehabilitation) Act was passed, all the evacuee property was acquired by the West Pakistan Government except the property mentioned in the order of the, Central Government. As soon as any evacuee property came out of those exceptions of the Central Government it automati cally stood acquired and formed part of the compensation pool. The argument of the learned counsel for respondent No. 1 in fact boils down to this that although the first order of transfer in favour of respondent No. 2 was bad but the second order of transfer in her favour passed by the Settlement and Rehabilitation Commissioner on the 22nd of October 1963, was a valid order. Again this is a contradiction in terms because the learned counsel for respondent No. 1 and even respondent No. 2 have not supported the order of the Settlement and Rehabilitation Commissioner as a valid order in law. In this way on the basis of the argument of the learned counsel for respondent No. 1 the transfer of the property in favour of respondent No. 2 cannot be upheld. The learned counsel for the petitioner has further urged that the intention of the Central Government, as is clear from the Press‑note dated the 7th of April 1960, page 131 of the Settlement Manual ; was that the principles of section 43 of the Transfer of Property Act and section 18 (a) of the Specific Relief Act, should be applied to the Settlement matters. The Press‑note says :‑ "In some cases the claimants who participated in the earmark ing of houses were successful in the lots, but the houses drawn in their favour could not be transferred to them on account of their acquisition by Government or for any other reason. The Central Government has decided that such claimants may be permitted to select one of the houses included in a subsequent earmarking list published by the same Settlement Authority or a house which is not included in such a list but is within the jurisdiction of the same authority and is not transferable to any other person, provided that the value of such a house is fully covered by the amount of compensation available in the Compensation/ Rehabilitation Book of the claimant concerned. If more than one claimant select the same house, the transfer will be effected by the drawing of lots between them. If a claimant is unsuccessful in such lots he will be given another chance to select a house in the same manner. Claimants who were successful in the lots but have not been able to get the respective houses through no fault of their own, may submit an application on plain paper to the Deputy Settlement Commissioner of the area in which the house drawn in their favour is situated, giving their Form `E' number, particulars of the houses for which they were successful and the amount of compensation available in their Compensation/Rehabilitation Book. They should also give particulars of the houses selected by them for transfer and its price determined on evaluation basis. A copy of the application should be forwarded to the authority which has published the earmarking list, if the list has not been published by 'the Deputy Settlement Commissioner concerned. The Deputy Settlement Commissioner after satisfying himself that the applicant is entitled to the transfer of the house selected by him will delete the house from the earmarking list or move the authority concerned to do so, thereafter, he will take necessary steps to transfer the house to the applicant." A perusal of this Press‑note clearly indicates that the Central Government was extremely sympathetic in favour of such persons who were successful in the drawing of lots but were unable to gets the house due to no fault of theirs. In the present case the petitioner's case is eminently of such a character. The petitioner was successful in the drawing of lots. The notices of transfer were sent to her along with Appendix X. The petitioner paid almost the whole of the price of the house. Later on, she was informed that the house could not be transferred to her because; it had been acquired by the Central Government. Thus according to Press‑note she was entitled to another house but after the same house became available for transfer there is no equity in refusing her the transfer of that house and give it to a person who came into possession much later than the transfer of the house in favour of the petitioner. Such actions of the Settlement Authorities are liable to be suspected, by the public as based on some considerations other than just and lawful. Another fact that has come to light during the arguments must be referred to. A belated CH form of respondent No. 2 was admitted on the 2nd of August 1960. An application was made on her behalf by her husband on the 5th of August 1960, and an order was passed on the 6th of August 1960, directing the transfer of the Bungalow in favour of respondent No.

2. But I find that the P. T. O. and Appendix X were prepared on the 2nd of August 1960. which would be three or four days before the actual orders of transfer. Later on, at some of the places in Appendix X and the P. T. O. the dates were changed from 2nd of August 1960 to 6th of August 1960. This change is quite visible to the naked eye. Some of the dates even then remained as 2nd of August 1960. The learned counsel for the respondents urged that it showed that the concerned clerk prepared this immediately on the day the petitioner's CH form was admitted. This seems rather extraordinary because unless an order of transfer is passed the P. T. O. or the Appendix X could not have been prepared. A copy of the P. T. O. and the Appendix X has been filed by the petitioner during the arguments which have been placed on record. The learned counsel for respondent No. 1 showed me the originals and the above facts are clearly borne out by a perusal of the original P. T. O. and Appendix X. The learned counsel for respondent No. 2 replying to the arguments of the learned counsel for the petitioner that the principles of section 43 of the Transfer of Property Act and section 18 (a) of the Specific Relief Act, would be applicable in the present case, urged that since it was not a transfer by agreement of the parties these provisions of law would not be applicable. I have already dealt with this aspect of the case. The Settlement Department or the Custodian when ordering a transfer of a property is in no better position than any other contracting party, and I do not see any reason why the principles embodied in the two sections be not made applicable to the transfers by the Settlement Department. The learned counsel for the respondent has further urged that the principle of section 43 would not be applicable in a case where the transfer is void or prohibited by law. He has cited the following authorities: (1) Vaddadi Sannamma v. Koduganti Radhabhayi and two others I L R 41 Mad. 418. (2) Radha Bai v. Kamod Singh and others I L R 30 All. 38. (3) Annada Mohan Ro v. Gour Mohan Malik A I R 1921 Cal. 510. (4) Ramasami Naik v. Ramasami Chetti and others I L R 30 Mad. 255. (5) Ofeial Assignee, Madras and another v. Sampath Naidu A I R 1933 Mad. 795. (6) Balbhaddar Singh v. Kushar Das and others A I R 1928 Oudh 344 and Kushar Das and another v. Balbhaddar Singh and others A I R 1928 Oudh 153. (7) Kuchwar Lime & Stone Col. Ltd. v. Secretary of State A I R 1937 Pat 65 (8) Ananda Mohan v. Gour Mohan Mulik and others A I R 1923 P C 189 and (9) Nursing Das Kothari v. Chuttoo Lal Misser 74 I C

996. The authorities cited by the learned counsel for respondent No. 2 are not applicable in the present case as in these cases the transactions were in violation of section 6 (a) of the Transfer of Property Act which is not the cage here, 5: In view of what has been stated above, I would quash the orders of Ch. Ali Ahmad, Settlement and Rehabilitation Commissioner, dated the 22nd of October 1963. The result will be that the transfer of the house in dispute in favour of petitioner, as effected by earmarking on the 13th of December 1959, is maintained. The petitioner will be entitled to have her costs from respondent No. 2, A. H. Order quashed.