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Constitutional Petitions Nos.163 and 204 of 1976, decided on 2nd April, 1986.

---Ss.10 & 11--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1974). S.2--Notification No.SCK/74-2948 dated 13-3-1975 issued by Sind Government--- Allotment of land--Additional Settlement Commissioner cancelling reallotment of land in dispute from names of petitioners without giving them notice of proceedings, after case was made over to him by Member Board of Revenue--Additional, Settlement Commissioner was not appointed as notified officer under S. 2(2) of Act XIV of 1975--Held, Additional Settlement Commissioner was not at all authorised to deal with cases arising under Displaced Persons. (Lend Settlement) Act, 1958 which were to, be dealt with under notification dated 13-3-1985 by Divisional Commissioners concerned and thus could riot pass impugned order as neither he was a notified officer within meaning of S. 2(2) of Act XIV of 1975 in respect of cases, arising under Act XLVII of 1958 nor assignment of case to him by Bard of Revenue was authorised under any provisions of Act XIV of 1975 Order passed by Additional Settlement Commissioner declared as order passed without lawful authority and case was to be deemed to be pending before Board of Revenue for disposal according to law.

Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 S C 236 ref.

Maroof Ali Khan Petitioners.

Date of hearing: 2nd April, 1986.

I propose to dispose of two Constitutional Petitions No.163 of 1976 and No.204 of 1976 by this order, as they arise out of the same order. These petitions have arisen in the following circumstances:-

Agricultural lands bearing Survey Nos.91 (9.11), 303 (7.30), 311 (7.36) and 301/A (2.24), totalling in all 27 Acres and 24 Ghuntas in Deh Saindad, Taluka Matli, District Hyderabad, and Survey Nos.310 (6.3), 314 (6.33), 318 (7.13) and 301/A (5.28) totalling 25 Acres and 27 Ghuntas in the same Deh, were originally allotted, alongwith several other pieces of agricultural land to one Nawab Syed Raunaq Ali in satisfaction of his claim on the basis of an entitlement certificate issued from the Central Record Office. The entitlement certificate issued in favour of Nawab Syed Raunaq Ali was, later on, cancelled in the year 1963, by the Officer on Special Duty, Lahore pursuant to notification, dated 25-9-1959, issued by the Central Government. The order of the Officer on Special Duty; cancelling the entitlement certificate of Nawab Syed Raunaq Ali, was challenged by him in a Writ Petition in the then High Court of West Pakistan, but the petition was dismissed on 10-6-1964. Nawab Syed Raunaq Ali then preferred a petition for special leave to appeal before the Supreme. Court against the judgment of the High Court, which was accepted, the order of the High Court was set aside, and the case was remanded back for re-verification of the claim of Nawab Syed Raunaq Ali in the light of the observation of the Supreme Court in the case. The judgment in the case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others is reported in P L D 1973 Supreme Court 1 236. It appears that, while the above proceedings were going on, the lands mentioned above were allotted under the provisions of the Displaced Persons (Land Settlement) Act, 1958, to claimants Mirza Sajid Hussain and Mirza Nadir Hussain on 3-10-1964. These claimants after obtaining possession of the land in the year 1966 and getting their names entered in the record of rights on the basis of clearance certificate issued in their respective favour, sold these lands by a registered sale-deed in the year 1973 in favour of the petitioners it Petition No. C.P.163 of 1976. After the judgment of Supreme Court on the petition of Nawab Syed Raunaq Ali, referred to above, the case was taken up by the Authorised Officer, Mr. Muhammad Akhlaq Khan, and, by order, dated 22-5-1975, he held that the verification order of the claim in favour of Nawab Syed Raunaq Ali, as originally passed by the Deputy Claims Commissioner called for no interference and he accordingly restored the claim of Nawab Syed Raunaq Ali. It may be mentioned here that, before Mr. Muhammad Akhlaq Khan, a prayer was made for cancellation of the re-allotment of the land in favour of the petitioner in Petition No.204 of 1976, but he refused to interfere with the said preceding on the ground that he had no jurisdiction in the matter. It appears that, after the order of Mr. Muhammad Akhlaq Khan, dated 22-5-1976, respondents 4 to 8. who were the purchasers of the land from Nawab Syed Raunaq Ali, moved an application before the Additional Member, Board of Revenue. 11, Sind, somewhere in 1976 for cancellation of the allotment of they same land made in favour of the petitioners in Petition No.204 of 1976. The learned Additional Member, Board of Revenue, sent the application moved before him to Mr. Muhammad Akhlaq Khan, why was the Additional Settlement Commissioner (Industries) for disposed according to law. Mr. Muhammad Akhlaq Khan, on 18th of May, 197E passed the impugned order, and held that the subsequent allotment order made in favour of the petitioners in Petition No. 204 of 1976 was a nullity, as it was passed during the pendency of the case on Nawab Syed Raunaq Ali with regard to re-verification of his claim. The order, dated 18-5-1976, is challenged in the abovementioned two petitions, and Mr, Maroof Ali Khan, the learned counsel for the petitioner, has raised the following contentions before me, It is firstly contended by the learned counsel that the petitioners in the above petition were not given any notice of the proceedings by Mr. Muhammad Akhlaq Khan before passing the impugned order, dated 18-5-1976 and, as such, the order is a nullity in the eye of law it is next contended by the learned counsel for the petitioner that the order passed by Mr. Muhammad Akhlaq Khan on 18-5-1976, after it was made over to him by the Additional Member, Board of Revenue, was an order wholly without jurisdiction, as, under the Notification, dated 24th of December, 1974, Mr. Muhammad Akhlaq Khan was appointed as a Notified Officer under subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance 1974, only -to deal with cases of appeal, or, revision under the Displaced Persons (Compensation & Rehabilitation) Act 1958, Registration of Claims (Displaced Persons) Act 1956, Scrutiny of Claims (Evacuee Property) Regulation 1961, Pakistan Rehabilitation Act 1956, and Recovery of Price of, the Evacuee Property and Public Dues Regulation, 1971. It is contended that, in so far as the cases remanded by the High Court, or, the Supreme Court, or, those pending on the date of enforcement of the aforesaid Ordinance, the Notified Officer in respect of cases arising under the Displaced Persons (Land Settlement) Act, 1958, was the Divisional Commissioners concerned. The above two contentions raised by the learned counsel for the petitioner are not without force. In paragraph 18 of Petition No.163 of 1976, and in paragraph of Petition No. 204 of 1976, the petitioners have specifically alleged that the order of respondent No.1, dated 18-5-1976, was passed without hearing them and they had no knowledge of its pendency, and these specific averments of the petitioner have not been controverted by the respondent. From a reading of the impugned order, dated 18-5-1976, it also does not appear that any notice was given to the present petitioners before passing the impugned order. Apart from it the second contention raised by the learned counsel for the petitioner is also not without substance. The learned counsel has placed before me the original Gazette Notification, dated 24th of December, 1974, published in the Sind Government Gazette, dated 13th of March, 1975 which is as follows:-

