The dispute relates to house No. A/758, situated on Sadar Road, Rawalpindi. The petitioner's predecessors-in-interest, - Muhammad Umar, was the allottee of a portion of the house since 9th September, 1950, and he filed his C,H. Form for the transfer of that portion, vide Annexure 'A'.
Respondent No. 2 filed her C.H. Form, vide Annexure. --A/I'. According to the petitioner respondent No. 1 did not file any form for the transfer of the property in dispute. The petitioner has filed Annexure 'A/2' to this effect whereby he wants to prove that no such form was ever received by the Settlement Department. The property in dispute was transferred to respondent No. 2 by the Deputy Settlement Commissioner on 21st December, 1959. According to the petitioner, the form of her predecessor-in-interest was never considered by the Deputy Settlement Commissioner. This order of the Deputy Settlement Commissioner was challenged by way of Appeal by respondent No.1 before 'that Addi--tional Settlement Commissioner. The predecessor-in-interest of the petitioners also made an application to be impleaded as party in that appeal and along with that he also filed the grounds of appeal but no formal order was passed on the same. The learned Additional Settlement Commissioner accepted the appeal of the respondent No. 1 and trans--ferred the entire house in his favour. This order does not show that the appeal of Muhammad Umar, deceased, was considered while deciding the case.
2. Thereafter, respondent No. 2 filed revision petition against the order of the Additional Settlement Commissioner, but the same was dismissed by the Settlement, Commissioner, vide Annexure `H'.
He then filed second revision before the Chief Settlement Commissioner, which was accepted vide Annexure `K', and according to the petitioner. Only respective portions in possession of respondents Nos. I and 2 were transferred to them and the portion in possession of the- petitioner remained indisposed of. This order of the Chief Settlement Commissioner was challenged by respondent No. I by means of W. P. 1230-R/1961 which was dismissed on J9th October, 1965.
3. According to the petitioner, he approached the Deputy. Settle--ment Commissioner in 1960 for the disposal of his C.H. Form but the decision was postponed till the decision of the writ petition pending in the High Court vide his order dated 20th December, 1961. After the above-mentioned writ petition filed by respondent No. 1 was dis--missed, the petitioners again approached the Deputy Settlement Com--missioner for disposal of their C.H. Form, vide application Annexure L', which was rejected by him, vide his order Annexure 'M', holding that the portion in their possession had been transferred to respondents Nos. 1 and 2 by the order of the Chief Settlement Commissioner and the same was not available for further transfer. Thereafter, an appeal was filed against this order, but the same was dismissed vide Annexure 'P'. This order was challenged by means of a revision petition by the petitioners, but the same was also dismissed vide Annexure 'R' The petitioners have now come up to the High Court and have filed the present petition under Article 98 of the 1962 Constitution challenging the validity of the impugned orders passed against them.
4. It is contended that the C.H. Form filed by the predecessor-in-- interest of the petitioners was never disposed of and the same is still pending for that purpose. According to the learned counsel for the petitioners, the order of the learned Deputy Settlement Commissioner dated 21st December, 1959 whereby the entire house was transferred in favour of respondent No. 2 clearly shows that his C. H. Form not consider--ed. The appeal, later on, filed by him against that order was also never disposed of. The house in dispute could not be transferred in favour of respondents Nos. 1 and 2 without considering the form filed by the predecessor-in-interest of the petitioners, and, thereafter, his appeal filed against the order of the Deputy Settlement Commissioner. In the absence of any judicial, order in disposing of the form, as well as the appeal submitted by Muhammad Umar, deceased, all the orders passed against him and his legal representatives are nullity in the eye of law. It is further 'contended that the order as passed by the Chief Settlement Commissioner, vide Annexure 'K' contemplates the transfer of the house in dispute to the extent of respective portions in possession of respon--dents Nos. 1 and 2 and the portion of the house in possession of the peti-- tioners has not been disposed of by the order.
5. The learned counsel for respondents Nos. I and 2-has submitted that the Deputy Settlement Commissioner while transferring the house in dispute to respondent No. 2 excluded the predecessor-in-interest of the petitioners and the said order was not challenged within time. A time-barred appeal was filed -which was not considered. Moreover, after the decision of that appeal, the predecessor-id-interest of the petitioners died, and his legal representatives were not brought on record, according to law, in his place. As such the appeal has already abated.
According to them, the last order which wag passed by the Chief Settlement Commissioner, vide Annexure 'K', transferred the entire house in favour of, respondents Nos. I and 2, and no portion of the same is available for transfer purposes.
6. It is evident from' the order of the Deputy Settlement Commis--sioner dated 21st December, 1959.
Annexure 'B', that the form had been 'filed within time. As such it was the duty of the Deputy Settlement Commissioner to consider the said form while disposing of the property. Muhammad Umar deceased, was a claimant, and was in possession of a portion of the house, and on the basis of that possession hey submitted his C.H: Form. He had a right to claim the transfer of that property.
