SHAH NAWAZ KHAN, C. J.-Mst. Resham Jan c/o Sabir Karyana Store, Chowk Sabzi Mandi, Abbottabad, through her general attorney, Malik Mohammad Sadiq, has submitted this Constitutional petition, purport--ing to be under Article 201 of the Interim Constitution of Islamic Republic of Pakistan, 1972.
2. In this writ petition, Mst. Resham Jan has stated that she is a claimant displaced person from occupied Jammu and Kashmir State ; that the property in dispute, comprised in Khasra No. 271 (min), measuring 2121 square yards and 8 square feet which is situated in the extended area of Havelian, Tehsil and District Abbottabad, was an evacuee rural building site and the same was transferable only under the provisions of Settlement Scheme No. VII, prepared under section 119 (b) of the Displaced Persons (Compensation and Rehabilitation Act), 1958, as approved by the Central Government on 17th April and 1st June, 1961. The original scheme was amended and reconstituted by the Government, vide Notification No. 1404--Pol/16 dated 16-4-1966. It is further stated therein that Mohammad Iqbal Khan Jadoon (respondent No. 5) is a man possessed of all those peculiar wordly gifts as would enable him to sway others to do what he wanted. He is a big transporter, forest Contractor, rich and powerful man, besides being a Member of the N. W. F. P. Provincial Assembly. Previously he was a Member of the Provincial Assembly of West Pakistan. Further that the said respondent has never remained in occupation of the aforesaid property on or before the 1st day of January, 1961. Consequently he was neither eligible to its transfer nor the Assistant Settlement Commissioner (Lands), Abbottabad (respondent No. I), had in the circumstances, any jurisdiction to transfer the same in his favour ; that in fact the said property was not in occupation of any particular individual at the time when Scheme No. VII was introduced in 1961 and re- constituted in 1966. It is further stated in the writ petition that on the 28th of March, 1966, the petitioner submitted an application to respondent No. 1 under para. 3 (3) (d) of the Settlement Scheme No. VII for the transfer of the said property, amongst others in her favour, followed by another application, dated 18-3-1967 to the same effect. These applications were, however, neither considered nor responded to by the said authority ; that respondent No. 5, taking undue advantage of his position, in order to grab this valuable property, like other properties in Havelian, is said to have submitted an application to respondent No. I in May, 1967, for the transfer of the property in dispute in his favour, falsely alleging that he was in occupation of the said property for the last seven years ; that this was in spite of the fact that he had already got plot No. 1049 (min), measuring 605 square yards, situated in Havelian, trans--ferred in his favour ; that the said respondent also got various other properties in Havelian transferred in his name under Settlement Scheme No. VII (the details of the properties so transferred were given), which, according to the petitioner, were acquired on 24-11-1969. It is further contended in the writ petition that no one can be transferred more than one property under Settlement Scheme No. VII, as it is apparent from the memorandum of the then Settlement Commissioner (Policy), Lahore, dated 9-2-67. It is contended that respondent No. 5 fraudulently and collusively got the disputed property transferred in his name when the applications of the petitioner were still pending disposal vide Permanent Transfer Order, dated 30-5-1967 issued by respondent No. 1. The price of the property in the said P. T. O. Is shown to be Rs. 6,000 which amount was allegedly paid by respondent No. 5, vide challan No. 49, dated 30-5-1967.
3. Yet another objection taken in the writ petition is that the subsequent enquiries, however, revealed that vide the aforesaid challan No. 49, the respondent No. 5, had deposited a sum of Rs.
2,000 only and not Rs. 6,000 as was shown in the original P. T. D. Hence a double fraud was committed, firstly that the property was transferred to a person who was not in its occupation on the crucial date and secondly that P. T. D. Was hurriedly issued without realising the full transfer price, hence the P. T. D. Is illegal, ultra vires and without jurisdiction. In this respect further probe, however, revealed that the amount paid by respondent No. 5, was for more than one property. In any case there was nothing illegal about challan No. 49, dated 30-5-1967 and it has now been admitted by the learned counsel for the petitioner that this objection of the petitioner cannot be supported by any cogent reason.
