' The petitioners Mir Hassan and Mir Gul have filed the present petition under Article 98 of the late Constitution seeking to impugn the two orders passed by the Political Agent and Deputy Rehabilitation Commissioner, Zhob, Fort Sandeman. By the first order the respondent viz. The Political Agent and Deputy Rehabilitation Commissioner, Zhob, transferred two evacuee Kutcha rural buildings bearing Nos, 30/F and 30/G in possession of the petitioners to respondent Mulla Khudai Nazar on 30-6-1966 and by the second order dated 1st of June 1970, the same Political Agent and Deputy Rehabilitation Commissioner, Zhob directed ejectment of the two petitioners from the two houses in question. The second order was also passed for the benefit of respondent Mulla Khudai Nazar in whose favour the two houses in question had earlier been transferred.
2. The admitted and established facts are that the two petitioners are in possession of the two houses in question, which houses are evacuee property. After the enactment of Settlement Scheme No, VII, the Political Agent and Deputy Rehabilitation Commissioner transferred the houses in question to respondent Mulla Khadai Nazar on 30-6-1966. The transfer was free of cost and in purported pursuance of paragraph 5 of the Scheme. It seems no action was taken either by the Deputy Rehabilitation Commissioner or respondent Mulla Khudai Nazar for obtaining possession of the houses in question until 22-4-1970 when two separate notices were given by the Deputy Rehabilitation Commissioner to the two petitioners in purported exercise of power under rules 6 and 8 of Baluchistan Behabilitation Rules, 1951. It seems the petitioners resisted their ejectment by contesting the notice of eviction issued to them. An appeal was also filed by the two petitioners before the Commissioner of the Quetta Division in the latter's capacity of Rehabilitation Commissioner and by an order dated 31-3-1970 this appeal was accepted on the short ground that the eviction order had been passed by the Deputy Rehabilitation Commissioner without affording an opportunity of hearing to the petitioners in accordance with rule 6 of the Baluchistan Rehabilitation Rules, 1951. Therefore, the. Respondent Deputy Rehabilitation Commissioner heard the two petitioners and passed the impugned order dated the 1st of June 1970 whereby he ordered ejectment of the two petitioners in pursuance of powers under section 8 of the Baluchistan Rehabilitation Regulation H of 1950. It is in such circumstances that the petitioners have approached this Court for declaratory reliefs that the two orders of the Deputy Rehabilitation Commissioner dated 30-6.1966 and 1-6-1970 are void and of on legal effect and the further prayer, is that the two houses in question may be declared to have stood transferred to petitioners in accordance with the provisions of Settlement Scheme No, VII.
' At the time of hearing the petitioners were represented before me by Mr. Azizullah Memon whereas the respondent Mulla Khudai Nazar was represented before me by Mr. S.H. Jaffri, Advocate.
No appearance has been made by the Deputy Rehabilitation Commissioner although parawise comments and the records of the case have been forwarded by him to this Court.
3. This matter was placed for hearing before my learned brother Noorul Arf in, J. On 13-10-1970 and my learned brother doubted whether the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had not been extended to Special Areas of Baluchistan and as a consequence Settlement Scheme No, VII could not operate in that area.
4. Mr. Azizullah Memon, the learned Advocate for the petitioners had filed the petition on a misconception in regard to applicability of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, in Special Areas. On a reading of the memo. Of the petition it would appear that the learned Advocate had conceived that the Displaced Persons (Compensation and Rehabilitation) Act as well as the Settlement Scheme No, VII was applicable to the Special Areas and for such reason he had relied on sub-para. (3) of main para. 3 of Settlement Scheme No, VII.
This sub-para. Reads as follows:- "Kutcha rural buildings, together with courtyards, will be transferred to the occupants free of charge and where there is more than one occupant, the property will be divided in accordance with principles laid down in paragraph 4, and be transferred to them."
