NASIM HASAN SHAH, J.-The Punjab Road Transport Board has filed the petition through its Chairman to challenge the order dated 7-4-1980 passed in Writ Petition No. 1424/R of 1974 by a learned Single Judge of the High Court, whereby he quashed the order of the Chief Settlement Commis--sioner dated 7-12-1973, directing the Settlement Commissioner, Rawalpindi, to probe into transfer of properties Bearing Nos. B/606 to 610 situated at Liaquat Road, Rawalpindi in favour of respondents 1-2 (Abdul Salam and Abdul Wahab sons of Muhammad Ismail).
2. The bone of contention is a piece of land measuring 1 kanal 13 marlas which has been in possession of the Road Transport Board and has been used by it as a Bus Stand. The case of the petitioner is that they had applied as early as on 1-12-1953 for acquisition of the said property for the use of the Transport Authorities, Rawalpindi, as a Bus Stand and for the con--venience of the traveling public. This application was submitted to the Commissioner, Development and the Secretary to the Government, Punjab Indus--tries and Electricity and was accompanied by a "No- Objection Certificate" from the Deputy Rehabilitation Commissioner, Rawalpindi and it was prayed that the necessary approval of the Central Government might be obtained and communicated to the Board in connection with the acquisition.
3. The case of the petitioner-Board further is that the matter of acquisition of these properties remained under correspondence for a considerable period and ultimately the Chief Settlement and Rehabilitation Commissioner agreed to transfer these properties to the West Punjab Road Transport Board, on the evaluation price of Rs. 1,41,880 vide his memo. Dated 29-5-1961. On 3-2- 1962, the Chief Settlement Commissioner recommen--ded the case of transfer of these properties, to the Road Transport Board and, thereafter, on 21-2-1962, the Central Government accorded the approval to the sale of the said properties in their favour. On 20-12-1962, a P. T. O. Was also issued in favour of the Punjab Road Transport Board which paid the full amount of Rs. 1,41,880 to the Department.
4. It appears that despite the above efforts being made by the Transport Authorities to obtain the transfer of the area in question, the local Settlement authorities considering the properties in question to be available for disposal included the same in the earmarking list. Respondents 1-2 applied for its transfer under the earmarking scheme and lots were drawn in their favour and an Appendix for Rs. 1,22,760 was issued on 3-12-1959. It was mentioned in the said Appendix that they should produce their Compensation Books and the Compensation Books of their associates within ten days of the receipt of the notice failing which it would be presumed that they agreed to retain the properties and if they failed to pay two consecutive installments they would be dispossessed and ejected and the outstanding amount would be recovered as arrears of Land Revenue. It further appears that the respondents did not deposit their compensation books or make the adjustment of their transfer price for more than three years. It was sometime in 1963 that they did so and the Deputy Settlement Com--missioner issued P. T. O. To -them on 11-6-1963. On 13-11-1963, they applied for the P. T. D. Which was ultimately issued to them on 18-7-1970. In the affidavit filed with the application for issuance of the P. T. D. It was submitted that the properties were free from litigation.
5. A consideration of the above facts shows that there were two P. T. Os. In the field ; one issued in favour of the petitioner on 20-12-1962 and the other issued in favour of the respondents on 23-11- 1963.
6. In 1972, litigation started between the parties, as both laid claims to a portion of the properties which was in possession of one Muhammad Iqbal. The petitioner applied to the Chief Settlement Commissioner praying that the order of transfer passed in favour of the respondents herein be withdrawn and the transfer of the property in their favour be maintained. The matter appears to have been, at this stage, scrutinized and the Settlement Commissioner (Acquisition), Punjab, who submitted an elaborate report to the Chief Settlement Commissioner pointed out that certain illegalities and irregularities had been committed in the disposal of the properties in favour of respondents 1-2. Some of the alleged illegalities pointed out were :- "(a) that the properties in question were not available for disposal as the Road Transport Board had already made a request since 1952 for the acquisition of these properties and correspondence was in progress amongst the Commissioner, Development and Secretary to Government Punjab Industries and Electricity, Secretary to Government, West Pakistan Communications and Works Department and the Settlement and Rehabilitation Department. Before any final decision could be arrived at, the properties were disposed of through earmarking.
