1. NASIM HASAN SHAH, J.--This appeal, by special leave, is directed against the judgment of a learned Single Judge of the Lahore High Court, whereby he accepting the writ petition (W. P. No. 1052-R/63) filed by the respondents Nos. 1 and 2 set aside the orders of the Settlement authorities transferring the property in dispute in favour of the appellants.
2. The dispute relates to House No. G/70, Gobindpura, Rawalpindi City. The appellants are heirs of Azizur Rehman, a claimant displaced person. While the contesting respondents (respondents 1 and 2) are the heirs of Muhammad Khan, a non-claimant displaced person. The dispute has arisen in the following way ;- Azizur Rehman, who had a verified claim of over 3 lacs entered into possession of the house in 'dispute in April, 1958 which was later allotted to him on 19-7-1958 by the Deputy Rehabilitation Commissioner. It appears that some time in June, 1958, Muhammad Khan trespassed into the house and got into possession thereof. On an application made by Azizur Rehman the Deputy Rehabilitation Commissioner ordered his ejectment. The latter filed an appeal which was dismissed by the Additional Rehabilita--petition Commissioner on 6-8-1959. He, then, moved the Rehabilitation Commissioner by a revision petition which, too, was dismissed by order dated 19-1- 1960. However, it was directed that he may not be ejected at that stage as the question of the transfer of proprietary tights was under consideration. Accordingly, the status quo with regard to the possession was maintained. Muhammad Khan, therefore, continued in possession despite the order of ejectment passed against him.
3. As Azizur Rehman had failed to obtain possession of the house in dispute and under the then existing rules it was not possible to obtain restoration of possession he decided to withdraw his application on Form C. H. And try his luck in the earmarking scheme. This was not possible unless he withdrew his C. H. Form. He, therefore, applied to the Deputy Settlement Commissioner for withdrawal of his C. H. Form on 5-12-1959 and the same was cancelled vide order dated 6-12-1959.
4. He then submitted Form 'E' to obtain another house through earmarking. In this, however, he was unsuccessful and did not succeed in getting any property transferred in his favour under the earmarking Scheme. Azizur Rehman, therefore, on 14-5-1960 applied for the restoration of his C. H.
5. Form. He was encouraged to take this step as the Government was then in the process of formulating a new policy whereby allottees of properties, who despite their best efforts had not succeeded in obtaining possession of the houses or shops allotted to them were to be made eligible for their transfer. On this application the Deputy Settlement 'Commissioner passed an order that "it will be considered after orders are received from the Government with regard to the cases of this type". In other words Azizur Rehman's application dated 14-5-1960 was kept pending till the receipt- of orders .Of the. Government for disposal of such cases in which allottees bad not been able to obtain possession. These orders were issued by a Notification dated 11-8-1960 of the Central Government in the following terms :- "No. F. 3(3)/60-SI.-In exercise of the powers conferred by the second proviso to clause (b) of section 2 of the Displaced Persons (Compensa--petition and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to order that the allottees of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation Authority and who, through no fault or negligence of their own, have so far been unable to obtain physical possession of the house or the shop in question shall b-. Deemed to be in possession thereof for the purpose of the said Act."
6. Normally, after this order of the Central Government, the case of Azizur Rehman for the restoration of his C. H. Form and- transfer of the house to him should have been taken up. Instead, however, the Deputy Settlement Commissioner took up the case of Muhammad Khan, who had filed an N. C.
7. H. Form and by his order dated 21-2-1961 transferred the house in dispute in his favour on the assumption that he was the only person interested in its transfer ignoring altogether the application of Azizur Rehman for the restoration of his C. H. Form and transfer of the house to him in the light of the new law whereby he was to be deemed to be in possession of the house in dispute, being its allottee.
