1. This constitution petition and Constitution Petition No. S-105 of 1979, both are directed against the order of the Additional Deputy Commissioner, Larkana dated 13-6-1978, ultimately passed on a miscellaneous application admittedly made in the year 1973 by Smt. Haribai daughter of Jamiat Rai, respondent No. 2, in the following circumstances.
2. The petitioners are claimants displaced persons and according to them they were allotted evacuee share being 3 annas and 6 pies in a rupee in evacuee lands bearing survey numbers mentioned in paragraph 2 of the petition and measuring 611.16 acres, in the year 1949. Thereafter, in the year 1958 the lands were allotted under the Rehabilitation Scheme and the allotments were confirmed on 30-9-1959, vide three Khataunis, photostat copies whereof are annexed to the petition marked as Annexures `A', 'B' and 'C'. In 1959 by virtue of the notifications dated 15-4-1959, and dated 8-6-1960, all evacuee lands including these lands stood acquired by the Government for transfer under the Displaced Persons (Land Settlement) Act, 1958 (hereinafter called the Act) and by virtue of section 15 subsection (3) the lands were permanently settled on the petitioners.
3. Thereafter, on 16-2-1968, the petitioners applied to the Assistant Rehabilitation Mukhtiarkar and the Assistant Settlement Commissioner (Laud) for partition of lands allotted to them from the non- evacuee share in the lands of Mir Ali Hassan Brohi. Accordingly, the Assistant Rehabilitation Mukhtiarkar and the Assistant Settlement Commissioner (Land), Larkana, by the order dated 6-2- 1969, partitioned the evacuee and non-evacuee share, photostat copy whereof is annexed to the petition marked as Annexure 'E'. Accordingly, on 23-4-1969, the petitioners' names were mutated in the Revenue Record as evidenced by the Annexure 'D' to the petition. Immediately thereafter, on the same day, the petitioners sold the said lands to Mir Ali Hasan Khan son of Araz Mohammad Brohi and accordingly his name was mutated. The matter rested there until 1973, when Smt. Haribai, respondent No. 2, made an application before the Sub-Divisional Magistrate, Shahdadkot for can-- cellation of the Mutation Entry No. 84, dated 23-4-1969, and change of record in her name. It appears that the Sub-Divisional Magistrate forwarded the application to Mukhtiarkar, Sbahdadkot who submitted the same to the Assistant Commissioner, Shahdadkot, who in turn sent it to the Additional Deputy Commissioner and the Additional Settlement Commissioner (Lands), Larkana who allowed the same on 2-4-1974, and ordered cancellation of allotment in favour of the petitioners holding that the property was non--evacuee and directed the Assistant Commissioner, Shabdadkot to take further action for cancellation of the partition order and restoring the shares of respondent No. 2 to her, It may be mentioned that the order passed by the Additional i6eputy Commissioner and the Additional Settlement Commissioner (Lands) was ex parte..
4. Aggrieved by this order the petitioners filed a Constitution petition being No. 560 of 1974, wherein the grounds manly urged were that the Additional Deputy Commissioner and the Additional Settlement Commissioner (Lands) had no jurisdiction to entertain the application and the order passed was without jurisdiction, as the petitioners were not given any opportunity of hearing. This petition was allowed by the order dated 12-9-1977, on the ground of want of proper notice and hearing of the petitioners and the case was remanded for passing fresh order after hearing the parties. Accordingly, the matter was heard again by the Additional Deputy Commissioner and the Additional Settlement Commis--sioner (Lands), Larkana, who after issuing notice to the petitioners in this petition but without issuing notice to the petitioner in Constitution Petition No. 105 of 1979, who were purchasers from the petitioners in this petition, and whose name was mutated in the record-of-rights on 23-4-1969, framed the following points for determination and decided points Nos. 1, 2 and 3 in favour of respondent No. 2 by the order dated 13-6-1978, now; impugned in this petition: "(1) Whether deceased Lady Smt. Sita Bai was a Non-evacuee Pakistani National and whether her property was also a Non-evacuee Property?
(2) Whether Sita Bai died in Shahdadkot (Pakistan).
(3) Whether the agricultural lands of the share of Sint. Sita Bai had been treated as Evacuee Property at any stage and had been distributed to refugees on temporary allotment.
(4) Whether the allotment of the share of deceased Sita Bai in above agricultural lands, to the respondents in 1958 and the subsequent partition order made by the Assistant Rehabilitation Mukhtiakar, Larkana were mala fide? and
(5) Whether the applicant Hari Bai is the true and lawful legal heir of Smt. Sita Bai and whether she is a Non-Evacuee Lady and whether she is entitled to the restoration of the share of her mother Sent. Sita Bai, in the above agricultural lands?
5. I have heard Mr. Abdul Majeed Khan Advocate for the petitioners and Mr. Maroof Ali Khan, Advocate for the petitioner in Constitution Petition No. S-105 of 1978, and Mr. Abdul Karim Lakhan, Advocate for respondent No. 2 in both the petitions.
6. Since the common questions of law have been raised in both the petitions, I am disposing of the same by this common judgment.
7. The learned counsel for the petitioners in both the constitution petitions submitted that the Additional Deputy Commissioner and the Additional Settle--ment Commissioner (Land), Larkana, respondent No. 1, had no jurisdiction to decide the question whether the lands were evacuee or non-evacuee. The jurisdiction vested under section 22 of the Pakistan Administration of Evacuee Property Act, 1957 (hereinafter r9ferred to as Act (XII of 1957), in the Custodian to decide the question.
