1984 PLP 2347 (CLC)

Constitutional Petition No. S‑260 of 1976, decided on 20th February, 1984. ‑‑ ‑ S. 21‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) ‑ Constitution of Pakistan (1973), Art. 199‑Power of review‑‑Withdrawn except in respect of clerical mistakes‑Settlement Commissioner deciding validity of transfer of land in favour of petitioner on 29th April, 1974 in pur ported exorcise of power of review, reversing same on 1st September, 1976‑Settlement Commissioner, held, bad no power to review such order being not in respect of clerical mistake. Matloob Hassan Siddiqui for Appellant. Nooruddin Sarki for Respondents. Date of bearing : 20tb February, 1984. The dispute in this petition relates to agricultural land bearing Survey No. 434 village Jhandiani, Taluka Sehwan, District Dadu. Prior to partition this land was granted to Shrimati Tilli Bai widow of Alumal under the order of the Collector, dated 20th February, 1941. This was however cancelled on 7tb February, 1944 when Mst. Tilli Bai made a representation and also filed a Civil Suit No. 17/45 in the Court of First Class Civil Judge, Larkana, against the Province of Sind. It seems that the Government of Sind by its Resolution No. R‑10485‑H (b) 11, dated 21st August, 1945 restored the grant to Mst. Tilli Bai on condition that suit be withdrawn and she accordingly dismissed on 11th January, 1945. She also stated in the application for withdrawal of the suit that she does not claim the cost. The Record of rights i. e. Village Form VII was accordingly corrected and the grant was shown in favour of Mst. Tilli Bai and on 12th March, 1947 she stood recorded owner of the property. Mst. Tilli Bai migrated to India and this property along. with other Survey Numbers 433 and 435 being the evacuee property were allotted to claimants under Permanent Settlement Scheme. The disputed land was allotted to the petitioner on 29th December, 1969 and after confirmation, mutation order under rule 7 of Displaced Persons (Land) Settlement Act was issued. The Petitioner paid settlement fee and this agricultural land was duly mutated in his name in revenue records namely Records of Rights in village Form VII. Some persons raised dispute over this land the Settlement Commissioner (Lands) by letter, dated 20th March, 1972 required clarification from the Board of Revenue, Government of Sind, Hyderabad, who by its letter gave opinion that the disputed land is an evacuee property. The respondents Nos. 2 to 15 challenged the transfer as this laud had been allotted to them by the Barrage authorities. The Assistant Commissioner Kotri held that if the grant has been made by the Barrage Authorities namely A. C. O. or Colonization Officer, then appeal should be filed before the Compe tent Authority. He further ordered that till such time the issue as to validity of grant in favour of respondents by the Barrage Department is not decided by the Competent Authority it should not be utilised in the permanent Settlement Scheme. The respondents filed Revision against this order which was dismissed by the Deputy Commissioner and Settle ment Commissioner (Lands) on 29th April, 1974 holding that the land in dispute was validly transferred to the Petitioner. The respondent filed review Petition which was allowed by the Additional Commissioner and Settlement Commissioner (Lands) on 1st September, 1976 and he directed that the disputed land should remain with the respondents Nos. 2 to 15 and the balance area should be disposed off by the Barrage Department according to Rule. Mr. Matloob Hassan Siddiqui and Mr. S. H. Rizvi the learned counsel appearing for the petitioner have contended that the respondent No. I did not have the power to review the order passed on 29th April, 1974, and therefore the impugned order is illegal and without jurisdiction. The admitted position is that the power of review conferred on the Settlement Commissioner had been withdrawn in 1964, and there after he was only entitled to review in respect of clerical mistakes. By Ordinance XV of 1974 the Displaced Persons (Compensation and Rehabilitation) Act was repealed. However, under section 2, subsection (2) it has been provided that pending proceedings shall be decided by the Notified Officer. Subsection (3) provides that such pending proceedings shall be dealt with in accordance with the repealed law. Therefore, the review application which was filed before 1st July, 1974 could be decided by the respondent No. 1 being Notified Officer, in accordance with the repealed law which did not confer a power of review as exercised by the respondent No.

1. The same position operates under Act XIV of 1975. Mr. Nooruddin Sarki the learned counsel for the respondents Nos. 2 to 15 does not dispute this legal position. He has very fairly conceded that the respondent No. l had no power to review the order, dated 29th April, 1974. The impugned order, dated 1st September, 1976 passed by the respondent No. 1 is declared to be without lawful authority and of no legal effect. Petition is allowed with no order as to cost. M. B. A. Petition allowed.