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Constitutional Petition No. S-4 of 1981, decided on 8th March, 1987.

---S.20-Evacuee Property and Displaced Persons Laws {Repeal) Act (XIV of 1975), S.2(2)--Constitution of Pakistan (1973), Art.199- "Pending proceedings", connotation of--Jurisdiction of Notified Officer--Only those proceedings which were immediately pending before 1-7-1974 before the Settlement Department or proceedings or cases which were received from Supreme Court or a High Court after remand, -held, could be entertained by Notified Officer--"Pending proceedings" would mean proceedings in which some action had taken place and some more action was still needed to be taken--Revision filed by private persons before Settlement Authority would not be competent because of provisions of S.20 of Act XXVIII of 1958 having stood repealed with effect from 1-7-1974--Order passed by a Settlement functionary in exercise of revisional jurisdiction after said specified date would be without lawful authority and of no legal effect---- Constitutional petition being competent against an order passed without jurisdiction was allowed in circumstances. --[Words and phrases).

Ahmed Din v. Deputy Settlement Commissioner, Lahore and another P L D 1977 Lah. 761; Sungreen and Co. Ltd., Karachi v. Noman Bai and 4 others P L D 1978 Kar. 100; Mst. Attari (through her legal heirs) v. Badlu (through his legal heirs) and another 1985 C L C 780 and 20 Ch.D 673 ref.

Nooruddin N. Ramzan for Petitioner.

Syed Sibghatullah Hamid for Respondents.

Date of hearing: 18th February, 1987.

The petitioner was in possession of a house situated in Kandiaro. On 6-10-1963 he applied for transfer of the house in his favour under scheme No. VIII under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the house was transferred to him against payment of Rs.1000 as price therefor. Thereafter on 4-3-1974 a final transfer order was issued in favour of the petitioner after all the dues in respect of the transfer were paid by him to the Settlement Department. The petitioner thereafter spent huge amount of money the renovation of the property which also included a loan of fts.40,000 which was taken from the House Building Finance Corporation .

Thereafter on or about 23-4-1980 the petitioner received notice from the office of the Settlement Commissioner Sind, Karachi inform him that proceedings purporting to be under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 were pending before the Settlement Commissioner in respect of a revisit -appeal filed by the respondent No.1 in connection with the aforesaid property. It may be pointed out here that the property had original been auctioned on 16-5-1960 by the Deputy Settlement Commission Nawabshah to one Amir Ahmed predecessor in-interest of the press private respondents against his highest bid of Rs.1000. It is the alleged that a sum of Rs.250 was adjusted from his Compensation Book as earnest money in respect of the property, but in the meanwhile the said Amir Ahmed died on 22-5-1961 leaving behind the respondents No.1 to 6 as i legal heirs. Thereafter; it appears that the respondent No.1 had applied for issuance of a permanent transfer deed in favour of the respondents but in December 1964 the auction proceedings held in favour of their predecessor Amir Ahmed were cancelled by the Deputy Settlement Commissioner by a general order and the property was once again put to auction on 24-1-1968 and 22-4-1968 and after the property failed to fetch any bid, the same was transferred to the petitioner as aforesaid. It then appears that in 1980 the respondents filed a revision against the order of the Deputy Settlement Commissioner, cancelling the transfer of the property in favour of their predecessor Amir Ahmed which was heard by the seventh respondent and disposed of in favour of the respondents vide his order, dated 10-9--1980 which was now been impugned in this petition.

The respondent in his order held that there were specific orders of the Deputy settlement Commissioner Nawabshah in respect of the cancellation the auction proceedings in favour of the respondents' predecessor on account of his making default in payment of the balance of the auction price. It was also held by him that transfer order was thereafter issued in favour of the petitioner on 14--3-1974. But according to him since neither the act on proceedings in favour of Amir Ahmed were legally cancelled nor the application filed by the respondent No.1 for issuance of P.T.D. had been legally disposed of, consequently the proceedings in revision was pending proceedings and the revision application was allowed.

