P L D 1967 Karachi 273 (PLP)

This writ petition is directed against the order of the Settlement Commissioner dated 18th March 1963, in Revision No. SC/R‑358/b). By this order the learned otrcer upheld the orders passed by the subordinate Settlement Authorities.

2. Id this writ petition the dispute between the parties is in respect of house bearing No. 1627/2, Ward 'B', near Tomb of Ibrahim, Larkana. The petitioner, who is a claimant displaced person applied for its transfer on a C. H. Form. A provisional transfer order was issued to him on 21st October N59, for a price of Rs. 2,880 and an amount of Rs. 1,407 was adjusted from his compensation book No. 49731/1447 IRK and the balance of Rs. 1,473 remained standing against hire, which was to be paid by instalment of Rs. 40 per month.

3. It, however, appears that later on the Settlement Autho rities issued a revised P. T. O. to him demanding a higher price of Rs. 10,

000. The petitioner made representation against this. On 27th June 1962, he received a notice from Mst. Bibi Mohammadi Khatoon, respondent No. 4, who had by then been transferred the house in dispute in lieu of house drawn in her favour in earmarking proceedings. On 2nd July 1962, the peti tioner filed an appeal before the Deputy Settlement Commissioner, alleging that the property has been unlawfully transferred to Respondent No. 4 and the transfer order in her favour be cancelled. The learned Deputy Settlement Commissioner, dismissed the appeal by order dated 26th July 1962. The petitioner appeal was dismissed by the Additional Settlement Commissioner on 27th December 1962. His revision was dismissed by the Settle ment Commissioner on 18th March 1963. The learned Settlement Authorities did not accept the claim of the petitioner on the ground that P. T. O. of the petitioner was cancelled because his counsel had stated in an inquiry held on 21st June 1961, by the Assistant Settlement Commissioner that he was not prepared to have it at a higher price .of Rs. 10,

000. The petitioner has challenged these orders in this writ petition.

4. In support of the petitioner Mr. Faizanul Haq, the learned counsel for the petitioner has contended that the provisional transfer order of the petitioner was cancelled without notice to him and that the petitioner did not authorise or empower any advocate to make refusal on his behalf in respect of the property in dispute. It is not disputed by the petitioner that he did make representations to the Settlement Authorities against the higher value fixed of the property in dispute. This representation was considered by the Assistant Settlement Commissioner on 21st June 1961. The learned officer recorded in the order of the said date as under:‑ "The advocate for the applicant refuses to have it on rent of Rs. 240 CH is therefore cancelled." Mr. Faizanul Haq contended that the petitioner had not autho rised any counsel to appear on his behalf before the Assistant Settlement Commissioner and the alleged statement had not been made on his behalf. This contention of the petitioner cannot be refuted on the material placed on the record. It is conceded by Mr. S. K. Hasan Rizvi, the learned counsel appearing for respondent No. 4 that there is no power of any advocate on the record of the Settlement Authorities on behalf of the petitioner. The order even does not disclose the name of the advocate, who made the above‑mentioned statement on behalf the petitioner. In these circumstances, the learned Assistant Commissioner acted illegally in acting on the statement of the advocate alleged to have been made before him on that date. It will be further noticed that the order passed on 21st June 1961, was also to be forwarded to the petitioner for information. There is nothing on the record to show that this order was never communicated to him. Under the Settlement Scheme No. 1, there is a detail procedure for cancellation the P. T. O. of the parties, who fail to fulfil the conditions laid therein. No such procedure was followed in the present case.

5. Mr. S. K. Hasan Rizvi, the learned counsel appearing for respondent No. 4 has strongly urged that the petitioner had slept over his right for more than one year. He did not pursue the representation made by him for over a year and the appeal filed by him before the Deputy Settlement Commissioner was time‑barred and was rightly dismissed by him. He was further contended that the petitioner is guilty of negligence and not entitled to any dis cretionary relief at the hand of this Court under the Article 98 of the Constitution. I can see that it is a very hard case for respon dent No. 4 but this by itself cannot be taken into consideration for approving the actions of the Settlement Authorities, which are clearly in contravention of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In the present case I have not the slightest doubt in my mind that the learned assistant Settlement Commissioner illegally cancelled the P. T. O. of the petitioner. He did not 4form him of the cancel lation of the P. T. O. and, therefore, the petitioner's appeal in July 1962 was properly filed and should have been allowed.

6. After carefully considering the arguments advanced by the learned counsel for the parties, I am satisfied that the learned Settlement Authorities fell into an error in not upholding the provisional transfer order issued to the petitioner in the year 1959. It would, therefore, quash impugned orders and restore the P. T. O. of the petitioner issued in 1959. Mr. Faizanul Haq, the learned counsel for the petitioner stated that the petitioner is willing to take the house in dispute at the revised price. The Settlement Authorities are directed to recover the balance of the amount from the petitioner in accordance with the law. They are further directed to help Mst. Bibi Mohammadi Khatoon respondent No. 4 in getting some other property if that is available in the evacuee pool.

7. In the result, subject to the above remarks, the petition is allowed with no order as to costs. K. M. A. Petition accepted.