1. The petitioners seek to challenge the orders of respondents Nos. I and 2 in respect of Portion No. 13 of House No. C-415/1, Sukkur.
2. The facts leading to the filing of the petition are as under:- Late Abdul Hakeem son of Pir Bux Solangi, predecessor in interest of Petitioners Nos. 2 to 6 was in possession of Portion No. 13 of House No. C-415/1 near Municipal Power House, Sukkur which was evacuee property. He had submitted P Form on 29-6-1960 for transfer of the portion of property in his possession but the same was misplaced. The Settlement Inspector who was ordered to trace out the P Form made a report showing that out of 14 occupants of different portions of the property either C: H. Or P Forms were verified in the office except those of six occupants, including Abdul Hakeem. He had further mentioned in his report that the occupants had filed affidavits in support of their statement that they had filed Form P. The Inspector further reported that since the Registrar of P Forms was not traceable their statements could not be verified. The Deputy Settlement Commissioner on the aforesaid report accepted the proposal that the occupants may be allowed to get the property transferred to them as plot. Such an order was passed on 2-7-1962. Late Abdul Hakeem had produced a duplicate form of the same date on which he had submitted the P Form, which was accepted on 10-8-1962 and Appendix dated 3-9-1962 was issued to Abdul Latif in respect of the portion in his possession as building site, and the transfer price was fixed at Rs, 2,327.
3. Abdul Hakeem died on 24-8-1963 without making the payment.
4. Petitioner No. 1 who is sister of late Abdul Hakeem made an application dated 12-10-1964 praying that her name be substituted for the name of her brother as his legal representative in respect of the P Form. The Deputy Settlement Commissioner by his order dated 19th March, 1965, asked her to produce in writing on stamp paper surrender agreement of widow of Abdul Hakeem showing that she had surrendered her interest in the claim in favour of petitioner No. 1. The surrender deed purporting to bear thumb- impression of Mst. Hamceda, widow of Abdul Hakeem was submitted to the Settlement Authories, and there is endorsement on it by the Deputy Settlement Commissioner which reads as under:-- "Admit, if in order".
5. The substitution prayed for by petitioner No. 1 was ordered on 9-4-1965. On the same day a demand note was given to petitioner No. I informing her that Plot No. C-415/1/13 situated in Sukkur had been 'provisionally transferred to her and she should pay the sum of Rs.2,327, as transfer price of the building site. On 5-5-1965 she prayed for extension of time, and it is her case that on 21-6- 1965 she paid Rs.1,000, as part payment towards the amount demanded, by challan.
6. Petitioner No. I preferred appeal on 18-10-1969 raising the points that revised Appendix was without authority in that without proper judicial order about disposal of P Form an Appendix had been issued as if late Abdul Hakeem had submitted I. H. Form under Settlement Scheme No. 1; that the amount of Rs.1,000, already paid had not been adjusted and that no notice was giver to her before passing the impugned order. The hearing of . Appeal was adjourned to 3-6-1970. It is the case of petitioner No. 1 that on 30-5-1970 someone made a fake application in her name withdrawing the appeal. , On remand the appeal was treated as Revision in view of the provisions of the Displaced Persons Laws (Amendment) Act, 1973. Respondent No. 1 held that late Abdul Hakeem had not raised any new construction in accordance with Municipal Laws and, therefore, the transfer of the tenement as building site against P Form was refused. He further held that since P Form had been filed by late Abdul Hakeem, Revision preferred by Petitioner No. 1 was not competent as only his legal heirs (Petitioners Nos. 2 to 6) should have filed the appeal or revision. Respondent No. 1 on the aforesaid grounds dismissed the Revision Application by his order dated 12-9-1973 which has been primarily impugned in the instant petition.