I have heard Mr. Nooruddin Ramzan, learned counsel for the petitioner and Mr. S.S. Hamid on behalf of the private respondents.

Mr. Nooruddin Ramzan has assailed the order of the Deputy Settlement Commissioner purely on the ground that after passing of the Evacuee and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), the Displaced Persons (Compensation and Rehabilitation) Act, 1958 stood repealed w.e.f. 1-7-1974 and thereafter although an officer noticed under section 2(2) of the Act of 1975 was competent to exercise jurisdiction in respect of all proceedings which were pending immediately before the repeal of the Displaced Persons (Compensation and Rehabilitation) Act or proceedings which had been received by him on remand from the Hon'ble Supreme Court or a High Court, but the proceeding in revision before the seventh respondent by no stretch imagination could be construed as. pending proceedings within the meaning of section 2(2) of Act XIV of 1975, and consequently the learned Deputy Settlement Commissioner Sind, Karachi had no jurisdiction to hear the respondents' revision and pass the impugned order. Section 2 of Act XIV of 1975 may be reproduced for convenience of reference as follows:-

) The following Acts and Regulations are hereby repealed, namely:-

(') the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956);

(ii) the Pakistan Rehabilitation Act, 1956 (XLII of 1956);

(iii) the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957);

(iv) the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958);

(v) the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958);

(vi) the Scrutiny of Claims (Evacuee Property) Regulation, 1961; and

(vii) the Price of Evacuee Property and Public Dues (Recovery) Regulation, 1971.

(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings 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.

(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.

(4) The final orders passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with provisions of the Act or Regulation hereby repealed to which the proceedings related."

A bare reading of subsection (2) of section 2 makes it abundantly clear that only such proceedings which were immediately pending before 1-7-1974 before the Settlement Department or proceedings or cases which are received from the Supreme Court or a High Court after remand can only be entertained by the notified officer appointed under the said section for the purpose. The question as to what proceedings can be regarded as pending proceedings has been dealt with by the superior Courts in a number of cases. In Ahmed Din v. Deputy Settlement Commissioner, Lahore and another PLD 1977 Lah. 761, it was held that the Settlement Authority after issuance of permanent transfer deed had become funetus officio in regard to application seeking his clarification whether property in question was included in portion 'A' or portion 'B' of the property and such application could not be entertained by him. In Sungreen and Co. Ltd., Karachi v. Noman Bai and four others P L D 1976 Kar. 100, it was held by a single Judge of this Court that the word "proceedings" used in section 2(2) of Act XIV refers to concrete proceedings in which some action had been already initiated. In Mst. Attari (through her legal heirs) v. Badlu (through his legal heirs) and another (1985 C L C 780), it was held that pending proceedings meant proceedings which were being heard, tried or considered by any authority but if any proceeding is yet to be taken to authority it cannot be called a pending proceeding. Accordingly, pending proceedings means proceedings in which some action has taken place and some more action is still needed to be taken. According to 20 Ch. D.673, the test for determining whether a cause was pending case in a Court of Justice was whether one could take any further proceedings therein. In the present case, no doubt the application filed by the respondent No. 1, dated 30-12-1963, for issuance of P.T.O. was pending for further action when the transfer of the property in favour of his predecessor Amir Ahmed was cancelled but since no further steps were taken by the respondents for getting the order passed by the Deputy Settlement Commissioner set aside, the application, dated 30-12-1963 could not. have been regarded as a pending application. Anyhow the revision filed by the private respondents before the seventh respondent was clearly not competent as the same was purportedly filed under the provisions of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which had already stood repealed with effect from 1-7-1974 by Act XIV of the said Act and could not include within their ambit, the revision application filed by the respondents which was clearly a fresh proceeding initiated by them. Consequently, the order passed by the seventh respondent is clearly without lawful authority and of no legal effect and it is declared as such accordingly.

As a result, this petition is allowed and the impugned order, of dated 10-9-1980 is set aside. The parties are left to bear their own costs.

A.A./M-112/K Petition allowed.

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