8. Mr. Maroof Ali Khan additionally submitted that the petitioner in Constitution Petition No. 105 of 1979 was entitled to notice as his name was already mutated in the record-of-rights in year 1969 and no notice was given even on remand of the case, and he was therefore, not given any opportunity of hearing. This ground has been specifically taken in para--graph 9(A) of the Petition No. 105 of 1979.
9. Respondent No. 2 in the counter affidavit has not denied that any notice or opportunity of hearing was given to the petitioners in Constitution Petition No. 105 of 1979. What has been said is that he was aware of the proceedings, if he wanted to be made a party; he could have done so and that the ground was not maintainable under the law. However, Mr. Maroof Ali Khan has relied on Syed Zulfiqar Ali Shah and 16 others v. Ch. Muhammad Hassan, D. S. C. West Pakistan and another (PLD 1971 Lah, 108wherein allotment in excess of entitlement was cancelled without hearing the vendee and it was held that the order of cancellation in such circumstances was passed against the principle of natural justice and was, therefore, declared to be without lawful authority. In this case reliance was placed on Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner and others (PLD 1965 SC 123). A petition for special leave to appeal was filed in the Supreme Court against the judgment in Syed Zulfiqar Ali Shah's case and the view taken on the principle of natural justice by the High Court was upheld in the following words and the petition was summarily dismissed.
10. "It is contended on behalf of the petitioners that although the transferees were not given any notice before the cancellation of the allotment, the allottees themselves were heard in the matter. It is also contended that the respondents as transferees were not entitled to be heard in the matter of cancellation of allotments. Undisputedly, the allotments in question were duly confirmed. The allottees were therefore competent in law to transfer the lands without having obtained the consent or approval of the Settlement Authorities. The transfer of the lands being permissible, the transferees were entitled, on the principle of natural justice, to notice before the cancellation of allotments.
11. (See : Law Notes 1971 SC 17)
12. Therefore, the petitioner in Constitution Petition No. S-105 of 1979 is entitled to succeed on this ground alone. However, on merits also I find that both the petitioners are entitled -to succeed for by the impugned order respon--dent No. 1 has, in fact, declared the property to be non-evacuee, though admit--tedly, in the year 1958 it was treated by the Rehabilitation Department as evacuee property and allotted to the petitioners by three Khatunis mention hereinbefore. Now, if the respondent No. 2 wanted a declaration that her property was non-evacuee she should have filed an application under sec--tion 22 of Act (XII of 1957) to decide the question. Section 22 of Act (XII of 1957) reads as follows;-- "22. Claims by interested persons:--(1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that-
(a) the property is not evacuee property, or
(b) his interest in the property has not been affected by the provisions of this Act.
(2) An application under subsection (1) shall be made within the prescribed period being a period of not less than thirty days, from the prescribed date.
(3) On receiving an application under subsection (2), the Custodian shall hold a summary inquiry in the prescribed manner, and after taking such evidence as may be produced shall. Pass an order, stating the reasons therefor, rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose."
13. A perusal of the above section clearly shows that if any person claims any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property he has to prefer his claim to the Custodian within the period prescribed under Act (XII of 1957), that the property is not an evacuee property or his interest in the property has not been affected by the provisions of the 1957 Act. Now admittedly, this property was treated as evacuee property by a Rehabilitation Authority in the year 1958 when it was allotted to the petitioners. It was however, submitted by Mr. Abdul Karim Lakhan, learned counsel for respondent No. 2 that by virtue of the provisions of section-3 -of Act (XII of 1957), no person or property not treated as evacuee air as evacuee property immediately before the first day of January, 1957 could be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. He therefore, argued that since the allotment was made in 1958 and there is no evidence that this property before that date was treated as evacuee property or allotted as such, as found by respondent No. 1, the property could not be treated as an evacuee property. However, the question is not whether the property was treated as evacuee on or after 1-1-1957 for no such order is in question but the question is whether property which was allotted in 1958 by the Rehabilita--tion Authority treating same as an evacuee property was in ,fact an evacuee pro--perty or not and if so since when the property was being treated as such and these questions could be decided by virtue of the provisions of section 22 of the 1957 Act, by the Custodian alone and not by other person. By answering the first point the learned Additional Deputy Commissioner assumed the functions of the Custodian which he was not empowered under 1 Act (XII of 1957) or otherwise. It was further pointed out by Mr. Abdul Karim Lakhan that Act (XII of 1957) was repealed by the `Evacuee Property and Displaced Persons Laws (Repeal) Act, 1957 and as such Custodian was not there to decide this question. However, this Act was passed on 28-1-1975, but was given retrospective effect from 1-7-1974. In this case admittedly the application was made before respondent No. 1 in the year 1973, when the 1957 Act was still ;n force and had not been repealed therefore, at that time the remedy lay with the Custodian and not with the Additional Deputy Commissioner or the Additional Settlement Commissioner (Lands) and, in any case, before respondent No. 1 the question was specifically raised that the property was .Treated as evacuee property and allotted to other person in 1949 and therefore, the question whether the property was allotted as such or not or whether respondent No. 2 had any interest therein should have been referred to the Custodian by virtue of 'the provisions of section 41 of Act (XII of 1957) for no other authority including revenue or, settlement had jurisdiction at the relevant time to decide the same.
14. I therefore, find that respondent No. 1 had no jurisdiction to 'decide the questions whether respondent No. 2 was a non-evacuee and land in dispute was evacuee property-or not, and accordingly, declare the impugned order to have been passed without lawful authority and is therefore of no legal effect. However, in the circumstances of the case, I leave the parties to bear their own costs.