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-- Art. 199 read with Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 19-Remedy of revision provided under S. 19 of Act not availed of before filing petition before High Court-Held, petition( liable to dismissal on such ground alone.-[Revision (civil)].

S. 41 read with Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 4-Land allotted to claimants can subsequently be treated as non-evacuee and Settlement Authorities can refer matter to Custo dian-Question whether property evacuee or non-evacuee-Custodian has exclusive jurisdiction to determine such questions.-[Jurisdiction].

Shahanshah Hussain for Petitioners.

Baqi Mohammad Ali for Respondents.

Dates of hearing: 8th, 13th and 14th May 1974.

The facts leading to this petition are that on 11-12-1958, agricultural land bearing Survey Nos. 174, 175, 492, 496, 497 and 179 measuring 14 acres 37 ghunras in Deh, Manghi, Taluka Khairpur were allotted to one Choudhry Abid Ali, father of the respondents Nos. 6 to 9. Choudhry Abid Ali died and his Legal Representatives, respondents Nos. 6 to 9 sold the above land to 8 persons jointly including one Rahim Bux and some of the petitioners on 12-3-1965 and the record-of-rights was accordingly mutated in favour of purchasers on 12-3-1969. One of the purchasers, namely, Mohd. Rashid thereafter sold his share to Roshan Ali, the petitioner No. 4 and Waris Ali, petitioner No. 9, and one Rajab Ali (not party to these proceedings) under sale-deed dated 29-4-1972.

Subsequently. Messrs Sher Khan, Ali Niwaz and Shah Nawaz respondents Nos. 3, 4 and 5 respectively filed an application before the Deputy Com missioner-cum-Additional Settlement Commissioner (Land), Khairpur stating that the aforesaid survey numbers were their ancestral property of which they have been in possession ever since and therefore it could not have been allotted to any one as evacuee property. In support of their contentions they produced copies of the orders passed by the Chief Judge, High Court of defunct Khairpur State dated 3-1-1935 and of the District Court of the same State dated 21-1-1959. The learned Additional Settlement Commissioner entertaining this application made a reference to the Deputy Custodian under section 41 (2) of the Pakistan (Administration of Evacuee Property) Act, 1957 for determining the nature of the property. It is against this order of reference that the present petition has been filed.

The contention raised by the learned counsel for the petitioner was that Settlement Authorities having already treated the land as evacuee by allotting it to Abid Ali could not thereafter declare the said land as non-evacuee in ,view of section 3-A of Pakistan (Administration of Evacuee Property) Act, 1957 and consequently, the Additional Settlement Commissioner (Land) had no jurisdiction to make the reference to the Custodian for re-determining the status of the property.

Mr. Baqi Mohammad Ali, the learned counsel for the respondents Nos. 3, 4 and 5 in reply first raised a preliminary objection. His contention was that a specific remedy provided under sections 18 and 19 of the Displaced Persons (Land Settlement) Act, 1958 was available to the petitioners which statutory remedy had not been availed by the petitioners, consequently this petition invoking the constitutional jurisdiction of this Court was not maintainable.

The preliminary objection raised by the learned counsel for the res pondents is not without force. Under section 30 (3) of the Displaced Persons (Land Settlement) Act, 1958, any order passed by the Settlement Commissioner or the Additional, Deputy or Assistant Settlement Com missioner in exercise of any power delegated to him under subsection (2) has been made subject to the provisions of Chapter VI of the Act in the same manner and to the same extent as any other order passed by the Settlement Commissioner, Additional, Deputy or Assistant Settlement Commissioner, as the case may be. Chapter VI of the Act provides for appeals and revision against the orders passed by the authorities mentioned in those sections. Section 18 of the Act provides for an appeal to the Settlement Commissioner and section 19 provides for revision to the Chief Settlement Commissioner against the order of the Additional Settlement Commissioner or the Settlement Commissioner. Admittedly. these remedies were available to the petitioners at the time when the impugned order was passed by the Additional Settlement Commissioner (Land) on 19-6-1972 and at the time of filing of this petition. The petitioners, however, without availing the aforesaid remedies filed this petition. It is well settled that if a statute provides a specific remedy, that remedy has to be exhausted before approaching this Court in its constitutional juris diction. It may be mentioned here that by virtue of amendment brought about by Act LV of 1973 section 18 has altogether been omitted but section 19 has been retained with the modification that instead of Chief Settlement Commissioner, a Settlement Commissioner has been empowered to exercise the revisional powers. The fact, however. remains that the statutory remedy of revision was and would still be available to the petitioners which has no g been availed of by them. Consequently, this petition is liable to be dismissed on this ground alone. However. even on merits, I find that there is no substance in this petition. All that has been done by the Additional Settle ment Commissioner (Land) is that a dispute having been raised before him as to the status of the land in dispute before him on the basis of the documents which according to him prima facie supported the applicants, he referred the question under section 41 (2) to the Deputy Custodian to determine the status of the property without himself adjudicating on the issue or passing any order adverse to the petitioners. This action on the part of the Additional Settlement Commissioner was perfectly legal and in fact he has done precisely what was required of him by section 41. (2) of the Pakistan (Administration of Evacuee Property) Act, 1957.

The contention of the learned counsel for the petitioners that the land having,, been allotted to the claimants could not be subsequently treated as non-evacuee and that the settlement authorities had no jurisdiction to refer the matter to the Custodian is misconceived on the facts of this case. In the c first instance, the settlement authority has passed no such order treating the land in dispute as non-evacuee. It has merely referred the matter to the Deputy Custodian, where it would be open to the petitioner to raise the contentions that are sought to be raised here. Secondly, what is provided under the notification issued by the Government under section 4 of the Displaced Persons (Land Settlement) Act, 1958, is that the evacuee property is acquired and vested in the Central Government and the rights of the evacuees are completely extinguished. If, however, a particular property was not an evacuee property, it could not be covered by the said notification nor could the same form part of the compensation pool. In other words, what vests in the Central Government is the evacuee property. If however, very fact whether the property is evacuee is disputed and question arises as to the evacuee or non-evacuee nature of the property, the Custodian would have exclusive jurisdiction to determine the same in terms of section 41 of Act XII of 1957, for if the property was non-evacuee property on the date of the publication of the relevant notification it did not stand acquired in terms of section 4 of the Displaced Persons (Land Settlement) Act, 1958.

For the aforesaid reasons, the order of the Additional Settlement Com missioner does not call for interference and this petition is accordingly dismissed with costs.

S. Q. Petition dismissed.

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