1. ; Abdullah son of Hussain Bakhsh resident of Karachi, claiming to be a displaced person within the meaning of section 2(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act XXVIII of 1958) hereinafter referred to as the Act) and further claiming to have been a resident of Shabi Bazar, Khairpur filed this petition on 9th October, 1974 seeking to challenge the order dated 25th June, 1974 of the Additional Settlement Commissioner, Khairpur Division at Sukkur, cancelling the transfer documents, including P. T. D. Issued in his favour on 25th November, 1973 in respect of shop No. 1, C/8 C. S: No. 97 and Rehabilita--tion No. 1253 situated at Shahi Bazar, Khairpur. It was his case that the shop had been allotted to him in the year 1950, P. T. O. Was issued in his favour on 23rd November, 1959 and P. T. D. Was issued on 25th January, 1959. The shop was mutated and shown in his name and he had made alterations and additions at his own cost.
2. Respondent No. 2 Bhagwani Bai, daughter of Nanikmal filed Revision claiming ownership of the shop before the Settlement Commissioner, Karachi which was forwarded under section 20(3) of the Act to the Additional Settlement and Rehabilitation Commissioner, Khairpur. In support of her claim she produced order dated 23rd December, 1957 on application No. 10 of 1949 of the Assistant Custodian Evacuee Property, Khairpur and order dated 4th October, 1961 on application 9 of 1961 of the Deputy Custodian. Khairpur Division at Sukkur indicating that she was non-evacuee.
3. It was the case of petitioner Abdullah that he had no knowledge about the orders and he made efforts to obtain copies hereof which failed. Respondent I Additional Settlement and Rehabilitation Commissioner, Khairpur Division at Sukkur by his order dated 25th June, 1974 cancelled his transfer documents, including P. T. D. The aforesaid order is challenged as being without jurisdiction and lawful authority on the grounds that on grant of the P. T. D. To the. Petitioner, respondent 1 had become funclus officio and that the impugned order having been passed without giving the petitioner an opportunity of being heard, is against the principles of natural justice.
4. On 28th May, 1980 Mr. Talmiz Burney Advocate- for the petitioner made a statement before the Court that the petitioner had died and requested for time to take proper steps in the matter. On 4th June, 1980 an application under O. XXI, R. 10 read with O. 1, R. 10 and section 151, C. P. C. Was made on behalf of Muhammad Yahya Siddiqui as intervenor praying that he and Muhammad Younus son of Muhammad Yousuf be substituted in place of Abdullah as petitioners and may be allowed to continue the petition, as on 20th May, 1980 he and Muhammad Younus bad purchased the property in dispute in equal shares from petitioner who died on 23rd May, 1980. Although it was pointed out that the transfer of the shop by registered sale deed was in violation of the order of this Court dated 15th October, 1974 for maintaining status quo, confirmed by order dated 26th January, 1976 the application was allowed. , I have heard Mr. G. M. Dastagir Advocate for the petitioners and Mr. Gulab M. Rang Advocate for respondent 2. Mr. Dastagir, the learned counsel for the petitioners has raised the following contentions :-- .
(1) That the impugned order dated 25th June, 1974 is against the principles of natural justice as no notice was given to Abdullah.
(2) That Revision Application was made in 1974 and was not maintain--able being time barred and suffering from laches.
(3) That since P. T. D. Had been issued in favour of Abdullab, the Settlement Authorities, including respondent 1, had become functus officio.
5. With regard to contention 1, the learned counsel for the petitioners, leas referred to section 20 of the Act, as amended by substitution of the section under the Evacuee Property and Displaced Persons Laws (Amend--ment) Act, 1973 (Act LV of 1973); subsection (4) whereof provides that no order under the section shall be passed revising or modifying any order affecting any person without giving such a person a reasonable opportunity of being heard. On behalf of respondent 2 the allegation that no notice was given by the respondent 1 has been denied. It is pointed out that in para. 3 of the impugned order it is clearly stated that Mr. Abdullah son of Hussain Bakhsh refused to take the notice, as per postal endorsement, therefore, the proceedings against him were ex parse.
