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‑-Obiter‑Leave granting order by Supreme Court‑Leave granting order by Supreme Court would not nullify judgment of High Court against which leave had been granted, observations contained there in being obiter‑Obiter of the Supreme Court, held, would deserve due esteem.

‑‑ S. 2 (c)‑Evacuee Property Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2) General Clauses Act (X of 1897), S. (J (b) ‑Government of Baluchistan Notification No. 362;12‑6/71 (Rev), dated 17th January, 1972‑Government of Baluchistan Notification No. 12‑6/74 (Revenue), dated 18th November, 1974‑Central Government Notification No. S. R. O. 646 (1)/71, dated 31st Decem ber, 1971 ‑Appointment of Member, Board of Revenue as Chief Settlement Commissioner not made by name, nor it was an appoint ment of the Member but appointment was made by designation of Member, Board of Revenue‑Repeal of Displaced Persons (Land Settlement) Act, 1958, held, had not divested Chief Settlement Commissioner of power for purpose of Act ‑Member, Board of Revenue, therefore, could be assigned functions of Chief Settle ment Commissioner by virtue of, inter alia, S. 30 (1‑A), Displaced Persons (Land Settlement) Act, 1958.

‑‑ Ss. 11, 2 (d) & 4‑Transfer of Evacuee Land (Katchi Abadi) Act (XIII of 1972), S. 7‑Chief Settlement Commissioner's Notification No. 330/2‑75 (K‑Abadi), dated 15th November, 1975‑ Settlement Scheme No. IX. Chap III‑"Evacuee Land"‑‑"Katchi Abadi"‑‑Definitions‑Order of transfer of evacuee land as Katchi Abadi‑Provisions of Scheme .having been by‑passed, Notifications and Transfer order ex‑facie mala fide and in violation of provision of Act‑Such order, held, could not be sustained.‑[Words and phrases].

Sufi Hameedullah and others v. Syed Abdul Wasey and others. Constitutional Petition No. 244 of 1975 and Ahmad Zaman Khan v. The Government of Pakistan and 13 others P L D 1977 Lah. 735 disting uished.

Haji Seth Wali Muhammad and 4 others v. Member‑III, Board of Revenue, Baluchistan, Quetta decided on 16th May, 1984 P L D 1984 Quetta 131 ; Mst. Mumtaz Jehan Begum v. Settlement and Rehabilitation Commissioner, Sind and 2 others 1981 C L C 774 ; Mst. Asghari Khanum v. Maj. Iqbal Cheema and 3 others P L D 1982 Lah. 569 ref.

Khalid Malik for Petitioners.

Muhammad Yusuf, A.A.‑G. for Respondent No. 1.

Respondents Nos. 2 to 4 and 11 to IS : Ex parte.

Ayaz Zahoor for Respondents Nos. 5 to 10.

Muhammad Muqim Ansari for Respondents Nos. 16 to 19.

Ehsanul Haque for Respondent No. 20.

Azizullah Memon for Respondent No. 21

Dates of hearing : 29th and 30th July, 1985.

