' MRS. IRSHAD QAISER, J.---Haji Shah Zaman Baig petitioner seeks constitutional jurisdiction of this Court and praying that:- "It is, therefore, prayed that the judgments and order of the respondents Nos.1 to 3 be struck down and set aside and the petitioner be declared as the owner of house/Bala Khana No,429 as per PTD or any other appropriate relief for which the petitioner is held entitled."
2. The brief and essential facts leading to the present petition are that petitioner claims that property bearing No,429 consisting of a house cum 'Bala Khana' along with two shops Nos.427 and 428 being evacuee property, situated in Lohar Gali, Abbottabad was allotted to him in the year, 1948. However, in the year, 1960 the shops were declared as commercial, while 'Bala Khana' as residential properties. The allotment of shops was cancelled from the claim of the petitioner and only 'Bala Khana' bearing No,429 was allotted to the petitioner and that too on evaluation basis, for which the petitioner had paid Rs,5,040 vide final order of Settlement Commissioner, Peshawar dated 8-3-1967.
' In pursuance to the notice dated 28-6-2003 issued by Tehsil Municipal Administration, Abbottabad for demolishing the building being hazardous, the petitioner demolished 'Bala Khana' for reconstruction. In the meanwhile, Haji Imtiaz Ahmad and Haji Muhammad Riaz (respondents Nos.4 and 5) moved an application before Deputy Settlement Commissioner, Abbottabad (respondent No,3) for allotment of room contiguous to their shops situate in 'Sarafa' Bazar, Abbottabad. Respondent No,3 issued a notice dated 22-7-2003 to the petitioner and he replied thereto. Respondent No,3 inspected the spot and measured the shops etc and declared that one room behind the shops was the property of the Government vide order dated 20-8-2003. It was claimed by the petitioner that in fact house No,429 consisted of one room behind shops Nos.427 and 428 and 'Bala Khana' thereon. The 'Bala Khana' consists of Kitchen, drawing room, bath room and staircase.
3. The petitioner preferred an appeal before Settlement Commissioner, Abbottabad (respondent No,2) against the order of respondent No,3 dated 20-8-2003. The said appeal was accepted, however, the revision petition filed by respondents Nos. 4 and 5 was allowed and the said decision was set aside by Chief Settlement Commissioner, Peshawar and remanded the case back to respondent No,2 for decision afresh. After remand, respondent No,2 dismissed the appeal on 21-5- 2008 and the revision filed by the petitioner thereagainst was also dismissed by respondent No,1 vide order dated 6-10-2009. Hence, the instant petition.
4. Learned counsel for the petitioner vehemently argued that the room behind the shops and staircase being part and parcel of 'Bala Khana' were in fact purchased by the petitioner in lieu of consideration; that learned counsel while placing reliance on Pakistan Transport Company's case (2002 SCM R 1470) contended that issue of allotment of evacuee land to the petitioner had attained finality and it could not be reopened after the repeal of Displaced Persons (Land Settlement) Act (XLVII of 1958) with effect from 1-7-1974 being past and closed transaction; that after repeal of the Act, respondent No,3 had no jurisdiction to reopen the past and closed transaction or to proceed on the application of the private respondents Nos. 4 and 5; that even Notified Officer was not competent to re-open the matter already finalized under the relevant statute before the repeal of evacuee law except those matters which were pending at the time of promulgation of Evacuee Property and Displaced Persons Law (Repeal) Act, 1975; and that the order passed by respondent No,3 was in clear violation of the law on the subject and he had no jurisdiction to re-open the matter. Learned counsel for the petitioner placed reliance on Mst.Badshah Begum's case (2003 SCM R 629), Khawaja Bashir Ahmad's case (1991 SCM R 1604), Sufi Muhammad Din's case (1991 SCM R 905), Mrs. Bukhtawar's case (2001 SCM R 1423), Province of the Punjab's case (2005 SCM R 1344) Ch. Abdul Majeed's case (2003 YLR 290) and Province of the Punjab's case (2005 YLR 552).
5. In rebuttal, learned counsel for the respondents opposed the contentions of the learned counsel for the petitioner and contended that the petitioner had only allotted 'Bala Khana' vide PTD dated 8-3-1967 and the shops were purchased by respondents Nos.4 and 5; that there was also a room behind the shops which could not have been disposed of and after the repeal of Evacuee Laws, it stood transferred to the Government; and that the proceedings/inquiry initiated by respondent No,3 was only to determine the actual position on the spot, hence he had committed no illegality in this regard. Learned counsel for the respondents placed reliance on Muhammad Din's case (PLD 1991 SC 1) and Maqbool Ahmad's case (1991 SCM R 2063).
