' This judgment will dispose of Constitutional Petition No, S-110 of 1977 filed by Hakim Muhammad Lukman and Constitutional Petition No, S-17 of 1979 filed by widow and children of Kanwar Naushad All Khan. A common order, dated 28th June, 1974 passed by the Custodian Evacuee Property, Sind has been challenged in these two Constitutional Petitions. I have heard Mr. Maroof Ali Khan who appears for the petitioners in both these Petitions and Mr. Nooruddin Sarki who appears for Muhammad Saleh son of Murad Khan Talani, respondent No, 2 iii both the petitions. No one has appeared on behalf of the Custodian.
2. An enquiry was held by the Deputy Custodian Evacuee Property, Khairpur Division in respect of certain immovable properties including the properties which are subject-matter of these two petitions and by his order, dated 21st February, 1974 the Deputy Custodian held that the properties in question were evacuee properties and had been occupied by respondent No, 2 unauthorisedly and that he had no interest therein. Respondent No, 2, being aggrieved, went before the Custodian who by order, dated 20th May, 1974 confirmed the order, dated 21st February, 1974 of the Deputy Custodian holding that property in question was evacuee and that respondent No, 2 had not been able to prove his claim by any documentary evidence and that in fact no evidence had been produced by the respondent No,
2. An application for review being No, 70 of 1974 was filed by respondent No, 2 before the Custodian who by order dated 28th June, 1974 set aside the previous order, dated 20th May, 1974 and re-declared the property in question as non-evacuee property and further declared that respondent No 2 was the owner of the property. It is this order, dated 28th June, 1974 which has been impugned in the present Constitutional Petition. It may be observed that before filing the present Constitutional petition, the petitioners had approached the Custodian for review of his impugned order, dated 28th June, 1974 but in view of the repealed Evacuee Laws in 1974, the said applications for review were withdrawn by the petitioners and the present Constitution has been filed by them.
3. It is an admitted position that on 8th June, 1963 a Permanent Transfer Deed had been issued to Hakim Muhammad Lukman in respect of the property involved in Constitutional Petition No, S- 110/77 and a Permanent Transfer Deed was issued on 13th February, 1968 to the predecessor of the petitioners in Constitutional Petition No, S-17/79 in respect of the property involved in that petition. It is inter alia contended by Mr. Maroof Ali Khan, learned counsel for the petitioner, that in view of the fact that the properties in question had been transferred by the Settlement Department to the petitioners and permanent Transfer Deeds had also been issued, the Custodian should have been given an opportunity' to the Petitioner to defend the proceedings and no adverse orders should have been passed affecting the rights of the Petitioners without hearing them. The contention of the learned counsel has great weight and the A impugned order, dated 28th June, 1974 is liable to be set aside as valuable rights of the petitioners were taken away without their being made parties to the proceedings and without giving them an opportunity o being heard.
4, Constitutional Petition No, S-110/77 and Constitutional Petition No, S-17/79 are allowed to the extent that it is declared that the order, dated 28th June, 1974 has been passed without lawful authority and is of no legal effect. The Application No, 70/74 filed by the respondent No, 2 for review of the order, dated 20th May, 1974 of the Custodian will be deemed to be pending and the case is remanded to the learned custodian for decision of the said application after giving notices to the petitioners and all concerned parties and providing them an opportunity of being heard There will be no order as to costs.