1. ' By this Constitutional Petition No, 2135 of 1979, the petitioners have inter alia, sought abashment of the order, dated 25-11-1979 passed by the Settlement Commissioner, Sind as being without lawful authority and having no legal effect.
2. Briefly stated the facts of the case are that the disputed plots Nos. A-34/221 and A-34/222 measuring Square yards in Amil Colony, Hyderabad were originally the property of Cosmopolitan Housing Society of Amil Colony, of which Mr. Dharam Das Advocate was the President. The said President sold the disputed plots to M/s. Abdul Latif and Muhammad Hussain vide sale certificate, dated 14-3-1948. The Deputy Custodian confirmed the sale vide his two orders, dated 29-9-1959.
2. Once again the said plots changed hands as the same were purchased by Mst. Shamim Fatima for Rs,36,000 under registered sale-deeds, dated 19-1-1960 and 31-1-1960. Mat. Shamim Fatima through Rent Case No, 259 of 1961 got the persons then occupying the plots evicted. However the Mosque known as Rahmani Madjid which is situated on the corner of the plots was left untouched.
3. Subsequently Mst. Shamim Fatima sold these plots to the petitioners, namely, Abdul Ghafoor and his four brothers for Rs,60,000 on 14-10-1965.
4. ' However in Suo motu Revision No, 2 of 1968, the Custodian Evacuee Property declared the plots in question as evacuee property by his order, dated 19-6-1970. Thereafter the Rahmani Masiid and the persons who were ejected from the disputed plots were stated to have moved the Settlement Authorities for transfer of the plots under Settlement Scheme No, VIII by submitting B.S. Forms. On the other hand the petitioners invoked M.L.R. 86 which was promulgated on 10th August, 1971, for transfer of the disputed plots to them. Their request in this regard was turned down by the Additional Settlement Commissioner, Hyderabad vide his order, dated 24-4-1972. Aggrieved by this order the petitioners approached the Chief Settlement Commissioner, Sind and Baluchistan at Hyderabad by making application, dated 2-5-1972 to him, which was forwarded to the Settlement Commissioner Hyderabad for report. Subsequently the Additional Settlement Commissioner (Authorized Settlement Commissioner) was directed by the Chief Settlement Commissioner to examine the case of the petitioners afresh and determine the value of the disputed plots under clause 4(2) M.L.R. 86 and intimate the petitioners about the same and in case they failed to pay the value within stipulated period, the property in question should be taken over and despised of in accordance with law. In compliance with this order the Additional Settlement Commissioner, by his order, dated 25-8-1972 transferred the plots to the petitioners for Rs,18,000. Unsatisfied with this order the Rahmani Masjid challenged the same before the Settlement Commissioner who by his order, dated 3-4-1973 declined to interfere. However the undertaking given by the learned counsel for the petitioner not to touch the area of 300 Square yards in occupation of the said Mosque, was incorporated in and made part of the Settlement Commissioner's order. Again in the wake of this order, an application was moved by Syed Abdul Manan on behalf of the Mosque for transfer of 300 Sq. Yards. The learned Deputy Settlement Commissioner, who entertained the application rejected it by his order, dated 15-5-1974. He however made observations that though no portion of the said plot was available for transfer to the Mosque, the petitioners would abide by the undertaking they had given for not disturbing the Mosque. On the petitioner failure to give up the specified area from the disputed plots in favour of the aforesaid Mosque, the matter was once again taken to the Settlement Commissioner, Sind by application, dated 27-2-1979. It was on this application that the learned Settlement Commissioner passed the impugned order, dated 25-11-1979 cancelling the P.T.D. Issued in favour of the petitioner. By the same order, he directed that the area in possession of the Mosque plus three times of the plinth area of the same be transferred to the Mosque and remaining area should revert to the Land Utilization Department of Board of Revenue, Sind, as undisposed property for disposal under the scheme to be prepared under section 3(1) of the Act, No, XIV of 1975, Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975. He further directed that Rs, 18,000 realized from the petitions as transfer price be refunded to them. As stated above, the said order has been-impugned in this petition. During pendency of the petition, respondents Nos.4 to 17 who claim to have been wrongly ejected from the disputed plots moved Miscellaneous Application No,2011 of 1980 praying therein that they may be joined as party. The application was allowed by order, dated 16-12-1980 and they were joined as party.
5. ' We heard the learned counsel for the parties elaborately and also went through the mass of written material available on record.
6. ' Severely criticizing the impugned order, learned counsel for the petitioner contended that after transfer of the disputed plots to the petitioners under M.L.R.-86 and issuance of P.T.D. In their favour, the Settlement Authorities became focus officio, lacking any power interfere in the matter. He further submitted that for additional reason of the repeal of Evacuee Laws, the Settlement Authorities were left with no jurisdiction to deal with any evacuee property unless any case relating to such property was pending at the time of the repeal. In the instance case, the learned counsel averred, the matter stood finally clinched first with passing the order, dated 3-4-1973 of the Settlement Commissioner and then with the order, dated 15-5-1974 of the Deputy Settlement Commissioner. As these orders were not challenged, no case relating to the disputed property was pending at any legal forum which with the repeal of the evacuee laws became effective and the Settlement Commissioner, therefore, had no power to cancel the P.T.D. In favour of the petitioneRs, His further argument was that even otherwise the application on which the impugned order was passed was time-barred as it was filed after the gap of more than five years from the last order passed in favour of the petitioneRs, ' As against the above arguments, the learned counsel for the respondents-intervenors submitted that his clients were in possession of the disputed plots in 1951 when the same were declared as evacuee property. According to him they moved the relevant authorities for transfer of the plots to them on the basis of their possession. He further submitted that in the meantime they were wrongly ejected from the said plots in pursuance of the order passed by the Rent Controller. He further stated that subsequent to their ejectment the said plots were once again declared as evacuee property and consequently their earlier eviction therefrom was rendered illegal. Ultimately when this petition was filed they moved this Court for joining them as party and they have been accordingly joined as respondents.
