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Writ Petition No.121-R of 1985, decided on 8th October, 1986.

---S.2(2)--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Preamble--Repeal of evacuee laws--Effect--Forum for pending cases--On promulgation of Act XIV of 1975 all evacuee laws stood repealed with effect from Ist July, 1974--Forums provided under Displaced Persons Act, 1958 ceased to exist--Pending cases stood transferred to Notified Officers under S.2(2) of Act XIV of 1975--Deputy Settlement Commissioner, held, had no jurisdiction to cancel P.T.O. on an application submitted after repeal of evacuee laws.

---Art. 199--Evacuee Property and Displaced Persons. Laws (Repeal) Act (XIV of 1975), S.2 (2)--Constitutional jurisdiction, exercise of- Denial of relief under constitutional jurisdiction on account of objectionable behaviour of a petitioner, held, was merely a rule of equity--Without commenting upon conducts petitioner, High Court observed that since Deputy Settlement Commissioner completely lacked jurisdiction in cancelling P.T.O. his action was patently illegal which could not be permitted to be perpetuated-Setting aside illegal order of Deputy Settlement Commissioner, High Court remanded case to Board of Revenue for entrustment to Notified Officer for deciding same according to law.

Sh. Anwar-ul-Haq for Petitioner.

M. Aqil Mirza for Respondents Nos.l and 2.

Date of hearing: 8th October, 1986.

The facts are, that Mst. Rehmat Bibi respondent No.1, herein to whom the house in dispute was transferred against her Form NCH entered into an agreement dated 31-3-1960 with the petitioner, whereby the latter agreed to pay the entire transfer price of the house out of his compensation book; the property was to be divided equally between them. Though there is no formal order on the record accepting this association deed, yet a Provisional Transfer Order dated 21-5-1960 was issued by the Deputy Settlement Commissioner in the name of both the parties.

2. On 17-12-1976 the respondent No.1 moved an application before the Deputy Settlement Commissioner, praying therein that as the petitioner neither paid the transfer price nor was 'he prepared to do so, the entire house might be transferred in her favour. When this application came up for consideration before the Deputy Settlement Commissioner, he by his order dated 17-12-1976 summoned both the sides for 30-12-1976. But before the date of hearing, respondent No.1 brought on the record another deed of association, dated 29-12-1976 under which she agreed to surrender three rooms of the house in dispute to respondent No.2. It is discernible from the Deputy Settlement Commissioner's file that in pursuance of the order dated 17-12-1976 notice was issued to the petitioner, but sent to him at his address in Mandi Baha-ud-Din. It was not served on him and the postal registered envelope was received back in the Office of the Deputy Settlement Commissioner as undelivered.

3. The Deputy Settlement Commissioner took up the case for hearing in the petitioner's absence, proceeded against him ex parte passed order dated 30-12-1976; maintained that the agreement dated 31-3-1960 was never accepted by the Settlement Authorities and thus its validity was in dispute. Simultaneously he accepted the deed of association entered into between respondents Nos.l and 2.

4. The validity of this order was called in question by the petitioner through a miscellaneous application before the Additional Settlement Commissioner with powers of Settlement Commissioner, Gujranwala, who vide his order dated 6-1-1985 chose to dilate upon the merits of the case but ultimately came to the conclusion that after the repeal of the evacuee laws he was not possessed of any jurisdiction to deal with the matter. It is under these circumstances that the petitioner has invoked the writ jurisdiction of this Court.

5. I have heard the learned counsel for the parties and examined the record including the file maintained in the Office of the Deputy Settlement Commissioner. On behalf of the petitioner it is argued that after the repeal of the evacuee laws, no jurisdiction vested in the Deputy Settlement Commissioner, to entertain the respondents' miscellaneous application and cancel the P.T.O. issued to the petitioner. The learned counsel then referred to page 122 of the Old Settlement Manual to point out that the agreement of association filed before the Settlement Authorities could only be cancelled or withdrawn with the approval of the Additional Settlement Commissioner. It was thus urged that in this respect as well, the Deputy Settlement Commissioner, acted without lawful authority. It was further submitted that the Settlement Department was well aware that at the relevant time the petitioner was putting up at Okara and not at Mandi Baha-ud-Din and, therefore, despatch of the notice by post to Mandi Baha-ud-Din, was utterly meaningless. In any case, it was further asserted that since notice was received back as un-served, it was incumbent on the Deputy Settlement Commissioner to have made some other effort to serve the petitioner but no fresh notice was issued to him and thus, there was no justification for conducting ex parte proceedings. It was next argued that the entire transfer price was adjusted against the petitioner s compensation book but this fact was completely ignored by the Deputy Settlement Commissioner.

