1. ' S. A. NUSRAT, J.-The appellant who is a displaced person was transferred a plot Khasra Number 218/10/1/2 measuring 13 Marlas situated within the municipal limits of Pakpattan Town in Sahiwal District as a 'building site' under Settlement Scheme No, VI framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on 10-9-1960 by the Assistant Settlement Commissioner and a P. T. D. For the same was issued to him under the orders of the Deputy Settlement Commissioner on 26-5-1970. However, after twelve years on 9-8-1972, the same land was allotted to Ghulam Nabi, since deceased, the father of respondents Nos. 1 to 4, (hereinafter referred to as the respondents). The appellant on coming to know of such transfer, which was made behind his back, challenged the same before the Settlement Commissioner, Multan Division, Multan, who, by his order, dated 11-1-1973 passed in exercise of revisional jurisdiction, remanded the case to the Additional Settlement Commissioner (Land) Sahiwal for fresh decision. On remand the allotment in favour of the respondents was set aside by the Additional Settlement Commissioner by his order, dated 26-4-1973. Aggrieved by the said order the respondents filed a revision application before the Settlement Commissioner, Multan Division, Multan, who after examining the record found that the disputed land had always been "treated as agricultural land on land side while building site on urban side". He, therefore, found it necessary "that a decision may be obtained from the Chief Settlement Commissioner in view of the conflict between the Settlement Authorities whether the Khasra in dispute shall be treated as building site or not." Accordingly by an interim order, dated 29-9-1973 he made a reference to the Chief Settlement Commissioner seeking his opinion in the matter. The said reference was examined in the office of the Chief Settlement Commissioner and by a letter, dated 8-11-1973 the Additional Settlement Commissioner was informed that since necessary powers under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, had already been delegated by the Chief Settlement Commissioner to the Additional Settlement Commissioners (Consolidation/Settlement, Commissioner (Lands), the appeal pending before him, may, therefore, be disposed of in accordance with law. Attention in the said letter was also invited to the instructions issued by the Chief Settlement Commissioner vide Memo. No, 6640-69/6144-R(L), dated 9-10-1969. It appears from the interim order of the learned Settlement Commissioner, dated 29-9-1973 that there existed conflict of opinion in the Settlement Department itself on the question as to whether the disputed land was a building site or agricultural land and it was precisely for the said reason that the opinion of the Chief Settlement Commissioner was sought in the matter. Moreover, it appears that such conflict of opinion was not confined to the case in hand alone and was generally prevalent in the Settlement Department. In the circumstances, a policy decision in the form of instructions was issued to resolve such disputes by the Chief Settlement Commissioner vide his Memo. No, 6640-69/ 6144-R(L), dated 9-10-1969, reference to which was made in the letter from the Office of the Chief Settlement Commissioner, dated 8-11-1973 referred to above, which is concluded by laying down as follows:- "(a) the dominant use must first be adequately ascertained before making an allotment against land claims and, in cases of doubts. No objection be obtained from the Deputy Settlement Commissioner (Urban Properties), and
(b) Where there is conflict between the decision and orders of the authorities under the two Acts the order of the authority under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, will unless modified or cancelled under that Act prevail."
2. ' After the receipt of the above reply the revision was heard by the learned Settlement Commissioner, who rejected the same by his order dated 6-12-1973.
3. ' The respondents thereupon filed a Constitution Petition in the Lahore High Court which was allowed as per impugned judgment.
4. ' The learned High Court having noted that the disputed Khasra number was shown in the Jamabandi of 1947 as Banjar Qadeem considered it necessary that the dominant use to which the same was put at the time of partition required examination for the purpose of deciding the question of its disposal as a "building site" under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, or as agricultural land under the provisions of the Displaced Persons (Land Settlement) Act, 1958. As according to the learned High Court, the Additional Settlement Commissioner and the Settlement Commissioner had both failed to keep this aspect of the case in view, the orders passed by them were set aside and the Additional Settlement Commissioner was directed to hold an enquiry into the question as aforesaid and determine the validity of the allotment made in either party's favour.
