1980 C (PLP)

S. A. Jomali for Petitioner. Abdul Bagi Moulvi for Respondent No. 3. Date of hearing : 7th October, 1978. This is a petition challenging the orders dated 13-5-1972 and dated 31-8-1973 passed by the Additional Settlement Commissioner, Hyderabad and the Settlement Commissioner, Sind, respectively. The facts giving rise to the above petition are that the petitioner filed a C. H. form on 2-11-1959 for the transfer of house No. Dfl51 situated in Naipara, Mirpurkhas. In para. 5 of the form, it was stated that the house wris in self-occupation. However, in para 10 it was also stated that one root of the house was in possession of Rasulbux and his mother Mst. Sakina. On the basis of the above C. H. form the petitioner was issued a P. T. O. on 12-11-1959. After the issuing of the P. T. O. the petitioner filed an application before the Deputy Settlement Commissioner, Centre-2, Mirpurkhas, dated 2-4-1960, for getting a clarification to the effect that the room in occupation of Rasul bux (which was used as a shop) was part of the house transferred to him. In response to the above application, the Assistant Settlement Commissioner, Centre-2 Mirpurkhas through a letter dated 7-4-1950 informed the petitioner that the above shop had not been surveyed as a separate unit, and that the same had already been included in the above house No. D-151, transferred to the petitioner. After that a P. T. D. was issued on 12-12-1954 in favour of the petitioner. It has been asserted by the petitioner that after the issuing of the P. T. O. he issued a notice to the above occupant of the room which was used as a shop and informed him about the above transfer. After that the petitioner filed a rent application on 9-4-1962, bearing No. 48/62. The above rent application was withdrawn on account of some technical defect and a fresh rent application was filed on 8-9-1964 baring rent Applica tion No. 114/64. 2. It may be pertinent to mention here that the deceased respondent filed a N. C. H. form for the transfer of a house bearing No. D-152 on 16-11-1959. The above house was transferred to the deceased respondent and a P. T. D. was issued on 25-1-1965. It has been alleged by the petitioner that after the filing of the ejectment application by the petitioner against Rasul bux, the deceased respondent, who was related to said Rasul bux filed an application in the year 1969 before the Deputy Settlement Commissioner, Mirpurkhas stating therein, that he was transferred shop' No. D-151/1/1 situated in Nai para under P. T. D. No. 3985. It was also stated that in the P. T. D. the previous Hindu owner was shown to be one Moolchand only while the correct name was Moolchand Mastoor Chand. It was also stated that in the P. T. D. instead of mentioning Survey No. D-151/1/1, the Settlement Department mentioned Survey No. D-152, and that the word `house' was mentioned instead of word 'shop'. He, therefore, requested that the name of the Hindu evacuee, the survey No. and the description of the property from the house into shop be corrected. On the basis of the above application an inspector of the Settlement Department submitted a report to the following effect : "The City Surveyor has shown D-151/1/1 in N. C. H. form as he was residing in it, but actually it was one room shop. No amenities of life therein. If agreed correction in the description may be made." On the basis of the above report of the Inspector, the Deputy Settlement Commissioner, through his order dated 15-9-1969 corrected the deceased respondent's P. T. D. In the above P. T. D. survey No. D-152 was scored out and was substituted by Survey No. D-151/1,/1. The word 'house' was substituted by the word 'shop'. 3. It has been asserted by the petitioner that after coming to know about the above corrections, the petitioner filed an appeal in November, 1969 before the Additional Settlement Commissioner, Hyderabad, against the above order of the Deputy Settlement Commissioner allowing the above corrections, which was dismissed by the learned Additional Settlement Commissioner, through his order dated 13-5-1972. Being aggrieved by the order the peti tioner filed a revision which was dismissed by the learned Settlement Commis sioner through his order dated 31-8-1973. 4. I have heard Mr. Jamali learned counsel for the petitioner, but no one was present on behalf of the respondents. The main contention of Mr. Jamali is that after issuing of the P. T. D. in favour of the deceased respon dent for Survey No. D-152, the Settlement Department had become functus officio and, therefore, had no power to entertain the application for the correction of the alleged mistakes which was motivated to deprive the peti tioner of a portion of the property already transferred to the petitioner. It has been further contended that as a matter of fact the application for the correction was made at the instance of Rasul bux, the occupant of the otak against whom the petitioner filed an ejectment proceeding and that in fact the deceased respondent was not in possession of the otak in dispute before the fling of the application as he was in possession of the house No. D-152, which was transferred to him. Without going into the question, as to whether the otak was part of the survey No. D!151 which was transferred to the petitioner in response to the filing of the C: H. form in which it was clearly stated that the otak was in possession of Rasulbux, the order of the Settlement Department. prima facie is illegal as. the Settlement Department had no jurisdiction even to correct the alleged clerical errors after the issuing of the P. T. D. in favour of the deceased respondent. A reference can be made in this regard to the case of Aminuddin v. Settlement Commissioner (1973 S C M R 624) and the case of Ali A9uhammad v. Haji Hussain (P L D 1975 Kar. 971). In the first case an amendment of an alleged clerical mistake was sought which order was allowed by the Addl. Settlement Commissioner, which order was set aside by the High Court in a Constitutional writ petition. A petition for leave was filed in the Supreme Court, which was dismissed. Their Lordships were pleased to uphold the judgment of the High Court on the point that after the deletion of R. R. 6 and 7 of the Permanent Transfer (Houses and Shops) Rules, 1961, by the notifications dated 2-3-1964 and 27-12-1964 even a clerical mistake could not have been corrected. In the second case also a Division Bench of the erst while High Court of Sind & .Baluchistan was pleased to hold that after issuing of a permanent transfer deed, the property goes out of the compensa tion pool, and that the Settlement Authorities have become functus Officio and do not have power to cancel the transfer, to resume the property or even to correct the clerical mistakes. In the instant case it is an admitted position that the corrections were allowed in the P. T. D. of the deceased respondent in 1969 when these two rules were not in force and, therefore, the above two cited rulings are applicable to the instant case. 1, therefore, allow the petition and set aside the two impugned orders and declare that the same are without lawful authority and are of no legal effect. M. A. K. Petition allowed