AJMAL MIAN, ACTG. C. J.‑This petition is directed against the orders dated 15th November, 1975, 24th November, 1.975 and Notifications dated 15th November, 1975 and 24th November, 1975 passed by the respondent No. 1 i.e. ; Member (II), Board of Revenue Baluchistan. The brief facts leading to the filing of the above petition are that the peti tioners Nos. 1 and 2 and their deceased brother Muhammad Shafi, the predecessor‑in‑interest of petitioners Nos. 3 and 4 are refugees from Hoshyarpur East Punjab after the partition of India. They got a verified claim of 86 Produce Index Units of urban agricultural land. Against the above verified claim they were allotted /transferred urban agricultural land (hereinafter referred to as the land') bearing Khasra Nos. 8292/7642 and 8293/7642 measuring 14.501 sq. ft. situated, off Jinnah Road, Quetta on 29th February, 1960. The names of the petitioners Nos. 1 and 2 and their deceased brother were mutated and thereafter, a Permanent Transfer Deed was issued in their favour on 18th March, 1969. Late K. B. Ziauddin, the predecessor‑in‑interest of respondents Nos. 2 to 4 was the transferee of premises bearing Municipal No. 9‑14/82‑83 Jinnah Road, Quetta. He challenged the above transfer in favour of petitioners Nos. 1 and 2 and their deceased brother and contended that the land was a garden attached to his above survey number transferred to him. The above litigation culminated in the dismissal of Writ Petition No. 31 of 1968 by a learned Single Judge of the erstwhile High Court of Sind and Balu chistan by a judgment, dated 21st May, 1973 in which it was held that the land was a separate property and not the part of late K. B. Zia uddin's above survey number. After that, the respondents Nos. 2 to 4 moved an application under section 11 of the Displaced Persons (Land Settlement) Act, 1958, which was dismissed. Thereupon, another appli cation was made by the above respondents Nos. 2 to 4 on 15th October, 1974 before the Chief Settlement Commissioner requesting that the same may be treated as suo motu revision but the same was dismissed on 15th November, 1975. It seems that on the very day i. e. 15th November, 1975, the above respondents Nos. 2 to 4 and 7 others filed applications under Scheme No. IX Chapter‑III (hereinafter referred to as the Scheme') framed under section 7 of the Transfer of Evacuee Land (Katchi Abadi) Act, 1972 (Act XIII of 1972) hereinafter referred to as the Act'. It appears that on the very day, the very Chief Settlement Commissioner issued Notification No. 330/2‑75 (K/Abadi), dated 15th November, 1975 under the above Scheme declaring the land as Katchi Abad' and cancelled the transfer in favour of the petitioners without notice to them. After that, by his order dated 24th November, 1.975 ordered transfer of the portion of land to the private respondents or their predecessors‑in‑interest. He also issued a corrigendum, dated 24th December, 1975 correcting Kbasra number of the land. The petitioners being aggrieved by the above orders and notifications have filed the present petition.

2. In support of the above petition, Mr. Khalid Malik, learned counsel for the petitioners has contended as follows :‑

(i) That Mr. Naseebullah Khan Sherani, who purported to act as the Chief Settlement Commissioner was not at the relevant time, appointed as the Chief Settlement Commissioner;

(ii) That after the repeal of Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settle ment) Act, 1958, no one could have been appointed as the Chief Settlement Commissioner for the purpose of the Act ;

(iii) That the land could not have been declared as Katchi Abadi';

(iv) That the petitioners were condemned unheard; and

(v) That the transfers were mala fide and in violation of the Scheme.

On the other hand, Mr. Muqim Ansari, learned counsel for some of the private respondents whose arguments were adopted by M/s. Azizullah Memon, Ehsanul Haq and Ayyaz Zahoor, Advocates for rest of the private respondents has urged as under :‑

(i) That Mr. Naseebullah Khan Sherani being a Member of the Board of Revenue was competent to act as the Chief Settlement Commissioner ;

(ii) That the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958 had not affected the status of Mr. Naseebullah Khan Sherani as the Chief Settlement Commissioner;

(iii) That the cancellation of the transfer in favour of the petitioners was b5 virtue of operation of law, i. e. under section 4 of the Act and therefore, the petitioners were not entitled to be heard; and

(iv) That the transfers in favour of the private respondents and their predecessors‑in‑interest were. bona fide and were not in violation of the Scheme.

3. Adverting to the question whether Mr. Naseebullah Khan Sherani was competent to act as the Chief Settlement Commissioner at the relevant time, it may be pertinent to refer to the relevant enactments and the notifications issued from time to time in this behalf. It may be observed that the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958 operated upto 31st December, 1971 by the Central Government. With effect from 1st January, 1972, the Provincial Governments were delegated powers under S. R. O. 645 (1)/71 and S. R. p. 646 (I)/71 respectively. The latter S. R. O. related to the delegation of power for the purpose of Displaced Persons (Land Settlement) Act, 1958, which is pertinent for resolving the point in dispute.