6. Valuable arguments of learned counsel for the parties heard and available record thoroughly perused.
7. The crucial issues in the present petition for determination by this Court are; firstly, whether the room beneath 'Bala Khana' and behind the shops was an undisposed of evacuee property and as such retrieved to Government; and secondly, whether after the repeal of Evacuee Laws in 1974, Settlement Authorities have the jurisdiction to reopen the past and closed transaction relating to allotment of Evacuee property to the petitioner.
' Perusal of record would reveal that Shah Zaman, the present petitioner was a non-claimant displaced person, who applied for the transfer of House No,429 situated in 'Lohar Gali', Abbottabad, which was in his occupation since 1-12-1948 on evaluation basis. However, thereafter, only the said house/ 'Bala Khana' was permanently transferred in the name of the petitioner vide order dated 8- 3-1967. The present proceedings commenced when Tehsil Municipal Administration, Abbottabad issued a final notice dated 28-6-2003 to the petitioner, directing him to demolish the building being dangerous. In the meanwhile, Haji Imtiaz Ahmad and Haji Muhammad Riaz, respondents Nos.4 and 5 filed an application before Deputy Settlement Commissioner seeking allotment of room contiguous to their shops Nos.427 and 428. The present petitioner was served with a notice issued by respondent No,3 and he has filed reply thereto on 23-7-2003. Respondent No,3, Deputy Settlement Commissioner, Abbottabad, after conducting an elaborate inquiry into the matter, finally determined vide report/order dated 20-8-2003 that the room sought by the respondents for allotment was in fact an indisposed of evacuee property and ownership of Government, not allotted to anyone and also lying vacant. Respondent No,3 also carried out measurement of the entire property on the spot and found the following; Shops Nos.427 and 428= 17 x 15= 255 Sq.ft Vacant site adjacent to shops=17 x 8= 136 Sq.ft Staircase of upper storey= 17 x 3= 51 Sq.ft Total area: 17 x 26= 442 Sq.ft ' It was observed by the Deputy Settlement Commissioner that the old Settlement Record made it clear that Property No,429/ 'Bala Khana', 427, 428/Shops was a single unit and at the time of allotment, it was separated into three units. 'Bala Khana' was allotted to the petitioner and shops were allotted to others. The measurements incorporated in Evacuee property's Register of these three units were 240 Sq.Ft and 80 Sq.Ft, each, respectively, which suggest that no measurement was carried out on the spot and the area of disputed room was not included in the said three units.
It was mentioned in the report that the said area could not have been allotted to anyone and the same would be the property of the Government and it has no nexus with the upper storey/'Bala Khana' However, he declined allotment of the said room to Respondents Nos.4 and 5 as the Government had imposed ban on the allotment and referred the matter to Chief Settlement Commissioner, Peshawar for further necessary action. The appeal and the Revision of the petitioner filed against the order dated 20-8-2003 were also dismissed by respondents Nos.2 and 1, respectively. The assessm ent of the record and the above discussion made it clear that the room on the ground floor has not been allotted to anyone and as such, it retrieved to the Government and the findings rendered by the Settlement Authorities in this regard are reasonable and legally justified.
8. Now moving on to the second issue relating to the jurisdiction of the Settlement Authorities in the matter after the repeal of Evacuee Laws in 1974. It is evident from the record that for the first time it came to the knowledge of respondent No,3, Deputy Settlement Commissioner, Abbottabad that there was, some property lying undisposed of when respondents Nos.4 and 5 filed application for allotment to him. Respondent No,3, in order to find out this fact, resorted to conduct inquiry in the matter and after conclusion of the inquiry this fact become known to the settlement authorities.
' In this regard, this Court seeks guidance from the judgment delivered in Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others (PLD 1991 SC 1) by the apex Court, wherein, this issue has been resolved in an unequivocal manner. In the said case, the judgment was delivered by a Bench consisting of five Hon'ble Judges of the Supreme Court. Their lordships in accordance with majority of opinion held that:-- The learned Single Judge was clearly in error when he declared the order dated 20-11-1977 of the Deputy Settlement Commissioner to be without jurisdiction on the ground that after the issuance of the permanent transfer deed and in the absence of any allegation of fraud or misrepresentation the Settlement Authorities were not competent to re-open the matter. It is to be noticed that in the proceedings held by the Deputy Settlement Commissioner the legality or propriety of the transfer of the house to respondent No,1 was not in any way in. Issue. The inquiry was confined to the question whether there was an excess area which could not under the law be treated as part of the house and, for that reason, did not stand transferred to respondent No,1 under the transfer documents issued in his favour. Such an inquiry was not hit by the rule laid down in the case of Sh. Abdul Latif v.. Deputy Settlement Commissioner 1976 SCMR 503 which the learned Single Judge has referred in support of his order."
In view of the principle laid down by the apex Court in the aforementioned judgment, this Court is of the opinion that the Settlement Authorities in exercising jurisdiction in the matter in hand have committed no illegality, warranting interference by this Court in its constitutional jurisdiction.
9. Accordingly, for the reasons stated hereinabove, this petition being without merit is dismissed.