4. It is further contended by the writ petitioner that when the petitioner came to know of the said fraud and the passing of the impugned transfer order in March, 1969, she immediately preferred an appeal against the same on 7-3-1969 before the Deputy Settlement Commissioner (Lands)
Abbottabad, i.e. Respon--dent No. 2, wherein she challenged the said transfer in the name of respondent No. 5. She also submitted an application for the condonation of period, if any in filing of the said appeal. That appeal was, however, dismissed on 3-6-1969 for non-prosecution by the then Deputy Settlement Commissioner (Lands) Hazara at Abbottabad, in spite of the fact that the counsel for the petitioner did appear before that Court when the appeal was called for hearing ; that the petitioner, aggrieved by this situation, preferred a Revision Petition before the Settlement and Rehabilitation Commissioner. Peshawar Division, Peshawar (respondent No. 4) which was heard at Camp Abbottabad on 6-12-1969. The same was accepted. The order of the Deputy Settle- -ment Commissioner (Lands) impugned, was set aside and the case was remanded for re- consideration of the appeal and for passing fresh orders ; that since then every conceivable effort has been made by respondent No. 5 to see that the said appeal is not allowed to proceed further, firstly respondent No. 5, being, conscious of the weakness of his case attempted to tamper with the record of the case in conspiracy with the concerned staff to show that he was allegedly in occupation of the disputed property before February, 1961. To this end an allotment order, pertaining to an evacuee vacant plot bearing Khasras Nos. 222 and 225, in the name of Gohar Rehman Khan (father of respondent No. 5) for a Bus Stand, made by the then Secretary to Government, N: W. F. P. Settlement and Rehabilitation Depart--ment on 13-2-1952 was forged by cutting out Khasras Nos. 222 and 225 in type and inserting with pen No. 271 (min) over the same ; that in the margin of the said allotment order, a fictitious note was given, corresponding to the said cutting, in these words" vide order dated 4/5", thus a basis of alleged ancient occupation of respondent No. 5, over the disputed property was created and the said allotment was inserted in the record. It is further contended that the saide allotment order was forged as it is borne out from the application of Gohar Rehman Khan Jadoon himself which is dated 15-1-1952. It is contended that the said application was for allotment of Khasras Nos. 222 and 225 and all the proceedings were taken thereon. However, it was contended that the disputed property is presently being used as a Bus Stand, Havelian, from which respondent No. 5 is illegally deriving substantial income. It is, however also conceded that the appeal, referred to above, is still pending. It is further contended that it is respondent No. 5 who is prolonging that case for one reason or the other ; that on 19-5- 1972 respondent No. 5 got the case transferred from the Court of Deputy Settlement Commissioner, Hazara to the Deputy Settlement Commissioner (Lands), Haripur on an application submitted by him before the Deputy Commissioner, Hazara at Abbottabad ; that when the petitioner learnt of the same, her attorney submitted an affidavit to the Deputy Commissioner. Hazara, on her behalf, challenging his jurisdiction to hear or dispose of the said application; that the said transfer application was accepted by the Deputy Commissioner at the back of the petitioner, without her knowledge and without serving a notice on her ; that the petitioner came to know of the same when she received summons from the Court of Deputy Settlement Commissioner (Lands), Haripur for appearance in the said Court. It is further contended in the writ petition that having been left with no other alternative, the petitioner was compelled to submit an application to the Additional Deputy Commissioner, with powers of Additional Settlement Commissioner. Hazara at Abbottabad to direct the Deputy Settlement Commissioner (Lands) Haripur to dispose of the petitioner's appeal immediately. Copy of the Additional Deputy Commissioner (G) of the same date was forwarded in original to respondent No. 3 (Deputy Settlement Commissioner (Lands) Haripur on the same date ; that the petitioner also moved respondent Nor 4 (Settlement Commis--sioner' Peshawar Division) by another application, complaining inter alia that the appeal was not being heard and that the same be ordered to be disposed of immediately on which the comments of the Deputy Commissioner, Hazara were called. The Deputy Commissioner, Hazara had ordered the Deputy Settlement Commissioner (Lands), Haripur to dispose of the case without further delay, within a fortnight and also to report the cause of delay which occurred ; that in spite of this, the case was dealt by the Deputy Settlement Commissioner (Lands), Haripur which obliged the petitioner to come to this Court with the present petition.