(b) The Chief Settlement Commissioner transferred these properties to the Board on 29-5-1961 and they immediately deposited the entire amount and obtained P. T. O. On 20-12-1962. On the contrary P. T. O. In favour of Abdul Salam and Abdul Wahab (respondents 1-2 herein) was issued on 11-6- 1963. The Deputy Settlement Commissioner was not required to issue P. T. O. In favour of Abdul Salam and Abdul Wahab when it had already been given to Road Transport Board. It is not understood as to why the P. T. D. Had been issued to Abdul Salam and Abdul Wahab when the case for issuance of P. T. D. In favour of Board was under correspondence with the Department. All what had happened was due to the connivance of the officials of the local office with Abdul Salam and Abdul Wahab otherwise this irregularity/illegality would not have occurred.
(c) The Chief Settlement Commissioner transferred these properties to the Board on 29-5-1961 and they made full payment on 20-12-1962. On the contrary, Appendix for Rs. 1,22,760 was issued on 3- 12-1959 and they were required to give their option for the retention of the properties within ten days and in case of their failure to pay tyro consecutive instalments they would be dispossessed and outstanding amount recovered as arrears of land revenue. They paid no heed for more than three years. Instead of canceling the lots and recovery of dues as of arrears of Land Revenue, the Deputy Settlement Commissioner issued P. T. O. On 11-6-1963.
(d) The Deputy Settlement Commissioner was not required to issue P. T. D. To the drawers as the Road Transport Board had made full payment prior to them and they were continuously requesting for the P. T. D. Which was held in abeyance on the pretext that they had to pay arrears of rent.
(e) Some illegalities in the preparation of the P. T. D. Were also pointed out."
On the basis of this report, the Chief Settlement Commissioner by his order dated 7-12-1973 cancelled the P. T. O. And P. T. D. Issued in favour of respondents 1-2. He further ordered a probe into the transfer and referred the case to the Settlement Commissioner for action under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This order was challenged by the respondents by filing a writ petition in the Lahore High Court (W. P. No. 1424-R/74) on the twin grounds :-
(a) that the petitioner herein could not claim any right in the properties in question on the basis of the order of Central Government under section 10(2) of the Act, as the conditions specified therein were not fulfilled, and
(b) that the cancellation of the P. T. O. By the Chief Settlement Commis--sioner by an ex parte order was without any justification and arbitrary."
7. The conditions laid down in the order of the Central Government dated 21-2-1962, thereby the property was transferred to the petitioner, were as under :- "(1) the properties in question have not been transferred or not transfer--able to any person under the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and
(2) that the market value for the properties determined by you is recovered before the transfer is effected."
8. The learned Judge in the High Court has held that the petitioned herein could not on the basis of the order of the Central Government under section 10(2) claim any right as the conditions specified therein were not fulfilled. Further the cancellation of the P. T. O. And P. T. D. By the Chief Settlement Commissioner, by an ex parte order, was without any legal justification or validity.
9. Mr. S. M. Zafar, in support of this petition, has submitted that the property in question was not a house and, therefore, could not have been included in the Earmarking Scheme. Consequently, the issuance of Appendix and subsequent transfer of it in favour of the respondents was void. In this connection he drew our attention to paragraph 4 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, which, to the extent relevant, reads as follows :- "(4) Earmarking--A house not transferred under paragraphs 1, 2 and 3 shall be available for transfer to any claimant who applies in that behalf and to whom a house has not been transferred under paragraph 1, and shall be transferred to such claimant at a price determined on evaluation basis : Provided that---
(a) except in the case of a house, the value of which does not exceed twenty-five thousand rupees, the claim of such a claimant is at least 50% of the value of the house ;
(b) Not mere than one house shall be transferred to any one claimant under this paragraph ; and
(c) If there is more than one applicant for the transfer of the same house, the transfer shall be effected by drawing lots. In, such manner as may be prescribed." :- He then drew our attention to Settlement Scheme No. V which has been framed to give effect to paragraph 4 of the Schedule, reproduced above. This also clarifies that it is only "houses" which are available for transfer to claimant can be transferred by lots under paragraph 4 of the Schedule to the Act. The petitioner's case is that the property in question was an open site on which a Bus- Stand had been erected and was not a house and was, therefore, not transferable under paragraph 4 of the Schedule or the Earmarking Scheme, namely, Settlement Scheme No. V.
