1989 PLP 4599 (MLD)

Respondents: Ex parte. Date of hearing: 27th June, 1979. This writ petition relates to a building which was divided by the Settlement Authorities into two houses. The house on the western side was transferred to Abdul Ghani and Nathu while the house on the eastern side was transferred to Abdul Sattar and Saidu. Feeling aggrieved by the transfer of the building as aforesaid, Abdul Sattar filed Writ Petition No. 2828‑R of 1962 contending that he was in occupation of the western portion of the disputed building and claimed that he was entitled to the whole of the western portion of the building. According to him, he had occupied that portion before it was occupied by Abdul Ghani and Nathu. As the Settlement Authorities had not determined the question of priority of possession while making the aforesaid transfer, the writ petition was accepted and the case remanded to the Settlement Commissioner with the direction that he shall himself determine the dates on which Abdul Sattar, Abdul Ghani and Nathu occupied the western side of the building and transfer the house in accordance with law.

2. After the remand of the case it was not decided by the Settlement Commissioner himself as directed by this Court. Instead, he passed it on to the Deputy Settlement Commissioner who decided it on 24th March 1972. The order made by him was that the entire western portion should be transferred to Abdul Sattar and eastern portion to Abdul Ghani and Nathu except the portion transferred to Saidu under the original transfer order. It seems that after the aforesaid order by Deputy Settlement Commissioner. Nathu died leaving behind 11 heirs, namely, Muhammad Sharif and others. They are petitioners Nos. 2 to 12 in the present petition while Abdul Ghani is the first petitioner herein. All of them challenged the order of the Deputy Settlement Commissioner by means of an appeal to the Additional Settlement Commissioner. In the meantime the pending appeals were converted into revision petitions as a result of amendment in section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Therefore, the appeal was decided by the Settlement Commissioner as a revision petition. He upheld the order of the Deputy Settlement Commissioner. They have, therefore, invoked the Constitutional jurisdiction of this Court.

3. Learned counsel for the petitioners contended that the order of the Settlement Authorities in the second round of litigation are not sustainable because they were made in contravention of the remand order passed by this Court in Writ Petition No. 2828‑R of 1962. He is very right in raising this contention. As pointed earlier, by the order made in the said writ petition the learned Settlement Commissioner was asked to decide the case himself which meant that it was not to be entrusted to the authorities subordinate to him for disposal as done by him. I therefore, agree with the learned counsel for the petitioners that the order of this Court passed in the earlier writ petition has not been complied with.

4. It was also urged by the learned counsel for the petitioners that the transfer of the disputed building was originally ordered in terms of an agreement entered into between the parties. According to him, the terms of the agreement were implemented in consequence of an application made by Abdul Sattar himself who subsequently challenged the original order of transfer by means of the former writ petition. Learned counsel also pointed out that when the matter was before the Deputy Settlement Commissioner in the second round of litigation it was urged before him that the parties had entered into the aforesaid agreement but their plea was ignored by the learned Deputy Settlement Commissioner and that the learned Settlement Commissioner did not advert to the agreement in question at all while dismissing their revision petition,

5. In view of what has gone above, the orders passed by the Deputy Settlement Commissioner as well as Settlement Commissioner in the second round of litigation cannot be sustained inasmuch as they were made as in contravention of the direction of this Court in the earlier writ petition. I, therefore, accept this petition, set aside order, dated the 24th March 1972, passed by the Deputy Settlement Commissioner and order, dated the 31st October 1973, made by the Settlement Commissioner and remand the case to the learned Settlement Commissioner with the direction that he shall again decide the case himself in the light of the order passed by this Court in Writ Petition No. 2828‑R of 1962. As for the plea of the petitioners relating to the agreement in question there is no express direction in the aforesaid order that it shall also be considered by the learned Settlement Commissioner while making fresh order regarding the transfer of the disputed house but there is also no bar to his so doing. What he was directed to do was to re‑decide the case "in accordance with law" after determining the dates on which Abdul Sattar, Abdul Ghani and Nathu occupied the western side of the building in question. The learned Settlement Commissioner will therefore, first determine the aforesaid dates and then after considering such pleas to be raised by the parties a; may be open to them under law, transfer the house in accordance with law. If the petitioners were to raise before him the pica relating to the agreement in question that plea will also be dealt with accordingly.

7. There shall be no order as to costs. A.A./A‑799/L Petition accepted.