5. The grounds taken by the petitioner in the writ petition are that the order of the transfer of the disputed plot in favour of respondent No. 5 is illegal, because he had never been in occupation of the disputed property on or before 1st of January, 1961, that respondent No. 5 had already secured other Rural property in Havelian, as such this property could not be transferred to him ; that the petitioner being claimant Displaced Person, having not been transferred any residential evacuee property or site any--where else was/is eligible for the transfer of the disputed property in her favour, under para. 3 (3) (d) of the Settlement Scheme No. VII ; that respondents 2 and 3 have failed to exercise jurisdiction vested in them by law.
6. The petition was rigorously contested not only by respondent No. 5 but also by respondents Nos.
1 to 4. Besides other grounds which were stressed with considerable vehemency, two preli--minary objections were raised by the said respondents ; firstly that the petitioner is a non-entitled person as such she is not an aggrieved person and this writ petition is not mantainable under the law and secondly that the appeal of the petitioner was and is still pending adjudication before the Deputy Settlement Commissioner (Lands), Haripur, and that legal remedy is not only available to the petitioner but that she had actually availed of the same and in any case if any order is passed by respondent No. 3, she has the remedy to go in appeal to the concerned authority.
7. I have heard the arguments addressed before me at considerable length by the learned counsel for the petitioner and the learned counsel for the contesting respondents.
8. Khasra No. 271 (Min), measuring 2121 square yards and 8 square feet, situated in the extended area of Havelian, was declared as an Evacuee Property and was available for allotment to any entitled person. The petitioner is a claimant displaced person from Kashmir. It is an admitted fact that the petitioner has never had pos3ession over the suit area. Learned counsel for the respondent maintains that in these circumstances, the petitioner had no locus standi under the law to apply for the transfer of the plot. Moreso, when the petitioner has admitted in her writ petition that the suit area is situated in the extended area of Havelian, therefore, she could not apply for its transfer in her name. Learned counsel for the petitioner on the other hand admitted that the right of appeal is available and that in fact the appeal is pending disposal before a competent authority but adds that the order of transfer of this appeal, having teen made by a non-competent authority, could not invest Deputy Settlement Commissioner (Lands) Haripur to have the jurisdiction to dispose of that appeal. Further that notwithstanding the fact that the appeal is pending before a competent forum and legal remedy is available to the petitioner, the petitioner could invoke the constitutional jurisdiction of the High Court under Article 201 of the Interim Constitution (now Article 199 of the Permanent Constitution) and the High Court has the power to entertain the petition and- grant relief as prayed for. In support of his arguments he placed his reliance on the following authorities :- PLD 1958 SC (Pak.) 41; PLD 1958 SC Pak. 437; PLD 1959 SC (Pak.) 177;PLD 1961 SC 119; PLD 1961 SC 537 : PLD 1962 Lah. 151 ; Learned counsel for the petitioner maintains that the petitioner is an aggrieved part and any one who can set the ball roling under Article 201 of the Interim Constitution (now Article 199 of the Permanent Constitution) can be an aggrieved party. Mr. Muhammad Sardar Khan, the learned counsel for the petitioner, maintains that the petitioner may not be having any legal right to claim this property but that she is an aggrieved party to institute a writ petition.
9. In a Dacca case, reported as PLD 1970 Dacca 85 it was held that "anything which tends harm to the petitioner or to cause any disadvantage to him, must have the effect of making him an aggrieved party". In the instant case all that we have to see is whether the petitioner has been caused any disadvantage, if so, then she can be considered as an "aggrieved party". Whether this property could have been allotted to her and what dis--advantage has been caused to her because of the transfer of this property to respondent No. 5. Remedy is co-extensive with a right. A person seeking remedy must have a right. Learned counsel for the petitioner maintains that this writ is not in the nature of mandamus. It is in the nature of certiorari. He placed his reliance on an authority of West Pakistan High Court, reported as PLD 1957 Lab. 914. He contends that "whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that, in a matter in which he is concerned an order be passed in accordance with law.