6. The matter with regard to issue of notice and refusal of Abdullah to take :t, is one of fact and there is no reason not to accept it as having been correctly mentioned in the impugned order. The presumption under section 27 of the West Pakistan General Clauses Act VI of 1956 in relation to service of a communication. Properly addressed and posted arises , and in Shanghai Silk Mills Karachi v. Muhammad Sharif and two others (1980 CLC 1971) a recent decision of this Court, it was held that in face of such legal presumption the burden is on the petitioners to show that service was not properly effected. Mr. Gulab M. Rang, the learned Advocate for respondent 2 has also relied upon the decision in Ulfatunessa v. Messrs Raj Laxmi Investment and Trading Company Ltd. (PLD 1958 Dacca 438) wherein it was inter alia held that in the absence of evidence that the postal endorsement is false and the letter was not delivered to the addressee, it must be taken that the notice was duly served on the addressee, and that he refused to receive it. There is nothing on record in the instant case to rebut the presumption. On the contrary, in the counter. Affidvait filed by Tikamdas son of respondent 2 dated 1st April, 1980 in para. 4 it was 'asserted that notice of the proceedings was issued by the Additional Settlement Commis--sioner, but the petitioner (Abdullah) refused to accept service with intention to continue to take undue advantage and benefit from possession of the property. No rejoiner refuting the allegation was filed.
7. On behalf of the petitioners the contents of paras 10 and 11 of the petition have been referred to and it is argued that they had made all possible efforts to obtain copies of the orders dated 23rd December, 1957 and 4th October, 1961 ; but nothing has been brought on record to show as to when they had applied for the ' copies and what were the orders passed by the Custodian Department.
8. With regard to contention No. 2 that the Revision Application was time barred and suffered from laches a reference to section 20 of the Act, as amended, by substitution of the section by Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 would show that the Settlement Commissioner could inter alia by his own motion "at any time" call for the record of any case or proceedings for the purpose of satisfying himself as to the correctness, legality or propriety of any order and may pass such order in relation thereto as he thinks fit.
9. Mr. Dastagir, the learned counsel for the petitioners, in support of contention No. 2, referred to two Circulars, namely, Circular Memo. 9908-P L dated 9th May, 1.960 and press note dated 7th September, 1960 referred to as pages 184 and 185 of the Commentary by Mr. M. A. Latif on the Act (1969 Edition), on the point of time limit for filing Revision Petitions. However, there is comment by the learned author that these Circulars have been declared as illegal vide PLD 1967 SC 29 and PLD 1968 Lah. 166.
10. "We are not satisfied that the power of superintendence given to the Chief Settlement Commissioner over his subordinates could be invoked as authority for the prescription of a period of limitation for revision petitions; in the absence of any provision in the Act or any rule to that effect. The High Courts were, therefore, apparently right in pointing out that the Chief Settlement Commissioner fixing a period of limitation could not stand in the way of entertainment of a revision petition in law".
11. However; it: was further observed that section 20 of the Act gives a discre--tionary power of revision to a Settlement Commissioner and since there is no right given to the applicant to move a revision petition it is the discretion of the Settlement Commissioner in exercise of which he could refuse to entertain the petition on the ground of laches.
12. 1n the circumstances of the instant case, since orders of the authorities concerned with regard to the non-evacuee status of respondent 2 had been pointed out, there was apparently good reason for exercise of the discre--tion entertaining the revision application. In this respect, the provisions of section 3 of the Pakistan Administration of Evacuee Property Act, 1957 (Act X11 of 1957) which gives the Custodian of Evacuee Property the final jurisdiction to decide about the status of property are worthy of note. In Dyal Singh College Trust Property v. Custodian of Evacuee Property (PLD 1962 Lah. 352) it was held that the question whether property was evacuee or not was within exclusive power of Custodian to decide and such decision cannot be questioned by High Court in exercise of writ jurisdiction. The status or respondent 2 as non-evacuee was judicially recognised in order dated 23rd December, 1957 of the Assistant Custodian Evacuee Property and order dated 4th October, 1961 of Deputy Custodian Evacuee Property. No appeal against the orders was filed before the Custodian Evacuee Property and the orders had become final. As such, the Settlement Authorities had no power to transfer the property. The learned counsel for respondent 2 has argued that as the order of transfer of property was void and without jurisdiction there could be no bar of limitation in filing revision application before the Settlement Commissioner. He has relied on the decision of the Lahore High Court in Hussain Bakhsh and others v. Settle--ment Commissioner and another (PLD 1969 Lah. 1039). It was inter alia observed in that decision as under :- "The question now is whether tan order which is void and without jurisdiction can be allowed to operate simply on account of the fact that the appellants did not agitated against it at any time by way of appeal and revision."
