' This constitutional petition is directed against that part of the order passed by the Settlement Commissioner (Land), Sukkur Division, on 16th July,1975, whereby he held that Survey Nos. 500, 504/2, 505, 496, 498 and 499, in Deh Trimonh, Taluka Rohri, District Sukkur, measuring 23 acres and 14 ghuntas, are non-evacuee properties and belong to the third respondent, Naraindas.
2., Mr. Akhtar Mahmood, the learned counsel for the petitioner, has raised two-fold objections against the impugned order. His first submission was that despite the fact that the petitioner was the legal purchaser, through a sale deed, of the aforesaid land from one Aziz Ahmed Alvi, the sole successor of the original Claimant and allottee, Syed Habib Alvi, the impugned order was passed behind his back and neither notice of the proceedings was issued to him nor any opportunity was given to a him to press is claim. In support of this contention he referred me to a certified copy of the impugned order which admittedly does not refer either to the petitioner or his predecessor in title. The second objection which Mr. Akhtar Mahmood raised against the impugned order was that it was passed by an in competent authority. The learned Counsel submitted that by the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, which was subsequently replaced by Act No, XIV of 1975, the various Settlement and Rehabilitation laws were repealed and it was provided that all pending proceedings under the repealed enactments were to be transferred to disposal to officers notified in this behalf by the Provincial Government. The learned Counsel further elaborated his contention by submitting that in pursuance of the aforesaid provision, the Provincial Government, by notification No, SCKJ74/2048 dated 24th December, 1974, distributed pending work among various officers and authorities. He submitted that according to the notification the appeal in which the impugned order was passed should have been transferred to and disposed of by the Deputy Commissioner, Sukkur.
3. The contention of Mr. Akhtar Mahmood that after the issuance of the notification of 24th December, 1974, only the Deputy Commissioner was competent to hear the appeal in relation to which this Constitutional Petition has been filed is not well founded. A bare perusal of the aforesaid notification shows that the Deputy Commissioner has been empowered to deal with only pending matter under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, while pending appeals and revisions under the said Act are to be heard and disposed of by the Commissioner. It was for this reason that the appeal in the instant case was transferred, and rightly so, from the Deputy Commissioner to the Commissioner and Settlement Commissioner (Lands). The order passed by him thus cannot be deemed to be coram non judice. However, the other objection as to want of hearing to the petitioner appears to be well Laken and must prevail Mr. Imam. Ali Kazi, the learned Counsel for the contesting respondent, very fairly conceded that though the respondents strongly disputed the claim of the petitioner that his predecessors in title, Aziz Ahmed or Syed Habib Ahmed Alvi, were allotted the land in dispute or had any title to or right or interest in it, but in view of the copies of the documents produced by the petitioner, namely, Parchi Taqseem Khatoni, dated 21st December, 1962, an extract from the R. L. II register, showing the allotment of the property in dispute in favour of Sayed Habib Alvi, and the extract from the Record of Rights, he would have no objection if the case is remanded for rehearing of the appeal by the competent authority, as it does appear that the petitioner was not heard by the learned Commissioner and Settlement Commissioner (Land) before the impugned order was passed.
4. As it is possible that the notification of the Provincial Government, dated 24th December, 1974, may have subsequently been modified and as the learned Counsel were not in a position to assist the Court as to the correct competent authority by whom the appeal would now be heard, I direct, after setting aside the impugned order, that the appeal be considered to be still pending and further order that the same be referred to the Member Board of Revenue, In charge of Settlement Cell, who should forward the same to the authority now legally competent to hear the appeal. It is needless to state that the appeal should be decided after notice is issued to all parties, including the petitioner, and an opportunity is given them of proper hearing.
5. In view of the fact that I am remanding the appeal for rehearing, 1 direct that the parties will maintain status quo till orders are passed by the relavant appellate authority.
6. Mr. S. M. Raza states that in view of the orders which have been passed on the main petition, he does not press the contempt application.
7. In view of the fact that the case is being remanded, there will be no order as to costs.