Ordinance I of 1972 i. e. Evacuee Property and Displaced Persons Laws (Amendment) Ordinance, 1972 P L D 1972 Cent. Stat. 363 which came into force on 1st January, 1972, inter alia, added subsection (I‑A) to section 30 of the aforesaid Act of 1958 providing that the Pro vincial Government may by order direct that any power delegated to it under subsection (1) shall in such circumstances, and under such con ditions, if any as may be specified in the direction be exercised by an officer or authority subordinate to it. It may further be stated that the Government of Baluchistan under Notification No. 3622;12‑6/71 Rev. dated 17th January, 1972 appointed Member, Board of Revenue, Govern ment of Baluchistan as the Chief Settlement Commissioner under the Displaced Persons (Land Settlement) Act, 1958. It may be pointed out that at the time of issuance of the above notification, there was only one Member of the Board of Revenue in Baluchistan namely Captain Saleh Muhammad, but the above number was increased in 1974 to three. The Government of Baluchistan issued Notification No. 10064‑10121/Adorn/ BOR, dated 8th October, 1.974 assigning the works between the three . members of the Board of Revenue. The above notification reads as follows :‑

"With the previous approval of the Government of Baluchistan, the following distribution of work amongst the Members, Board of Revenue, Baluchistan have been agreed to as required under section 6 (1) of the West Pakistan Board of Revenue Act, 1967.

1. Jahangir Shah, Member, Board of Revenue‑1.

(1) Chairman Governor's Inspection Team.

(2) Revenue Department including Admn; Budget and Relief Branches but excluding Settlement and Rehabilitation work.

(3) Excise and Taxation Department.

(4) Review, Revisional and Appellate cases of Judicial and Revenue sides pertaining to Kalat and Sibi Divisions.

2. Mr. Irshad Ahmad Member, Board of Revenue‑II with Headquarter at Temple Dera. '

(1) Chief Land Commissioner.

(2) Land Reforms.

(3) Review, Appellate and Revisional work pertaining to Land Reforms.

3. Mr. Nasibullah Khan Sherani, Additional Member, Board of Revenue Baluchistan,

(l) Auqaf Department.

(2) Colonies Department.

(3) Land Utilization Department.

(4) Revenue (only Settlement and Rehabilitation work).

(5) Transport Department.

(6) Review, Revisional and Appellate cases of Revenue and Judicial side pertaining to Quetta Division."

It may be pertinent to mention that Act No. XIII of 1972 i.e., Transfer of Evacuee Land (Katchi Abadi) Act, 1972 (the Act referred to hereinabove, was gazetted on 18th September, 1972 and was enforced w. e. f. 15th March, 1972 in the various Provinces, except Baluchistan where it was enforced on 1st June, 1973 under notification dated 31st May, 1973 issued by the Government of Baluchistan. After that the Chief Settlement Commissioner, Baluchistan with the approval of the Provin cial Government framed Scheme No. IX i. e. the Scheme in pursuance of the powers contained in section 7 of the Act. It may also be pertinent to mention that the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (Ordinance XV of 1974) which was gazetted on 30th September, 1974 and was enforced w. e. f. 1st July, 1974 inter alia repealed the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958. It may further be stated that subsection (2) of section 2 of the above Ordinance pro vided that upon repeal of the aforesaid acts and Regulations all pro ceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid. The above Ordinance was converted into Act XIV of 1975, gazetted on 28th January, 1975. It seems that the Government of Baluchistan under Notification No. 12‑6/74 (Revenue), dated 18th November, 1974 nominated Mr. Naseebullah Khan Sherani for the purpose of disposal of the pending cases referred to in the above subsection (2) of section 2 of aforesaid repealing Ordinance.

