1984 PLP 1587 (CLC)

S. 35 Permanent Transfer (Houses and Shops) Rules, 1961, rr. 6 & 7 Constitution of Pakistan (1972), Art. 201 Settlement Authorities, after issuance of Permanent Transfer Deed, held, become functus officio and order of authorities passed subsequently with regard to any change or addition in Permanent Transfer Deed, null and void. Nazir v. Syed Israr 1981 SCMR 829 and Muhammad Ramzan v. Abdul Ghani PLD 1980 Kar. 99 rel.

S. 35 Permanent Transfer (Houses and Shops) Rules, 1961, rr. 6 & 7--Permanent Transfer Deed Order passed subsequent to issuance of Settlement Authorities passing order in respect of roof of a property subsequent to issuance of Permanent Transfer Deed although no fraud or misrepresentation alleged by party Settle ment Authorities, held, could not exercise powers under Permanent Transfer (Houses and Shops) Rules, 1961 After repeal of rules 6 and 7 of Permanent Transfer (Houses and Shops) Rules, 1961 which empowered Settlement Authorities to interfere with Permanent Transfer Deed Settlement Authorities, held further, could not interfere with P. T. D. even on ground of fraud or misrepresenta tion or on ground of there being a clerical mistake. S. Anwar Hussain Sani v. Sarfaraz Ahmad and 2 others P L D 1971 S C 669; Ali Muhammad v. Haji Hussain and 2 others P. L D 1975 Kar. 971 and Aminuddin v. The Settlement Commissioner and others 1971 SCMR624rel.

S. 35 Permanent Transfer (Houses and Shops) Rules, 1961 Rr. 6 & 7 Permanent Transfer Deed issued in 1963 to transferee who kept silent for six years and then came forward with an appli cation claiming some additional portion of building on first floor of his shop Deputy Settlement Commissioner entertaining such application of transferee Order of Deputy Settlement Commis sioner, held, misconceived, without jurisdiction and null and void and all subsequent orders passed thereon relating to changes in Permanent Transfer Deed also liable to be struck down as having been passed without jurisdiction.

Jurisdiction, held cannot be conferred on an authority by consent of a party if under law that authority has no such jurisdiction.

R. 4 After repeal of rule 4, power of rectification of P. T. D., held, not available with Settlement Authorities who shall be deemed functus officio.

Ss. 10& 11 Transferee of shop on ground floor, held, shall be deemed to be also transferee of roof Petitioner in possession of roof of his shop and respondent transferee of first floor Respondent, held, shall not be entitled to use that portion of roof on first floor which forms part of roof of petitioner's shop.

S.35 Permanent Transfer (Houses and Shops) Rules, 1961,rr. 6 & 7 Orders of Settlement Authorities relating to changes thereon after issuance of Permanent Transfer Deed Null and void but order of Authorities relating to matters other than changes in P. T. D., held, not coram non judice. JUDGMENT By this constitutional petition the petitioner has challenged the orders of respondents Nos. 3, 2 and 1 dated 9th June, 1970, 16th March, 1973 17th May, 1973, respectively. By the above orders the respondents Nos. 3, 2 and 1 had held that the roof of shop bearing Custodian No. B/137 corresponding to City Survey No. B.531/1 which has transferred to the petitioner vide P. T. D. dated 14th June, 1965, forms part of the courtyard of the property on the first floor transferred to respondent No. 4 i.e. property No. B/138 corresponding to C. S. No. B/525 situated in Mirpurkhas. 2. The facts of the case are that Shop No. B/137 corresponding to C. S. No. 531 /1 measuring 31 square yards was transferred by the Settle ment Authorities to the petitioner for Rs. 7,680. This amount was paid by the petitioner and thereafter a P. T. D. was issued in his favour on 14th June, 1965, which is Annexure to the petition. In this P. T. D. there was no mention about the transfer of the roof to the petitioner. Adjacent shop bearing No. B/138 was transferred to respondent No. 4 Saeed Ahmed Qasmi to whom the P. T. D. was issued on 26th November, 1963. 3. On 30th June, 1969 i.e. after six years of the transfer of Shop No. B/138 (C. S. No. B/525) to the said respondent, he made an applica tion to the Deputy Settlement Commissioner, Mirpurkhas praying that upper portion i.e. roof of certain C.S. numbers including that of the shop of the petitioner, should be incorporated in his P. T. D. This application was contested by the petitioner on the ground that the roof of his shop i.e. C. S. No. 531/1 was in his possession and could not be transferred to or incorporated in the P. T. D. of respondent No. 4. The Deputy Settle ment Commissioner, Mirpurkhas, after inspecting the site and hearing the parties at length, held by his order, dated 25th October, 1969 that the roof of Shop No. B/137 corresponding to C. S. No. 531/1 was part of the shop transferred to the petitioner. It was further held that the other two rooms and the courtyard on the roofs of the adjacent shops, which the respondent No. 4 was claiming as part of the property transferred to him namely, C. S. No. 525, were not part of that property, but were available for disposal by auction. 