P L D 1971 Karachi 895 (PLP)

Naimuddin for Petitioner. Abdul Hameed Khan for Respondent No.

2. Date of hearing : 17th June 1971. This constitutional petition relates to an evacuee house in Nawabshah bearing No. I.A.-543/547. The petitioner is a widow and had been an allottee of this house, therefore, after his death she had filed an N.C.H. Form for it and in due course a P. T. O. for the said house was issued in her favour in November 1959. The second respondent was her servant and on compassionate grounds was allowed to occupy a portion of it. Taking advantage of the licence given to him to reside in a part of the house he filed an N.C.H. Form which was allowed by a Deputy Settlement Commissioner, Nawabshah. However, the case was re-opened and the transfer in the second respon dent's favour was cancelled by an order of the Deputy Settle ment Commissioner dated 14-11-1962. The second respondent then took steps to challenge this order of the Deputy Settlement Commissioner cancelling the transfer in favour, but it is sufficient to state that all proceedings instituted by him were dismissed. Then in 1964 the petitioner filed an eviction application against him under the West Pakistan Urban Rent Restriction Ordi nance, and in order to harass the petitioner he filed a miscel laneous application before the Deputy Settlement Commissioner alleging falsely that the house in dispute consisted of two houses. This application was dismissed, therefore, he filed an appeal before the Additional Settlement Commissioner which was also summarily dismissed on 12-12-1964. Finally he filed a revision before the Settlement Commissioner which was also dismissed on 24-2-1965. Then, after dismissing the second respon dent's revision application, the Settlement Commissioner reopened the case and asked the Deputy Settlement Commissioner to give a report on the allegation of the second respondent that the house in dispute consisted of two houses. The Deputy Settle ment Commissioner gave his report on 10-5-1965 and on the basis of this report, the Settlement Commissioner held by an order dated 20-5-1965 that the house in dispute should be treated as two units and the matter decided according to law. Aggrieved by this order, the petitioner filed a constitutional petition to challenge it and this petition has now come up for hearing before me.

2. Learned counsel for the petitioner submitted that the impugned order was illegal both because it had been passed behind the petitioner's back and because it had totally miscon strued the report dated 10-5-1965 of the Deputy Settlement Commissioner. I have examined the Deputy Settlement Commis sioner's report of 10-5-1965, and there is nothing in it to show that the house in dispute consisted of two houses, therefore, the submission that this report was misconstrued by the learned Settlement Commissioner in his 'order of 20-5-1965, is correct. As to the second argument of learned counsel I have to point out that the petitioner has very clearly alleged in para. 15 of her petition that the impugned order was passed without hearing her. The Settlement Commissioner is neither contesting the proceedings nor has he filed a counter affidavit, therefore, I have to accept this argument also as correct, and the result is that the impugned order is illegal.

3. Additionally, learned counsel for the second respondent supports the petition and states that the second respondents had no claim to the said house, and in this connection he has referred me to the counter affidavit of .the second respondent dated 17th June 1970, in which the respondent has clearly admitted the petitioner's claim. The second respondent is also present in Court. I have questioned him about his counter-affidavit. He informs me that whatever is set out in his counter affidavit is the truth and nothing but the truth.

4. In the circumstances discussed the petitioner has proved that the Settlement Commissioner's order dated the 20th May 1965 is without lawful authority. It is, therefore, set aside. I am aware that in the impugned order the Settlement Commis sioner had referred the case to the Deputy Settlement Commis sioner for disposal according to law. But that was on the assumption that the house in dispute consisted of two units. 1 have pointed out that in coming to this conclusion the learned Settlement Commissioner had totally misread the report of the Deputy Settlement Commissioner. It follows, therefore, that the direction for the remand of the case is also illegal. In the result, the petition is allowed. But in view of the candid admission of the second respondent, I make no order as to costs. Petition dismissed.