1. ' This petition under Article 199 of the Constitution is filed by one Tirathdas son of Kallumal, challenging the order of authorised officer, dated 30-11-1978. By the aforesaid order the authorised officer, refused to pass any order in respect of cancellation of allotment of Surveys Nos. 312, 314 and 339 of Deh Kathore and Survey No, 140 of Deh Karampur, District Thatta. The petition has been filed by the petitioner in the following circumstances.
2. The petitioner who claims himself to be a Pakistani national moved an application under section 22 of Act XII of 1957 before the Deputy Custodian, Evacuee Property, Thatta for declaration that he is a non-evacuee and his shares in the agricultural property mentioned in the application were non- evacuee. The aforesaid application was heard by the Assistant Custodian Incharge Evacuee Property, Thatta District who by order, dated Nil passed in Case No, 5 of 1958 reached the conclusion that the petitioner is a non-evacuee and his properties are non-evacuee within the meaning of section 2 of Act XII of 1957. In the body of the order the survey numbers mentioned in this petition were mentioned as belonging to the petitioner to the extent of two Annas share. The aforesaid order passed by the Assistant Custodian was sent to the Custodian for approval as under the provisions of Act XII of 1957 it is only Custodian who could pass the order declaring the petitioner as non-evacuee and his properties as non-evacuee. The petittioner has placed on record a notice, dated 19-10-1959 issued by the Office of Additional Custodian (Judicial) Evacuee Property, Khairpur Division in which the petitioner was directed to appear before the said officer on 29-10-1959 at 9 a.m. In connection with approval of the order, dated 18-8-1959 passed by the Assistant Custodian under section 22 of the Evacuee Property Act in Case No, 5 of 1958. The case of the petitioner is that in response to the above notice he appeared before the Additional Custodian who passed the following order after hearing the petitioner.
2. "This order is approved but subject to any allotment to which the disputed party may be subject.
3. (Sd.) Rafiuddin, Additional Custodian 29-10-1959."
4. ' The further contention of the petitioner is that on the basis of the above order passed by the Additional Custodian the record of the Revenue authorities was corrected and the disputed survey numbers to the extent of non-evacuee share were entered in the name of the petitioner. The petitioner has annexed with the petition as certified copy of the extract from Deh Form-7 supplied to the petitioner on 4-8-1960 in which it is stated that the survey numbers in dispute were entered in the name of the petitioner as a result of declaration of non-evacuee interest in the aforesaid survey numbers. It appears that these survey numbers alongwith several other survey numbers were allotted to claimant Qadir Bux under the provisions of Displaced Persons (Land Settlement)
5. Act, 1958. The petitioner having come to know of the aforesaid allotment in favour of Qadir Bux and others moved an application before the Deputy Commissioner concerned for cancellation of mutation in favour of Qadir Bux and others on the ground that the property is non-evacuee property. The Deputy Commissioner, Thatta, it is stated, came to the conclusion that the mutation of the disputed land in favour of Qadir Bux was not valid but he did not sign the said order, photostat whereof is filed as Annexure "H" alongwith the petition. Thereafter, it is stated that the matter was referred to the authorised officer who passed the impugned order on 30-11-1978 refusing to act upon the simple copy of the order of Additional Custodian, dated 29-10-1959 produced before him. Learned counsel for the petitioner contends that the order of the respondent No,1 refusing to cancel the allotment of Qadir Bux and others and treating the properties as non- evacuee is an order which resulted in the failure of exercise of jurisdiction vested in the notified officer under the law. It is contended that there was ample material on record to show that the petitioner was treated as a non-evacuee and his properties as non-evacuee properties and mere fact that the certified copy of the order was not produced before the notified officer was not sufficient to refuse to exercise the jurisdiction otherwise vested in the officer under the law. The contentions raised by the learned counsel for the petitioner are not without substance. In this petition the petitioner had produced a certified copy of the order of Assistant Custodian whereby he reached the conclusion that the petitioner is non-evacuee and his properties are non-evacuee properties and he forwarded the case to the Custodian for the purposes of confirmation of the order as Custodian alone was authorised under section 22 of the Act to pass such an order. There is also on record the original notice issued by the Office of Additional Custodian directing the petitioner to appear before him on 29-10-1959 in connection with the reference made by the Assistant Custodian, dated 18-8-1959 under section 22 of Evacuee Property Act XII of 1957 holding the petitioner as a non-evacuee and his properties as non-evacuee properties. The petitioner has categorically stated in his petition on oath that o appearance before the Additional Custodian the order, dated 29-10-195 reproduced above was passed and no counter-affidavit has been file to deny that position. Mere fact that the original record could not be traced was not sufficient to hold that the order which the petitioner has alleged on oath was passed in his favour was not passed by the authorities concerned. On the contrary the certified copy of the order of Assistant Custodian coupled with the original notice issued by the Office of Additional Custodian supports the contention of the petitioner that he was 'treated as non-evacuee and his properties were treated a non-evacuee properties. This fact is further strengthened by the entries Made in the revenue record on the basis of the order of Custodian mutating the shares of the petitioner as non-evacuee in respect of aforesaid survey numbers. In these circumstances the authorised Office was not justified in refusing to pass any order on the application. I accordingly accept this petition and declare the order of authorised officer, dated 30-11-1978 as without lawful authority. I further declare that to the extent of the share in the properties shown in the order of Assistant Custodian, dated 18-8-1959 the properties belonging to the petitioner were treated as non-evacuee properties.
6. ' It may also be mentioned here that in so far the allotment in favour of Qadir Bux is concerned it is already mentioned in the order of notified officer, dated 30-11-1978 that the allotment of the land has been cancelled from the allotment of Qadir Bux and, therefore, it is not necessary in these circumstances to grant any relief to the petitioner in this behalf. As the respondents have not appeared there will be no order as to costs.