4. Aggrieved by this order respondent No. 4 filed an appeal before Additional Settlement Commissioner which was dismissed by order, dated 26th November, 1969 (Annexure 5. The matter again came up before the Settlement Commissioner, Mirpurkhas for the purpose of reassessing the value of the property which was transferred to respondent No. 4. By his order, dated 13th February, 1970, the Deputy Settlement Commissioner again clarified that the roof of shop bearing C. S. No. B/531 /1 shall be deemed to be part of the shop transferred to the petitioner. It was further held that the rooms on the first floor of the adjacent shops which were being claimed by respondent No. 4 shall be deemed to be available for disposal under the relevant settlement scheme. This order is Annexure J to the petition. 6. Aggrieved by this order respondent No. 4 filed an appeal before Additional Settlement Commissioner, Hyderabad Division, who by his order, dated 9th June, 1970 remanded the case to the Deputy Settlement Commissioner "for decision afresh after site inspection on the points of demarcation relating to the respective entitlement of the parties of property between respondent and appellant taking into consideration the cor rect assessment. Both of them should be heard and order be passed." This order is Annexure `K' to the petition and the first order against which the petitioner is aggrieved. 7. When the case came back to the Deputy Settlement Commissioner, Mirpurkhas, he set aside the order of his predecessor dated 25th October, 1969 regarding roof of Shop No. 531/1 and held that it was part of the courtyard of the two rooms on the adjacent shops including Shop No. B/138 which was in possession of respondent No. 4. It was further directed that the two rooms and the courtyard on the first floor of Shop No. B/138 and adjacent shops including roof of the shop of the petitioner, which were not transferred to any one, should be disposed of by public auction. This order (Annexure `L') was passed by the Deputy Settlement Commissioner on 24th October, 1972 and is the second order which has been impugned in this petition. 8. Aggrieved by the above order, both petitioner as well as respon dent No. 4 filed appeals before Additional Settlement Commissioner, Hyderabad, who dismissed the appeal of the petitioner but allowed the appeal of the respondent and ordered that the un-disposed of portion on the first floor of the Shop No. B/138 and adjacent shops including roof of the Shop No. B/137 of the petitioner along with two rooms on the first floor be also transferred to respondent No. 4. It may be stated that the two rooms and the courtyard on that first floor had all along been held to be un-disposed of property available for transfer until the last mentioned order of the Additional Settlement Commissioner which is dated 16th March, 1973 (Annexure `M'). The un-disposed of portion of the first floor including two rooms and the roof over the shops including the roof over the shop of the petitioner, were ordered to be transferred to respon dent No. 4, although latter had not applied for the transfer of the same under his C. S. form. However, this order was challenged by the peti tion before the Settlement Commissioner Sind in a revision, but the revision application was dismissed by the learned Settlement and Rehabi litation Commissioner by his order dated 17th May, 1973 and it was held that the claim of the petitioner in respect of roof of Shop No. B/137 was ill-founded and was rightly rejected. The petitioner is aggrieved only by so much of the aforesaid impugned orders which relate to the roof of Shop No. B/137, corresponding to C. S. No. 531/1. 9. The main contention of Mr. Akhtar Mahmud, learned counsel for the petitioner is that the petitioner is transferee of Shop No. B/137 corresponding to C. S. No. 531/1 for which he had paid full price and in respect of which a P. T. D. had been issued on 14th June, 1965 and that in the absence of any mention in respect of roof of this shop, it shall be presumed that the roof of this shop forms part of the shop and stood transferred to the petitioner as such. He fortified his arguments by stating that the roof of this shop had a separate staircase and was in possession of the petitioner and that in view of this actual position, the Deputy Settlement Commissioner had by his first order, dated 25th October, 1969, held that the roof of this shop was part of the shop and stood transferred to the petitioner vide P. T. D. which is Annexure B to the petition. It is further contended that after issuance of the P. T. D. the Settlement Authorities had become functus officio and could not make any change to it and as such all orders subsequent to the order of Deputy Settlement Commissioner dated 25th October, 1969, disen titling the petitioner of the roof of his shop were ultra vires and without jurisdiction. 