7. I have heard Mr. Maroof Ali Khan, the learned Counsel for the peti--tioners and also Mr. Ismail Munshi the learned Counsel for respondent No. 3. It is obvious that all the impugned orders were passed after the death of Abdul Hakeem, and that all the material on record establishes the fact that he was in possession of the tenement in respect of which he had filed P Form, or in any case had been permitted to file duplicate of the Form. Whether he had put up any structure etc. Or extensively renovated or altered the building he alone could have been the best witness to allege of deny. It is also apparent that the inspection card of the Custodian Depart--ment also supports the fact that Abdul Hakeem was in possession as his name was mentioned in the card as occupant. It is therefore surprising that while passing orders about the tenement his interest should have been completely overlooked. His sister certainly was not his legal heir in the presence of his widow and children who are named as Petitioners Nos. 2 to 6 in this petition. The manner in which the sister's name was substituted for the name of Abdul Hakeem is to say the least not in consonance with legal and judicial processes. An agreement between one of the heirs and the sister, though purporting to have been executed by his widow, cannot be considered as exonerating the Settlement Authorities from the duty to see that his interests are represented. The order passed on the deed of surrender by the Deputy Settlement Commissioner has been quoted above. It was just to the effect that the deed should be admitted, if correct. It was for him to verify the correctness of the deed, and it is not clear as to who was to give the finding that it was correct.
8. It was necessary to issue notice to the legal representatives of late Abdul Hakeem to verify as to whether they had in fact surrendered their interest in the tenement. It is clear from the instructions of the Chief Settlement Commissioner as indicated in the Manual of Settlement inter alia that "a claimant in occupation of a house or shop, who is entitled to transfer of the property, will however have preference over a claimant who applies on the basis of the occupation of such house or shop by his parent, son, daughter or spouse." (page 70 of Manual of Settlement 1960 Edition). The occupation by a brother is not mentioned. Again, in the definition of `possession' as given in Memo.
9. No. 3223-PI-Reh-60, dated 7th March, 1960, appearing at page 123 of the Manual it is stated as under:- "The Central Government has decided that where a house is in the possession of the husband in pursuance of the order passed on or before the 20th day of December, 1958, by a competent authority, his were, if staying with him, will also be deemed to be in possession." it is, therefore, very clear that possession of the property contemplated to be transferred is an important right and interest, and since petitioner No. 2 was admittedly staying with her husband late Abdul Hakeem she had a valuable right and interest in the tenement. In Muhammad Hidayatullah v. The Settlement and Rehabilitation Commissioner, Sargodha Division, Sargodha and 3 others (PLD 1971 Lah. 931), it was held that provision regarding service of notice before resumption of property cannot be dispensed with and in case of the death of the transferee it is to be served on his legal representatives. In that case notice, despite knowledge of death of transferee, was not served on his son or widow, but addressed in the name of deceased and served on his brother---in-law, and it was held that there was no valid service and consequently the cancellation of transfer was without lawful authority. In Mst. Amina Begum v. Deputy Settlement Commissioner, Circle I, Lahore and 3 others (PLD 1980 Lah. 571), the decision in Muhammad Hidayatullah v. Settlement and Rehabilitation Commissioner, already referred to, was relied upon, and it was held that order of resumption passed without notice to heirs of deceased transferee was in clear violation of the mandatory provision of Settlement Scheme No. VIII. It was further held that notice served on one of the heirs could-not be deemed to be notice to all heirs. It is therefore obvious that since Appendix had been issued in favour of late Abdul Hakeem, if for any reason whatsoever the property was to be resumed, it could only have been so resumed after giving notice to the legal heirs of the deceased and after hearing them. The impugned orders, therefore, cannot be considered as legal and proper and are hereby quashed. The case is remanded to the concerned Officer notified by the Provincial Government in the Official Gazette under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, for giving proper notice to all the parties concerned, including the L.Rs. Of Abdull Hakeem and after hearing them, to decide the matters concerning the portion No. 13 of C. S. C.-154/1, Sukkur. In the circumstances, no order is being passed with regard to costs.