' This order shall also dispose of the other two Writ Petitions Nos. 1296 and 1346/R of 1977, as a common question of law is involved and they also pertain to the same property.
2. The house No, P/1529, situate on Asghar Mall Road, Rawalpindi, was transferred to Muhammad Ishaque (now represented by petitioners 1 to 3). The petitioner No, 4 is said to have associated with him. Various parties challenged that order in appeals and revisions. The case came up ultimately before Sh. Sultan Muhammad Khan,. Who divided the property into three blocks 'A', 'B' and 'C'. The portion 'A' was given to Muhammad Ishaque, portion 'B' to Muhammad Tufail and portion 'C' was earmarked for auction. Against that order Syed Muhammad Ishaque filed W. P. No, 2906-R-63.
Muhammad Ishaque also filed W. P. No, 587/R of 1964. They were ultimately decided vide order dated 19th December, 1966, setting aside all the orders of the Settlement Authorities with a direction to the. Settlement Commissioner to determine the rights of the parties afresh, according to law, after hearing all the persons in possession of the property who had submitted their forms. A Letters Patent Appeal No, 82/67 against that order was dismissed.
3. The case was taken up by the Settlement Commissioner in pursuance to the order of remand. It is stated before me that all the parties requested the Settlement Commissioner to send the case to the Deputy Settlement Commissioner but this is denied by the learned counsel for the legal heirs of Muhammad Ishaque. According to him, neither were the petitioners present nor had their counsel participated in any such. Request.
4. Meanwhile, the parties to the W. P. Nos. 1296-R and 1346-R of 1977 submitted their forms under the revised Settlement Scheme No, VIII. The Deputy Settlement Commissioner heard the parties to the W. P. No, 1266-R-77 as well as those in W. P. Nos. 1296-R and 1246-R of 1977 and passed his order transferring certain portions to legal heirs of Muhammad Ishaque, Muhammad Tufail Qureshi, Syed Tasleem Hussain, Khalid Rashid Beg, Zahoor Ahmad and Manzoor Ahmad. The last three are not parties to these cases.
5. It is contended before me that as the Deputy Settlement Commissioner was neither authorised under the Evacuee Property Displaced Persons (Repeal) Act nor the order of remand of this Court, his decision is bad in law and, therefore, the case should be sent back for afresh decision. The learned counsel for the parties had not produced any document in support of the plea. They were, therefore, provided with further opportunities to produce the relevant notification. The two of those notifications produced are dated 16th of November, 1974 and 15th January, 1975. According to the 1974 notification, the proceedings pending before the various Deputy Settlement Commissioners mentioned in column 2 of the Schedule were transferred to the officers named in Column I. Under the 1975 notification, the proceedings pending before the Settlement Commissioner/Rehabilitation Commissioner/Claims Commissioner, Lahore and Rawalpindi Divisions, respectively, in all proceedings/cases of urban evacuee property pending on the file of the Commissioners, Lahore and Rawalpindi Divisions, were transferred to Syed Walayat Ali Bokhari and M. Iqbal Cheema, respectively, with immediate effect.
6. The Letters Patent Appeal referred to in para. 2 above, against the order dated 19th December, 1966 was decided by this Court on 2nd November, 1976. It was, thereafter, that the case was to be taken up by the Settlement Commissioner in remand. The contention that no officer other than Settlement Commissioner could decide the case is supported by Ahmad Din v. Bashir and 9 others. In that matter also, the case was remanded with a direction that the appeal shall be treated as pending and the question of locus standi and the appeal being within time shall be decided, before interfering with the order of transfer in favour of the petitioner. The case went to the Settlement Commissioner who entrusted it to Deputy Settlement Commissioner. The objection taken was that as the Settlement Commissioner had been given no power to send the case back to the Deputy Settlement Commissioner, his order was bad in law. The learned Judge accepted the contention and held that the Settlement Commissioner violated the law and, therefore, his order was without jurisdiction. The case in hand is precisely similar to the one cited above. Even otherwise, the parties cannot confer the jurisdiction on the authority which is not competent. The question whether Muhammad Ishaque or his legal heirs had also consented, therefore, loses all importance and is, in any case, not to be gone into in this jurisdiction.
7. In view of the above, the impugned order is declared to be without lawful authority and of no legal effect, the case is sent back to be decided by the Settlement Commissioner, who is duly notified under section 2 of the Evacuee Property Displaced Persons (Repeal) Act, 1975, in this regard.
8. The learned counsel for respondent No, 2 in W. Ps. Nos. 1296-R and 1346-R of 1977 states that the petitioners therein, who were neither parties before the High Court in the previous litigation nor had they submitted their forms before, are not entitled to be heard by the Settlement Commissioner. It is stated that as they came to the Deputy Settlement Commissioner under Settlement Scheme No, VIII, they will have a cause of action only if some property or portion remains available to be disposed of. The factual position is accepted on behalf of those petitioners. Consequently, the Settlement Commissioner shall decide the case pending before him, without those petitioners and strictly in accordance with the order dated 19th December, 1965. He will take up the cases of others only if any property remains available thereafter.
' M/s Khalid Rashid Beg and Zahoor Ahmad have appeared during the hearing of the case and state that though they are also transferees of parts of the main property, yet their portions are not in dispute in these proceedings. They further pray that their right may not be prejudiced. All the1 learned counsel agree that the dispute in hand does not relate to their portions and that they need not worry.
' In view of the above, the impugned order is set aside and the notified Settlement Commissioner is directed to decide this matter within four months at the latest. Parties to bear their own costs. PLD 1979 Lab. 330