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Petitioner: MUHAMMAD SIDDIQUE VS Respondent: SETTLEMENT COMMISSIONER
1988 S C M R 398
1988 S C M R 398
Present: Abdul Kadir Shaikh, Shafiur Rahman, S.A.Nusrat and Zaffar Hussain Mirza, JJ
Kazi MUHAMMAD SIDDIQUE--Petitioner
versus
SETTLEMENT COMMISSIONER and others--Respondents
Civil Petition for Leave to Appeal No.245-K of 1986, decided on 28th January, 1987.
(On appeal from the judgment of the High Court of Sind, dated 3-4-1986, in C.P.S 90 of 1980).
Displaced Persons (Land Settlement) Act (XLVII of 1958)--
---Ss.10 & 12--Constitution of Pakistan (1973), Arts.185(3) & 199--Land Settlement-- Reduction in area of allotment without notice challenged in Constitutional jurisdiction--High Court's order declining to go into question of fact, impugn*ed--Plea raised that P.T.O. issued in petitioner's favour could not be modified behind his back--Order of Notified Officer or High Court not indicating any proceedings in which petitioner was associated with a view to re-examine question as to his exact entitlement--Leave to appeal granted to examine legality of subsequent change made in entitlement and transfer documents initially issued in favour of petitioner.
Petitioner in Person.
A.F.M.Mokram, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Respondent No.4.
Date of hearing: 28th January, 1987.
ORDER
ZAFFAR HUSSAIN MIRZA, J.--The petitioner in this petition for leave to appeal from the judgment of a learned Single Judge of Sind High Court dated 3rd April, 1986, had applied on D.P. Form for transfer of an open plot, on the basis of his occupation and having raised a permanent construction thereon. In the application the petitioner had described the area under the construction as 2350 sq. ft. .from survey No. 824, Tando Muhammad Khan. The petitioner was duly issued appendix IX, on 3rd August, 1961 for area of 262 sq. yds. But it seems that a revised appendix was subsequently issued on 2nd May, 1963, for a much lesser area of 540 sq. ft. It also appears that a. P. T.D. was issued on the basis of the revised appendix.
2. The remaining area of the plot left after excluding the area included in the revised appendix, was disposed of by open public auction, comprising 4200 sq.ft.
3. According to the petitioner he had no notice of the proceedings and the orders whereby a revised appendix reducing the area of his allotment was issued. This seems to have led to a dispute about the area and the location of the petitioner's plot, which according to the judgment of the High Court the Settlement Commissioner took up for resolution. The Settlement Commissioner called for the report of the Settlement Inspector according to which the petitioner was in actual occupation of 540 sq.ft.
4. As no relief was given to the petitioner he approached the High Court in constitutional jurisdiction and challenged the validity of the revised appendix on the ground that the Settlement Authorities were not competent to make changes in the PTO and reduce the entitlement of the petitioner without notice to him. The report of the Settlement Inspector was also challenged as incorrect on the factual plane. However, the learned Judge in the High Court refused to go into the questions on the ground that these were questions of fact not amenable in constitutional jurisdiction. He also held that the petitioner had not filed an appeal or sought any other remedy against the revised appendix which was followed by the PTD.
5. After hearing the petitioner in person and the learned counsel for the respondent, we feel that there is prima facie force in the submission of the petitioner that the PTO issued in his favour for an area of 262 sq. yds. could not be modified behind his back and the order of the notified officer or the High Court does not indicate any proceedings in that behalf in which the petitioner was associated with a view to re-examine the question as to the exact entitlement of the petitioner. Also the judgment of the High Court does not indicate in what manner the Settlement Commissioner once again, after reopening` the question decided the same against the petitioner. In the circumstances the legality of the subsequent change made in the entitlement and transfer documents initially issued in favour of the petitioner, seems to require examination. Leave is accordingly granted. Security for costs Rs.500. The record of the Settlement Department shall be called for and made available at the hearing of the appeal.
M.I./M-294/S????????????????????????????????????????????????????????????????????????????????????? Leave granted