1985 PLP 985 (MLD)

The Petitioner in this Constitution Petition claims to be a sitting tenant of agricultural land bearing No. S. No. 517, 518, 554, 571, 572, 578 and 622 situated in Deh Super Tapo Arbi, Taluka Sehwan, District Dadu. This land was originally in. possession/ allotment of a lady Mst. Hamida Khatoon and was surrendered by her. Under scheme framed by the Settlement Authority for disposal of such land the first option to repurchase this land was to be given to the allottee who surrendered it. If this option was not exercised, the sitting tenant/Hart had a priority over all others to get the land transferred to him. Learned counsel for the petitioner contend, that the petitioner, enforcing this right under the scheme applied for transfer of this land as a sitting tenant. The land was thus allotted to him some time in 1960. The order has not been filed. Subsequently it turned out that before the transfer of the land in favour of the petitioner the land had already been wrongly allotted to respondent No. 2, Muhammad Qayyum Farooqui. The said allottee transferred the land to respondent No.4 Ahmad Khan. Thus, Ahmed Khan demanded Batai from the petitioner. Thus, the petitioner came to know of the transfer of land to someone else for the first time in 1973 he immediately moved the Additional Commissioner, Dadu by filing a petition before him alleging that he and his brother had purchased the land and they were paying instalments regularly. This petition came to be heard by Additional Commissioner and was disposed of by order, dated 26-2-1975 but without notice to the petitioner. Although the order says that a general notice was published in a paper Muhafiz Sind. Mr. Kassim learned counsel for the petitioners raises a grievance and in my opinion rightly that this general notice cannot lie a substitute for a proper notice direct to the party for hearing of the cause, unless there are reasons for substituted service by publication. In the present case no such reasons are shown. The petitioner was aggrieved against this ex parte order and he moved an application, dated 18-11-1975 for a review of the ex parte dated 26-2-75. In the meantime another Deputy Commissioner had taken over and when this application for review came before him he took a view that, he could not review the order of his predecessor. He, therefore, forwarded the case to the Settlement Commissioner without taking a decision on merits. On 24-10-1977 the petitioner received a letter informing him that his application for review of the order, dated 26-2-1975 "has been filed" because in the change of law. The change was that by a repealing Act, the main Settlement and Rehabilitation Act was repealed and the Review application was not entertainable. The short letter may be reproduced below:- "In reply to your application, dated 18th November, 1975, on the subject noted above, this is to inform you that the Commissioner, Hyderabad Division under his Letter No. 2210-Rev./77, dated 10-10-1977 has directed that due to repealment of Settlement and Rehabilitation Laws with effect from 1-7-1974, no appeal/revision on Rehabilitation Side is entertainable. Accordingly your above revision application has been filed". This petition has been filed for a declaration from this Court that orders, dated 26-2-1975 and 24-10-1977 are without lawful authority and of no legal effect and be quashed. Prayer is made for a direction to dispose of petitions, dated 18-i1-1975 on merits after hearing the petitioner. Mr. Suleman Kassim has appeared -and argued the petition. The contention of the learned counsel is that the order, dated 26-2-1975 must be set aside and quashed because it was passed without notice to the petitioner Mr. Habibullah Samo learned counsel for the respondents 5 and 6 has supported the petitioner's counsel. No appearance for the other respondents. I think contentions of the learned counsel for the petitioner should be accepted and the order, dated 26-2-1975 passed without notice to the petitioner should be held to have been passed without lawful authority The case should be remanded to the authorised Officer, appointed under the Repealing Act with the direction that the petitioner's application dated Nil at 'A' to the petition praying for cancellation of allotment to anyone else except the petitioner be heard after notice to parties. This petition is allowed in the above terms and the case is remanded for disposal to the authorised Officer. H . B . T . Petition allowed.