1. G. SAFDAR SHAH, J.-The circumstances under which the petitioners have come up to this Court praying for leave to appeal against the judgment of the Peshawar High Court, dated 1-7-1974, are as follows :-- Land measuring 18 kanals and 15 marlas comprised in Khasra Nos. 492, 352 and 348 (Khata No. 263/264) situated what has been called as Tukra No. 1 within the Municipal limits of Peshawar City was owned by a Hindu gentleman. The said gentleman leased out the land in question to late Ahmad Gul (father of respondent No. 6), vide sale deed dated 10-11-1935, for a period of eight years.
2. By another deed, dated 20-4-1944, be again leased out the land in favour of Ahmad Gul for a further period of eight years, i. e. Up to the year 1952. In the said two lease deeds, to which the learned counsel for the petitioners referred, the land was described as agricultural land and was leased out for the purpose of agriculture on a part of which, however, are said to have existed two rooms and a verandah. On the eve of Partition, however, the said Hindu gentleman migrated to India, and consequently the land in dispute became evacuee property. The record would show that the said land was successively allotted to claimants displaced persons to whom respondent No. 6, after the death of his father Ahmad Gul, attorned as tenant and paid them the due rent. The case of the petitioners is that in 1959, out of the said land, 14 kanals of land was allotted to their father, named, Syed Saadat Hussain to whom also respondent No. 6 attorned as tenant and paid him the rent. But subsequently he stopped paying the rent, and instead, by associating himself with a displaced person, he filed an application before the Deputy Settlement Commissioner on 18-11-1959 for the transfer of the land on the ground that the same was evacuee trust property, with the result that his application was allowed and the land was allotted to him. On 22-4-1960, however, the Deputy Settlement Commissioner, in pursuance of the prior permission obtained by him from the Additional Settlement Commissioner, reviewed the said order and cancelled the allotment made in favour of respondent No. 6 on the ground that the property was not an evacuee trust property and the same had been shown as such property by mistake in the relevant record. It seems that respondent No. 6, notwithstanding the said order of the Deputy Settlement Commissioner, continued to remain in possession of the property until 1966, when it was put to public auction.
3. Respondent No 6, however, objected to the said action taken by the Department, as also that the land in question had been converted by his late father to Industrial use long before the partition of the Indian sub-continent and, therefore, the same should be transferred to him. In the events that happened, however, respondent No. 6 had earlier gone in appeal against the order, dated 22-4- 1960 passed by the Deputy Settlement Commissioner, by which he reviewed his earlier order and cancelled his allotment, before, the Additional Settlement Commis--sioner, vide his order, dated 9- 9-1961, the learned Additional Settlement Commissioner, remanded the case to Deputy Settlement Commissioner with directions : (1) to find to the actual nature of the property ; and (2) whether the property in question could be transferred to respondent No 6 as Industrial concern under the notification, dated 4-5-1960, issued by the Chief Settlement Commissioner. It seems that the Deputy Settlement Commissioner, who was already seized of the application filed before him by respondent No. 6 seeking through it the transfer of the land in dispute as Industrial concern, allowed the said application, vide his order dated 14-12-1966, after having removed the property from the auction list.
4. The record would show that at this stage the petitioners appeared on the scene, as previous to it they had remained indifferent as to the fate of the property, and appealed before the Settlement Commissioner complaining against the order of the Deputy Settlement Commissioner, dated 14- 12-1966, by which the land in dispute was allotted to respondent No. 6 as an Industrial concern. On 27-3-1968, however, the counsel of the petitioners withdrew the said appeal contending that he would rather seek his remedy before the Chief Settlement Commissioner. On the said statement made by the counsel of the petitioners, the learned Settlement Commissioner dismissed his appeal ; thereafter the petitioners filed a Miscellaneous Application before the Chief Settlement Commissioner praying therein that the allotment of the land in dispute to respondent No. 6 as an Industrial concern should be cancelled, as the land was agricultural land and not an Industrial concern. The Chief Settlement Commissioner, however, vide his order, dated 16-8-1971, returned the said application to the petitioners for presentation before the proper forum, as according to him against the said order of the Deputy Settlement Commissioner there existed a right of appeal before the Settlement Commis--sioner. The learned counsel for the petitioners admits that after the said order was passed by the Chief Settlement Commissioner, the petitioners went back to the Settlement Commissioner, filed before him a fresh appeal in which he also prayed that his earlier appeal, which was dismissed as withdrawn by order dated 27-3-1968, be revived and disposed of on merits. Vide his order, dated 6-11-1971, however, the learned Settlement Commis--sioner refused to oblige the petitioners, and consequently dismissed their fresh appeal on the ground that it was not competent. Feeling aggrieved of the said order, the petitioners filed writ petition against it in the High Court on grounds, amongst others------
(1) that he had been condemned unheard by the functionaries of the Settlement Department, and consequently the order of allotment made in favour of respondent No. 6 was a nulity in law ;
(2) that since the allotment made to him had still not been cancelled, the allotment of the land in dispute as an Industrial concern in favour of respondent No. 6 was without jurisdiction ;
(3) that the land in dispute had always remained as an agricultural land and consequently the same could not be transferred to respondent No. 6 as an Industrial concern;
(4) that without deciding the issue as to the nature of the property, which according to respondent No. 6 was an evacuee trust property, the same could not have been transferred to the said respondent ; and
(5) that respondent No. 6 had not come to the Court with clean hands as be had been taking inconsistent stands and making misrepresenta--tions a' s to his own right to get the land allotted to himself at all costs.
