Find a Lawyer

Constitutional Petition No. 135 of 1976, decided on 2nd February, 1983.

----S. 21 as amended by Displaced Persons (Compensation and Rehabilitation) Ordinance (II of 1962)‑‑‑Revision‑Settlement Commis sioner, held, had no power of revision after repeal of S. 21 of Act. [Revision (civil];.

Ilam Din v. Mirza Mubarak Ali and 2 others 1982 S C M R 1001 ref.

---‑‑ Read with Displaced Persons (Compensation and Rehabilitation), Act (XXVIII of 19518, S. 21‑Provisional Constitution Order (1 of 1981), Art‑ 9‑Power to re‑open decided cases after enforcement of Act XIV of 1975‑‑Case not pending before Custodian or other authorities imme diately before repeal or case not remanded by superior Courts after such repeal Settlement authorities, held bad no jurisdiction to re‑open or decide any case‑Notice for cancellation of P. T. D. issued by Settlement Commissioner exercising revisional powers and after enforcement of Act XVI of 1975, declared without lawful authority.

Sun Green & Co. v. Nouman Bhoy and 4 others P L_ D 1978 Kar. 100 ref.

Abdul Naseer Khan for Petitioner.

Nemo for Respondent.

Date of hearing : 2nd February, 1983.

The petitioner has challenged the notice, dated 28‑2‑1976 issued by the Settlement Commissioner Sind. The petitioner is a non‑claimant displaced person in possession of residential House No. 1420/13, Israni Street, Larkana. The petitioner filed her N. C. H. Form and the said house was transferred to the petitioner by the order of Deputy Settlement Commissioner, dated 18‑9‑1971 for a transfer price of Rs. 4,347 which was paid by her. The petitioner then applier for issuance of P. T. D. but it seems that it remained in abeyance. On 7‑11‑1973 the Settlement Commissioner exercising his power under section 20 (3) of Displaced Persons (Compensation and Rehabilitation) Act, 1958 sent a notice to the petitioner in which it was stated that the property in dispute was auctioned in favour of the petitioner's father, but with the connivance of the Settlement staff that auction was cancelled and the property was transferred to the petitioner for a sum of Rs. 4,347. To this show‑cause notice the petitioner sent a reply stating that she has no knowledge of the alleged transfer by auction in favour of her father and that she is a married woman and is residing in the house much before the material date and had property applied for the house which has been legally transferred to her and she had already paid the entire consideration. It was prayed that the notice may be cancelled as it is illegal and based on incorrect facts. The Settlement Commissioner after examining the records available at that time passed an order on 15‑1‑1974 cancelling the notice issued to the petitioner and the following observation was made:‑------

"I do not find any bid sheet on record which could indicate that it Vas ever put to auction. There is also no entry regarding auction in C. S. C. 4 Register which was seen by me personally. On the contrary, entry No. 169 at page 314 C. S. C. 4 Register shows that this property was transferred to Mst. Raisa Khatoon as aforesaid. In the absence of any documentary evidence it is not possible to hold that the property was auctioned to Mukhtar Ahmad for Rs. 10,000 and the same was not cancelled and instead the property was transferred to the respondent on N. C. H. Form. Consequently, it is also not fair to cancel the transfer effected in favour of the respondent on the aforesaid allegations. The noti6e issued to the respondent, is therefore, vacated."

The Settlement Commissioner again issued a notice, dated 28‑2‑1976 stating that the bid sheet, dated 23‑3‑1970 has now been supplied by the Deputy Settlement Commissioner, Larkana which was not available when the previous order was passed and therefore, he re‑opened the case on the same ground and called upon the petitioner to explain why the transfer document should not be declared as nullity and void ab initio. The petitioner then filed the present petition challenging the notice and action taken by the respondent, as illegal and without jurisdiction.

Mr. Abdul Nasir Khan the learned counsel for the petitioner has contended that the Settlement Commissioner has no jurisdiction to exercise Revisional Jurisdiction for the second time. Reliance has been placed on Ram Din v. Mirza Mubarak Ali and 2 others (1982 S C M R 1001) where it was held that section 21 of the Displaced Persons Compensation and Rehabilitation) Act ‑was repealed by Ordinance 11 of 1962 on 13‑1‑1962 and position of law is clear that the learned Settlement Commissioner was devoid of any legal authority to interfere with the revisional order, dated 22‑7‑1971 which .had become final. In the present case, the Settlement Commissioner by impugned notice dated 28‑2‑1976 is endeavoring to review his order, dated 15‑1‑1974, which he is not permitted to do.

The learned counsel next contended that after the promulgation of Evacuee Property Displaced Persons Laws (Repeal) Act 1975 (Act XIV of 1975) which came into force on 1‑1‑1974 the Settlement Authorities have no jurisdiction to reopen or decide any case. In this regard the learned counsel has relied on Sun Green & Co. v. Nouman Bhoy and 4 others (P L D 1978 Kar. 100) where it was held that "if a case was not pending before the Custodian or other authorities immediately before the repeal or it is not a case remanded by the superior Courts after such repeal the officer appointed under section 2 shall not haw the jurisdiction to dispose of the same." In these premises it seems that the notice issued by the respondent is void ab initio and without lawful authority.

The petition is, therefore, allowed and the notice issued by the respondent being without lawful authority is quashed.

M.B. A. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.