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Writ Petition No. 23‑R of 1978, heard on 12th February 1986.
‑‑‑Art. 199‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.10‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2‑‑Transfer of evacuee property Constitutional jurisdiction, exercise of‑‑Property, held, could not have been put to auction and transferred to respondent, ‑without first having disposed of application for transfer of same filed by petitioner who admittedly was in possession of such property‑‑Order of Settlement Authorities transferring property in dispute through ‑auction without taking into consideration possession and application of petitioner was declared illegal by High Court in exercise of constitutional jurisdiction.
Talib H . Rizvi for Petitioner.
Abdus Samad Hashmi for Respondents Nos. 3 and 4.
Nemo for the Settlement Department.
Date of hearing: 12th February 1986.
Through this constitutional petition, Yameen petitioner wants this court to declare the order, dated 1‑12‑19,76 of the learned Additional Settlement Commissioner respondent No.1 and 7‑12‑1976 of the Deputy Settlement 'Commissioner, respondent No.2 to be without lawful authority and of no legal effect.
2. The dispute relates to House No. 1/556 Rasool Nagar, District Gujranwala. The petitioners case is that he is in possession of the house since 1947. On 25‑10‑1976 the petitioner moved application before the Deputy Settlement Commissioner respondent No.2 for the transfer of house to him but no order has been. passed on that application till today. It so happened that the house was put to auction and was purchased by Mst. Kausar Zaidi respondent No.3. On recommendation of the Deputy Settlement Commissioner, Gujranwala, the auction in favour of Mst. Kausar Zaidi was approved by the learned Additional Settlement Commissioner, respondent No.1 on 1‑12‑1976. The Deputy Settlement Commissioner then issued transfer order in her favour on 7‑12‑1976, hence, this petition.
3. The learned counsel for the petitioner mainly submitted that since the application filed by the petitioner for the transfer of the house to him was not disposed of therefore, the disputed house could not have been put to auction and transferred to respondent No.3. No one has appeared for the Settlement Department. The learned counsel for respondents Nos. 3 to 4 have supported the impugned order.
4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that undisputedly the petitioner is in possession of house since 1947; that on 25‑10‑1976 he made application before the Deputy Settlement Commissioner respondent No.2 for the transfer of the house to him; and that his application had not been disposed of when the house was put to suction. The Deputy Settlement Commissioner did not care to dispose of the application of the petitioner even after the auction and before the approval given on 1‑12‑1976. I am convinced that the property could not have been put to auction and transferred to Mst. Kausar Zaidi respondent No.3 without first having disposed of the application of the petitioner who was very much in possession of the house. For what has been said above, the petition is allowed and the impugned orders are declared to have been passed without lawful authority and of no legal effect. The parties are left to bear their own costs.
H . B . T . Petition allowed .
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