10. In support of his contention Mr. Akhtar Mahmud has relied on the case of Nazir v. Syed Israr (1981SCMR829) in which it has been held by the Supreme Court that unless otherwise mentioned in the transfer order, transfer of shop would mean transfer from bottom to sky. In the case of Muhammad Ramzan v. Abdul Ghani (P L D 1980 Kar.99) it was held by this Court that roof of a shop shall be deemed to have been transferred to transferee of a shop who bad been proved to be in possession of the roof. In the present case Mr. Akhtar Mahmud has argued that the learned Deputy Settlement Commissioner, by his elaborate order, dated 25th October, 1969, had after site inspection, held that the petitioner was in possession of roof of Shop No. B/137 which was transferred to him and as such the roof formed part of the shop and it should be deemed to have been transferred to him vide P. T. D. dated 14th June, 1965. According to him, this finding of fact could not have been set aside by another Deputy Settlement Commissioner of the same jurisdiction which was done by order, dated 24th October, 1972 (Annexure `L'). The subsequent orders of the Additional Settlement Commissioner and the Rehabilita tion Commissioner which are based on the order (Annexure `L') should also be deemed to null and void so far as they relate to the roof of the petitioner's shop. 12. I find that there is force in the contention of Mr. Muhammad Sharif that if Settlement Authorities became functus officio after issuance of P. T. D., then even the order dated 25th October, 1969 so far it relates to inclusion of root' of Shop No. B/137 in the P.T.D. of the petitioner shall also be deemed to be null and void. Consequently all subsequent orders including those which have been impugned by the petitioner and which are Annexures `K', `L', 'M', and `N' to the petition and referred to hereinabove, shall also be deemed to be without jurisdiction so far as the same relate to the changes in the P. T. D. issued to the petitioner and respondent No. 4. 13. The impugned orders also relate to the matters other than chan ges in the P. T. Ds. It is, therefore, necessary to examine as to what extent, if at all, the impugned orders are null and void in the light of the discussions relied upon by learned counsel for the parties in support of their respective contentions, which shall be discussed in the following paragraphs. 14. So far as the powers of the Settlement Authorities in respect of the properties which are permanently transferred under P. T. Ds. are concerned, the law has been settled by the Supreme Court in the case of Anwar Hussain Sani v. Sarfaraz Ahmad and 2 others (P L D 1971 S C 669). It has been held in the above case as under : "There can be no dispute with the general principle that after title has passed on to the person in whose favour a P. T. D. has been issued the Settlement Authorities become functus officio to deal with that property. Transfers under the Displaced Persons (Compensa tion and Rehabilitation) Act are, however, in the nature of a grant and it is open to the grantor to impose such terms and conditions on the ownership rights as the law may provide. The relevant provisions of law in respect of transfer of properties under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 are contained in the Permanent Transfer (Houses and Shops) Rules, 1961, framed by the Central Government in exercise of powers conferred on it by section 35 of the Displaced Persons (Compensa tion and Rehabilitation) Act (XXVIII of 1958). Two types of cases are envisaged in the rules in which the Settlement Authorities may interfere even after issuance of P. T. Ds. Firstly cases which suffer from an error of a type which can be corrected without embarking upon a formal inquiry or holding adverse pro ceeding. Cases of clerical mistakes or errors of like nature will fall within this category of cases. Second type of cases dealt with under rule 6 and rule 7 are those in which transfer or allotment of an evacuee property was obtained by means of misrepresentation or fraud. The Settlement Authority may under the second part of rule 6 or rule 7 vary, modify or cancel the Permanent Transfer Deed issued to such a transferee if on holding a proper inquiry and giving the transferee an opportunity to be heard it is found that he has been guilty of misrepresentation and fraud. This provision of the Rules has the merit of avoiding the situation in which the Settlement Authorities or the Central Government