10. As for the conditions attached of the transfer in favour of the petitioner, it is submitted that Condition No. 1 was not applicable as respondents 1-2 being out of possession had no right whatsoever for the transfer of the disputed property. They were neither allottees nor in possession thereof and, therefore, could not claim any right. Further the property having been illegally placed in Earmarking they could not rely on it, the action being ab initio void. Moreover, the P. T. O. Had not been issued in favour of the respondents until 23-4-1963 whereas the transfer in favour of the petitioner was ordered on 20-12-1962 and the petitioner had made full payment of the sale price, and consequently, was issued a P. T. O. Before the date on which the P. T. O. Was issued to the respondents..
11. As for the contention that the P. T. O. Of the petitioner could not be cancelled by an ex parte order, it is submitted that the words "P. T. O. Had been cancelled" were not apt the real attention of the Chief Settlement Commissioner to "suspend" the operation of the said document so as not to permit the respondents from transferring or selling the property pending the holding of the probe which was to be held by the Settlement Commissioner in exercise of his power under section 20(3) of the Displaced Persons Act.
12. Ch. Qadir Bakhsh, who appeared for the respondents as a Caveator has also been fully heard.
13. We have, therefore, decided to convert this petition into an appeal and dispose it of finally.
14. It is evident from what has been stated above, that there were two matters before the Settlement authorities requiring adjudication, namely, that P. T. Os. Had been issued in favour of both the parties by the Settlement Department. The P. T. O. Of the petitioner Board was issued on 20-12-1962 while the P. T. O. In favour of respondents 1-2 was issued on 23-4-1963 and the price had been paid by both the parties and both were laying claim to the property. Consequently one of the P. T. Os. Had to be cancelled and this could only be done in a regular judicial proceeding and the Settlement Commissioner, in exercise of his revisional powers, was the competent authority to sort out this imbroglio. Consequently, the order of the Chief Settlement Commissioner referring the case to the concerned Settlement Commissioner under section 20 (3) was manifestly proper and correct.
15. It is true that in his order so directing he also cancelled the P. T. O. Issued in favour of the respondents. He was not justified in doing so and the learned Judge in the High Court is right in observing that the said P. T. O. Could not be cancelled by an ex parte order. But .The reading of the whole order of the Chief Settlement Commissioner shows that although he has said in its opening part that the P. T. O. Dated 23-4-1962 and P. T. D. Dated 18-7-1970 were cancelled but that his real intention appears to have been only to suspend the operation of these documents, as he actually clarified in the latter part of his order by observing that "since the operation of these documents has been suspended you are not allowed to sell or transfer the properties involved, as such sale and transfer will not be recognised by the Department". Consequently, the above two documents have only been suspended for the limited purpose stated above and we would clarify that the P. T.
O./P. T. D. Of the respondents have not been cancelled but that this is a matter which has still to be decided by the Settlement Commissioner, after hearing both the parties.
We would therefore, observe that while holding the probe, the learned Settlement Commissioner will allow parties to raise all points which are open to them under the law and, thereafter, pass a speaking order dealing with all the contentions raised by the parties and decide as to which of the P. T. Os. Issued namely one issued to the petitioner. Board or that issued to respondents 1-2 has been legally or properly issued. .
16. The upshot is that the order of the High Court is hereby set aside and the order of the Chief Settlement Commissioner directing the Settlement Commissioner to probe into the matter is upheld, subject to the observations made above. This appeal succeeds in the above terms and is allowed, leaving the parties to bear their own costs.