8. Azizur Rehman, therefore, applied to the Deputy Settlement Commis--sioner for setting aside the said order of transfer of the house in favour of Muhammad Khan by means of review. The Deputy Settlement Com--missioner after obtaining permission of the Additional Settlement Commis-- sioner, accordingly, cancelled the transfer of the house in favour of Muhammad Khan dated 21-2- 1961 and ordered the transfer of the same in favour of Azizur Rehman vide his order dated 28-3-1961 on the ground that under the changed law he was to be deemed to be in possession of the house in dispute, being its allottee and had duly secured an ejectment order against Muhammad Khan which could not be implemented for want of any fault or negligence on his part. Respondents Nos. 1 and 2, the heirs of Muhammad Khan, feeling aggrieved, filed an appeal before the Additional Settlement Commissioner against this order, who dismissed it by his order dated 27-4-196.1 observing, inter alia, that :- "Muhammad Khan's declaration of eligibility that he was in undisputed possession of the house was, therefore, a deliberately false declaration. In view of the above, cannot possibly deprive a claimant displaced person with a huge unutilized claim of over 3 lacs to the transfer of the house duly allotted to him, only to provide non-allottee and unauthorised non-claimant as the appellant is at the cost of the widow and. Children, if any, of Azizur Rehman deceased. I, therefore, see no reason to interfere with the Deputy Settlement Commissioner's decision."
9. A revision petition before the Settlement Commissioner against the above order of the Additional Settlement Commissioner was filed by the respondents but that, too, was dismissed on 19-5-1962.
10. Having exhausted all remedies before the Settlement authorities, respondents' Nos. 1 and 2 filed a writ petition (W. P. No. 1052-R/63) in the Lahore High Court to challenge the orders of the Settlement authorities transferring the disputed house in favour of Azizur Rehman on his C. H. Form on the ground 'that he having withdrawn his C. H. Form to enable him to participate in the earmarking scheme was not eligible for the transfer of the house on his C. H. Form, nor it was otherwise open to him to withdraw from the earmarking scheme and to seek the restoration- of C. H. Form. This writ petition was heard by a learned Single Judge of the Lahore High Court, who relying upon a judgment of this Court in Syed Azizur Rehman v. Mst. Habib Bano PLD 1972 SC 52,accepted the above plea, set aside the transfer of the disputed house in favour of Azizur Rehman. However, being of the view that the question whether Muhammad Khan could, in the circumstances of the case, be considered to be in possession was a moot question directed the Deputy Settlement Commissioner to dispose of the N. C. H. Form filed by him, after examining this aspect of the matter, in accordance with law.
11. Azizur ltchman v. Mat. Habib Bano this Court had taken note of the terms of the declaration that was to be submitted by persons participating in the earmarking scheme, namely :- "I hereby declare-
(a) that I have not applied for the transfer of a house to me in Form 'CH' that I had applied in Form 'CH' (Registration No------------------------..) but have withdrawn (my application No . . . . . ., dated . . . . .)/my application has been rejected;
(b) that I have not submitted any application in this form to any other authority.
12. Or ' that I have failed to get any of the houses earmarked in my previous application (Registration No . . . . . . .) submitted to---------------------..
(c) that I am-not a Jammu &' Kashmir claimant
(d) that the information supplied by me is correct to the best of my knowledge acrd belief and I have neither concealed nor .Misrepresented any fact." and observed; that the above declaration attached to Form B' appeared to be in the' nature of a condition precedent to participation in the ear--marking scheme and proceed" to' observe as follows :- "This also appears to us, to be a reasonable condition, for a person ought not normally to be allowed to participate in two different schemes. The Scheme No. V was really provided for those claimants displaced. Persons, who were not in a position to get a house transferred to them under the Schedule to the Displaced Persons .(Compensation and Rehabilitation) Act of 1958. Thus, even if they had filed a C. H. Form for a house but they were not certain that they would be heldto be entitled to the transfer thereof, they could, if so desired, abandon their claim under the Schedule and participate in the earmarking scheme. In the circumstances, we see no reason to depart from the law laid down by this Court in more than one case. There are no valid outside for distinguishing those cases from the present. The ratio 5 these decisions appears to be that the choice has to be made at the time of making the application in Form B' and the choice so made is irrevocable. In our view, the filing of the 'E' form did amount to the withdrawal of the C. H. Form, if any, had already been filed."