would have had to make recourse to a Civil Court for cancellation of a Permanent Transfer Deed on the basis of misrepresentation and fraud. If it is a case of an error such as can be corrected without holding a formal inquiry or undertaking adverse proceeding the Settlement Authorities have the jurisdiction under Part I of rule 6 to remove the error, but if the conflicting claims made by the parties require. a full-fledged adjudication consequent upon which substantial variation, may be made in the description of the properties given in the P. T. Ds., already issued to the transferees, then unless it is a case of misrepresentation or fraud, the jurisdiction of the Settlement Authorities to deal with properties already transferred is barred under rule 4." In the present case no fraud or misrepresentation has been alleged by any party so far as the transfer of roof of property/Shop No. B/137 is con cerned. Hence there was no occasion for the Settlement Authorities to exercise powers under Permanent Transfer Rules, 1961. However, even rules 6 and 7 of the above Rules which empowered the Settlement Authorities to interfere with P. T. D. were repealed in the year 1964 and thus thereafter the Settlement Authorities could not have interfered with p. T. Ds, even on the ground of transfer having been effected due to fraud, misrepresentation etc. or on the ground of there being a clerical mistake. The above Supreme Court decision was also referred to and relied upon by this Court in the case of All Muhammad v. Haji Hussain and 2 others (P L D 1975 Kar. 9V). In the above case it was held by this Court as under : "Further, it was not all open to the Additional Settlement Commis sioner to make an order which in effect transferred residential tenement No. II-A-452-A to Haji Hussain. There was no appeal or revision by Haji Hussain against the order by which this tene ment was transferred to the appellant. Haji Hussain had merely made a miscellaneous application to the Deputy Settlement Com missioner for demarcation. This was rather a circuitous way both for Haji Hussain as well as the Additional Settlement Commissioner to make additions to the property transferred to Haji Hussain by cancelling transfer of tenement No. II-A-452-A, which already stood transferred to the appellant. In proceedings for demarca tion, no such order could be made by the Settlement Authorities as held by their Lordships of the Supreme Court in S. Anwar Hussain Sani v. Sarfaraz Ahmed and 2 others. P L D 1971 S C 669 Further, the appellant had already obtained Permanent Transfer Deed for the residential tenement No. II-A-452-A. This being so, and rules 6 and 7 of the Permanent Transfer Rules, 1961 having been deleted, it was not competent on the Settlement Authorities' part to cancel the transfer, and consequently the Permanent Transfer Deed, of the residential tenement No. II-A-452-A in favour of the appellant. Rules 6 and 7 of the Permanent Transfer Rules, 1961 were framed under the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958. These rules enabled the Settle ment Authorities to cancel Permanent Transfer Deeds and to resume the property transferred from a transferee on ground of fraud, misrepresentation or contravention of any provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. But rule 6 was deleted by Notification No. S. R. O. 192 (K)/64, dated 2nd March, 1964 and rule 7 was deleted by Notification No. S. R. O. 127/R-64, dated 27th December, 1964. After issue of the Permanent Transfer Deed to the appellant for tenement No. II-A-452-A, no power was available to the Additional Settlement Commissioner to cancel transfer of the said tenement to the appel lant, or to resume this tenement and after deletion of rules 6 and 7 of the Permanent Transfer Rules, 1961, this power could not be exercised by the Settlement Authorities even on grounds of mis representation, fraud or contravention of any provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The controversy with regard to the power of the Settlement Authorities to cancel transfer or resume a property after issuance of a Perma, nent Transfer Deed now stands concluded by various decisions of the Supreme Court. As early as 1970, their Lordships of the Supreme Court held in S. Anwar Hussain Sani v. Sarfaraz Ahmed and 2 others that, after title had passed on to a person in whose favour a Permanent Transfer Deed had been issued, the Settlement Department became functus officio to deal with the property. This view was reiterated by their Lordships in Aminuddin v. The Settlement Commissioner and others 1973 SC MR 624 in which case their Lordships went to the extent of holding that after deletion of rules 6 and 7 of the Permanent Transfer Rules, 1961, there was no power left with the Settlement Authorities to even correct clerical mistakes in Permanent Transfer Deeds." 