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Constitutional Petition No.D-1551 of 1980, decided on 10th August, 1983.

---Art. 199--Sind People's Local Government Ordinance (II of 1972), S.88(2)--Deputy Commissioner dealing with disputed plot as property of Municipal Committee and treating himself as Controlling Authority of Municipal Committee--Order of Deputy Commissioner, held, final.

---Art.199--Sind People's Local Government Ordinance (II of 1972), S.88(2)--Contention that Deputy Commissioner had only dealt with Miscellaneous Application treating same as an appeal under S.88(2) of Sind Peoples Local Government Ordinance, 1972 as such had no jurisdic tion to proceed with matter, held, highly a technical ground--Deputy Commissioner, having jurisdiction to proceed with matter as Controlling Authority, mere description of Miscellaneous Application in order would not take same out of appellate jurisdiction which Authority had.--[Appeal (civil)].

---Art.199--Sind People's Local Government Ordinance (II of 1972), S.88(2)--Petitioner claiming that he had constructed house in dispute and had been dispossessed from same in highhanded manner--Such matter relevant and non-consideration of same, held, made order invalid--Case remanded for fresh decision after notice to parties and giving them full opportunity to substantiate claims of parties.

Maroof Ali Khan for Petitioner.

M.I.Memon,A.A.-G. for Respondent No.1.

Khalil-ur-Rehman for Respondents Nos. 4 to 6.

Date of hearing: 8th August, 1983.

.-- This petition brings into question the orders passed by Respondent No.1, Deputy Commissioner, Tharparkar on 6-9-1979 and the order passed by Commissioner, Hyderabad Division, on 15-12-1979 in respect of Plot No.77, Hameedpura Colony No.2 Taluka Mirpurkhas measuring 154.5 sq. yds.The counsel for the petitioner has submitted that vide Annexure 'F', Plot No.1 B-41 measuring 24' x 30' situated in Mohajir Colony, Mirpurkhas was allotted by the Rehabilitation Authorities to the petitioner on 1-4-1961. It is also conceded that vide Annexure 'G' Plot No.2-B-41 was allotted to one Babu on 1-4-1961. Babu is the predecessor in the interest of respondents 4 and 5. The petitioner has alleged that Babu surrendered the plot to one Shamshad Ali, the uncle of the petitioner by executing a receipt in his favour on 10-5-1961. It appears that there was litigation in respect-of whole plot out of which the two plots were carried out and finally it was decided by the Supreme Court that the land in question belonged to Mirpurkhas Municipal Committee.

In 1970 a survey was made by the Municipal Committee of the area and the two Plots Nos. 1 and 2 were treated as one and were given new No. 77 as shown in Annexure '1'. On 4-9-1976 the Municipal Committee gave notice to the petitioner to pay the price of Plot No.77 at the rate of Rs.2 per sq. yds. and consequently "the petitioner paid a part of the said price to the Municipal Committee.

However, in 1978 respondent No.4 raised the dispute before the Administrator, Mirpurkhes Municipal Committee alleging that his father Babu had been allotted half of Plot,-No.77 and consequently an inquiry was made by the Administrator and then he passed an order in favour of the petitioner on 5-12-1978 (Annexure 'A') and on 6-1-1979 an allot ment order was issued by the same Municipal Committee in favour of the petitioner for Plot No.77 Hameedpura Colony, Mirpurkhas measuring 154.5 sq. yds. And a sale-deed was executed by the Municipal Administrator in favour of the petitioner and an affidavit for getting the sale-deed registered was even sworn by the Administrator of the Municipal Committee (Annexure 'D') and (Annexure 'E').

Meanwhile the respondent No.4 had filed a Miscellaneous Application before the respondent No.1 claiming that respondents Nos.4 and 5 were entitled to have half of the Plot No.77 and it had been allotted in favour of his father Babu. The respondent No.1 heard the parties and held that the claim of Haloo Khan and Muhammad Anwar respondents Nos. 4 and 5 over Plot No.41/1 was genuine and stands substantiated. This is main impugned order (Annexure L').

The petitioner thereafter went in an appeal before the Commis sioner, Hyderabad Division but he dismissed the appeal on the ground that in case the plot was Municipal plot then the Deputy Commissioner, Tharparkar had passed the order, dated 9-6-1979 in his capacity as the Controlling Authority of Mirpurkhas Municipal Committee and, therefore, his order was final as laid down in section 88(2) of the People's Local Government Ordinance, 1972. He also alternately held that if it was an evacuee plot then no fresh appeal could be entertained by the Commissioner. This order of the Commissioner could not be challenged to be incorrect by the counsel for the petitioner in view of the fact that the plot in question is a Municipal plot and hence the Commissioner, Hyderabad Division had no jurisdiction to hear any appeal against an order passed by the Controlling Authority of Mirpurkhas Municipal Committee viz. Deputy Commissioner, Mirpurkhas and the Commissioner had, therefore, rightly held that section 88(2) of the People's Local Government Ordinance, 1972 had made orders of the Controlling Authority of Municipal Committee as final.

