1988 PLP 1880 (CLC)

Muhammad Saeed Bhatti and Syed Zamir Hussain Zaidi for Respondents Nos.4 and

5. Dates of hearing: 2nd and 3rd November, 1987. This order will dispose of Writ Petitions Nos. 779‑R/77 and 938‑R/77 as these challenge the same orders.

2. Relevant facts for the disposal of these petitions are that the dispute relates to property No.NVII‑26‑S‑44, Badami Bagh, Lahore. It is what is generally known as Katri. In the earlier round of litigation, on 7‑12‑1961 the Additional Settlement Commissioner divided the property into four portions. One portion was transferred to Mst. Sharifan. That has never been in dispute. The order was affirmed by the Settlement Commissioner on 26‑9‑1962. Muhammad Jewan trans feree of one of the remaining three portions filed Writ Petition No .2508‑R./63 which was allowed and case remanded to the Additional Settlement Commissioner for fresh orders in accordance with law. This is vide order dated 18‑10‑1966. The Additional Settlement Commis sioner, on 18‑6‑1968 remanded the case to the Deputy Settlement Commissioner who decided the matter on 12‑3‑1970, again, dividing the property into four portions. This order was challenged in appeals and the Additional Settlement Commissioner vide his order dated 2‑10‑1976, again, remanded the case to the Deputy Settlement Commissioner who passed an order on 15‑12‑1976. The last mentioned order is challenged in the afore-titled two Constitutional petitions.

3. Learned counsel for the petitioners have submitted that the High Court had remanded the case to the Additional Settlement Commissioner on 18‑10‑1966. The Additional Settlement Commissioner should have himself decided the case. He should not have remanded the case to the Deputy Settlement Commissioner vide his order dated 18‑6‑1968. In any case, it is submitted by the learned counsel for the petitioners that after the order of the Deputy Settlement Commissioner dated 12‑3‑1970 passed in pursuance of the order of the Additional Settlement Commissioner dated 18‑6‑1968, ' when the matter came up in appeals before the Additional Settlement Commissioner on 2‑10‑1976, he had to pass a "final" order in terms of Section 2 (2) of Act XIV of 1975 which had repealed the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and he could not have remanded the case to the ,Deputy Settlement Commissioner vide order of 2‑10‑1976.

4. Learned counsel for the Settlement Department submits that no doubt the Additional Settlement Commissioner had to pass a final order under the Repealing Act above mentioned, yet the petitioners having participated in the remand proceedings under the order of the Additional Settlement Commissioner, they are estopped to challenge the same.

5. In reply, the learned counsel for the petitioners ,have submitted that the house had been divided into four portions and it had to be transferred to the claimants in possession of each of the portions and there was no justification to order the disposal of part of portions through a new Scheme by the D.S.C. vide the impugned order of 15‑12‑1976.

6. I have heard the learned counsel for the parties and perused the record with their assistance. There is no doubt that after the Repealing Act XIV of 1975 the Additional Settlement "n‑missioner before whom the appeals were pending had to pass 'final' order thereon. He had no jurisdiction to remand the case. The fact that the petitioners had appeared in the remand proceedings would not confer the juris diction on the Additional Settlement Commissioner, nor would make his order legal when it is patently without jurisdiction. The order of Deputy Settlement Commissioner passed in pursuance of the said order of the Additional Settlement Commissioner also appears to be not in consonance with the earlier decision, nor, in accordance with law. Elaboration is avoided lest any party may be prejudiced in its cause.

7. In view of the above the order of the Additional Settlement Commissioner dated 2‑10‑1976 and the consequential order of the Deputy Settlement Commissioner dated 15‑12‑1976 are declared to be without lawful authority and of no legal effect. The matter is remitted to the learned Notified Officer entrusted with hearing of appeals which were earlier pending before the Additional Settlement Commissioners. It is stated that such like appeals are being heard by the learned additional Commissioner (Cons.), Lahore to whom the case is remanded. Since the litigation has been going on since long, it is directed that the. same may be finally disposed of in about four months' time. The petitions are accordingly disposed of leaving the parties to bear +heir own costs.