"No.SCK/74-2.048.--In exercise of the Powers conferred by subsection . (2) of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (XV of 1974) the proceedings under the (1) Registration of Claims (Displaced 'Persons.) Act 1956 (III of 1956), (2) the Pakistan Rehabilitation Act 1956 (XLII of 1956), (3) the Displaced Persons (-Compensation and Rehabilitation) Act 1958 (XXVIII of 1958), (4) the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958), (5) the Scrutiny of Claims (Evacuee Property) Regulation 1961 (M L R 89 of 1961) and (6) The Recovery of price of the Evacuee Property and Public Dues Regulation, 1971 (M L R 87 of 1971) which may be pending before the authorities appointed thereunder, immediately before the repeal of these Acts and Regulations by virtue of the Evacuee Property and Displaced Persons Law (Repeal) Ordinance, 1974 (XV of 1974) and all cases decided by the Supreme Court or a High Court after such repeal which may be remanded to any such authority for disposal in accordance with the provision of the repealed Act or Regulation and Instructions, Schemes and Rules made thereunder to the officers named below in respect of cases noted against each:-

Provided that the Additional Member, Board of Revenue (Incharge Settlement Cell) will be authorised to transfer cases mentioned at Serial No.8 from any of the Divisional Commissioner to any other Commissioner, and cases mentioned at Serial No.9 to any from Deputy Commissioner in the interest of justice and/or administration:

Provided that Mr. S. Wasim Hamid Rizvi, Settlement Commissioner Sind will be authorised to transfer cases to the officers mentioned at Serial Nos. 2 to 7 or recall the same to his own file for disposal or transfer to other officers mentioned at Serial Nos.2 to 7 having relevant ex officio powers under the relevant repealed Act, in the interest of justice and/or administration:

Provided further that the concerned Commissioners will be authorised to transfer a case from any officer mentioned at Serial No.10 to any other Additional Deputy Commissioner Assistant Commissioner in the interest of Justice and/or administration.

Additional Member Board of Revenue/Secretary, Rehabilitation Department, Government of Sind."

A reading of the above Notification will clearly show that the respondent No.1 was not at all authorised, as a Notified Officer, to deal with the cases arising under the Displaced Persons (Land' Settlement) Act 1958, which were to be dealt with under the above Notification by the Divisional Commissioners concerned. Apart from it, under subsection (4) of section 2 of Act XIV of 1975, a final order passed under section 2(3) by a Notified Officer is to be executed by the Board of Revenue of the Province in accordance with the provisions of the repealed Act, or, Regulation. There is nothing in Act XIV of 1975, which authorised the Board of Revenue to transfer a pending case before it to an officer, who is not notified as an authorised officer under subsection (2) of section 2 of the Act. I am, therefore, of the view that Mr. Muhammad Akhlaque Khan was not competent to pass the order, dated 18-5-1976, as neither he was a Notified Officer within the meaning of section 2 (2) of Act XIV of 1975, in respect of the cases arising under the Displaced Persons (Land Settlement) Act 1958, nor the assignment of the case to him by the Board of Revenue was authorised under any provisions of Acct XIV of 1975. I accordingly allow these petitions and declare the order passed by Mr. Muhammad Akhlaque Khan as without lawful authority. The effect of the order will be that the application moved by respondents 4 to 8 before the Member of Board of Revenue shall be deemed to be pending, which could be disposed of in accordance with law. There will be nu order as to costs.

M . Y . H . / G-39/ K Petitions accepted.

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