4. Mr. Khalid Malik, learned counsel for the petitioners has vehe mently urged that on 17th January, 1972 when the Baluchistan Government appointed the Chief Settlement Commissioner, there was only one Member, of the Board of Revenue, namely, Captain Saleh Muhammad and after the above notification, there has not been any fresh appointment of the Chief Settlement Commissioner in place of Captain Saleh Muhammad and, therefore, Mr. Naseebullah Khan Sherani was not competent to pass the impugned orders and notifications in the capacity of Chief Settlement Commissioner. In furtherance of his above submission, he has referred to an unreported judgment, dated 12th October, 1980 given by a D. B. of this Court in Sufi Hameedullah v. Syed Ahdul Wasey and others (Constitutional Petition No. 244 of 1975) in which it has been held that Mr. Naseebullah Khan Sherani was never appointed as the Chief Settlement Commissioner before 1‑7‑1974 i. e. before the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958. In this regard, it may be pertinent to reproduce para. 5 of the above judgment which reads as follows :‑

"5. On 17th January, 1972 two notifications were issued appointing Member, Board of Revenue as Chief Settlement Commissioner under :‑

(i) The Displaced Persons Land Settlement Act, 1958;

(ii) Displaced Persons (Compensation and Rehabilitation) Act, 1958.

It may be mentioned that at that time there was single Member of the Provincial Board of Revenue. Evacuee Laws, including the above two Acts, came to be repealed w. e. f. 1 st July, 1974 by Evacuee Property Displaced Persons Laws (Repeal) Ordinance, 1974 which was later became Act XV of 1975. The result was that the powers to appoint a Chief Settlement Commissioner were not avail able with the Provincial Government with the repeal of these two Acts. There is no doubt that under section 6 (b) of the General Clauses Act, 1898 an appointment made under a repealed Act could continue even after such repeal. But in the instant case not only that the structure of, the Provincial Board of Revenue was changed but also that the Personnel were also substituted. Earlier Captain Saleh Muhammad was the single Member, Board of Revenue while subsequently Mr. Nasirullah Khan was one of the 3 members. A notification was issued on 18th October, 1974 by the Board with the prior approval of the Provincial Government, distributing various functions among the three members. Mr. Nasibullah Khan was assigned among other things, to look after revenue (only Settle ment and Rehabilitation work); other revenue work being done by Mr. Jehangir Shah Jogazai. Mr. Nasibullah Khan was admittedly never appointed as Chief Settlement Commissioner, before 1‑7‑1974. He, therefore, could not exercise the powers of Chief Settlement Com missioner. An administrative distribution on work could not confer statutory powers upon him. There being no Chief Settlement Com missioner in the Province of Baluchistan the declaration that Khasra No. 627 was a Katchi Abadi made by Nasib Ullah Khan was without jurisdiction."

It may be pertinent to point out that against the above judgment, the Honourable Supreme Court has granted leave by an order, dated 14th January, 1981 in Civil Petition for Special Leave No. 183‑R/80 Syed Abdul Wasey and others v. ufi Hameedullah and others, wherein, the following observations are made :‑

"In seeking leave to appeal, the learned counsel contended that the High Court, in holding that the notification, dated 16th of October, 1975, was illegal had placed reliance only on the notification, dated 17th of January, 1972, by which the power to make such declaration was conferred by the Provincial Government, on the Member, Board of Revenue, as Chief Settlement Commissioner, under section 9 (1) of the Displaced Persons (Land Settlement) Act, 1958 and failed to take notice of the Notification No. SRO 646 (1)/71 of the Central Government, dated 31st of December. 1971. by which it delegated all its powers under the said Act to the Government of Baluchistan with effect from 1st of January, 1972, which empowered the Provincial Government to exercise those powers which in turn conferred it on the Member, Board of Revenue by notification, dated 17th of January, 1972 In this connection the learned counsel also invited our attention to Ordinance I of 1972, promulgated on 19th of January, 1972 which took effect from 1st of January, 1972 and inserted section 1‑A in section 30 of the Displaced Persons (Land Settlement) Act, 1958, which empowered the Provincial Government to delegate its functions under subsection (1) of this section, to such extent as may be specified in the order on any officer or an authority subordinate to it. The learned counsel further referred to Ordinance No. XX of 1972 which overrides other laws and provides for the transfer of Evacuee Land declared as Katchi Abadi irrespective of any prior allotment."