This too is a right that can be enforced by the Courts in the exercise of its jurisdiction". In PLD 1963 SC 564 it was held that "By its refusal to consider the application of individuals contrasted with those of limited companies, the R. T. A. Was clearly in this case legislating in so far as it was introducing extraneous considerations as determinative of the eligibility of applicants for permits, contrary to the provisions of the Act. To this extent it clearly exceeded its jurisdiction and attracted the superior Courts' power of judicial review". In PLD 1969 SC 223 it was observed that "right con--sidered sufficient for maintaining proceeding in writ jurisdiction is not necessarily a right in strict juristic sense, but it is enough if the applicant discloses that he had a personal interest in the performance of a legal duty which if not been performed or performed in manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. Learned counsel for the petitioner maintains that the petitioner may not be having a right to get the property in question but that she has a right to move the Court, through this petition, to get a declaration that the order, passed in favour of respondent No. 5 is illegal. Whether the petitioner would have got this property if it had not been transferred to respondent No. 5 and whether the petitioner could even now be benefited if the transfer in favour of respondent No. 5 is cancelled are the matters which shall have to be taken into consideration. In a Lahore case reported as PLD 1967 Lab. 938 a Division Bench of that Court came to the conclusion in the case of S. Sajjad Haidar v. Government of West Pakistan etc that the words "aggrieved party" or "person aggrieved" do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of some thing, or wrongfully refused him some thing, or wrongfully affected his title to some thing". In another Lahore case, reported as PLD 1975 Lab. 544 a Division Bench observed that- "Persons though not in strict juristic sense having a particular right yet having a "personal interest" in the performance of the legal duty which if performed in a manner not permitted by law would result in the loss of some personal benefit or advantage to them."
In another West Pakistan case, reported as PLD 1968 Lab. 1155 their Lordships of a Division Bench have observed that- "Party who stands to gain or lose an advantage by observance or non --observance of law, is an aggrieved party'."
In another Lahore case, reported as PLD 1972 Lab. 847 their Lordships have observed that- "A petition under Article 98 can be maintained by an aggrievee person---An aggrieved person must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand."
10. From the above discussion it has become apparent that for the purpose of writ petition before us, aggrieved person should have been person against whom any decision has been pronounced and whose rights has been wrongfully refused to him. If the petitioner cannot be transferred the property in question, under any circumstance, according to law in force, the question whether she can still institute a writ petition in the manner she has elected, might always be open to question.
11. In the cases earlier reported, in the one, reported as PLD 1958 SC (Pak.) 41 their Lordships have observed that "where a statutory functionary acts mala fide or in a partial unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party". In the case reported as PLD 1958 SC (Pak.) 437 it was observed that "the power of the High Court under Article 170 of the Constitution to issue directions, orders and writs is not limited to writs in the English form but extends to the making of orders, restraining or directing any authority or Government which may be discharging executive functions under a Statute". It was held that "the writ requiring transport authority not to issue permit for operating motor vehicle on a certain route writ is one of prohibition and not a mandamus". However, Government Departments carrying their Depart--mental disputes for resolution to High Court in writ jurisdiction was depreciated". In the case reported as PLD 1959 SC (Pak.) 177 their Lordships observed that "the general Rule is that it is wrong on principle to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief". In the case reported as PLD 1961 SC 537 their Lordships of the Supreme Court observed that "nevertheless the argument was raised before us in bar of the issue of a writ that any alternative remedy was possible by way of appeal that an appeal had been filed. That an appeal was actually filed four years ago in each case and no action had been taken on either of them. There is a limit to the patience the subject must exercise before he seeks alternative relief". In the instant case the appeal was filed by the petitioner and the Appellate Authority had fixed a dead line for respondent No. 3 to decide the appeal and report but the petitioner did not wait for that. She immediately rushed to this court and that appeal still remains undecided because the matter was referred to the High Court and the proceedings in the appeal were stayed. In the case reported as PLD 1962 W. P. Lah. 151 their Lordships of a Division Bench of