' Naik Lath Khan son of Mir Kamat Khan resident of Tehsil Bazar, Dass Chowk, Bannu City has invoked the extraordinary constitutional jurisdiction of; this Court under Article 9 of the Provisional Constitution Order, 1981 for a declaration that shops No.31/6, 32/6, and 33/6, with attached upper storey, situated in Dass Chowk, Bannu City are the exclusive ownership of the petitioner under a valid transfer order No.822/D.S.O. Dated 26-6-1974 and that order dated 27-3-1982 passed by the Additional Settlement Commissioner (Respondent No.1) in purported exercise of revisional/appellate jurisdiction is entirely without jurisdiction and mala fide and thus null and void and that the application dated 22-2-1980, filed by Fazalur Rehman (respondent No.3) before respondent No.1 is absolutely incorrect and not competent in law.
2. Facts leading to filing of the instant constitutional petition are that shops No.31/6, 32/6 and 33/6, were put to open auction by the Deputy Settlement Commissioner (respondent No.2) on 3-1-1961 which were purchased by the petitioner on the basis of the highest bid for Rs.7,500 which were adjusted through compensation books but some of the compensation books having been found bogus the payment of the auction money was finalised in 1974 when respondent No.2 issued the transfer order in favour of petitioner on 21-6-1974. The auction in favour of the petitioner had also been confirmed by the Additional Settlement Commissioner (respondent No.1) on 13-10-1961.
Fazalur Rehman (respondent No.3) who was the occupant of one of the shops i.e. 31/6 submitted an application to the Additional Settlement Commissioner, Peshawar on 3-12-1961 requesting for the transfer of the said property in his favour on the reserve price. However, no action was taken on this application. At the same time the petitioner allowed Fazalur Rehman (respondent No.3) to continue as a tenant an.d work as Tailor-master subject to payment of rent to the petitioner. Since Fazalur Rehman (respondent No.3) became a defaulter of rent and instead of payment of Rs.30 per month as rent to the petitioner he assessed the rent at Rs.10 per month which obliged the petitioner Naik Lath to bring a suit in the Court of the Rent Controller, Bannu for the ejectment of respondent No.3 which is yet pending for final adjudication pursuant to the order of remand passed by the High Court through its judgment dated 26-1-1981 in S.A.O.No.13 of 1978. While the petitioner and Fazalur Rehman (respondent No.3) were indulging in litigation in the High Court in S.A.O.No.13 of 1978 referred to above, on 22-2-1980 the respondent No.3 filed a petition before the Additional Settlement Commissioner (respondent No.1) asking for setting aside the proceedings conducted by the Settlement Department by way of transferring the suit property in favour of the petitioner and instead transferring the same property in his favour on payment of reserve price which came to Rs.12,960. This subsequent application of Fazalur Rehman (respondent No.3) was accepted by Haji Abdul Jabbar Khattak, Settlement Commissioner cancelling the transfer order, dated 21-6-1974 issued by the Deputy Settlement Commissioner (respondent No. 2) and directing the suit property as available one under the provision of Settlement Scheme No. I of 1976 for disposal in accordance with the provision of above settlement scheme. This order of the Additional Settlement Commissioner Abdul Jabbar Khattak (respondent No. 1) has obliged the petitioner to seek the indulgence of this Court to get his grievance redressed.
3. Arguments of the learned counsel for the parties heard and record of the case examined.
4. It is not disputed that the disputed property was put to open auction and Naik Lath petitioner being a highest bidder the said property was allotted to him. Fazalur Rehman (respondent No.3) who was in occupation of shop No. 31/6 after the said auction on 3-12-1961 made an application to the Additional Settlement Commissioner for transferring the property in dispute in his favour on payment of the reserve price. However, the transfer, in favour of Naik Lath was finalized on 21-6- 1974 when transfer order No.822/D.S.0 was issued in his favour. It would thus appear that despite the fact that application of respondent No.3 was pending before the Additional Settlement Commissioner the Settlement authorities still considered it advisable to transfer the said property in favour of Naik Lath petitioner and the application of Fazalur Rehman was not considered. On 22- 2-1980 Fazalur Rehman respondent No.3 again moved an application (appeal or revision) against the order dated 26-6-1974 requesting for cancelling the allotment order in favour of the petitioner and instead transferring the same in his favour on payment of reserve price. The Additional Settlement Commissioner came to the conclusion that:- "The original bid-sheet on which the transfer proceedings have been initiated lack legal formalities and is defective. Neither names of the bidders who participated in the auction have been given nor Token Numbers are entered. The highest bid of Rs.7,500 offered by Naik Lath Khan, against the Reserve Price of Rs.12,960 was approved by the Additional Settlement Commissioner, Peshawar subject to the condition that nobody was prepared to pay the Reserve Price. No intimation was given to any body and even to the occupants of the premises, as the record is silent in this respect.
