1986 PLP 1389 (MLD)

‑‑‑S.2(2)‑‑Notified officer, connotation of‑‑Competency to decide case‑ Plea that case having been remanded to Settlement Commissioner, official deciding case was not Settlement Commissioner, held, would have no merit in view of fact that under Act XIV of 1975 case could only be remanded to Notified Officer‑Official deciding case having been declared Notified Officer, was competent to decide same. Abdul Majeed Khan for the Petitioner. Maroof Ali Khan and Abdul Naseer Khan for Respondents. Date of hearing: 31st March 1986. By this petition under Article 199 of the Constitution, the petitioner has challenged the order of Notified Officer, dated 31‑8‑1978, by which he held that the property, bearing No.A/3‑2780, Tilak Road, Hyderabad, consists of two independent residential units,' and that the portion occupied by Dr. Nunes only shall stand transferred to the petitioner in the earmarking proceedings. In order to dispose of this petition, it is necessary to mention here the background of the present controversy. Property, bearing No.A/3‑2780, Tilak Road, Hyderabad, was put to earmarking proceedings under Settlement Scheme V, and was drawn in favour of the petitioner. The petitioner paid the price, and a P. T. D., dated 24‑6‑1960, was issued in his favour. The property at the time of its transfer in favour of the petitioner was occupied by two locals, namely, Dr. Nunes and Mr. P.S. Channa. It appears that both Dr. Nunes and Mr. P.S. Channa had applied for transfer of the above property on their L.H. Forms, but their claims were rejected on the ground that the valuation of the property was over Rs.10,000 and they, being locals, were disentitled to its transfer under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It appears that, against the order of rejection of their L.H. Forms, both Dr. Nunes and Mr. P.S. Channa filed Revision Application before the Settlement Commissioner, which was registered as Revision Application No. Sett/R‑514/60 (Hyd.) By about the same time, another claimant, Ghulam Ali Khan, who had been successful in the earmarking proceedings, was deprived of the property drawn in his favour, and therefore he also preferred a Revision Petition before the Settlement Commissioner against the cancellation of the earmarking proceedings in his favour. The Settlement and Rehabilitation Commissioner, by order, dated 26th September, 1960, passed in the Revision Petition preferred by Dr. Nunes and Mr. P.S. Channa, held that the property, bearing No.A/3‑2780, Tilak Road, Hyderabad, consisted of two separate independent units, and he accordingly passed an order that one of the portions of this property, which was occupied by Dr. Nunes, be given to the petitioner, while the other portion occupied by Barrister Channa be transferred to Ghulam Ali Khan, who had lost the house, which was drawn in his favour in the lottery. Zahoor Ahmed, who was a party in Revision No.514 of 1960, preferred a further Revision before the Chief Settlement Commissioner, which was allowed by order, dated 29th of September, 1961, and the case was remanded back to the Settlement Commissioner for making a spot enquiry to determine whether the dispute property, namely House No.A/3‑2780, Tilak Road, Hyderabad, consisted of two units or not. It may be mentioned here that, against the order of Settlement Commissioner, dated 26‑9‑1960, a second Revision was filed by Dr. Nunes and Mr. P.S. Channa, which was disposed of by another Chief Settlement Commissioner, Mr. Aijaz Hussain Shah, by order, dated 27‑3‑1962. By this order, the order of the Settlement and Rehabilitation Commissioner, dated 26‑9‑1960, was upheld. In view of the conflicting orders passed by two different Chief Settlement Commissioners, one in the case of the petitioner, and the other in the case of two locals, namely, Dr. Nunes and Mr. P.S. Channa, the Settlement Commissioner, Mr. S.M. Azhar, refused to interfere with the order of Settlement Commissioner, dated 26‑9‑1960, whereby he had directed for transfer of one portion to the petitioner, and the other to Ghulam Ali. The order of Mr. S.M. Azhar, dated 12‑3‑1969, was then challenged by the petitioner in the High Court in constitutional Petition No.408 of 1969, which was allowed by a learned ‑Single Judge of this Court as follows:‑‑ "For the aforesaid reasons, I allow this petition and set aside the impugned order, dated 12‑3‑1969, and remand the matter to the Settlement Commissioner/ Appropriate Authority under the present law, to decide, afresh, the question of divisibility of the house. in question into two units, in terms of the order, dated 29‑9‑1961 passed by the learned Chief Settlement Commissioner (Mr. Ghulam Shabbir) and dispose of the matter according to law after notice to the parties concerned. , Before parting with case, I may only add that Mr. Munshi also raises several other contentions regarding legality of the transfer of one unit of the house in question to the respondent Ghulam Ali, but since I have decided to remand the matter I do not consider it appropriate to deal with them, least any observation by this Court may prejudice the case of either party before the Appropriate Authority." After the remand of the case by the High Court, as aforesaid, the Additional Settlement Commissioner, who is also a Notified Officer, as defined in section 2(2) of Act XIV of 1975, inspected the property in dispute and came to the conclusion that it consisted of two units, of which one was occupied by Dr. Nunes and the other by Mr. P.S. Channa. According to the above finding, the Additional Settlement Commissioner, held, in his order, that the portion in possession of Dr. Nunes shall stand transferred to the petitioner in the earmarking proceedings. This order of the Settlement Commissioner, dated 31st August, 1978, is now challenged in this petition by the petitioner. Mr. Abdul Majeed Khan, learned counsel for the petitioner, contends that, after the property was disposed of in favour of the petitioner in the earmarking proceedings as one unit, it was not 'open to the Settlement Authorities to bifurcate it into two units after making site inspection, as it was not available to be adjudicated by the Settlement Authorities in this manner. Alternatively, it is contended by the learned counsel to at there was no material on record to support the finding of the Additional Settlement Commissioner that the property consisted of two units. None of the above contentions of the learned counsel can b accepted. In so far as the first contention is concerned, the order of remand made by the Chief Settlement Commissioner, Mr. Ghulam Shabbir, on 29‑9‑1961 attained finality, as it was not challenged by the petitioner, and, in pursuance of that order, the Settlement Commissioner was required to make a site inspection and determine the divisibility of the house. Not only that, even in the order of remand of this Court passed in Petition No.408 of 1969, the order passed by the Chief Settlement Commissioner, Mr. Ghulam Shah, dated 29‑9‑1961, was confirmed, and the Settlement Commissioner was directed to make a sit inspection in compliance of that order. In these circumstances, the only scope of enquiry before the Settlement Commissioner, after the remand of the case by the High Court, was to inspect the proper and to determine if it consisted of two units, as directed in the order of the Chief Settlement Commissioner, Ghulam Shah. With regard to the second contention, it is sufficient to mention here that the question o divisibility of the house being one of purely a question of fact could not be gone into in exercise of the Constitutional jurisdiction of this Court. There is nothing on the record to show that the findings arrived by the settlement commissioner after site inspection of the property is contrary to any evidence on record or is perverse. On the other hand, there is another order of the Settlement Commissioner, dated 26‑9‑1960, whereby he also reached the conclusion after site inspection that the property consisted of two units, and not one unit. It may also be mentioned here, that Mr. Abdul Majeed Khan also raised a contention before me that the Additional Settlement Commissioner, Mr. Akhlaque, who decided the case, was not the Settlement Commissioner to who the case was remanded. The contention has no merit. Under Act XI of 1975, the case could only be remanded to a Notified Officer, and i is not disputed that under the Notification, dated 24‑12‑1974, th Additional Settlement Commissioner, Mr.Akhlaque, who decided the case,: has been notified as a Notified Officer. There is no force in this petition, which is accordingly dismissed. A.A. Petition dismissed.