13. Before us, it was contended that the case of the appellants was distingui--shable from Habib Bano's case in that the principal question that fell fordetermination in the precedent case was whether or not the filing of Form 'E' by a claimant in order to participate in the earmarking scheme per se resulted in the withdrawal of the C. H. Form: This question stands on a different footing from the question arising in the instant case, namely, whether a claimant can, upon his failure to secure a. House under the earmarking scheme, seek the restoration of his C. H. Form, which he had filed earlier and stood cancelled after the submission of Form B'. In support of his submission that this was possible, learned counsel for the appellants placed his reliance upon a decision of the Lahore High Court entitled Sheikh Rashid Ahmad v. Settlement Commissioner (1). This decision was later upheld by this Court in Sh. Rashid Ahmad v. Settlement Commissioner, Lahore and others (2) and the following passage from the last-mentioned judgment was strongly relied upon :- "The learned Judges of the High Court have come to the con--clusion that the view of the Settlement Commissioner that the C. H. Form of Dr. Inayatuallah Shah could not be revived and restored under any provision of law is erroneous. They held that the Additional Settlement Commissioner in revisional jurisdiction under section 20(3) of the Displaced Persons (Compensation and Rehabi--litation) Act, 1958 was fully competent to call for the record of any case or proceedings in order to satisfy himself about the propriety and validity of any order of his subordinates, and could pass such order as he deems fit. The power of the Revisional authority in this respect was held to be very wide and extensive. On this view they further held that the Additional Settlement Commissioner could in exercise of his power restore the C. H. Form withdrawn by Dr. Inayatullah Shah to the file and there was nothing in the law to prevent him from doing so." .
14. This Court with reference to the above findings,. Went on to observe :- "It seems to us that the view of the High Court that the power of the Revisional Authority under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, is very wide is based on proper appreciation of the said provision of law. Under this provision of law a revisional authority , is entitled to consider the propriety and the legality of the order of the Subordinate authorities. This power, in our view, is very wide and . The Revisional Authority is competent to pass any order which it finds fit in the circumstances of the case. It is, therefore, quite clear that the learned Additional Settlement Commissioner had ample jurisdiction in the matter and was competent to restore the C. H. Form of respondent Dr. Inayatullah Shah."
15. Dealing with the contention that Dr. Inayatullah Shah having submitted Form 'E' his C. H. Form stood cancelled, it was observed that this, no doubt, was so, as already held in A.I>sghar Hussain and another v. Dr. A. H. Hamid Musa and another (3) that "mere making of an application in Form `E' to join in a lottery of earmarked houses operates by itself as cancellation of any application made in Form C. H." but the question that still survived for consideration was whether after he was unsuccessful in the earmarking proceedings, was it not open to him to ask for the restoration of his C. H. Form ? These observations, it was submitted, indicated that this Court clearly envisaged the possibility of restoration of C. H. Form in such circumstances. The question was thus res integra.
16. Learned couns9l further pointed out that in Mst. Habib Bano's case, there was no application for the restoration of C. H. Form and, therefore, the observations in that judgment that the option once exercised in the relevant regard was irrevocable was in the nature of obiter dicta. It is, therefore, necessary to examine this Court's judgment in the said case in some detail.