Lahore on a question whether a writ petition could be entertained, where the petitioner had already instituted a suit to get the same relief, it was held that ordinarily a writ will not issue where another remedy is open to the petitioner. However, it was granted that this Rule was not inviolable. In any case it was conceded that "if on consideration of the circumstances of a case it becomes manifest that if the relief sought for is not made available to the petitioner, he would suffer in reputation and possibly in property, when in such circumstances notwithstanding the fact that the petitioner has already instituted a suit to get substantially the same relief, as he is claiming by means of the writ petition, the institution of the suit by him should not stand in the way of the issue- of a writ, if after considering the matter, the Court comes to the conclusion that one should issue". In the instant case, as indicated above in effect it does not appear to be the case of the petitioner that she should have been allotted the site in question but she insists that respondent No. 5 should have not been allotted the same whether or not she is entitled to its allotment in any circumstance. This consideration of the petitioner is distinguishable from the facts of the case, under reference, and, therefore, the general rule will apply and the question would be whether the petitioner could be considered to be an aggrieved person for the relevant purpose. In another Lahore case, reported as PLD 1959 Lah. 175 it was held that the pendency of an appeal under the circumstances of that case was no bar for filing the writ petition, but the facts of that case would have no relevancy over the facts of the present case. In the case reported as PLD 1970 Lah. 821, a similar question was discussed that, "Appeal is an efficacious alternative remedy and the High Court will not ordinarily exercise its power under Article 98 of the Constitution of 1962 where such a remedy has been provided under the law and availed of by the aggrieved party. Where, however, there are allegations of mala fide, excess of jurisdiction and failure to observe the rule of audi alteram parten it does not require any effort to hold that the presence of mala fide or the failure to observe the rules of natural justice corrode the very foundations of jurisdiction. Where such allegations are made the pendency of an appeal will not stand in the way of the aggrieved party to seek relief under Article 98". However, the facts of that case have no application to the present one for the known reasons, stated above.
12. In the light of what has been discussed above, it would become difficult to consider that Mst.
Resham Jan (petitioner) is an aggrieved party, for the purposes of invoking the jurisdiction of this Court under Article 201 of the Interim Constitution 1962 (now Article 199 of the permanent Constitution).
13. It was contended on behalf of respondent No. 5 that the property in question was in possession of respondent No. 5, since seven years, prior to the application, which might mean that it came in his possession in 1960. Before him his father was in possession, since 1952, and he died in 1960 and it was then that respondent No. 5 came in possession in his own right. The period for which his father remained in possession of the suit property is to be tagged to the latter period and, therefore, the possession of respondent No. 5 personally or through his father and predecessor-in- interest commenced in 1952. In the Fard Jamabandi of 1959-60 (Annexure "R") Khasra No. 271 is shown to be in possession of the Hindus. Its area has also been mentioned therein. In Annexure PR- I, Khasras Nos. 1149/271 and 1159/271 it is mentioned that there are shops and vacant site and that in Khasra No. 1149/271 there is a Bus Stand which means that there was construction in it. In Exh. PR-3 also shops and vacant site are shown. From 1952 to 1970 none else has remained in possession of this site and even the petitioner has not alleged that respondent No. 5 has not been in possession of this property. In fact it is not the case of the petitioner that any one else has remained in possession of this property. Therefore, the Bus stand, and the shops and construction over it could not be of any one else. As disclosed in Annexure RA, land bearing Khasra No. 222/225 is some other land and respondent No. 5 has no connection with the same. This is why Khasra No. 271 was transferred to respondent No. 5 which had earlier been allotted to his father. Perusal of Annexure R- 5/1 would show that Gohar Rehman Khan, i.e. Father of respondent No. 5, had applied for the allotment of Khasra No. 271 and be has mentioned the area also. Even the previous ownership of this area has been mentioned which tallies with the one stated in Annexure "R". In Annexure R-5/2 the area has been correctly mentioned but by mistake the numbers of the field have been incorrectly given and this land was allotted to the father of respondent No. 5 on 13-2-1952. As indicated above, the area of this land has been correctly mentioned therein which is distinguishable from the area of Khasra No. 222/225 and necessary rectification was made vide Annexure R-5/3.