5. In the written statements filed by them, respondent No. 6, as well as the Settlement Department, denied the various allegations made in the writ petition filed by the petitioners. In his very elaborate and lucid order, the learned Judge in the High Court first traced the factual history of the land in dispute and thereafter dealt with each conceivable contention urged on behalf of the petitioners some of which had not even been urged in the grounds of his writ petition. Taking up the first contention of the petitioners that the land in dispute was not only agricultural land but was never used, as an Industrial concern, the learned Judge observed that "This property, however, was never used for agricultural purposes since before Partition and it could not, therefore, come within the definition of land given in section 2, subsection (3) of the Land Settlement Act. This property was situated in the Municipal limits even before Partition and was used for purposes other than agriculture, and since its value was admittedly more than Rs. 10,000 it was, therefore, to be dealt with as urban immovable property and the Settlement authorities under Act XXVIII of 1958 had jurisdiction to deal with it".
6. The learned counsel for the petitioners, however, objected to this finding recorded by the learned Judge saying that it was based on no evidence. In this behalf, however, the learned counsel is evidently mistaken. On the record of the High Court were filed on behalf of respondent No. 6 documents Rs. 6/2, dated 11-6-1974; Rs. 6/3, dated 11-6-1974 ; Rs. 6/4, 25-8-1947 ; Rs. 6/5, dated 10- 6-1958 ; Rs. 6/6, dated 18-1-1959 ; Rs. 6/7 ; dated 30-4-1961 ; Rs. 6/8, dated 30-10-1961, and quite a few other documents which are not really relevant to the contention urged by the learned counsel for the petitioners. Now a perusal of document Rs. 6/2 (which appears at page 74 of the High Court record) would show that it is a certificate issued by the Sub-Divisional Officer Electricity, Peshawar, on 11-6-1974, saying therein that------ "this is to certify that connection in the name of Mr. Ahmad Gul Contractor, A/c. No. XI/9 and 9-A, for his Mill near Karim Shah Bokhari Krishanpura G. T. Road Peshawar City was sanctioned on 12-8-43 (the date on4hich meter security was deposited as per record)."
7. A reference to para. 3 of the written statement filed by respondent No. 6 in the High Court would show that what he had alleged therein under the heading "factual" was "the property in question was leased out in 1935 by the evacuee owner to the father of the Replying respondent Ahmad Jan, who constructed several Kothas on it in addition to his having installed saw Mills in the property in question. Some of the documents in the shape of electric supply connection certificates for the Meter connection for the saw Mills in the years 1943 and 1949 are annexed as Annexure R. 6/2 and R.
8. 6/3. The licences from the Municipal Committee for the years 1947-48 and 1958-59 are attached as Annexures R. 6/4 and R. 6/5". The petitioners do not seem to have denied the said claim made by respondent No. 6, as there is nothing on the record of the High Court to show that he had filed any rejoinder to the written statement filed by the respondent. In this view of the matter, it is clear to us that as early as in the year 1943, the land in dispute had already been converted to Industrial use by the late father of respondent No. 6, as also that he had obtained the requisite licences in that behalf from the Municipal Committee, Peshawar, in the years 194 and 1958, vide Annexures R. 6/4 and R. 6/5. We are, therefore, satisfied that the finding recorded by the learned Judge, to which objection has been taken by the learned counsel for the petitioners, has no force in it.