' Basing this case on the above-quoted sub-para. Of para. 3 of Settlement Scheme No, VII, the learned Advocate for the petitioners had averred in the petition that by operation of law the houses in question stood transferred to petitioners. It was for such reason that the petitioners had made prayers not only for declaration of the impugned orders to be void but also for further declaration that the houses in question stand transferred to the petitioner. When the Advocate-General made a statement in Court that the Displaced Persons (Compensation and Rehabilitation) Act or Settlement Scheme No, VII had not been extended to the Special Areas of Baluchistan, the petitioners have taken alternative stand at the time of hearing.
5. The position in regard to the applicability of Settlement Scheme No, VII is indeed plain and not in contest. The learned Advocate-General as well as Mr. S.H. Jaffri appearing for respondent Mulla Khudai Nazar have made clear statements that the Displaced Persons (Compensation and , Rehabilitation) Act was not extended to the Special Areas. Initially " Mr. Azizullah Memou had sought time to ascertain the correct position but on the next following date of hearing he also stated that he was unable to show that the Displaced Persons (Compensation and Rehabilitation) Act had been extended to Special Areas. In fact the latter impugned order dated 1-6-1970 passed by the Deputy Rehabilitation Commissioner also clearly states that the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had not been extended to Special Areas, On that short point B the order dated 30-6-1966 whereby the two houses in question were transferre to respondent Mulla Khudai Nazar, is without any sanction of law and for such reason is hereby declared void and of no legal effect.
6. Mr. S.H. Jaffri the learned Advocate for respondent MuIla Khudai Nazar has however, relied on the subsequent order of the Deputy Rehabilitation Commissioner passed on 1-6-1970. The learned Advocate has contended that by such subsequent order the property in question had been transferred by the Political Agent and D. R. C. To his client in pursuance of the provisions of Baluchistan (Rehabilitation) Regulation II of 1950. The learned Advocate has specifically referred to section 7 of the said Regulation which confers powers on the Rehabilitation Commissioner to allot evacuee property in the evacuee pool under orders of the Central Government. Additionally it has been contended that under section 8(2) (B) of said regulation a Rehabilitation Authority has power to eject an unauthorised person from evacuee property.
' Initially it must be observed that the order of transfer of the houses in question in favour of respondent Mulla Khudai Nazar was passed by the respondent Deputy Rehabilitation Commissioner in pursuance of the provisions of Settlement Scheme No, VII.
It will be of benefit to reproduce the order of allotment: "Dated Fortsandeman the 30th June, 1966. No 24/1/60-Evacuee. Under the provisions of sub- paragraph (2) (4) of paragraph 5 of the Settlement Scheme No, VII (Scheme for the disposal of immovable evacuee property other than agricultural land situated in the rural areas) read with paragraph 3 of the instructions contained in Appendix I to the said Scheme, the Political Agent and Deputy Rehabilitation Commissioner in Zhob, Fortsandeman is pleased to transfer permanently free of cost the following evacuee kacha rural building(s) which are free from all sorts of incumberances, situtated in Killasaifullah town to the (Name) Ch. Mullah Khudai Nazar parentage Murradai."
' In the parawise comments submitted by the Deputy Rehabilitation Commissioner to this Court on 31-8-1972 once again reference has been made to the provisions of Settlement Scheme No, VII. In para. 4 of such comments it has been stated that in view of Settlement Scheme No, VII evacuee buildings required documentary disposal and in the next following para. It has been stated that since the petitioners did not turn up to prefer their claim for a P. T. O., the properties were disposed of On a reading of the parawise comments one is left in no possible doubt that the property was transferred to respondent Mulla Khudai Nazar into pursuance of provisions of Settlement Scheme No, VII framed under` the Displaced Persons (Compensation and Rehabilitation) Act. Even in the final order of ejectment which is the order impugned in this petition reference is made to the earlier order of transfer in pursuance of Settlement Scheme No, VII for the purpose of sustaining the right of respondent Mulla Khudai Nazar. It is thus evident that the two petitioners were sought to be ejected for the benefit or respondent Mulla Khudai Nazar on the ground that the houses in question had been transferred to him. Since D transfer of the houses to respondent Mulla Khudai Nazar in pursuance of Settlement Scheme No, VII was invalid the action which followed on the basis of such transfer suffers from the same infirmity.