7. ' It is an admitted position that the plots in dispute originally belonged to the Hindu Co-operative Housing Society. It is also admitted that Mr. Dharmadas, the President of the said Society sold the plots to Sheikh Haji Abdul Latif and Haji Muhammad Hassan and the sale in their favour was subsequently confirmed by the Deputy Custodian Hyderabad vide his two orders, dated 29-9-1959.
8. It is also not denied that Mat. Shamim Fatima purchased the said plots from Haji Abdul Latif and Haji Muhammad Hassan and sold the same to the petitioneRs, ' It seems before the petitioners purchased the plots, Mst. Shamim Fatima instituted ejectment proceedings in the Court of Rent Controller and got the persons in possession of the disputed plots evicted. Thus the respondents/intervenors stood ejected from the plots before the petitioners took over the possession of said plots. It was after the petitioners entered into possession of the plots that the Custodian Evacuee Property, declared the plots as evacuee property and thereby confirmed the sale thereof by the original Hindu owner namely the President of the Hindu Co- operative Housing Society. By this time all other persons including the respondents intervenors had gone out of possession of the plots which, as stated above, were in occupation of the petitioneRs, Of course the Rahmani Masjid continued to stand at the corner of the plots.
9. ' In view of the above facts and circumstances the question of transfer of the plots to the respondents-intervenors simply did not arise. As was argued by their learned counsel these respondents had applied for transfer of the plots under Settlement Scheme No, VIII. This Scheme came into force on 17th June, 1965, when they were not in possession of the disputed plots, as they had already been evicted, therefrom. As provided in para. 6 of the Scheme, only the persons in possession of a house or shop were entitled to its transfer. The disputed property is neither shop nor house nor was in possession of the respondents intervenoRs, Moreover the petitioners had purchased the said plots on 14-10-1965 when as per confirmation order of the Deputy Custodian confirming the sale of the said plots by the Hindu owner, the plots were treated as non-evacuee property. Therefore, even if the respondents-interveners had been in possession of the disputed plots on the date of corning into force of the Settlement Scheme No, VIII, the scheme would not have been applicable in respect of the said plots, being non-evacuee property. The said plots were declared as evacuee property on 19-6-1970 vide order of the Custodian Evacuee Property. But on this date the petitioners and not the respondents-interveners were in possession of the plots. Soon thereafter M.L.R.86 was promulgated on 10-9-1971 and the petitioners who were then in possession of the plots moved the relevant authorities for transfer of the plots to them under the said M.L.R.
10. Although their request for transfer of the plots was initially turned down by the Additional Settlement Commissioner, they ultimately succeeded in getting the plots when they approached the Chief Settlement Commissioner on whose direction the Addl. Settlement Commissioner passed order dated 25-8-1972 transferring the plots to them for Rs,18,000. It is not the case of the respondents interveners, that they challenged this order at any legal forum. As such so far they were concerned, the dispute over the plots, if any, stood concluded.
11. ' However on behalf of the Rahmani Masjid the above order with regard to transfer of the plots to the petitioners was called in question before the Settlement Commissioner who by his order, dated 3-4-1973 refused to disturb the transfer of plots. But the order shows that the assurance given by the counsel of the petitioners that the area of 300 Sq. Yards in occupation of the Mosque would not be touched was taken note of and was made the integral part of the order. It seems the management of the Mosque was not satisfied with the above assurance and, therefore, once again attempt was made by them for transfer of the area equivalent to 300 Sq. Yards in favour of the Mosque. While reiterating the assurance given on behalf of the petitioners that area of 300 Sq.
12. Yards covered by the said Mosque would not be touched, the Deputy Settlement Commissioner did not interfere with the earlier order of the transfer passed in favour of the petitioneRs, As has been stated above this order of the Deputy Settlement Commissioner was passed on 15-5-1974.
13. Thereafter no step was taken to challenge the said order. It was on 27-2-1979, nearly five years after the Deputy Settlement Commissioner's order mentioned above that the matter was repaginated before the Settlement Commissioner, who ultimately passed the impugned order. It would be noticed that during the above interval, important development had occurred as all evacuee laws were repealed and the jurisdiction of the Settlement Authorities had ceased in respect of evacuee properties. However, 'Authorized Officer' was empowered to dispose only pending cases. In the instant case the last order was passed by the Deputy Settlement Commissioner on 15-5-1974 much before the repeal of the Evacuee Laws became effective.
14. Therefore, the case having been terminated with passing of the said order could not be regarded as pending case. Consequently the learned Settlement A Commissioner had absolutely no jurisdiction to reopen the matter and rehear case. The impugned order passed by him is therefore, without jurisdiction and hence without lawful authority and of no legal effect. However, we would like to make it clear that in view of the undertaking given on behalf of the petitioners which was only incorporated in the order of the Settlement Commissioner, dated 3-4-1973 but also was repeated in the order of Deputy Settlement Commissioner, dated 15-5-1974, the petitioners would not touch the area of 300 square yards in occupation of the Rahmani Masjid, regardless of the fact whether area covered by the Masjid is Municipal Property or is a part of the disputed plots.
15. ' As a result of above discussion, the petition is allowed with no order as to costs.