(1) PLD 1969 Lah. 891 , (2) 1970 SCMR 278
(3) 1968 SCMR 475 The observations made in Mst. Habib Bano's case to the effect "that the ratio of these cases appears to be that the choice had to be made at the time of making the application in Form `E' and the choice, so made, was irrevocable" was based on the three eases noticed earlier in the said judgment. None of these cases dealt with the question of restoration of C. H. Form which was with-- drawn for the purpose of participating in the earmarking scheme. In the first case referred to in the judgment, namely, Ch. Abdur Rashid v. The Chief Settle--ment Commissioner C. P. S. L. A. No. 73 of 1975, decided on 9-5-1965, it was held that the filing of Form `E' amounted to withdrawal of C. H.
17. Form. In that case the displaced person participated in the earmarking scheme and after being successful in drawing a lot for a house declined to take the house at the price assessed by the Department and the question appears to have been whether he could do so and press for transfer on his C. H. Form. Thus, after being found eligible for transfer of a property under one scheme whether he could press his claim under another.
18. Asghar Hassain and another v. Dr. A. H. Hamid Musa and another, the principle laid down simply was that an application in Form 'E' to join in the latter for earmarked houses operated by itself as cancellation of any application made in C. H. Form. In this case, Dr. Musa was transferred a house on his C. H. Form by the Deputy Settlement Commissioner. His opponent Asghar Hussain had filed an appeal against this order before the Additional Settlement Commissioner. Being apprehensive of the result of the appeal. Dr. Musa submitted an application under Form 'E' and was successful in drawing a house in the lot. He did not like this house as it was situated close to the quarter of a prostitute and refused to take it and prosecuted his appeal which was dismissed. This Court held that he could not pursue his C. H. Form observing as follows;- "The lottery was drawn on the 21st December, 1959. The decision in the appeal was announced on the 3rd January, 1960, and went against him. This rendered his participation in the earmarking scheme effective in all respects, i.e., it would be deemed that his application in- Form C. H. Was cancelled as from the filing of his Form `E' application, and he had to proceed with the scheme till its final termination, that is to say, till transfer of the house he drew was made to him. The only circumstances in which substitution of a house drawn in an earmarking scheme by another house are permissible are those specified in the Central Government's instruction of the 7th April and the 28th July, 1960, namely, where the house drawn in a participant's favour could not be transferred to him on account of its acquisition by the Government or for any other reason", such claimant would be entitled to choose another house out of an earmarking or an auction list under certain conditions. Mere refusal of a house by the successful claimant in an earmarking cannot be accommodated within the circumstance cited Above."
19. It is apparent, therefore, that this case, too, did not decide the question of restoration of an application made in C. H. Form after being unsuccessful in the earmarking process.
20. The last-mentioned decision noticed in Habib Bano's case is that of Sh. Rashid Ahmad v.
21. Settlement Commissioner wherein the dictum in Asghar Hussain's case, namely, that "mere making of an application in Form `E' to join in a lottery of earmarked house operates by itself as cancellation of any application made in Form C. H." is reproduced. However, the passage cited from that judgment above clearly envisages on the other hand, the possibility of restoration by the claimant of his C. H. Form after he was unsuccessful in the earmarking proceedings. Consequently, the observations made in the precedent cases that the choice had to be made at the time of making of the application in form `E' and the choice so made was irrevocable implies that a claimant, who had filed a C. H. Form cannot, after submitting his form 'E' for participating in the earmarking scheme, assert that he had not withdrawn his C. H. Form. On submission of the form `E' he must be held to have withdrawn his C. H. Form which will stand cancelled. However, this does not mean that if he fails to get any house in the earmarking scheme he is debarred from getting any house whatever. In case, he fails to get anything on his aforesaid Form 'E', the said form will stand exhausted and be of no legal avail. In these circum--stances, it would be unreasonable to think that because a form `E' was submitted at one stage he cannot now get any other house transferred in his favour and is even precluded from getting the same house for which he had earlier applied on his C. H. Form and. which is still available for transfer and by getting his C. H. Form restored. which he had submitted a C. H. Form earlier.