It was for the Settlement Authority to see, under Settlement Scheme I of the Act, whether his claim for transfer could be accepted or not, but in the absence of any order disposing of his C.H. Form, the order of transfer in favour of respondents 1 and 2 cannot be sustained in law. A time-barred appeal was preferred by Muhammad Umar, deceased, against the order of the Deputy Settlement Commissioner: It is admitted that no order whatsoever was passed on that appeal. The contention' of the learned counsel for respondents Nos. 1 and 2 that since after the disposal of the appeal filed by respondent No. 11 Muhammad Umar died, and his legal representatives were not brought on record, therefore, the appeal abated, has no force. There is no Provision in the Displaced Persons (Compensation and Rehabilitation) Act,18 1959, whereby such penal action can be .Taken by the Settlement' Authority. Penal provisions as contained in the Code of Civil Procedure have not been specifically made applicable to the cases falling under this Act, and in the absence of that such provisions cannot be applied.
As such the legal representatives of Muhammad Umar, deceased, can be substituted in appeal filed by him before the Additional Settlement' Commissioner in his place.
7. It has not been denied that Muhammad Umar, deceased, even after the order made by the Additional Settlement Commissioner in appeal filed by. Respondent No. I, and by the Chief Settlement Commis--sioner in revision filed by respondent No. 2, has been pursuing the matter before the Settlement Authorities for the disposal of his C.H. Form, as well as his appeal. The Deputy Settlement Commissioner, on his Application, postponed the matter, vide his order dated 20th December, 1961, till the disposal of W. P. 130-11/1961 filed by respondent No. 1, which was dismissed on 19th October, 1965. After dismissal of the writ petition, he approached the Settlement Authorities in this respect, but his plea was rejected on the ground, as mentioned above, that the property in dispute has already been disposed of by the Chief Settlement Commissioner, vide his order dated 16th August, 1961.
8. The main point. For consideration now is whether the portion of the house in possession of the petitioners has' been disposed of by the order of the Chief Settlement Commissioner, vide Annexure 'K'. I have carefully gone through the order and find that the said portion has not been disposed of. Nothing can be spelt out from this order in clear terms that the portion in possession of the petitioners has also been transferred to respondents 1 and 2. In Para 2 of the impugned order; the learned Chief Settlement Commissioner has clearly mentioned that Muhammad Umar, deceased; was an occupant of a portion of the house since 8th August, 1949 and being a claimant applied for the transfer of the said portion. It is also mentioned that when respondent No. 1 filed an appeal in the Court of the Additional Settlement Commissioner, Rawalpindi, against the order of the Deputy Settlement Commissioner, Muhammad Umar, deceased, made an application to be impleaded as party. Then, after discussing the claims of respondents Nos. 1 and 2 for the transfer of the property he decided as follows :- "In these circumstances, both the portions shall be transferred to the parties according to their possession."
It is admitted that the disputed portion of the petitioners has always been in their exclusive possession and none of the respondents has ever been in possession of any part of, the same.
Apparently, operative part of the impugned order, Annexure 'K', means that the respective portions of the house in possession of respondents 1 and 2 have been transferred to them, and the portion in possession of the petitioners has not been disposed of. The Deputy Settlement Commis--sioner, the Additional Settlement Commissioner, and the Settlement Commissioner in their later orders, vide Annexures 'M'; 'P' and 'R' respectively, have not been able to say clearly as to whom this portion has been transferred. Respondent No. 1 made an application, C. M. 2/ 19669, on 26th November, 1969, in this Court wherein he challenged the claim of respondent No. 2 that the portion in possession of the petitioners had been transferred to her, while respondent No. 2 challenged the claim of respondent No. 1 that the same had been transferred to him. Under the circumstances, I hold that the portion in possession of the petitioner has not been disposed of by the order dated 16th August, 1961 passed C by the Chief Settlement Commissioner, vide Annexure 'K', and C.H. Form filed by Muhammad Umar, deceased, for its transfer and the appeal filed by him against the order of the Deputy Settlement Commissioner have also not been disposed of so far. It is obligatory for the Settle--ment Authority to consider the C.H. Form submitted by Muhammad Umar, deceased, as well as to dispose of the appeal filed by him. Since the portion of the house in possession of the petitioners .Is available for transfer, the Settlement authorities, Rawalpindi, are directed t consider the C.H. Form of Muhammad Umar, deceased, for its trans--fer.
9. As a result of the above discussion, the petition is accepted, and all the impugned orders to the extent of their adversely affecting the rights of the petitioners for the transfer of the portion of the house in dispute in their possession, are quashed being illegal and of no legal effect. The case is remanded to the Settlement Commissioner, Rawalpindi Division, who in turn, may forward it to the Deputy Settlement Commissioner, Rawalpindi, for deciding the same afresh in the light of observations made above. There will, however, be no order as to costs.