' The dispute in this petition relates to House No, B/35, Tando Jan Muhammad, Taluka Digri, District Tharparkar. The respondent No, 2 claims to be the owner of this property. The property was allotted to the petitioners by allotment order dated 20th January, 1954 issued by the Mukhtarkar and Assistant Rehabilitation Commissioner, Dirge in exercise of the powers vesting in him under section 14 (1) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. Subsequently, the property was transferred to the petitioners under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on their C. H. Form. The provisional transfer order is dated 13th November, 1959. But the respondent No, 2 managed, somehow to obtain a letter dated 25th January, 1961 from the Deputy Settlement Commissioner excluding this property from the compensation pool and cancelling its transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
When this fact came to the knowledge of the petitioner, they approached the Deputy Settlement Commissioner and pointed out to him that he had no power to exclude any property from the compensation pool. By order dated 26th October, 1963, the Deputy Settlement Commissioner refused to give any relief to the petitioner, who then went in appeal to the Additional Settlement Commissioner, who set aside the order of the Deputy Settlement Commissioner and restored the transfer of the disputed house to the petitioners. In revision, however, the Settlement Commissioner, by order dated 15th January, 1965, set aside the order of the Additional Settlement Commissioner,
2. The Settlement Commissioner, in upholding the exclusion of the disputed property from the compensation pool placed reliance on the order of the Assistant Custodian of Evacuee Property dated 28th October, 1950 declaring the respondent No, 2 to non-evacuee. Mr. A. H. Alvi, the petitioners' Advocate, contends that the Settlement Commissioner, has acted erroneously because once a property has been treated as evacuee property, the Settlement Authorities have no power to exclude it from the compensation pool and the aggrieved person's only remedy is under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957. To this Mr. Ismail Munshi answer was that according to the rule laid down in PLD 1968 Lahore 148 the property should have been treated as evacuee property by the judicial process after notice to the owner and the determination in this regard must be a final determination. In this case according to Mr. Ismail Munshi, there has not been any such determination. But I think this view cannot prevail now in view of the decisions of their Lordships of the Supreme Court in 1969 SCM R 686, in which it has been held that if the property has in fact been used for the purposes of the Administration of Evacuee Property Act, 1957, consciously then this would amount to treating the property as evacuee property. Their Lordships held that the entry of a property in the register of evacuee properties and the assessm ent of its rent by the Custodian Department would show that the property had in fact been used for the purposes of the Administration of Evacuee Property Act. Now in the instant case the very order of allotment dated 20th January, 1954 shows that the property was allotted to the petitioners by the Assistant Rehabilitation Commissioner under powers vesting in him under section 14 (I) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. Further, there is even Custodian's receipt for rent dated 7th December, 1953 in favour of the petitioners. Moreover, it is the admitted position that this property finds place in the Custodian's survey and its number, B/35, is actually the number given to the property by the Custodian. These facts would establish that the property has in fact been treated as evacuee property. If so, then admittedly the Settlement Authorities could have no jurisdiction in excluding the property from the compensation pool. Mr. Ismail Munshi laid emphasis on the order of the Assistant Custodian declaring the respondent No, 2 as. Non-evacuee. But this order, as stated above was passed on 28th October, 1950 and does not refer to any particular property but merely declares the respondent No, 2 to be non-evacuee and all his lands and properties also to be non-evacuee but without specifying these properties. Moreover, the order of allotment is dated 20th January, 1954, and the respondent No, 2 did not take any action against this allotment right up to 25th January, 1961 when he got the house excluded from the compensation pool by the letter of the Deputy Settlement Commissioner referred to above. The silence of the respondent No, 2 for such a long period of time has not been explained and would require thorough enquiry by the competent authority. It is possible that the respondent No, 2 may have become evacuee and his property evacuee property between 28th October, 1950, the date of the order of the Assistant Custodian and 20th January, 1954, when the disputed house was allotted to the petitioners. But all those are points which have to be determined by the competent Tribunal which, ordinarily, would be the Custodian of Evacuee Property under section 22 of the Pakistan (Administration of Evacuee Property) Act. Mr. Ismail Munshi was of the view that perhaps this remedy was no longer available to the respondent No, 2 in view of section 3-A of the Act. If so, then it may be that the other remedy by way of constitutional petition may be open to the respondent No,
2. However, I will express no opinion on this point and leave the respondent to such remedy as he may be advised to pursue.
3. In the result the petition is accepted and the order of the Settlement Commissioner dated 15th January, 1965 and the orders of the Deputy Settlement Commissioner dated 25th January, 1961 and 26th October, 1963 are quashed. The original order of transfer in favour of the petitioners and the order of the Additional Settlement Commissioner dated( 30th April, 1964 are upheld.