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Writ Petition No. 1484/11 of 1978, heard in 11th November, 1986.
‑‑S. 2‑‑Settlement Scheme No. VI‑‑Transfer of plots‑‑Settlement Authorities on coming to finding that covered area in plots in occupation of respondents was less than 1/4th and construction was temporary, holding them ineligible for transfer and putting plots to auction which were purchased ultimately by petitioner who was also issued P. T . Ds‑ Chief Settlement Commissioner subsequently taking up matter suo motu, deputing Deputy Settlement Commissioner who inspected spot and came to conclusion that covered area was not less than 1/4th and that construction was Pucca and transferred plots to respondents but on appeal/ revision, Settlement Commissioner by impugned order remanded case to Deputy Settlement Commissioner for clarification of certain points and for reply to queries raised in order of remand‑‑Position taken by petitioner, that Settlement Commissioner himself could well have decided all points in accordance with law and on basis of material existing on record, not controverted by respondents‑‑Order of remand set aside in circumstances and revision treated to be pending before notified officer who was directed to decide same afresh in accordance with law and after hearing parties.
Ch. M. Arif for Petitioner.
Muhammad Hassan Jafary for Respondents Nos. 1 to 3.
Shahzad Jahangir for Respondents Nos. 4 and 5.
Date of hearing: 11th November, 1986.
This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order of the Settlement Commissioner dated 18‑8‑1976 whereby he remanded the case to the Deputy Settlement Commissioner for fresh decision in accordance with law.
2. Dispute in this case relates to two evacuee plots. Ghaus Muhammad and Rashid Ahmad respondents Nos. 1 and 2 who claimed to be the occupants of these plots applied for transfer thereof under the Settlement Scheme No. VI. It was found that the area covered was less than 1/4th and construction was temporary. Deputy Settlement Commissioner, therefore, by order dated 26‑12‑1961 held that the respondents were not eligible for the transfer of the plots which were ordered to be put to auction. Respondents preferred an appeal which was dismissed by the Additional Settlement and Rehabilitation Commissioner on 28‑3‑1962. Plots in dispute were put to auction on 20‑11‑1964 and they were purchased by Abdul Waheed and Muhammad Shafi. The auction was confirmed. Auction‑purchasers thereafter surrendered their rights in favour of Mst. Hasina Begum, the present petitioner. She paid the transfer price and all other dues and obtained P.T.Ds. for both the plots on 21‑5‑1965 and 29‑5‑1965. No appeal or revision was filed y the respondents against the auction or against the issuance of P.T.Ds. in favour of the petitioner. However, at a later stage, Mst. Janat Bibi, respondent No. 3, the mother of respondents Nos. 1 and 2 approached the Chief Settlement Commissioner who took up the matter on the suo motu side. Case was subsequently sent to Deputy Settlement Commissioner who inspented the spot and came to the conclusion that the built up area was 1/4th and the construction on the plots was Pacca. He, therefore by order dated 19‑9‑1969 transferred the plots in dispute to respondents Nos. 1 and 2 on market price of the year 1959 plus 50% being non‑allottees. Petitioner challenged this order in appeal/revision which was disposed of by the Settlement Commissioner vide the impugned order. Learned Settlement Commissioner held that the order of the Deputy Settlement Commissioner was not maintainable. He, however, remanded the case to the Deputy Settlement Commissioner with the following directions /observations:
"(i) The Deputy Settlement Commissioner has now held that there is Pukka construction and more than 1/4th is covered whereas it was held by the then Deputy Settlement Commissioner that the construction was not Pukka and the area covered was less than 1/4th. The two opinions of the Deputy Settlement Commissioner require reconsideration.
(ii) Two auctions were held and were confirmed. No appeal or revision was filed against any of the auctions. Does it mean that the auctions become final and cannot be set aside at this late stage.
(iii) A P.T.D. was issued to the Associated of the auction‑purchasers and I wonder when there was no appeal or revision against the issuance of the P.T.D. how could that P.T.D. be cancelled when there are Rulings from the High Court on the point that after the issuance of the P.T.D. the Settlement Department becomes functus officio. How could the Deputy Settlement Commissioner ignore or cancel the first P. T. D.
(iv) He may also hear the parties on the question of suo motu revision. As to if could an order of cancellation of the P.T.D. be passed under these powers on a petition not from the occupants but from the mother of the occupants."
3. I have heard the learned counsel for the parties. Main argument of the learned counsel for the petitioner is that the aforementioned points/queries raised by the learned Settlement Commissioner did not call for any remand. The learned Settlement Commissioner himself could well have decided all these points in accordance with law and on the basis of the material existing on the record. This proposition is not controverted by the learned counsel appearing for the respondents. In fact too, they, submit that the questions raised in the impugned order for consideration whereof the case was remanded to the Deputy Settlement Commissioner should have been decided by the learned Settlement Commissioner himself.
4. In view of the position aforestated, writ petition is allowed and the impugned order of the learned Settlement Commissioner remanding the case to the Deputy Settlement Commissioner is set aside. Result, therefore, is that the petitioner's revision petition shall be treated as pending which shall be disposed of by the Additional Commissioner, Gujranwala, who, I am told, is notified as Settlement Commissioner. He shall decide the revision petition afresh, of course, in accordance with law and after hearing both the parties. There shall be no order as to costs in the facts and circumstances of the case.
M. Y. H. /696/L Petition allowed.
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