' Kakezai Association Pakistan, a registered body has filed this petition through its Additional President Brig. (R) Inamul Haq to assail order dated 25-9-1984 whereby the property in dispute was transferred to respondent No,3, T.O. Issued on 2-3-1989 and order passed by the Chief Settlement Commissioner/Member (Judicial-III), Board of Revenue, Lahore on 21-4-1998 whereby the application of the petitioner was dismissed.
2. The case of the petitioner is that property in dispute, which was disposed of through order dated 25-9-1984 as residual plot on the application of respondent No,3 was not an evacuee property and was the ownership of Muslim non-evacuee and could not thus, be legally transferred or disposed of and that Transfer Order issued on 2-3-1989 pursuant to order, dated 25-9-1984 was without any valid basis and was of no legal effect. It is asserted that on coming to know in the year 1996 the matter was agitated before the Chief Settlement Commissioner/ Member, Board of Revenue for cancellation of the said Transfer Order but the Board of Revenue illegally declined to exercise its jurisdiction in the matter vide the impugned order, dated 21-4-1998.
3. The learned counsel for respondent No,3 has opposed the petition pleading that the same suffers from laches inasmuch as the order of transfer, dated 25-9-1984 was being challenged so belatedly and that questions of fact could not be gone into by this Court nor any determination could be made by it about the same.
4. As has been mentioned above the matter had been agitated by the petitioner before the Chief Settlement Commissioner/Member, Board of Revenue, Punjab through application dated 20-11- 1996, paragraph 14 thereof brought forth the precise assertion of the petitioner, which reads as follows:-- "14. That a thorough probe is required to be made to unearth the fraud of Mst. Farooq Begum in collusion with the personnel of Settlement and Rehabilitation Department for their ulterior motive.
Ample proof has been placed on record to show that the constructed shops and residential houses available in Khasra No,631 belong to Khan Sahib Umar Buksh much prior to partition. There is no question of an open plot or any evacuee property in Khasra No,631. Thus, the Transfer Order as late as 1989 is an afterthought and is creation of delinquent mind.
' Thus, a vital issue was raised as to whether the property in dispute was owned by a Muslim (Khan Sahib Umar Bakhsh) prior to partition or was evacuee so as to be dealt with and transferable under the evacuee laws or not. A basic and fundamental question upon which the jurisdiction of the Deputy Administrator Residual Properties was dependant in passing order dated 25-9-1984 for its transfer in favour of respondent No,3 had indeed arisen. The matter thus, had to be inquired into and it was to be found as a fact as to the determination of status of the property. It was held in Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another PLD 1974 SC 193 that "a bare perusal of the above will show that the learned Settlement and Rehabilitation Commissioner did not go into the question whether the property in dispute is an evacuee property or not or whether the property was constructed by the appellant and whether it was Shamlat Deh or not. His order is based on conjectures and surmises and clearly indicates that he has not applied his mind and has assumed jurisdiction without dealing with the points involved in the matter". Since both sides have their respective stance a finding need to be recorded by the competent forum on this controversy.
5. By virtue of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), evacuee laws including the Pakistan (Administration of Property) Act XII of 1957 were repealed as per section 2(1) of the Act. Subsections (2) and (3) thereof however, provided 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.
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate."
' The decision thus, has to be taken by the Notified Officer in accordance with the provisions of the repealed Act to which the proceedings related on remand of the matter. The import of subsection
(2) of section 2 (ibid), came to be interpreted and construed by the Honourable Supreme Court of Pakistan in Muhammad Baran and others v. Member, (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 wherein a remand order passed by the High Court was maintained notwithstanding the contention and the fact that the matter was not pending at the time of repeal of the laws. Thus, the Notified Officer/Member, Board of Revenue could have exercised the jurisdiction in the matter in order to find out the status of the property and legality or otherwise of the Transfer Order made by the Deputy Administrator Residual Properties on 25-9- 1984.
6. Insofar as the objection of laches qua order dated 25-9-1984 is concerned suffice it to observe that the mere perusal of that order would show that the petitioner was not associated with the proceedings nor the order was passed in his presence, which was followed by a Transfer order issued to her in 1989. As and when the petitioner learnt and acquired knowledge of the same the matter was agitated before the Chief Settlement Commissioner/Board of Revenue Punjab in 1996.
Thus, question of laches hardly arise in the matter. The contention of the learned counsel for respondent No,3 that questions of fact cannot be decided by this Court, is not without substance, that is why in view of the contentions stance of the parties I am dissuaded to embark upon any factual inquiry or record any findings. The appropriate course thus, open in such circumstances consistent with law and the practice followed by the Courts is to remit the matter to the Notified Officer and to pass order in accordance with law after affording opportunity of hearing to the parties concerned. I am informed that presently the Member, (Judicial-III), Board of Revenue Punjab, Lahore is the Notified Officer in terms of subsection (2) of section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 as per notification dated 7-7-2004. Thus, by declaring order dated 21-4-1998 as of no legal effect the matter is remanded to the Notified Officer as mentioned above, before whom the application of the petitioner dated 20-11-1996 will be deemed pending, which shall be heard and decided by him in accordance with law.
' The petition is accepted to that extent accordingly with no order as to costs.