The learned counsel for the petitioner has challenged the order of the respondent No.1, dated 9-6-1979 on the ground that the learned Deputy Commissioner has dealt with plot No.41/1 measuring 24' x 30' equal to 720 Sq. ft. which was the number given by the Rehabilitation Authorities and the Deputy Commissioner had no authority to deal with these rehabilitation matters in 1979. We do not agree with this submission and we find that the Deputy Commissioner viz. respondent No.1 has dealt with the plot in question treating it as the property of the Municipal Committee and treating himself and the Controlling Authority of the Municipal Committee and this position is clear from the last but one para. of the order of the respondent No.1 where he has observed that Abdul Hamid had requested that the entire plot measuring 1,440 sq. ft. was allotted to him by the Administrator, Municipal Committee, Mirpurkhas and he promised to produce the original allotment order within a day or two but those orders were not produced. It is, therefore, clear that the respondent No.1 was dealing with the Municipal plot and the reference to Plot No.41/1 was only for the purpose of better identification of the property which was claimed by Kaloo Khan and Mohammad Anwar.

Mr. Maroof Ali Khan then contended that the respondent No.1 has only dealt with Miscellaneous Application of Abdul Hamid and has not treated the same as an appeal under section 88(2) of the People's Local Government Ordinance, 1972 and hence he has no jurisdiction to proceed with the matter. This is highly a technical ground and we do not feel inclined to accept the same as we are of the view that since the respondent No.1 had the jurisdiction to proceed with the matter as the Controlling Authority of the Municipal Committee Mirpurkhas, therefore, mere description of Miscellaneous Application in the impugned order will not take it out of the appellate jurisdiction which eventually the respondent No.1 had. This objection is, therefore, overruled.

The next contention of the learned counsel for the petitioner was that he had not been given fair opportunity to present his case and that his case has been dealt with in his absence. There appears to be reasonable justification in this submission as we find that the petitioner had with him the allotment order from the Administrator Municipal Committee, Mirpurkhas dated 6-1-1979 (Annexure 'A' to this Petition) and since there is no allegation of respondents Nos. 4 and 5 that this allotment order has been either fabricated or manipulated after 9-6-1979, therefore, it is obvious that the petitioner had this allotment order with him on 9-6-1979 and even much earlier than 9-6-1979 and, therefore, one cannot understand as to how the petitioner would have tailed to produce the said order before the respondent No.1. And, therefore, the observation in the last para. of the impugned order of respondent No.1 that the copy of the original allotment order had not been produced by the petitioner is rather open to serious challenge. And even otherwise the allotment order in respect of whole plot would have been the necessary consequence of the order passed by the Administrator, Municipal Committee on 5-12-1978. And hence the emphasis upon the production of original allotment order seems to be rather misplaced. Mr. Khalil-ur- Rehman had tried to argue that the original allotment order insisted upon by the respondent No.1 and promised by the petitioner was the order by the Rehabilitation Authorities. But we are not persuaded to that view because the order of the Deputy Commissioner appears to be clear in this respect and in any case the petitioner had never made out a case that he had the original allotment order in respect of whole plot from the Rehabilitation Authorities and he was only relying upon the surrender of the rights by Babu in favour of one Shamshad Ali. It is, therefore, obvious that the learned respondent No.1 has proceeded with misconception in respect of original allotment order and, therefore, his order suffers from a serious lapse.

We also find that the learned respondent No.1 has mentioned in he last para. of his order that he has visited the site in question and lade local inquiries in the matter which. revealed that the applicant's claim was genuine. It is not apparent from this order as to how those local inquiries were made by the respondent No.1 and from whom and in what manner they were made. The petitioner has attacked the order of the respondent No.1 in para. 7 of his petition as being against the principle of natural justice. It is difficult to deny the force of the submission of the petitioner in this regard and we are of the view that in the respondent No.1 wanted to rely upon the local inquiries then the petitioner should have been allowed to know the purport of those inquiries and he should have been allowed an opportunity to rebut the same. That having not been done, the order in question suffers from serious infirmity and is against the principles of natural justice.

The petitioner has also claimed that lie had constructed the house in question and he has been dispossessed from the same in a highhanded manner. We do not want to comment upon this aspect of he case as the same has not been taken into consideration by respondent No.1. It was however a relevant matter and non-consideration of the same by respondent No.1 is an apparent mistake, making his decision as one where relevant material has been left out of consideration and it is, therefore, not valid in the eyes of law.

Therefore, we have decided to accept this petition and we quash the impugned order and remand the case to respondent No.1 for fresh decision after giving notice to the parties and giving them full opportunity to substantiate their claim and considering all the relevant matters. Consequently this petition is allowed in terms of above order without any order as to costs.

These are the reasons of the short order passed by us on 8-8-1983.

M. A. K. Case remanded.

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