14. According to Settlement Scheme No. VII in para. 3 only that person can apply for the transfer of such property if he is in possession of the same prior to 1-1-1961. The petitioner has never been in possession of this plot and the record of the case would show that respondent No. 5, through B his father, and predecessor in interest has been in possession of this plot prior to 1-1-1961. In that view of the matter, the petitioner would have no locus standi because this plot could mever be transferred to her.
15. It has been admitted in the writ petition that the suit site is extended area and on that ground also Mst. Resham Jan could not apply for its transfer. Perusal of Annexure R-5/4 would show that land, bearing Khasra No. 271, was always treated as one unit and for that reason its transfer to Faqir Mohammad was cancelled. This site was treated as one plot and was consequently transferred to Mohammad Iqbal Khan (respondent No. 5). All the four PTOs. Were in respect of only one Khasra No. i.e. No. 271 and it has the same area. Gohar Rehman Khan, father of respondent No. 5, got allotment of this plot in 1952 and the Settlement Authorities have confirmed this transfer. Learned counsel for respondent No. 5 contends that such allotment therefore could not be challenged now. All that was required in view of Settlement Scheme No. VII was that the possession should have been taken prior to 1-1-1961 and that there is a clear proof of this fact that respondent No. 5, through his father got the possession of this land prior to 1-1-1961. Havelian though not an urban area on or before 8- 4-1947 became urban area in 1952. The site in question although Rural area, was included in Urban area as extended area in 1952 and it retained this status as such till 1-1-61 I e. The relevant date. It was urged on behalf of respondent No. 5 that clause B of para 1 of the Revised Settlement Scheme No. V1I, would apply and the manner of disposal of this property will be in accordance with para 3 sub-para. (2) thereof. It was contended that as the plot in question comes within the definition of extended area (fact also admitted by the petitioner in para No. 2 of the writ petition and also proved on record) therefore, it was to be disposed of according to para 3 (2) of the Revised Settlement Scheme No. VII, as such the petitioner, being a Kashmiri Refugee; had no locus standi to claim this property. He further contended that even if it is held that the property in question is a rural area, still the petitioner would have no locus standi to claim it because her right would be a right in anticipation and not a vested right. He added that for the purpose of Settlement laws an aggrieved person must have a vested right because under the new Revised Scheme, the petitioner would have been entitled to claim this property if the same had not earlier been disposed of under clauses (a) to (c) of para 3 thereof particularly clause (c) and that in the instant case this property had been transferred to respondent No. 5, being its occupier under clause (c) and, therefore, there was nothing left for disposal, much less to be transferred to the petitioner. He contended that the Rulings relied upon by the learned counsel for petitioner stand vacated or repudiated by various other Authorities of the Superior Courts. In particular he referred to the Authorities reported as PLD 1972 SC 326 and PLD 1966 SC 512., Yet another Authority of the SC reported as 1968 SCMR 967 citation A and B material) was referred. Two more authorities were relied upon by the learned counsel for respondent No. 5 and these are (1) 1970 SCMR 375 (relevant pages 376 and 380) and
(2) PLD 1963 SC 633 (relevant page 635, para. 1). These Rulings are against the 1970 Ruling of the High Court wherein it has been held that the conversion of Rural Property into Urban Property was ultra vires but these Rulings were given with reference to section 10 (b) which has since been amended by section 10 (1) and (2) and that this law would be applicable to the present case.