22. The policy underlying in the Displaced Persons (Compensation and Reha--bilitation) Act, 1958, is that no displaced person is eligible to the. Transfer of) more than one house and the provision that by participating in the ear--marking scheme by filing `E' Form, the Form C. H. Will stand cancelled is intended to guard .Against the possibility of a person getting two houses and/ or exchanging houses under one Scheme in favour of another. Any other construction would tantamount to penalising the displaced person of his statutory right under the Act to get a house, if he chooses the alternative of being compensated through earmarking process but failing to obtain any compensation therein for no fault his is desirous of obtaining the house under Scheme No. I. The object of the Displaced Persons (Compensation and Rehabilitation) Act is to compensate and rehabilitate displaced persons and not find pretexts to debar a remedy which may be available- under the law.
23. There is another aspect of this case. On 14-5-1960, when the appellants applied for restoration of their C. H. Form and for transfer of the house to them, the house was available for transfer, as it had not been transferred to Muhammad Khan by then on his N. C. H. Form. In fact, the Deputy Settlement Commissioner while disposing of the N. C. H. Form of the respondents was duty, bound to consider whether any other person ha applied for the same property and, in fact, could pass the order of transfer in his favour only after taking into consideration his claim, as laid down in para. 8 of the Settlement Scheme No. I. While ordering the transfer of the house in favour of the respondents, on 21-2-1961, no attention has been paid to the circumstance that the application of the appellants for restoration of their C. H. Form was duly pending. Therefore, before the order of transfer in favour of the respondents was passed on 21-2-1961 their eligibility for the transfer of the house had to be considered. In failing to do so, the Deputy Settlement Commissioner committed an error which was paten on the face of the record and his order was rightly interfered with by way of review. It is clear that the property was still available, as it had not yet been transferred to any other person, when the appellants applied for the restoration of their form on 14-5-1960. As for the eligibility of the appellants, there was no bar under any law preventing the transfer of the house in their favour as they had not been transferred any other property, hence their entitlement to the property had to be considered before the order of transfer was passed on 21-2-1961 in favour of the respondents aid in failing to do so, the Deputy Settlement Commissioner had acted against the law. I may also be pointed out that even if the C. H. Form of the appellants stood withdrawn they were still entitled to apply for the transfer of the house. Their entitlement, as has been noted earlier had arisen out of the order of the Central Government dated 11th August, 1960 on the subject of transfer of houses and shops to allottees without possession. The Chief Settlement Commissioner - issued a notification on 6th September, 1960 inviting applica--tions from the persons entitled to the transfer of houses and shops in accordance with the above-mentioned order of the Central Government and paragraph 4 thereof stated :- "Any person who has now been made eligible and who had already submitted an application in such form, should submit an application on blank paper to the Deputy Settlement Commissioner referring to the previous application and establishing his entitlement to the transfer of the house or the shop in question on the basis of the ejectment proceedings ordered by a competent authority in his favour."
24. The application of the appellants was precisely covered by the above notification. Accordingly, their application for restoration of their C. H. Form and transfer of the house to them was liable to be considered even under this dispensation and they were entitled to the transfer of the house as was ultimately ordered by the Deputy Settlement Commissioner on 28-3-1961, which order was maintained on- appeal and revision by the Additional Settlement Commissioner on 27-4-1961 and the Settlement Com--missioner on 19-5-1962.
25. The result is that from every angle, the order of the Settlement authorities reviewing the order of transfer passed in favour of the respondents and transferring the house in favour of the appellants .Was a legal, just and proper order and was not liable to be interfered with. The reliance by the High Court on the case of Syed Azizur Rehman v. Mst. Habib Bano and 5-others, for interfering with the orders of the Settlement authorities was not justified and, therefore, the judgment passed by it cannot be sustained. The upshot is that this appeal must be allowed. The judgment and order of the High Court dated 24-11-1972 is, accordingly, set aside and the orders of the Settlement authorities passed on 28-3-1971, 27-4-1961 and 19-5-1962 transfer--ring the house in dispute to the appellants is restored.