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[Karachi]

Constitutional Petition No. S-100 of 1978, decided on 7th April, 1985.

---S. 2--Effect of repeal--All proceedings under repealed evacuee laws pending immediately before such repeal were saved--All pending cases were transferred to such officers as were to be notified by Provincial Government in Official Gazette--Cases decided by Supreme Court or High Court after such repeal .were also to be remanded to officers notified in official Gazette.

(b) Constitution of Pakistan (1973)--

---Art. 199--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), a;2--Orders passed by Settlement Authority after repeal of Evacuee Laws---Effect--Proceedings with respect to disputed property were not pending before any forum at time of repeal of Evacuee Laws--Settlement Authority, held, had absolutely no power to pass any order with regard to disputed property--Authority admitting before High Court that order passed by such authority was not in consonance with law in force at relevant time--Petition allowed in circumstances and orders set aside being without lawful authority and of no legal effect.

Usman Ghani Rashid for Petitioners.

M.I. Memon, Addl. A.-G. for Respondent.

Date of hearing: 4th April, 1985.

By this Constitutional Petition, the petitioners have called in question the two orders dated 20-4-1978 and 24-4-1978 passed by Settlement Commissioner Sind, Karachi cancelling the transfer of Plot No-SR-13/1/3 corresponding to Custodian No.111-C-275A admeasuring 166 square yards, in favour of the petitioner Mst. Hameedun Nisa.

It is claimed by the petitioners that the plot in dispute was transferred to petitioner Hameedun Nisa and necessary transfer documents namely P.T.O. and P.T.D. were also issued in her favour. it is further claimed that the name of the said petitioner was mutated in the revenue record. Subsequently the disputed plot was purchased by petitioner Shakeel Ahmad from the said petitioner under a registered sale-deed. In pursuance of the said transaction necessary alterations were made in the revenue record. By notice dated 7-11-1978 both the above petitioners were called upon to appear before the Settlement Commissioner for enquiry with regard to the transfer of the disputed plot which was alleged to be fake. Ultimately the learned Settlement Commissioner by the two impugned orders, referred to above cancelled the transfer of the plot in 'dispute in favour of Mst. Hameedun Nisa.

Mr. Usman Ghani Rashid was heard in support of the petition whereas Mr. Muhammad Ibrahim Memon, Additional Advocate-General who appeared on Court notice submitted his arguments on legality of the, impugned orders. The learned counsel for the petitioners only touched upon the point of jurisdiction. He contended that after repeal of the evacuee laws the Settlement Commissioner had no jurisdiction to pass the impugned orders. Therefore, the said orders according to him were without any legal effect.

Admittedly the impugned orders were passed on 20-4-1978 and 24-4-1978. Prior to passing of these orders the evacuee laws were repealed by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) which became operative from lst July, 1974. However, all proceedings under the repealed evacuee laws which were pending immediately before such repeal were saved. As provided in subsection (2) of section 2 of the above Act all such pending cases wire transferred to such officers as were to be notified by the Provincial Government in the Official Gazette. It was also provided in the said Subsection (2) that all cases decided by Supreme Court or High Court after such repeal which would have been remanded to any such authority in the absence of 'such repeal were also to be remanded to the officers notified as aforesaid by the Provincial Government in the Official Gazette.

The instant case was started with a notice dated 9-4-1978, suo motu issued by the learned Settlement Commissioner. The impugned orders which followed the said notice were also passed by the Settlement Commissioner in exercise of suo motu powers Since the evacuee laws had already been repealed and were no longer in force on the date of impugned notice and so also on the dates when impugned orders were passed, all such proceedings taken by the Settlement Commissioner were without jurisdiction. The said proceedings in respect of the disputed plot were not pending at any forum at the time of repeal of the evacuee laws (i.e. on 1-7-1974) and as such the instant case could not even be treated as a pending case within the meaning of subsection (2) of section 2 of the aforesaid Act. Accordingly the learned Settlement Commissioner had absolutely no power to pass any order with regard to the disputed plot.

The learned Additional Advocate-General frankly conceded that the impugned orders passed by the learned Settlement Commissioner were without jurisdiction,. as on the relevant dates the evacuee laws were not in existence nor the impugned proceedings were pending at the time of repeal of the evacuee laws. He also referred to the letter C No.DSC/Legal/85, dated 1-4-1985 received by him from Settlement Commissioner Sind (Mr. Muhammad Akhlaq Khan) in which it has been clearly admitted that the order passed by the then Settlement Commis sioner on 20-4-1978 was not in consonance with the law in force at the relevant time.

In view of above discussion, the petition was allowed and the impugned orders were set aside as being without lawful authority and of no legal effect, vide short order dated 4-4-1985.

A.A.

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