16. Mr. Karimullah Khan Durrani, learned counsel for respondent No. 5, further stated that a person in occupation of a property in extended area is not entitled to the transfer of such property under Settlement Scheme No. VII (Revised). He maintained that the power was there to bring into being a class of property into urban property although the same was not urban property on or before 14-8- 1958 but which has become as such before 1-1-1961. He contended that respondent No. 5 applied for it to the Deputy Settlement Commissioner, treating it as au urban property. This part of the argument of the learned counsel for the respondent was in response to the objection raised by the learned counsel for the petitioner but that may not be necessary to be further discussed.
17. Learned counsel for respondent No. 5 denied that respondent No. 5, had been allotted/transferred more properties but added that even if it had so happened, there was no restriction on a number of plots to be transferred to a local allotted under sub-pare. (2). He discussed at length this question and cited various authorities in support of his contention. He maintains that the authority reported as 1974 SCMR 270(?) clinches the matter. He contended that even if it be conceded that it was a rural property, the petitioner would have been entitled to claim it only if entitled persons are exhausted and still the property remains undisposed. He placed his reliance on an authority, reported as 1968 SCMR 175. Ile contended that Havelian had become an urban area before 1-1-1961 and, therefore, the site in question became an extended area within the meaning of Settlement Scheme No. VII (revised). He argued at length to prove that the land in question is included in the urban area and that Havelian is not a Rural area. He maintained the appendices or schedule attached to the Scheme explains the assessment formula where various rates are mentioned and that it does not declare whether or not Havelian is Rural area or urban area. He contended that Havelian is and was an extended area at the relevant time and the site in question could not, therefore, be termed as a Rural area in a major village. This part of the argument should not matter much because in the writ petition itself the petitioner has extensively mentioned this property an extended area. Learned counsel for respondent No. 5 further contended that the petitioner had made a general request for allotment of the property and, therefore, she cannot through this writ petition ask for this specific plot and she cannot be considered as an aggrieved person for the purposes of instituting this writ petition because she is a non-claimant displaced person. He contended that right in anticipation would not make a legal right and posed a question that if more than one Kashmiri Refugees had applied for the transfer of this plot then what would have happened. He submitted that under the circumstances of the case the right of the petitioner, if any was very remote and, therefore, she had no locus standi.
18. Learned counsel for respondent No. 5 then dealt with the question that there was no bar on the transfer of more than one properties to one person and contended that in the instant case all the so-called properties are parts of one Khasra and one plot-unit-block and not different properties.
As the petitioner has no locus standi to ask for the transfer of this property, therefore, she has no locus staudi to file the writ petition, moreso when she has never come in possession of this site.
19. Learned counsel for respondent No. 5 then extensively quoted the proceedings of the case, pending before the Appellate Court and submitted that the parties appeared on 14-9-72 in Appellate Court (respondent No. 3) when the case was transferred by him and that the petitioner did not take any objection before him. The case was adjourned to 20-10-1972. On 29-9-72 the petitioner filed this writ petition, which would show that no delay had occurred nor there was any indication that respondent No. 3 would not decide the case soon. He asked as to why the petitioner did not avail of the legal remedy or wait till the decision of the appeal by respondent No. 3. He submitted that at the time of filing of this writ petition the appeal was sub judice and that it was at the request of the petitioner that the proceedings in that case were stayed.
20. In para. No. 7 of the writ petition, it is stated that respondent No. 5 also got various other properties in Havelian, transferred in his name, under Settlement Scheme No. VII. Three properties have been mentioned which have been transferred to respondent No. 5 much after the transfer of the suit site. It, therefore, follows that at the time when the suit site was transferred to him there was no other property transferred to respondent No. 5. This is apart from the fact all these properties formed part of the area of which the suit site is a part. In any case as this part has not been agitated with any force, it may not be necessary to embark upon lengthy discussion on that score.