Fazalur Rehman respondent offered in writing to pay the Reserve Price while the auction-purchaser was not willing to pay the Reserve Price. Auction was approved in favour of Naik Lath Khan, who was a minor at that time, and the bid sheet was signed by Mir Kamat Khan who had got no 'Mukhtar Name'. The minors are not allowed to participate in the auction proceedings. The matter remained under correspondence for a long time, and a permanent transfer order was issued hurriedly in the absence of any decision from the Additional Settlement Commissioner/ Board of Revenue. The final decision was conveyed on 25-3-1979, and on gaining knowledge of the decision, the petitioner lodged a Revision petition. As regards the verdict of the Hon'ble Civil Courts, it was given without any prejudice to the rights of the parties they had respectively in the property in questions. Permanent Transfer Order was issued on 21-6-1974 in a hurriedly manner without going through the record to check the result of the correspondence between the Additional Settlement Commissioner and the Deputy Settlement Commissioner and immediately before the enforcement of Repeal Acts. In the circumstances, the Settlement Commissioner is competent to reopen the matter. He is also competent to pass the orders where Transfer Orders have been issued by fraud or misrepresentation. Similarly, suo motu Revisional Powers could also be exercised in cases which were pending on 1-7-1974 as have been provided by Settlement Laws. In view of the above detailed discussion, I hold that the order of the Deputy Settlement Commissioner, Bannu, dated 21-6-1974, was not in conformity, with the law and conditional order of the Additional Settlement Commissioner Peshawar dated 13-1-1961. The revision petition is accepted to the extent that the impugned order of the Deputy Settlement Commissioner, is, set aside and Transfer Order dated 21- 6-1974, issued by the Deputy Settlement Commissioner, Bannu, is hereby cancelled. The suit property bearing shop No.31/6, 32/6, and 33/6-A situated in Bannu City may be considered as available property for disposal under the provisions of Settlement Scheme No.I of 1976, and may, therefore, be disposed of in accordance with the provisions of the above Settlement Scheme."
' The Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) was repealed by Ordinance XV of 1974 (Evacuee Property and Displaced Persons Laws(Repeal) Ordinance 1974), which was given effect from the first day of July, 1974. Subsection (2) of Section 2 of the said Ordinance, however, provided that:- "Upon the repeal of the aforesaid Acts and regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
' Now obviously the authorities notified by the Provincial Government could adjudicate upon only those proceedings which were pending A immediately before such repeal. The Additional Settlement Commissioner has considered the application of respondent No.3 which he moved on 3-12-1961 requesting for the allotment of the said property in his favour as a pending matter. The words "immediately before such repeal" are of significance. The application dated 3-12-1961 can in no way and no stretch of imagination be called as pending immediately before such repeal. On the other hand the issuance of the transfer order in favour of Naik Lath on 21-6-1974 by implication would amount to rejection of the application of Fazalur Rehman respondent No.3. The Additional Settlement Commissioner in his impugned order had observed that "under the Repeal Settlement Laws the period of appeal was 15 days and the aggrieved person could prefer an appeal 15 days after 21-6-1974 (the date on which the transfer order was issued by the Deputy Settlement Commissioner)". He further went on to observe that "as the period of appeal had not expired this case on 1-7-1974 the proceedings could be deemed to have been pending on or before the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974.
Assuming for the sake of arguments that since the transfer order was issued on 21-6-1974 and Fazalur Rehman could file an appeal within 15 days and on 1-7-1974 when the Act was repealed Fazalur Rehman did have certain days for filing an appeal, the question for determination is whether he did file an appeal within 15 days of the issuance of the transfer order. This aspect of the case has very conveniently been ignored by the Settlement Commissioner.
5. In this case as would appear from the record the property in dispute was put to open auction on 3-1-1961 and Naik Lath Khan being a highest bidder the same property was transferred in his favour but the payment was finalized somewhere in 1974 when permanent transfer order was issued to the petitioner under No. 822/D.S.C., dated 1-6-1974. No doubt Fazalur Rehman respondent No. 3 had filed an application praying for the allotment of the said property in his name on payment of the reserve price but right from 3-12-1961 upto 1-6-1974 when transfer order was issued in favour of the petitioner Fazalur Rehman respondent No. 3 kept quiet and made no efforts to pursue his petition.
Since Fazalur Rehman respondent No. 3 was occupying shop No. 31/6 there arose a dispute between Naik Lath landlord and Fazalur Rehman tenant and this litigation went up to the High Court when on 26-1-1981 the second appeal of the petitioner was accepted and the order of the District Judge, was set aside and that of the Rent Controller directing the eviction of Fazalur Rehman tenant from the said shop was restored. The order of the Additional Settlement Commissioner cancelling the allotment of the suit property from the name of Naik Lath was passed on the application of Fazalur Rehman made on 22-2-1980 i.e. After five and a half years of the final order passed by the Additional Settlement Commissioner before the repeal of the said Act. In Sher Afzal Khan and others, petitioners v. Haji Razi Abdullah and others, respondents reported as 1984 SCMR 228 it was held that:- "Apart from the reasons that found favour with the learned Chief Justice of the High Court, with which we agree fully, we find that the undisputed fact remains that the P.T.D. Issued in favour of the first respondent covered the whole property which remained in the field until the repeal of the Settlement Laws, which accordingly was a past and closed transaction. We do not see how, after the repeal of these laws, the authorities under the new dispensation that came into being under the repealing statute and under the new scheme promulgated in 1976, could undertake an enquiry in order to review and reopen such past and closed transactions. Even a case of fraud could be enquired into or adjudicated upon provided jurisdiction to exercise such power survives the repeal.
No such provision was pointed out by the learned counsel. The exercise of jurisdiction was, therefore, palpably coram non judice and wholly incompetent."
' The observations of the Additional Settlement Commissioner that he could probe into the irregularity or illegality even after the repeal of the Act is misconceived and in such like matter in my view he was acting beyond the jurisdiction vested in him and the impugned order is naked abuse of power with which I am unable to find myself in agreement. The matter was a closed one and after the repeal of the Act the Additional Settlement Commissioner could not adjudicate upon it any more.
6. Accordingly I would accept this writ petition and would declare the order, dated 27-3-1982, of the Additional Settlement Commissioner, D.I. Khan as coram non judice and thus totally null and void against the right of Naik Lath petitioner. No orders as to costs.