5. From the abovequoted passage from the order of the Honourable Supreme Court, it is evident that the Honourable Supreme Court was of the view that the learned Judges of the above D. B. had not taken into consideration all the relevant notifications and the law while concluding that Mr. Naseebullah Khan Sherani was never appointed as the Chief A Settlement Commissioner. Though a leave granting order does not nullify the judgment of the High Court against which leave has been granted, and the observation contained therein is obiter. But even an obiter of the Honourable Supreme Court deserves due esteem.

It may be stated that clause (c) of section 2 of the Act defines 'the Chief Settlement Commissioner' means the Chief Settlement Commissioner appointed by the Government under either or both the Acts, which have been defined in clause (a) of the above section 2 means the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) and the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958). It may also be observed that the Government of Baluchistan by the aforesaid notification' No. 362/12‑6/71‑Rev; dated 17‑1‑1972 appointed "Member, Board of Revenue, Government of Baluchistan" as the Chief Settlement Com missioner Baluchistan for the performance of duties and functions under the Displaced Persons (Land Settlement) Act, 1958. The above appoint ment was not by name, nor it was an appointment of 'the Member'. but this was an appointment by designation of "Member, Board of Revenue". At the time when the Act was enacted ‑and was extended to Baluchistan w. e. f. 1st July, 1973, admittedly, Member, Board of Revenue was the Chief Settlement Commissioner for the purposes of the Act. The repeal of the Displaced Persons (Land Settlement) Act, 1958 6 w. e. f. 1st July, 1974 had not divested the power of the Chief Settlement Commissioner for the purpose of the Act, as the Act was not repealed which is even today holding the ground. The above view is supported, inter alia, by section 6 of the General Clauses Act, 1897. Furthermore, since, under the above notification, dated 7th January, 1972, the appoint ment of the Chief Settlement Commissioner for Baluchistan was by designation i. e., Member, Board of Revenue, and not of the Member of the Board of Revenue, at that time any Member of the Board of Revenue could have been assigned the functions of the Chief Settlement Commissioner by virtue of, inter alia, subsection (1‑A) of section 30 of the Displaced Persons (Land Settlement) Act, 1958 enacted by Ordinance I of 1972., which was not considered by the learned Judges of the D. B. in the above judgment given in Constitutional Petition No. 244 of 1975. It may be stated that re‑allocation of the work by the Board of Revenue through the above quoted notification, dated 8th October, 1974 among three Members of the Board of Revenue, was in consonance with the provisions of section 6 (1) of the West Pakistan Board of Revenue Act, 1967. It may be pointed out that under the abovequoted notification Mr. Naseebullah Khan Sherani was assigned, inter alia, Settlement and Rehabilitation work. It cannot be denied that the Act relates to Settle ment and Rehabilitation. It is, therefore, evident that at the relevant time, Mr. Naseebullah Khan Sherani was, in fact, competent to act as the Chief Settlement Commissioner.

6. That above discussion also covers the second submission of Mr. Khalid Malik, learned counsel for the petitioners that after the repeal of the Displaced Persons (Land Settlement) Act, 1958, no one could have been appointed as the Chief Settlement Commissioner.

7. As regards the submission of the learned counsel for the peti tioners that the land could not have been declared as 'Katchi Abadi' it may be observed that he has referred to the preamble of the Act and the definitions of the terms 'evacuee land' and 'Katchi Abadi' given in clauses (d) and (f ) of the Act. It may further be observed that the preamble refers to the transfer of certain evacuee land to the occupants thereof, whereas, clause (d) defines 'evacuee land' means any land, plot or vacant site abandoned by an evacuee as defined in the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957). It may further be seated that clause (f) of section 2 gives the definition of the term 'Katchi Abadi' as means such inhabited area of evacuee land as is declared by the Chief Settlement Commissioner to be a Katchi Abadi for the purposes of this Act. On the basis of the above provisions it was vehemently urged by Mr. Khalid Malik, Advocate that since the land was permanently transferred to the petitioners Nos. 1 and 2 and the predecessor‑in‑interest of the petitioners Nos. 3 and 4 in 1969, the land ceases to be an evacuee land within the purview of the Act, and, therefore, could not have been decla red as 'Katchi Abadi'. To reinforce the above submission, he has referred to the following judgments

(i) The above unreported judgment of a D. B. of this Court, dated 12th October, 1980 Constitutional Petition No. 244 of 1975 in Sufi Hameedullah and others v. Syed Abdul Wasey and others, in which, upon relying the Lahore judgment of a learned Single Judge referred to hereinabove, it was held that after the transfer of the land per manently, it was not an evacuee land.

