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Constitutional Petition No.S-89 of 1981, decided on 17th March, 1987.

---S.2(2)--Provisional Constitution Order (I of 1981), Art.9--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.10, 11 & 20(3)--Allotment--Deputy Settlement Commissioner, after he"-had issued Permanent Transfer Deed in respect of property in dispute in favour of petitioner had become functus officio--Such officer ordering deletion of said property from name of petitioner from said document on application filed by respondent, on ground that transfer of property in name of petitioner's predecessor was illegal--Settlement Commissioner maintaining order of Deputy Settlement Commissioner--Orders passed by both said officers after repeal of Displaced Persons (Compensation and Rehabilitation) Act, 1958 by Repealing Act XIV of 1975 Held proceedings initiated before Deputy Settlement Commissioner on application of respondent were fresh proceedings and same could not be entertained by him and orders passed by him in matter were without lawful authority and also orders ' passed in revision by Settlement Commissioner were illegal--Orders of both officers set aside in circumstances.

Shaikh Hyder for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd February, 1987.

One Mirza Ashiq Hussain had purchased property bearing Custodian's No.1II-A-63 by auction on 27-5-1964 which consisted of a shop (room to room). The auction was confirmed on 7-8-1964 and P.T.D. dated 18-9-1964 was issued in favour of the auction-purchaser. The property was purchased by the petitioner from the auction purchaser on 8-7-1966 by a registered conveyance deed. He then applied for mutation of names in the City Survey Record and it then transpired that the numbers allotted to the shops in the City Survey Record were 21/1 and 21/2. The petitioner then applied to the Settlement Authorities for- correction in the P.T.D. which was accordingly done by the then Deputy Settlement Commissioner. Thereafter the petitioner entered into a private arrangement with one Muhammad Hanif (Respondent No.2), the owner of the adjoining property, whereby room on top of the respondent's shop was let out to the petitioner and the room at the back of the petitioner's shop was let out to the third respondent. Thereafter the third respondent filed an application before the Deputy Settlement Commissioner requesting that the room at the back of the petitioner's shop, which was in his possession, might be transferred to him and the transfer of such room in favour of the petitioner might be cancelled. The third respondent also filed a suit for possession of the room on top of his shop which he had earlier let out to the petitioner. Thereafter the Deputy Settlement Commissioner Nawabshah by his order dated 22-9-1980 allowed the respondent's request, holding that transfer of property NQ.8/21/2 in favour of Ashiq Hussain, the petitioner's predecessor was illegal and the same might be deleted from the transfer documents of, the petitioner's property. Aggrieved by this order the petitioner filed a revision before the Settlement Commissioner Sind, Karachi which was. also dismissed by ' order dated 27-12-1980 and hence this petition.

Mr. Shaikh Haider, learned counsel for the petitioner has assailed both the orders by this petition. As regards the first order, the contention of the counsel is that the learned Deputy Settlement Commissioner- who had become functus officio after issuance of the P.T.D. in respect of the property in favour of the petitioner's predecessor was not competent to pass the aforesaid order. As regards the second order, the learned counsel has very fairly conceded that no revision was competent before the learned Settlement Commissioner Sind, Karachi after coming into force of Ordinance XIV of 1975 by which certain Evacuee Laws including the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been repealed.

There, however, appears to be lot of substance in Mr. Shaikh Haider's contention. First of all, after issuance of the P.T.D. in favour of Ashiq Hussain, the petitioner's predecessor, the-Settlement Authorities had become functus officio in view of Rule 4 of the Permanent Transfer Rules, 1961 which excepted only such cases from its operation where fraud had been pleaded. Moreover, Rule 7 of the aforesaid Rules which empowered the Settlement Authorities to cancel transfer of property in favour of a party had also been omitted by A virtue of Notification of the Federal Government, dated 27-12-1964. Reference in this respect may be made to the case of Anwar Hussain v . Sarfraz Ahmed P L D 1971 S C 669 wherein it was clearly held by the Supreme Court that after issuance of P.T.D. the Settlement Authorities would become funetus officio. Exception was made only in cases where errors had to be corrected without holding of formal enquiry or undertaking of proceedings was required against parties in cases of misrepresentation or fraud. Apart from that, certain Evacuee Laws, including the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been repealed with effect from 1-7-1974 B by the Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). Thereafter, although an officer notified under section 2(2) of the Act can exercise jurisdiction but only in case of proceedings which were pending before the Settlement Authorities immediately before such repeal or cases which are received on remand from the Supreme Court or a High Court. Except in such cases, jurisdiction cannot be exercised by the notified officer in any other case. Since the proceedings initiated before the Deputy Settlement Commissioner Sind Karachi by the respondent No.3-were fresh proceedings, the same could not be entertained by him and the order dated 22-9-198'0 was passed without lawful authority.

Since the order dated 22-9-1980 was passed without lawful authority, the fact that the same was upheld by the learned Settlement Commissioner, Karachi would not make any material difference in the case because the learned Settlement Commissioner also was not competent to entertain the revision under the provisions of section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act which had been repealed.

The upshot of the discussion is that the petition is allowed and both the orders passed by the Deputy Settlement Commissioner and the Settlement Commissioner are held to be without lawful authority and of no legal effect. The parties are left to bear their own costs.

M. Y. H . /M-275/ K Petition allowed.

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