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Writ Petition No. 1565-R of 1977, decided on 14th January, 1986.

.,__,...., (Compensation and Rehabilitation) Act

----Art---199---Dispalced person (Compensation and Rehabilitation ) Act (XXVIII of 1958) S.10---Evacuee property and Displaced persons laws (Repeal) Ordinance (XV of 1914) S.2 Transfer of evacuee peropery---Repeal of evacuee laws---Effect on pending cases---After repeal of evacuee Laws, pending cases could only be decided by Notified Officer to be appointed under S.2 of Ordinance XV of 1974---Deputy Settlemtn Commissioner would have no authority to adjudicate upon controversy after promulgation of Ordiance Xv of 1974 High Court in Constitutional jurisdiction setting aside Order passed by Deputy Settlemtn commissioner being without jurisdiction remtie case to Notified Officer for adjudication afresh in accordance with law in circumstances.

Ch. Abudl Aziz for petitioner.

Anwar Ahmad Khan Sherwano for Respondent No.2

Date of hearing 14^th January 1986

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan read with Laws Continuance in Force (Amendment) Order, 1977 calls in question order dated 7-11-1977 passed by respondent No-1, Deputy Settlement Commissioner II, Lahore.

2. The property in dispute is the western portion of House No. WII-18S-11 situate at Mohni Road, Lahore. The contest in this case is between the petitioners Muhammad Irfan etc., who are in possession of the ground floor and Sibte Nabi, respondent No.2 who is in occupation of the upper story.

The father of the petitioners namely Abdus Salam had filed a C . H . Form for seeking transfer of the property in dispute, whereas respondent No.2 had filed an N.C.H. Form for the same. The form of Abdus Salam was rejected and on the N.C.H. Form of respondent No.2 the property in dispute was transferred to him vide order dated 21-1-1960

passed by the Deputy Settlement Commissioner.

Appeal preferred by Abdus Salam against the above-mentioned order was dismissed by the learned Additional Settlement Commissioner, Lahore by his order dated 24-6-1960.

Revision against the appellate order dated 24-5-1960 was dismissed by the learned Settlement Commissioner by his order dated 8-11-1960 and the second revision to the Chief Settlement Commissioner also met the same fate on 1-7-1961.

Abdus Salam, father of the petitioner filed writ petition W.P. No. 1313/R of 1961 in this Court which was allowed by judgment dated 11-10-1965 delivered by the then Hon'ble Chief Justice and after setting aside the orders of the Settlement Authorities the matter was remitted to the Settlement Commissioner for deciding the revision of Abdus Salam afresh in the light of the observations made in the judgment.

The Settlement Commissioner, Lahore Division, Lahore, by his order dated 14-4-1976, sent the case to the Deputy Settlement Commissioner for affording opportunity to the parties for adducing evidence and producing documents which they wished to produce.

The learned Deputy Settlement Commissioner, by his order dated 7-11-1977 impugned in this petition, however, decided the matter himself. Hence the present constitutional petition by the petitioners.

3. The learned counsel for the petitioners contended that the order passed by the learned Deputy Settlement Commissioner deciding, the controversy by himself apart from suffering from other defects on merits is patently without jurisdiction inasmuch as he could not have decided the matter finally, the order of remand by the High Court being with a direction to the Settlement Commissioner to decide the revision of the predecessor-in-interest of the petitioners.

The learned counsel further submitted that in any case at the time the matter was decided by the learned Deputy Settlement Commissioner vide the impugned order he had no authority whatsoever to adjudicate upon the, controversy as by then the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1974 which had come into force with effect- from 1-7-1974 had been promulgated and under the provisions thereof pending matters could only be decided by a Notified Officer to be appointed under section 2(2) of the Repealing Act.

The learned counsel has placed on record a copy of Notification No. 28 (Addl. S.C.) III-Admn-Sett/74, dated 3-2-1976 issued by the Secretary to the Government of the Punjab, Settlement and Rehabilitation Wing to show that the Deputy Settlement Commissioner who decided the matter vide the impugned order was not the Notified Officer.

4. The learned counsel for the contesting respondent has conceded that this jurisdictional defect is patent in the impugned order and it has been correctly pointed out by the learned counsel for the petitioners that the Deputy Settlement Commissioner whose order has been impugned in this constitutional petition was not the Notified Officer. He, however submitted that the controversy on merits should not be touched by this Court and the matter be remitted to be decided by the Notified Officer.

5. In view of the foregoing position, accepting this petition I set aside the order dated 7-11-1977 passed by the learned Deputy Settlement Commissioner, Lahore and remit the case to the Notified officer for adjudication afresh in accordance with law and directions contained in the judgment of this Court dated 11-10-1965 delivered in Writ Petition No. 1313/11 of 1961.

In the attendant circumstances of the case there will be no order as to costs.

6. I am told by the learned counsel for the parties that now the Notified Officer is the Additional Commissioner (Revenue) Lahore Division, Lahore. The parties are, therefore, directed to appear before him on 27-2-1986.

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