(ii) Ahmad Zaman Khan v. The Government of Pakistan and 13 others P L D 1977 Lah. 735, which was decided on 15th October, 1976 and in which, it was held that a land already transferred perma nently cannot be treated as evacuee land for the purpose of the Act.

(iii) Haji Seth Wali Muhammad and 4 others v. Member 111, Board of Revenue, Baluchistan, Quetta decided on 16th May, 1984 P L D 1984 Quetta 131. In the above case also, a D. B. of this Court held that the land having been: acquired under section (3) of the Displa ced Persons (Land Settlement) Act, 1958 by the Central Govern ment ceases to be evacuee and after its transfer permanently, it cannot be treated as evacuee land.

(iv) Mst. Mumtaz Jehan Begum v. Settlement and Rehabilitation Commissioner, Sind and 2 others, 1981 C L C 774 wherein, one of us (Mr. Justice Ajmal Mian, Actg. Chief Justice) while sitting S. B. at the Sind High Court. held that after the issuance of a P. T. D., the Settlement Department was not competent to re‑open the case for deciding a question of fact calling for detailed inquiry. On the bass or various judgments of the Supreme Court and High Court referred to therein, it was also held that the Settlement Department after issuance of P. T. D. becomes functus officio.

(v) Mst. Asghari Khanum v. Maj. Iqbal Cheema and 3 others P L D 1982 Lah. 569. In the above case, a learned Single Judge of the Lahore High Court held that the Settlement Department has no power to entertain a fresh application after the enactment of the Evacuee Property and Displaced Persons Laws (Repeal) Act 1975.

8. It may be observed that after the above judgment given by the learned Single Judge of the Lahore High Court on 15th October, 1976, reported in P L D 1977 Lah. 735 referred to hereinabove, the definition of evacuee land given in clause (d) of section 2 of the Act, was amended by Act‑III of 1977 by adding the words 'including any land, plot or vacant site allotted, transferred or otherwise disposed of by the Chief Settlement Commissioner or any other authority under either of the Acts or any other law for the time being in force. The above amendment was made retrospectively w. e. f. 18th September, 1972 i. e. from the date when the Act was gazetted. The learned judges of the D. B. of this Court in the above unreported judgment and the reported judgment of 1984, referred to hereinabove, have not considered the above amendment and its retrospective effect, and, therefore, the said cases are not relevant, whereas, as pointed out hereinabove, the above Lahore case decided by a learned Single Judge was prior to the date of the above amendment and, therefore, is not applicable to the instant case, nor the above Karachi case or the Lahore case of 1982 has any relevancy to the point in issue. If the law makers in their wisdom include even a transferred land within the ambit of the evacuee land, no exception can be taken to it. Section 4 of the Act refers to the definition of the term 'evacuee land' as amended by providing under subsection (1) that all allotments and transfers of evacuee land in any Katchi Abadi shall stand cancelled as from the appointed day, and the allottees or transferees of such land shall be paid such compensation therefore as may be determined by Government, subject to subsection (2) which provides that nothing in subsection (1) shall apply to such evacuee land as was occupied by its allottee or trans feree on the appointed day and does not exceed his verified claim.

9. Reverting to Mr. Khalid's contention that the petitioners have been condemned unheard, it may be observed that it is true that the petitioners were not heard when the first impugned notification, dated 15th November, 1975, declaring the land as 'Katchi Abadi' and can celling the transfer in favour of the petitioners, was issued. The above contention is not devoid of any force. However. one view in the matter can be that since the cancellation of the transfer of an evacuee land is to be by operation of law on payment of compensation and as no right of bearing has been provided in the Act, the petitioners were not entitled to be heard. In our view, it is not necessary to decide the above point as we are of the view that the impugned notifications and orders cannot be sustained on merits.