15. In the case of Aminuddin v. The Settlement Commissioner and others (1973 S C M R 624) it was held that after repeal of rules 6 and 7 of the aforesaid Rules, there was no power left with the Settlement Authorities to correct even the clerical mistake in the P. T. D. 16. In view of the above decisions, it would be clear that all orders' of the Settlement Authorities which have been referred to by the petitioner in his petition, are null and void so far as they relate to the changes( in the P. T. Ds. issued to the petitioner and respondent No. 4 in 1965 and 1963 respectively. 17. In fact the very application of respondent No. 4 dated 30th June, 1969 to the Deputy Settlement Commissioner for change in the P. T. D. affecting the P. T. D. of the petitioner as well as misconceived. P. T. D. was issued to respondent No. 4 in November, 1963. He kept silent for six years and then in 1969 came forward with the claim that some addi tional portions of the building on the first floor of his Shop No. B/138 and other adjacent, shops including the roof of petitioner's Shop No. B/137 should be included in his P. T. D. In the year 1969 the Deputy Settle ment Commissioner had no power to entertain any such application. Hence the order passed by the Deputy Settlement Commissioner on this application on 25th October, 1969 (Annexure 'G') was equally misconceived, without jurisdiction and null and void. Consequently all subsequent orders passed by respondents Nos. :I, 2 and 3 (Annexures 'N', 'M' & 'K' respectively) which relate to changes in the P. T. Ds. issued to the parties in 1963 and 1965 are liable to be struck down as having been passed with-out jurisdiction. 19. So far as the roof of Shop No. B/137 transferred to the peti tioner vide his P. T. D. issued in 1965 is concerned, its entitlement is to be decided according to the principles laid down by superior Courts from time to time regarding interpretation of Permanent Transfer Deeds. One such principle has been laid down by the Supreme Court in the case of Nazir and others v. Syed Asrar Ahmad and others referred to above in para. 10. It has been held in the above case that unless otherwise mentioned in the transfer of shop, the transfer would mean transfer from bottom to sky. Again in the case of Muhammad Ramzan v. Abdul Ghani referred to above the same view was taken in the case of Anwar Hussain Sani v. Sarfaraz Ahmad and 2 others, it was held that the roof of a shop shall be deemed to be part of the shop, but if it forms courtyard of the premises on the first floor of the shop, then the owner of the premises on the first floor shall be entitled to use the roof as his courtyard, but the ownership of the roof shall vest in the transferee of the shop on the ground floor and that such omission in the P. T. Ds. issued to the trans ferees of shop in the first floor can be rectified in exercise of rule 4. The observations were made when rule 4 was in force. Hence so far as the power of rectification in the P. T. D. is concerned, Settlement P Authorities shall be deemed to be functus officio and the observations in respect of the rectification made by the Supreme Court in the above case shall not apply. However, the general principle laid down therein that the transferee of the shop on the ground floor shall be deemed to be also G the transferee of the roof, will apply as a general principle. But since the petitioner has been categorically held by the Deputy Settlement Com missioner vide his order dated 25th October, 1969 that the petitioner is in possession of the roof of his shop, hence respondent No. 4 even if he is transferee of the first floor, shall not be entitled to use that portion H of the roof on the first floor which forms part of the roof of the petitioner's shop. 20. It may be clarified that the impugned orders relate to some matters other than changes in the P. T. D. The impugned order in respect of those matters shall not be affected by this decision nor shall they be deemed to be coram non judice. For example order regarding disposal of un-disposed of property and the finding of fact of the Deputy Settlement Commissioner as to who is in actual physical possession of the roof of the petitioner's shop, shall not fall within the mischief of the deci sions which render the Settlement Authorities functus officio after having I issued P. T. Ds. Consequently the appeal partly succeeds to the extent that the order of the Settlement Authorities, dated 25th October, 1969 (Annexure 'G'), order, dated 9th June, 1970 (Annexure 'K'), order, dated 24th October, 1972 (Annexure 'L'), order dated, 16th March, 1973 (Annexure 'M') and order, dated 17th May, 1973 (Aneexure 'N') are declared to have been passed without jurisdiction and null and void to the extent indicated above. M. Y. H. Appeal partly accepted. ***