6. On the other hand, respondents' case is that the payment of transfer price out of the petitioner's compensation book, was, the main condition of the agreement dated 31-3-1960; his compensation book was declared bogus; he was issued notice dated 17-12-1976 by the Deputy Settlement Commissioner requiring him to pay the transfer price, but this notice went unheeded. In these circumstances, the learned counsel argued, the agreement dated 31-3-1960 had to be ignored. On the question of jurisdiction of the Deputy Settlement Commissioner, the learned counsel submitted that the order passed by him merely amounted to realisation of the transfer price and documentation which was well within his competence. He urged that on the basis of the Deputy Settlement Commissioner's order, dated 30-12-1976, a Permanent Transfer Deed was issued to the respondents and respondent No.2 after getting a building plan approved from the Municipal Committee constructed a house on the site at a huge cost; similarly, respondent No.1, sold away the property falling to his share and the vendee constructed a new house. The submission was, that all along the petitioner did not appear at the scene and now at this stage the respondents and for that matter the vendee from respondent No.1 who acted in good faith, cannot be deprived of their valuable rights in the property. According to the learned counsel the petitioner by his own conduct is precluded from the grant, of relief under the writ jurisdiction which is discretionary.

7. There should be no doubt that on the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 all evacuee laws stood repealed with effect from 1st July, 1974 and thus, the forums provided under the Displaced Persons (Compensation Rehabilitation) Act ceased to exist. As regards the pending cases under section 2 (2) of 1975 Act these stood transferred to Officers notified thereunder. It is, thus, obvious that the Deputy Settlement Commissioner had no jurisdiction to entertain the respondent's application, dated 17-12-1976 muchless to adjudicate the same and cancel the P.T.O. issued jointly to the petitioner and respondent No.1. It is difficult to accept that the Deputy Settlement Commissioner's order aforesaid amounts to documentation and is aimed at recovering the transfer price of the property. Apart from this lack of jurisdiction, even otherwise, as pointed out by the learned counsel for the petitioner, the deed of association could only be rescinded and permitted to be withdrawn by the Additional Settlement Commissioner.

8. The petitioner's attack on the validity of the ex parte proceedings is also quite formidable. He acknowledged notice Annexure 'R/1' vide his application Annexure 'F' and informed the Deputy Settlement Commissioner that his compensation book was taken in their custody by the enforcement staff but the learned Special Judge, Sahiwal by his order dated 22-3-1972 gave a decision in favour of the petitioner and thus his claim was found to be genuine. It was requested that the compensation book be requisitioned from the Court of the learned District Judge, Lahore and a Transfer Order issued in the name of the petitioner. This application was received in the office of the Deputy Settlement "commissioner on 28-12-1976. The petitioner clearly mentioned his latest address in the said application as, Evidently therefore, before passing the order dated 30-12-1978-the Office of the Deputy Settlement Commissioner stood posted with the knowledge of the latest address of the petitioner but no notice was issued to him at the said address. The Deputy Settlement Commissioner, therefore, acted illegally in conducting ex parte proceedings against the petitioner.

9. The denial of relief under writ jurisdiction on account of objectionable conduct of a petitioner, is merely a rule of equity. Upon the facts of the case, it is idle to comment upon the conduct of the petitioner and it would suffice to observe that the Deputy Settlement Commissioner, completely lacked jurisdiction; his order is patently illegal and such an illegality cannot be permitted to be perpetuated.

10. The question as to whether or not the petitioner failed to pay the transfer price or that his compensation book was declared as bogus, requires an inquiry for which there is no room in these proceedings. Likewise in view of the order which I propose make there is no need to give a decision on the respondents claim that they acted in good faith and that due to the construction of the buildings the Character of the property has gone under a change.

11. For the foregoing reasons this writ petition is accepted, the impugned order declared to be without lawful authority and of no legal effect. The case is remanded to the learned Member, Board of Revenue (Settlement Wing-revenue) for m; entrustment to some Officer notified under section 2(2) of Act XIV of 1975 who shall decide it expeditiously and in accordance with law. It shall be open to the parties to raise any objection against each other, within the framework of law before the Tribunal below. They are left to bear their own costs.

A.A./A-28/L Petition accepted.

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