5. ' Leave to appeal was granted on 30-11-1976 to examine the following contentions raised on behalf of the appellant: - "(a) That the land in dispute having been transferred to the petitioner in 1960 as a building site and the respondents, or anybody else for the matter of that, not having agitated against the said transfer, the order became final and could not be re-opened after the lapse of twelve years;
(b) That after the issuance of the permanent transfer deed the land was not available to be allotted as urban agricultural land unless the P. T. D. Was first cancelled by a competent authority functioning under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958;
(c) That under general notification issued by the Chief Settlement Commissioner on the 16th of May, 1973, under clause (b) of subsection (3) of section 2 of the Displaced Persons (Land Settlement) Act, 1958, all the available evacuee urban land situated within the urban limits of a Municipal Corporation, Municipal Committee, a notified Area Committee etc. Throughout the Province of the Punjab has been declared as building site, and accordingly there was no necessity for any further inquiry or declaration; and
(d) That the petitioner has already built valuable property in the shape of shops and residential flats and it _was highly unjust to disturb him after the lapse of twelve years since the date of the initial transfer in his favour."
6. ' As the facts show the same Khasra number was treated differently and first transferred to the appellant as a 'building site' and after the lapse of twelve years transferred to the respondents behind his back and without the cancellation of first subsisting allotment in his favour. This was clearly a case of double allotment. The question of transfer of the land in question as a building site or agricultural land under the provisions of one Act or the other, mentioned above, and determination of entitlement of the contesting parties for the transfer of the same came up for examination for the first time by the Settlement Commissioner upon filing of appeal by the appellant, which was treated as a revision, and he, by his order dated 11-1-1973, remanded the case to the Additional Settlement Commissioner (Land) for deciding the case afresh after hearing the parties. The status quo in the meantime was directed to be maintained thus without cancellation of one allotment or the other.
7. The question after the remand of the case before the learned Additional Settlement Commissioner, Sahiwal, who then heard the case, therefore, was to confirm or set aside the first order transferring the plot as a 'building site' to the appellant or the subsequent order of transfer of the same Khasra number as agricultural land in favour of the respondents. The nature of the property viz. Disputed plot, was examined by the learned Additional Settlement Commissioner who after examining the record as per his order, dated 26.4-1973 held as under:- "The disputed land was a building site and was accordingly allotted to the petitioner (now appellant) by the Settlement Commissioner, under Displaced Persons (Compensation and Rehabilitation) Act, 1958. Under these circumstances its allotment under Land Settlement Act cannot be maintained."
8. By the above finding the P. T. D. Issued in favour of the appellant was maintained. In this view of the matter, it is unnecessary to examine the question whether on the issuance of a P. T. D. To the appellant the land was not available to be allotted as agricultural land to the respondents as in fact the said P. T. D. Was not cancelled at any stage and the case was taken up only for the purpose of resolving the dispute arising out of two conflicting allotments operating side by side in the field.
9. ' The above order of the learned Additional Settlement Commissioner needs to be examined further qua his jurisdiction to determine the question as to the character of the disputed plot. By a Notification No, 6894-69/491R(P), dated 5-2-1960 the power to declare urban agricultural land as a C building site under section 2(3)(b) of the Displaced Persons (Land Settlement) Act, 1958, was delegated by the Chief Settlement Commissioner to all the Additional Settlement Commissioners in Towns having population of fifty thousand to one lac. The Additional Settlement Commissioner was, therefore,' possessed of such delegated power at the relevant time and is deemed to have exercised the same as is clear from the nature of the speaking order passed by him, reproduced hereinabove. The learned counsel for the respondents was unable to controvert this legal position nor was he able to challenge that the population of Pakpattan town was less than fifty thousand.
10. ' When the matter was further taken up by the respondents before the Settlement Commissioner
(Land) the facts of the case were re-examined by him in detail and it was held that the lower Court had validly decided the issue and the revision application of the respondents was dismissed by order, dated 6-12-1973. The Policy Letter No, 6640-69/6144-R(L), dated 9-10-1969 issued by the Chief Settlement and Rehabilitation Commissioner, West Pakistan, was also relied upon by him, relevant excerpt wherefrom has been reproduced hereinabove, according to which an order passed under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was to prevail and admittedly such an order passed twelve years ago in favour of the appellant had not been set aside under the provisions of the said Act.
11. ' On the view that we have taken of the order of the learned Additional Settlement Commissioner, dated 26-4-1973, no further enquiry was necessary with regard to the nature of the disputed property and, in the circumstances, there was no justification for the remand of the case by the learned High Court. As a result of the above findings, the other contentions noted in the leave granting order do not require examination.
12. ' For the reasons mentioned above, the impugned judgment of the High Court is set aside and the appeal is allowed with costs.