9. Furthermore the order of the Additional Settlement Rehabilitation Commissioner, Peshawar, dated 14-12-1966, by which the land in dispute was transferred to respondent No. 6 as an Industrial concern is an elaborate, speaking and very lucid order in which all the history of the land in dispute has been recalled by him, and thereafter he recorded the following finding :- "So far as the eligibility of the petitioner, Ahmad Jan is concerned, it is evidently clear that he is in possession of the land which has been converted into an industrial concern over which he has installed a saw Mill and other machinery and has constructed pucca kothas. His case, therefore, comes rightly within the purview of para. 2 of Memo. No. 2177/17 & M/Reh-60, dated 4-5-1960 as already observed by my predecessor and he can be held entitled for the transfer of the said property as an industrial concern wherein he has installed a saw Mill, bandsans, trollies and other machinery. The inspection of the site actually revealed that such machinery is duly installed and is in working order. The property in dispute, I am informed by the office, is duly assessed and the case of the petitioner for the purposes of conversion into industrial concern is covered by para. 2 of Circular Memo. No. 2177/17 & M/Reh-60, dated 4-5-1960 and he will pay 50 over and above the prevailing market value."
10. Now this finding recorded by the learned Additional Settlement Rehabilita--tion Commissioner, which was reached on the basis of his own observations, after he visited the site as well as the inspection of the machinery installed B thereon, would go a long way to support the claim of respondent No.6 that the land in dispute had been converted into industrial use by his let father long before the Partition of the Indian Sub-Continent.
11. The learned counsel for the petitioners, however, argued that even if the land in dispute had been so converted as an industrial concern, even then it could not have been transferred to respondent No. 6 under para. 2 of the aforesaid memo issued by the Chief Settlement Commissioner on 4-5- 1960. Apart from the fact that the Additional Settlement Commissioner was more suited to assess the nature of the land in dispute, and consequently it would not lie in our jurisdiction to upset his finding which was reached by him on the spot inspection of the site, the contention urged by the learned counsel has no merit in it. In this behalf reference may be made to para. 2 of the aforesaid memo. Issued by the Chief Settlement Commissioner, which is to the following effect :----- "(2) In case where building is an evacuee property and machinery installed therein is owned by a non-evacuee or vice versa, only evacuee interest in the property may be transferred to the person in posses--sion."
12. Now the clear language of the said para. Would show that respondent No. 6 was indeed entitled to the allotment of that part of the land in dispute on which stood the structures housing the saw Mill installed by him therein, and this is precisely what has been allotted to him by way of the P. T. D., dated 10-6-1968, which appears on the record of the High Court as Annexure R. 6/11. In this behalf the finding recorded by the learned Judge in the High Court may be noted; "Before proceeding with the discussion of the writ petition on merits, I would like to maintain here that learned counsel for respondents 6 to 8 conceded that in view of the Permanent Transfer Order dated 10.6-1968 (Annexure R. 6/11) in favour of Ahmad Jan an area of only 8 kanals 6 marlas, on which some kothas and the saw--mill stood had been transferred to his clients and that his clients could not claim more than that area".
13. The learned counsel, however, instead of proving the case of his own clients went on criticising the right of respondent No. 6 saying that he had no right to have been transferred the land in dispute.
14. Mr. S. M. Zafar, the learned counsel for respondent No. 6, in support of the finding recorded by the High Court to the effect that the petitioners had no locus standi to have invoked the writ jurisdiction contended that after having withdrawn their appeal filed by them before the Settlement Commissioner on 27-3-1968, the petitioners could not invoke the Constitutional jurisdiction of the High Court ; that the land in dispute was twice auctioned in the year 1960 and again on 14-12-1966 but the petitioners evinced no interest in the matte whereas the said auctions were got set aside by the efforts of respondent No. 6 ; that in any event the claim held by the petitioners related to agri--cultural land whereas the land in dispute had been converted to Industrial use since before the Partition of Indian Sub-Continentand that the land in dispute has already been permanently settled in favour of respondent No. 6, as in that behalf he has been issued Permanent Transfer Deed. There seems to be force in the contentions urged by Mr. S. M. Zafar. After having withdrawn their appeal filed by them before the Settlement Commis--sioner, which was accordingly dismissed as withdrawn, the petitioners could not have possibly invoked the Constitutional jurisdiction of the High Court. Furthermore, by their own conduct they seem to have evinced no interest in the land in dispute when the same was twice publicly auctioned and this again would disentitle them to the grant of any equitable relief in writ proceeding-the more so when in the meanwhile the land in dispute has been permanently settled in favour of respondent No. 6 by the Settlement Department.
15. We are, therefore, satisfied that the petitioners, who have no locus standi in the matter, have also no case on merits. This petition, therefore, fails and is dismissed.