1989 PLP 7 (MLD)

S.2(2)--Saving clause--Scope. Only those proceedings were saved which were either pending before any authority under the relevant Act on the date of repeal or which were pending either in the High Court or Supreme Court and were remanded to authorities for decision. It is further provided that from the date of the repeal, the cases pending or those remanded by the superior Courts were to be dealt with and disposed of only by those officers who were notified under subsection (2) of section 2 of the Ordinance as notified Officer. Abbas Zia for Petitioners. A.Q. Halepota and Rao Shaker Naqshbandi for Respondents. Date of hearing: 17th August, 1988. This Constitutional Petition under Article 199 of the Constitution is filed by the petitioner to challenge the order of respondent No. 1 dated 28-3-1977 cancelling the allotment made in favour of Wali Muhammad s/o Polla Shaikh in respect of 63-23 acres of land situated in Dch 324 Taluka Jamsedabad, Tapo Taji. The following facts may be stated here which formed the background of controversy in the petition. Wali Muhammad s/o Polla 'Rhaikh who was a displaced person from Bharatpur (India), an agreed area, was issued Farde Haqiat dated 4-3-1954, against agricultural land abandoned by him in India. He was allotted the land in dispute against his above claim of agricultural land and this allotment was confirmed under the provisions of Displaced Persons (Land Settlement) Act, 1958 permanently on 11th June, 1976. It appears that respondents Nos. 2 to 7 who were also allotted the disputed land by the Government moved an application on 16-6-1976 before respondent No. 1 praying for cancelling of the allotment in favour of Wali Muhammad s/o Polla Shaikh on the allegations that allotment made in favour of Wali Muhammad under the provision of Displaced Persons Act, 1958 was obtained by practising by fraud and misrepresenting. This application was heard by respondent No. 1 and by order dated 28-3-1977 which is impugned in this petition, he cancelled the allotment of Wali Muhammad acting on a report of Superintendent of Police, Hyderabad m which it was stated that Wali Muhammad s/o Polla Shaikh is still an Indian national. The learned counsel for the petitioners contends that the order passed by the Deputy Commissioner Tharparkar (Respondent No. 1) is an order wholly without jurisdiction its the said respondent after repeal of Act XLVII 1958 had no jurisdiction either to entertain the application dated 16-6-1976 filed by respondents Nos. 2 to 7 or to pass any order thereon. It is also contended by the learned counsel for the petitioners that even otherwise the order passed by respondent No. 1 is liable to be declared without lawful authority as it is based on no evidence, but on a report of Police officer which was wholly inadmissible in evidence. Mr.A.Q. Halepota, the learned counsel for the respondents Nos. 2 to 7 and Mr. Imdad Kazi, Advocate for respondent No. 1 on the other hand supported the order passed by respondent No. 1 and contended that the allotment in favour of Wali Muhammad being fraudulent on its face in view of the report of Police the Deputy Commissioner rightly cancelled the allotment in his favour. It is not disputed by the learned counsel for the respondents that the Displaced Persons (Land Settlement) Act, 1958 was repealed by Ordinance XV of 1974. The effect of the Ordinance is provided in Section 2 of subsection (2) of the Said Ordinance as follows:-- "(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid." A reading of the above section will show that upon repeal of the Acts mentioned in subsection (1) only those proceedings were saved which were either pending before any authority under the relevant Act on the date of repeal or which were pending either in the High Court or Supreme Court and were remanded to authorities for decision. It is further provided that from the date of A the repeal, the cases pending or those remanded by the superior Courts were to be dealt with and disposed of only by those officers who were notified under subsection (2) of section 2 of the Ordinance as notified Officers. There is nothing on record to show that on the date of repeal of Act XLVII of 1958 there was any proceeding pending under that Act in respect of land in dispute. It is also quite clear that respondent No. 1 was not a notified Officer under section. 2(2) of Ordinance XV of 1974. In these circumstances the order passed by respondent No. 1 on 28-3-1987 on the application of respondents 2 to 7 was wholly without jurisdiction and I accordingly declare it as such. The learned counsel for the respondents Nos. 2 to 7 very strenuously argued that his clients being bona fide purchasers for valuable consideration were entitled to protection under law. I am afraid this argument cannot be accepted. The learned counsel also urged that his clients are entitled to file a suit in this regard seeking declaration of title. If any such remedy is available to them, they are free to follow the same. There will be no order as to costs. M.Z.S./292/K Petition accepted.