FATEH MUHAMMAD Versus SETTLEMENT COMMISSIONER
1. The dispute in this petition relates to an evacuee property bearing Custodian No. P‑III/28/G‑1, in the village of Pir‑Jo‑Goth District Khairpur. These premises were originally leased to the occupant Fateh Mohammad by the Mukhtiarkar and A. R. O., Rohri by his order dated 6‑5‑1951 on payment of rent to be fixed by the Deputy Custodian, Evacuee Properties, Sukkur. The petitioner thereafter paid rent of Rs. 147‑4 annas at the rate of Rs. 3 per month for which receipt dated 31‑3‑1955 was passed to him by the Custodian Department. Subsequently, these premises were sold in auction held on 11‑5‑1960 and were purchased by respondent No. 4 Muhammad Ayub through his attorney respondent No. 5 Muhammad Arab and the latter surrendered to respondent Allahdino under a surrender deed dated 23‑6‑1966. Thereafter, respondent No. 6 served a notice on the petitioner demanding rent as a result whereof petitioner challenged the transfer of the property before the Deputy Settlement Commissioner on the grounds that under the provisions of the Settlement Scheme No. 7 the premises in question being situated in rural area and being katcha construction were deemed to have been transferred to the petitioner free of cost and that the auction of the premises to the respondent No. 4 was also improper having been conducted by a clerk of the office, and not by the Deputy Settlement Commissioner, without notice to the petitioner. The learned Deputy Settlement Com missioner, however, rejected this application of the petitioner by order of two lines holding that since the P. T. D. bad already been issued, no action at that stage was possible. The petitioner went m appeal against this order which also met the same fate. Petitioner, thereafter, filed a revision application before the Settlement Commissioner, Karachi, which was also dismissed on the ground that since the dispute was not regarding the title but related to some alleged fraud in the agreement between respondents Nos. 5 and 6, the matter did not call for interference. Being aggrieved the petitioner has filed this constitution petition.
2. The only contention raised by Mr. Maroof Ali Khan, the learned counsel for the petitioner, was that none of the authorities below had heard his case on merits in view of the relevant settlement scheme which provided that houses of the value of less than Rs. 10,000 in a rural area be deemed to have been transferred to the occupants and could not be transferred to any one else either under Scheme No. 7 or by auction. The learned counsel further contended that, in any case, the learned Settlement commissioner had not heard the petitioner and in this connection relied upon the endorsement by the learned Settlement Commissioner in his order to the effect that the copy of this order be sent to the petitioner which went to show that the petitioner had not been heard.
3. Mr. Ikram Ahmed Ansari, the learned counsel for respondent No. 6, disputed the contention of the learned counsel that the authorities below could not lawfully auction the premises in dispute to the respondent No. 4 but had to concede that the impugned order was passed by the learned Settlement Commissioner in the absence of the petitioner and accordingly stated that be would have no objection if the matter is remanded to the Settlement Commissioner to decide the revision application on merits after hearing both the parties.
4. Indeed, the order passed by the Settlement Commissioner shows that the petitioner was not heard personally nor does it show that any opportunity was m fact given to the petitioner. Endorsement of the learned Settlement Com missioner to intimate the petitioner itself bears out that the revision was decided in the absence and without notice to the petitioner. In this view of the matter, I fully agree with both the learned counsel that this is a fit case for, remand to the Settlement Commissioner for deciding afresh the revision application after hearing both the parties.
5. By consent of both the learned counsel, therefore, the impugned order passed by the Settlement Commissioner is set aside and the case is remanded to the Settlement Commissioner to re‑hear the revision application on merits after notice to both the parties. By consent, it is further ordered that the transfer documents issued to respondent No. 6 shall remain intact pending decision by the Settlement Commissioner and the petitioner shall not part with the premises in question in any manner till the decision of the revision application.
6. This petition is accordingly disposed of in terms of the above consent order.
7. K. B. A Petition accepted.