13. After discussing the various decisions and authorities, the observation was concluded as under "It will be seen that if an order is without jurisdiction and void, then it need not be formally set aside and no question would, therefore, arise of holding that the matter cannot be considered on merits on account of any bar of Limitation."
14. PLD 1966 Kar. 372) where property was allotted as evacuee but subsequently lost that character, it was held that the Settlement Com--missioner had fallen into an error in declining to restore the property, and that there is no time limit provided in the law for restoration of non--evacuee property.
15. With regard to the contention that after the issue of P. T. D. The property goes out of the compensation pool and revisional jurisdiction of Settelement authorities cannot be exercised, the learned counsel for the petitioners relied on the decision of the Supreme Court in. Syed Murid Hussain Shah v. Mufti Muhammad Yousaf All and another (1974 SCMR 8).
16. The observation referred to reads as under :- "It is a well established proposition that with the issuance of P. T. D. In relation to an evacuee property, it ipso facto goes out of the compensation pool and, as such, is no longer subject to sue motu revisional jurisdiction of the Settlement Commissioner or for that matter the Chief Settlement Commissioner."
17. The observation, however, was concerning an evacuee property on its going out of the compensation pool but in the inst at case the owner of the property who had twice been declared as non-evacuee was in revision pressing and pointing out that the property was not evacuce property at all. The learned counsel for the petitioners has also relied upon decis--ions reported in PLD 1971 SC 669, PLD 1972 Kar. 610 and 1973 SCMR 624: All the above decisions, however, were in respect of evacuee properties. The learned counsel for respondent 2 has pointed out that under section 4 of the Act the pre-requisite for bringing property in the pool is that it is evacuee property.
18. The counsel has further pointed out that in Dr. Z. H. Jamali v. Ghulam Haider Shah and two others (PLD 1975 Kar. 738) it was observed that the foundation of the jurisdiction of Settlement Authorities to transfer the property is that the property be in fact an evacuee property, and it has been acquired under notification issued under section 3 of the Act and if the property is not an evacuee property on the date of the relevant notification, it could not form part of the compensation pool, and it would not stand acquired as the power of acquisition has been conferred only with respect to evacuee property. In the instant case, as it was pointed out to the learned Addi--tional Settlement Commissioner, there was legal and valid order with regard to the status of respondent 2. It was within his discretion not only o to entertain the revision application but also to rectify the obvious error with regard to transfer of the property by the Settlement Authorities.
19. Since the present petitioners Muhammad Yahya Siddiqui and Muham--mad Younus entirely based their claim of interest in the property from the original petitioner, namely, Abdullah son of Hussain Bakhsh and fur--there since the case of the aforesaid petitioner invoking the special jurisdic--tion of this Court and challenging the impugned order of the Additional Settlement Commissioner has already been discussed, there is no sub--stance in the petition. However, it may also be observed that the conduct of the first petitioner and the present petitioners whose names have been substituted in place of the first petitioner, leaves much to be desired. It was on the application of Abdullah that order for maintaining status quo was granted which made it possible for him to retain possession of the disputed property during the pendency of this petition. He himself, however, committed a breach of the order by selling the property under registered sale deed to the two petitioners. The transaction of sale and purchase of disputed property was pendente life. On this short ground too they do not appear to deserve the exercise of discretionary jurisdiction of this Court to their favour. However, even on the merits, for the reasons already given; it is apparent that the learned Additional Settle--ment Commissioner passed the impugned order well within the ambit of his powers under the law. The petition is accordingly dismissed. How--ever, in view of the fact that points of law were involved, no order is being passed with regard to costs.