10. As regards the last submission of Mr. Khalid, learned counsel for the petitioners that the notifications and the transfer order are mala fide and in violation of the provisions of the scheme, it may be stated that he had invited our attention to the fact that the respondents Nos. 2 to 4, the successors‑in‑interest of late K. B. Ziauddin, were contesting the transfer in favour of the petitioners on the ground that the garden was part of the survey number transferred to them. Though this point stood concluded by the judgment of a learned Single Judge given in Con stitutional Petition No. 31 of 1968, decided on 21st May, 1973 filed by the predecessor‑in‑interest of the respondents Nos. 2 to 4, in which, it was . held that the above garden was not part of the above respondent's pre decessor‑in‑interest's survey number transferred to him, the respondents Nos. 2 to 4 filed an application on 15th October, 1975 before the Chief Settlement Commissioner praying that their above application be treated as suo motu revision. The above application was dismissed as stated hereinabove, by an order dated 15th November, 1975 which reads as follows :‑

"Suo motu Revision under section 20 of Displaced Persons (Compensation and Rehabilitation) Act, 1958.

15‑11‑1975:‑Rashid Ahmed for the petitioners and Muhammad Hussain with his counsel for the respondents present. Arguments heard. All Settlement Laws have been repealed by Repealing Act XIV of 1975 w. e. f. 1‑7‑1974. Under subsection (2) of section 2 of Act XIV of 1975, Member Board of Revenue, is empowered to hear only cases which were pending on 1‑7‑1974. The petition is dated 15‑10‑19 74, and is therefore, dismissed for want of jurisdic tion, without going into the merits of the case.

(Sd.)

Member, Board, of Revenue‑III,

Baluchistan."

After having dismissed the above suo motu revision petition, the respondent No. 1 on the very day entertained respondents Nos. 2 to 4's and six other persons' applications (who were never in the field) under the Scheme and ordered the issuance of notification on the very day for declaring the land as Katchi Abadi' and cancelling the transfer in favour of the petitioners, even without visiting the site and verifying the fact whether it was a fit case for declaring it Katchi Abadi'. The Scheme framed under the Act provides the procedure for inviting applications for the transfer of evacuee land from time to time by notification. On receipt of such an application, the Deputy Settlement Commissioner is required to acknowledge the receipt thereof and to enter it in a register to be main tained for the purpose in such form as may be prescribed. It further provides that the Deputy Settlement Commissioner shall scrutinize the application and if he is satisfied after spot inspection fix the value as per formula laid down by the Chief Settlement Commissioner and issue notice) to the applicant for payment of price. From the record, it is evident that C all the provisions of the Scheme were by‑passed. The notifications and J the transfer orders are not sustainable being ex facie mala fide and also,, being in violation of the provisions of the Act and the Scheme.

11. We may observe that the learned counsel for ‑the respondents had submitted that Packa' multi‑storeyed buildings have already been constructed at the site by the transferees or their successors‑in‑interest and at this stage, if the transfers in favour of the private respondents are disturbed, they will be adversely affected. We have given serious thoughts to this aspect. In our view, the above ground does not warrant refusal to exercise constitutional writ jurisdiction, but the above fact warrants the remand of the case.

12. We, therefore, allow the above petition and declare the impugn ed notifications and the transfer orders in favour of the private respon dents as being without lawful authority and of no legal effect. The transfer in favour of the petitioners stands restored. However, we remand the case to the Member, Board of Revenue exercising the power under the Act with the direction to examine the case afresh on the question, whether any action under the Transfer of Evacuee Land (Katchi Abadi) Act, 1972 is required to be taken for the purpose of declaring the land in question as Katchi Abadi. There shall be no orders as to cost.

These are our reasons in pursuance of short order of even date.

M. B. A. Case remanded.

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