P L D 1964 (W (PLP)

A. A. Fazil for Petitioner. Nemo for Respondents I and

2. Respondent No. 3 : Ex parte. Date of hearing : 28th November 1963. This petition relates to shops Nos. G/6, G/7 and G/8 situated on Plot No. R. C. 5/97, 98, IV‑A 188, Barnes Street, Karachi. The petitioner offered the highest price for these shops which was accepted and approved by the Settlement Commissioner on 25th January 1961. All that is necessary to mention for the disposal of this petition is that on the application of one Ghulam Hussain, the Settlement Commissioner issued a show‑cause notice dated the 18th November 1961, as to why the evacuee premises No. IV‑A 188, G/6 and G/7 be not disposed of by public auction. The petitioner showed cause but the Settlement Commissioner by his order dated 7th December 1961, ordered the premises to be disposed of by open auction. The Chief Settlement Commissioner confirmed the order of the Settlement Commissioner on Ist January 1962.

2. The points that require consideration are two‑fold, tamely, (1) that the show‑cause notice was only in respect of premises NO. IV‑A 188, G/6 and G/7 and therefore shop No. G/8 should not have been put to public auction; (2) that Ghulam Hussain at whose instance the proceeding before the Settlement Commissioner started had died on 26th May 1953. On this basis it is contended that the Settlement Commissioner had no jurisdiction to entertain the appeal of Ghulam Hussain who was a dead person. I propose to dispose of these two grounds separately.

3. It would appear from the show‑cause notice page 29 of the paper‑book that the notice was only in respect of G/6 and G/7. The relevant portion of the notice reads as under : "You, as a respondent in Appeal No. 93/61 preferred by Ghulam Hussain son of Ali Bhoy have not yet submitted any written statement as to why evacuee premises No. IV‑A 188, G/6 and 7 near Jubilee Cinema, Karachi which is an open building site should not be disposed of by auction after setting aside of any previous order treating the property as evacuee construction." The heading of the appellate order of the Settlement and Rehabilitation Commissioner dated the 7th December 1961 also relates to premises No. G/6 and 7 only and not to

8. In the body of the appellate order also only the premises 6 and 7 are mentioned. Before the Chief Settlement Commissioner also the heading as well as in the body of the order passed by the Chief Settlement Commissioner in revision dated the Ist January 1962, only premises G/6 and 7 are mentioned. It would, therefore, follow that the order of the Settlement Commissioner and that of the Chief Settlement Commissioner relates only to G/6 and 7 and not to

8. The auction of premises No. 8, was, therefore, not in accordance with the order of the Settlement Commissioner or that of the Chief Settlement Commissioner. It would now be left to the Settlement Commissioner to exclude this shop from the auction and transfer it to the petitioner in accordance with the rule laid down under the Displaced Persons Act.

4. The very first ground that the petitioner had taken before the Settlement Commissioner was that Ghulam Hussain had died some time in 1952 and therefore the appeal was incompetent and the Court had no jurisdiction to deal with the matter. The Settlement Commissioner has not dealt with the matter. Under section 19 of the Displaced Persons Act it is only an aggrieved person who can file an appeal. The person filing the appeal must be alive. The appeal by a dead person would be incompetent and would not confer any jurisdiction on the Settlement Authority to deal with the matter. The petitioner has filed a death certificate from the Municipal Corporation which gives the name of the deceased Ghulam Hussain with parentage which is mentioned in the order of the learned Settlement Commissioner. Whether Ghulam Hussain was dead at the time of the appeal or not is a question of fact. Though there is evidence before me to hold that Ghulam Hussain was dead I would refrain from deciding this question in the exercise of my extraordinary jurisdiction. I consider it proper that in the circumstances of the case the Settlement Commissioner should himself decide this point. I will set aside the order of the Settlement Commissioner and that of the Chief Settlement Commissioner and direct the learned Settlement Commissioner to dispose of the contention of the learned Advocate for the petitioner that Ghulam Hussain being dead the appeal was incompetent. That the order of the Chief Settlement Com missioner also which confirmed the order of the Settlement Commissioner could not be given effect to, reliance was placed on the case of Yousuf All v. Muhammad Aslam Zia and 2 others (P L D 1958 S C (Pak.) 104). 5 The respondent No. 3 who is auction‑purchaser is absent. The respondents 1 and 2 did not defend the petition. I would, therefore, make no order as to costs. S. Q./K. B. A. Petition accepted.