' M. S. H. Jaffri, the learned Advocate for the respondent Mulla Khudai Nazar has however contended before me that the second order dated 1-6-70 was passed in pursuance of the provisions of Baluchistan (Rehabilitation) Regulation II of 1950 and was an order having its own validity, independent of the earlier order dated 30-6-1966. The learned Advocate has contended that the transfer in favour of respondent Mulla Khudai Nazar should be deemed to be in pursuance of section 7 of the Regulation and the action of ejectment may be deemed to be in pursuance of section 8 of the Regulation. 1 am afraid I cannot agree with such contention. Firstly, section 7 of the Regulation comes into operation only on the Central Government passing an order authorizing a Rehabilitation Commissioner "to pool such evacuee property as may be specified, and to allot the same to persons." It would thus seem that before an evacuee property could be allotted by th Rehabilitation Authorities, a pool of such properties had to be mad under the orders of the Central Government. There is nothing before me to indicate that the property in question was a part of the pool o whether any such pool had been created. The impugned orders clearly indicate that this was the single evacuee property that had been deal with by the Political Agent and Deputy Rehabilitation Commissioner, Secondly, in accordance with Notification 4591-U-RR/58 dated the 15th of January, 1957 (Copy on the record of Writ Petition No, 10/57) a Political Agent finds no position in the hierarchy of officers appointed as Ex Officio Assistant Rehabilitation Commissioners.
On such premises it has been argued on behalf of the petitioners that the respondent Political Agent" could not deal with cases of rehabilitation in pursuance of Baluchistan (Rehabilitation)
Regulation II of 1950. In the earlier petition bearing No, 100 of 1967 (above quoted) a reference had been made by the Court to the Settlement Commissioner, West Pakistan Lahore inquiring whether any Assistant Political Agent in Quetta and Kalat Divisions had been appointed as an Assistant Settlement Commissioner. The Settlement Commissioner in reply had referred to the above notification a copy of which is on the record of Petition No, 10/67. Under this notification Assistant Political Officers and Assistant Political Agents in West Pakistan had been appointed as Ex Offcio Assistant Rehabilitation Commissioners but the notification does not confer any powers on the Political Agents in pursuance of Pakistan Rehabilitation Act, 1956 or Baluchistan (Rehabilitation)
Regulation II of 1950. The third reason in regard to invalidity of the order dated 1-6-1970, is evident from the order itself. Although in this order reference has been made to the earlier order dated 30- 6-1966, whereby a the property in question was transferred to respondent Mulla Khudai Nazar, para. 3 of the said order refers to Baluchistan Administration of Evacuee Property Regulation I of 1950 and also to Baluchistan Refugee Rehabilitation Regulation II of 1950 and after making reference to both these enactments the respondent Political Agent and Deputy Rehabilitation Commissioner has expressed that these two enactments were applicable to the area without expressing that 'transfer had been made in favour of respondent Mulla Khudai Nazar in pursuance of the provisions of these two enactments. The result then is that it is difficult to see under what particular enactment did the Deputy Rehabilitation Commissioner act while transferring the property to respondent Mulla Khudai Nazar.
' On such view of the matter I am clear in my mind that the property in question was transferred to respondent Mulla Khadai Nazar in pursuance of Settlement Scheme No, VII, the scheme which had not been extended to the Special Areas and recourse had been taken by the respondent Deputy Rehibilitation Commissioner to the provisions o Baluchistan (Rehabilitation) Regulation only for the purposes of sustainin the earlier ultra vires action. This clearly is forbiden by law and for such reason I hereby declar the transfer of property in question in favou of respondent Mulla Khudai Nazar is void and of no legal effect and the second notice of ejectment proceeding on the basis of the earlier invalid transfer, is also void and of on legal effect. Since Settlement Scheme No, VII has not been extended to the Special Areas, the petitioners are not entitled to the further relief in the form of the declaration that the houses in question stand transferred to them by operation of Settlement Scheme No, VII. The petition is allowed to such extent as indicated above. Since success is divided there shall be no order as to costs.