1980 PLP 1640 (CLC)

Nemo for Respondent No.

1. Gulab M. Rang for Respondent No.

2. Date of hearing - 22nd January 1980. By the present petition under Article 199 of the Constitution of Pakistan the petitioner Zahida Khatoon Begum seeks to challenge an order of the Additional Settlement Commissioner (Mr. Ali Jarrar Hydery) dated 24th July 1973 whereby an earlier order passed by a predecessor Deputy Commissioner and Additional Settlement Commis sioner (Mr. O. M. Qarni) dated 16th February 1971, was set aside. I have heard Mr. S. M. Raza or the petitioner and Mr. Gulab M. Rang for respondent Jurial. Respondent No. 1 namely the Additional Settle ment Commissioner, Sind has not put in any appearance.

2. The brief facts of the case are that the petitioner had a verified claim of 150 P. 1. units of garden land and as against her entitlement she was allotted survey Nos. 645, 646 and 415 in Deb Dhandane, in Tahsil and District Larkana by a Khatooni dated 6th July, 1960. On the promulgation of Martial Law Regulation 89 respondent Jurial made an application before the Rehabilitation Authorities for allotment of the same land on the assertion that the land allotted to the petitioner had been surrendered by her and she had not exercised her option to repurchase the same land. An enquir was held into the matter by the Settlement Authorities and ultimately he matter came up before the Deputy Commissioner and Additional Sattlement Commissioner of Larkana (Mr. O. M. Qarni). By an order dated 16th February, 1971 this application made by Jurial was dismissed. Since I am only amending this case for rehearing it is not necessary to enter into the merits or demerits of this order.

3. Aggrieved by the order of Mr. O. M. Qarni respondent Jurial filed an appeal under section 18 of the Displaced Persons (Land) Settlement Act. This appeal was preferred in 1971 viz, before the promulgation of Act LV of 1973. This appeal which remained pending until the promulgation of Act LV of 1973 was transferred by the Settle ment Commissioner to the Additional Settlement Commissioner (Land) for disposal as a revision application. By the amending Act namely LV of 1973, section 18 of the Displaced Persons (Land) Settlement Act was omitted. Section 19 which dealt with revisions was substituted. The new selection 19 provided for the appeal pending before the Deputy Settlement Commissioner and Additional Settlement Commissioner being transferred to the Settlement Commissioner for disposal as revision applications. The matter on coming before the Additional Settlement Commissioner was decided by him adverse to the petitioner and hence the present petition.

4. The contention of Mr. S. M. Raza is that the appeals filed under section 18 of the Displaced Persons (Lands Settlement) Act before the- Settlement Commissioner would continue to be treated as appeals and to be disposed of by the Settlement Commissioners themselves be submits that such appeals did not abate but had to be continued as a remedy even under the law as stood before the amendment. The learned Advocate has particularly referred to subsection 2 of section 13 (as amended) which clearly states that the appeals pending before the Deputy Settlement Commissioner or an Additional Settlement Commis sioner would stand transferred to and be disposed of by the Settlement Commissioner as revision applications but this section does not mention the appeals that were pending before the Settlement Commissioners. In that View of the matter by, the repeal or omission of section 18 of; 1jisplaced Persons (Lands) Settlement Act the remedy by way of appeal as already provided continued to remain in force. The appeal which was therefore pending before the Settlement Commissioner be unaffected by the newly-inserted section 19 or the omission of section I8 from the Act. Even if this conceded that the Settlement Commissioner, had the power to transfer or remit the case/,by it an appeal or revision for disposal to an Additional Settlement Commissioner the order passed in this particular case is in the illegal the Settlement Commissioner was hearing an appeal against the order of an Additional settlement Commissioner. He could clot therefore remit this appeal for hearing t:; another Additional Settlement Commissioner because the latter officer would be of the same status in the heirarchy of the Settlement Authorities It can not be lightly countenanced that one Additional Settlement Commissioner should hear appeals against another Additional Settlement Commissioner. Mr. Gulab M. Rang has not been able to advance any argument in rebuttal.

5. For the above reasons the order of Settlement Commissioner (Mr. Ali Jarrar Hvderyi dated 24th September 1973 is held to be void. illegal and of no legal effect. The appeal filed by respondent Jurial before the Settlement Commissioner shall be deemed to be pending before the Settlement Commissioner. The Deputy Commissioner and Additional Settlement Commissioner, Larkana shall now submit the record of the case to the authority who is presently performing the functions of the Settlement Commissioner for the District of Larkana. The petition is allowed to the extent indicated above but there shall be no order as to costs. Petition allowed.