Dispute between the parties viz. Asghar A.I Shah petitioner and Syed Ghulam Dastgir Shah respondent No. 2 hearing is with respect to an evacuee property hearing Khasra No. -I of Square No. 74, measuring about 6 kanals situate in Chak No. 213/RB, Faisalabad. Respondents Nos. 3 to 15 had also agitated their claim regarding the property in dispute but their names have since been struck off by order of this Court dated 16-4-1985 on the statement made by their counsel that they were not in any manner involved in the present controversy and their names be, therefore, deleted from the array of the respondents.
2. Facts giving rise to this petition, briefly stated, are that the Khasra number in dispute together with some other evacuee land measuring 30 kanals 11 marlas in all was adjusted in favour of Syed Muhammad Sultan A.I Shah, father of respondent No. 2 against his unsettled verified claim of agricultural land. This was vide order of Chief Settlement and Rehabilitation Commissioner dated 23-5--1969. Respondents Nos, 3 to 15, it appears, had also sought the transfer of a portion of the property in dispute under Settlement Scheme No. VII. Their claim was that the area in dispute had been built upon by its evacuee owner and it was occupied by them after the partition of the sub- continent. Respondent No. 2 who contested the claim of respondents Nos. 3 to 15 did not deny that the area in dispute had been built upon by its evacuee owner but he took the Stand that the structure existing at the time of the partition was not habitable and that he invested about Rs.
40,000 for making it lit for habitation. Deputy Settlement Commissioner by order dated 11-5-1973 rejected the transfer forms submitted by respondents Nos. 3 to 15 holding that the area in dispute already stood transferred to Sultan A.I Shah as agricultural land and was, therefore, not available for disposal. Respondent Nos. 3 to 15 agitated the matter in W.P. No. 901/R/74. Learned Judge who dealt with that petition found that the forms submitted by the said respondents had not been considered on merits in so far as no determinative order had been passed by the Settlement Authorities with regard to the character and nature of the property in dispute, it was noted by the learned Judge that the Additional Settlement Commissioner had found that there was a bungalow and other construction in possession of respondents Nos. 3 to 15 whereas it was held by the Settlement commissioner that the property in question was subservient to agriculture. Impugned orders of the Settlement Authorities in so far as they concerned Khasra No. 5 in possession of respondents Nos. 3 to 15 were accordingly set aside and the case was remanded vide order dated 1-10-1979 for fresh decision by a competent settlement authority in accordance with law. Order of the High Court was challenged by respondent No. 2 . C.P.S.LA.No. 1045 of 1979 but with no better result as the same was dismissed by the Supreme Court of Pakistan on 12-7-1980.
3. In post-remand proceedings, Additional Commissioner (Rev.) as Notified Officer took cognizance of the matter. During the pendency of the case before the Notified Officer, petitioner made an application for being impleaded as a party. His case was that he and before him his father was in possession of 4 rooms of the bungalow in the property in dispute and that his father Nawab A.I Shah and respondent's father Sultan A.I Shah had submitted a joint form for the transfer thereof.
The application was resisted by respondent No. 2 but it was allowed by the Notified Officer by his order dated 15 9-1983 which is reproduced hereunder in extenso:- Feeling aggrieved with the aforementioned order, respondent No. 2 challenged it in W.P. No. 420/R of 1983 which was disposed of as premature on 13-2-1984 with the following order:- --- It is contended by the learned counsel that respondent No. 21 is firstly not a notified officer and secondly is exceeding the directions as given in the remand order so far has been passed by him, showing what is being complained of, I would not like to anticipate that he is allowing any relief to a stranger or exceeding the limits of the remand order. It is expected that he would not exceed the limits fixed in the remand order. He will also see that the matter is decided by an officer, who is competent to do so.
This petition being premature at this stage, shall stand disposed of with the above observations."
4. Petitioner is stated to have produced some evidence before the Notified Officer and the case was fixed for arguments on 19-1-1985 when the counsel for respondent No. 2 took an objection that in view of the order of the High Court -2-1984 passed in W.P. No. 420/R of 1983, petitioner could not be treated as a party in the proceedings and no relief could be given to a stranger. This objection was upheld by the learned Notified Officer and he refused to permit the petitioner to he heard in the proceedings pending before him. The order of the Notified Officer passed on 19-1-1985 has been brought under challenge in the present Constitutional petition.
5. I have heard the learned counsel for the parties. Short question requiring examination in this case' is whether I lie order of the Notified Officer dated 15-9--1983 impleading the petitioner as a party in the proceedings pending before him stood annulled as a result of this Court's order dated 13-2-1984 passed in W.P, No. 420/R of 1983 so as to disentitle the petitioner to be heard in the matter. A fair reading of the order dated 13-2-1984 quoted hereinabove is not susceptible of any such result. It is apparent on the face of the order that the learned Judge declined to interfere with the order dated 15-9-1983 impleading the petitioner as a party on the short ground that no Substantial relief had yet been allowed to him. Writ petition of the respondent was accordingly disposed of as premature. Interest of the respondent was, however, amply safeguarded by the observation that the Notified Officer would not exceed the limits of the remand order. This observation was obviously relatable to the final order to be passed by the Notified Officer. Since the order dated 15-9-1983 impleading the petitioner as a party to the proceedings had not been set aside by this Court vide order dated 13-2-1984, it held the field and consequently the petitioner was clearly entitled to be heard in those proceedings. The Notified Officer appears to have, misconstrued/misinterpreted the order of this Court dated 13-2-1984 by holding that by virtue of that order, petitioner could not be permitted to be heard in the matter. Impugned order of the Notified Officer cannot, therefore, be sustained. Needless to observe that the Notified Officer when passing the impugned order had no jurisdiction to review the order of his predecessor dated 15-9- 1983.
6. Learned counsel appearing for respondent No. 2 vehemently contended that the petitioner was not at all in possession of the property in dispute at the relevant time nor was any form jointly submitted by his father. I am afraid, I cannot go Into these questions in the present proceedings as they involve factual coil controversy which can best be determined by the Notified Officer on the evidence produced before him.
7. In view of what has been said above, writ petition is allowed and the impugned order of the Notified Officer is set aside with the direction that he shall decide the dispute pending before him including the petitioner's claim on merits, of course, after hearing the petitioner. There will be no order as to costs.