1. ' The dispute in this petition is in respect of urban gardens in Deh Ghangro Taluka and District Hyderabad measuring 18.22 Ghuntas.
2. ' The relevant facts are that. Ahmed Hussain, the father of the petitioner and Mst. Saeedunnissa who were claimants of abandoned urban gardens from Dehli (India) were allotted two evacuee gardens in Deh Gujjo and the disputed garden on Deh Ghangro, Hyderabad on 2-8-1954. And on 15-2-1958, the Garden Allotment Committee of Hyderabad Division had allowed the said allotment to continue vide Annexure 'A' to this, petition. However, the dispute started between Prince Ghulam Muhammad and Ahmed Hussain in respect of the allotment of the urban garden at Gujjo from 1959 and after a series of decisions of the Rehabilitation Authorities and petitions and Letters Patent Appeals in the High Court, the last relevant order of the High Court was passed on 5-11-1965 when the Petition No,576 of 196' filed by Ahmed Hussain was allowed by the High Court and the case was remanded for fresh decision to the Rehabilitation Commissioner-cum-Settlement Commissioner, Hyderabad. L.P.A. Of Prince Ghulam Muhammad against the said remand order was dismissed on 17-10-1968 by .a Division Bench of this High Court. However, on 16-11-72 the Supreme Court modified the order of the High. Court to the extent that the claim of Ahmed Hussain should be considered on the basis of his area of the abandoned urban garden lands and not on the basis of produce index.
3. ' Finally, on 15-6-1974 the Settlement Commissioner, Hyderabad ultimately allotted 18.27 Acres of urban garden at Deh Ghangro in favour of Ahmed Hussain while the other garden at Deh Gujjo was given to Prince Ghulam Muhammad and others. After that the parties to the allotment dispute felt satisfied and no other proceedings were institued.
4. ' On 2-9-1975 the respondent No,2 and his men are alleged to have trespassed over garden of Ahmed Hussain and destroyed it. On 1-10-1975 the petitioner filed a criminal case under section 392/342, P.P.C. Against respondents 2, 3 and 4. On 23-10-1975 the respondents 2, 3 and 4 submitted Misc. Application to the Minister, Rehabilitation and Revenue, Govt. Of Sind for giving them protection from criminal cases filed by the petitioner and from ejectment from the land. These respondents claim to be landless haris in cultivating possession of land in question. The said application was forwarded to the respondent No,1 Another application by the same respondents 2 to 4 was filed before respondent No,1 on 2-1-1976, for allotment of this land as balance land.
5. ' On 26-2-1976, Ahmed Hussain died and on 28-5-1976, Rehabilitation Mukhtiarkar, Hyderabad declared the petitioner as one of the successors-in-interest of Ahmed Hussain.
6. ' On 15-10-1976 after notice to the petitioner and respondent No,5 the respondent No,1 decided the application of respondents 2 to 4 and came to the conclusion that the disputed land was not a garden in 1946-47 and that it was only an agricultural land and it should be disposed of as agricultural land and that it could not be disposed of as garden land. The respondent No,1 further directed that the facts should be reported to the Settlement Commissioner (Land) Hyderabad soliciting his clear instructions as to how these lands would be taken care of till the policy for disposal of urban area is framed by the Government.
7. Mr. Maroof Ali Khan has rightly contended that the respondent No,1 being a mere Deputy Commissioner Hyderabad had no jurisdiction to call in question the order of the superior officer namely, Rehabilitation A Commissioner of Lands, Sind, Hyderabad. The submission appears t be correct. The order of the Settlement Commissioner, dated 15-6-1974 had assumed finality under section 22 of the Displaced Persons (Land Settlement) Act, 1958 which provides as under:-- "Subject to the foregoing provisions of this Chapter any order made under this Act, shall be final, and save as provided in section 21, shall not be called in question in any Civil or Revenue Court."
8. It is, therefore, apparent that the order of the Settlement Commissioner could only be challenged under section 21 of the said Act before the High Court under its revisional powers and no. Civil or Revenue Court could question the same. Consequently the order of the respondent No,1 was completely without jurisdiction.
9. It may be mentioned here that the evacuee property laws had been repealed on 30th September, 1974 by Ordinance 15 of 1974 which was repealed and re-enacted on 27-1-1974 as Act 14 of 1975.
10. That the Ordinance and the consequent Act had merely saved the pending proceedings and they could be disposed of by a notified officer and not by the Deputy Commissioner under section 2(2) of the said Act 14of 1975 but in this case there were no pending proceedings in respect of the disputed garden and, therefore, the order of 15-6-1974 of the Settlement Commissioner had assumed finality. It was only under section 4 of the said Act 14 of 1975 that residual work could be disposed of by the Board of Revenue of the Province and the disposal of the residual work only means that the orders of the Settlement Authorities which had become final had to be implemented by the Board of Revenu and it was not for the Board of Revenue or any officer under the Board of Revenue, like the respondent No,1, Deputy Commissioner to call any final order in question. This shows that the respondent No,1 had no authority to say that either these lands were not urban garden or that this land cannot be disposed of as garden land. These matters had been finally set at rest and were not within the competency of the respondent No,1. The respondent completely lost sight of the fact that this matter had received the attention of the Supreme Court and the High Court where the disputed lands had been dealt with as garden lands and hence this question was a concluded matter.
11. ' I must observe that the respondent No,1 while dealing with this matter had completely lost sight of para.5 of the order of the Settlement Commissioner (Lands), Sind Hyderabad, dated 15-6-1974, where it was observed that the garden area of 18.22 acres already stands settled permanently with Ahmed Hussain.
12. Consequently, the order of respondent No,1, dated 15-10-197 is hereby declared to be without lawful authority, and he is directed to implement the order of Settlement Commissioner (Lands), Sind, date 15-6-1974.