21. It may be of interest to note that in this writ petition Mil. Resham Jan is shown to be the writ petitioner, but factually it is one, Malik Mohammad Sadiq c/o Sabir Kiryana Store, Chowk Sabzi Mandi, Abbottabad, who had been conducting these proceedings on her behalf as her general attorney. In fact throughout these proceedings Mst. Resham Jan who claims to be a C claimant displaced person from occupied Jammu & Kashmir State ha nowhere herself figured in any capacity. The writ petition was filed b Malik Muhammad Sadiq and even before that and thereafter it is Malik Muhammad Sadiq who has been conducting these proceedings on behalf of f Mst.
Resham Jan. It was he who engaged his counsel. How far the present effort of Mst. Resham Jan is genuine is manifest from the, proceedings taken in this petition, as also before the Settlement Authorities. As she has herself figured nowhere and it is not fully known as to what relationship Malik Mohammad Sadiq has with her. Babu Mir Afzal (respondent No. 6) is a pro forma respondent.
In fact he is on the side of respondent No. 5 because he joined hands with him and the written statement of Mohammad Iqbal Khan (respondent No. 5) is jointly signed by Babu Mir Afzal through his counsel on 12-4-1974. Thereafter he was proceeded against ex parte and he has taken no interest whatsoever in these proceedings.
22. Khawaja Nazir Ahmad, Advocate, who appeared on behalf of respondents 1 to 4 has vehemently opposed the prayer made in the writ petition He contended that for Settlement Authorities the guiding principles of transfer are whosoever is found in possession of property, that property is transferred to him. He contended that the petitioner had never been in occupation of any part of this property, while respondent No. 5 was in occupation of the same and, therefore, transfer in his favour is valid. He submitted that this petition is not maintainable because in this case, the appeal is pending and in the other two Revision Petitions have been disposed of. He contended that the Dacca Ruling of 1970, relied upon by the petitioner is about the case decided in March, 1966, wherein no reference has been made to the counter authorities of the Supreme Court. He contended that the question of physical occupation of the property is primarily a question of fact and it is not open to High Court to interfere with the finding recorded on such question by the Settlement Authorities (1974 SCMR 276). He contended that the petitioner did submit before the jurisdiction of respondent No. 3 and did not raise any objection as to its jurisdiction. There fore, she cannot be allowed to raise such objection in the writ petition (1974 SCMR 371).
23. Learned counsel for respondent No. 5 maintains that the prayer of the petitioner in this writ petition is to quash the transfer of the suit property in favour of respondent No. 5, as if this Court is required to sit in appeal against the order of the Settlement Authorities. He contended that in the instant case, could this Court go into the disputed facts. He referred to Supreme Court Authority, reported as PLD 1973 SC 514. It was observed by the Supreme Court in that case that "the High Court cannot itself make any executive order, its function being confined to issuing of directions on matters of law. Therefore where an Administrative or Executive Officer acts under the law, the High Court will control the action by an appropriate order only if it goes out of law, i.e. Exercising of jurisdiction not vested in him by law". He contended that in the instant case even if the petitioner succeeds, her success would be to the extent that at the most direction can be given by this Court to Settlement Authorities to expeditiously dispose of this case or that D. S. C. Haripur (respondent No. 2) should not decide this case because the transferring authority was not competent to transfer this case to him. He submitted that as a matter of fact no such prayer has been made in the petition. Moreover, no such objection could be taken before the proper forum. He, however, would not concede that the D. S. C. Had no such powers.
24. The overall effect of the above discussion would be that the petitioner in whose favour the suit site could not be transferred is not an aggrieved person for the relevant purpose nor she has got any locus standi to file a writ petition. She is a "Kashmiri refugee". The dispute between the parties is pending before respondent No. 3 and, therefore, pending disposal of that case before him it could not be held that the action of the petitioner to come to the High Court with a writ petition was proper. Being a Claimant Displaced person from occupied Jammu & Kashmir State, this property could not be transferred to her. For these reasons I find no substance in this writ petition and it is consequently dismissed with cots.
25. While taking leave of this case, I would like to observe that this writ petition was instituted in this Court on 27-9-72 and it remained un--attended to for almost five years. Such cases and particularly those in which appeals are pending before the relevant Courts, it was expected that this petition should have been fixed up for final hearing much-, earlier than it was done.