1. ' MUHAMMAD HALEEM, AcTG. C. J.-This appeal, by leave, arises from the judgment of the Lahore high Court, Lahore, dated 22-11-1973, by which writ petition No, 1557-R of 1966 was dismissed and Writ Petition No, 1135-R of 1966, was allowed.
2. Leave to appeal was sought against the decision in writ petition No, 1135-R of 1966, and it was granted to consider : "Whether the appellant who was the only claimant in the field was entitled to the transfer of the whole house or a portion thereof which was in her occupation particularly when no P. T.
0. Or P. T. D. Was issued in favour of the "earlier transferees" significantly indicating that the property continued to remain in the compensation pool and was thus available for transfer."
3. ' The dispute relates to residential property bearing Nos. 1324 and 1325 situate at Cunningham Road, Lahore Cantonment.
4. ' The appellant who was a claimant displaced person was in possession of major portion of this building while the remaining portion was in the possession of locals, that is, respondents Nos. 1 and
2. When the settlement operation commenced the claim of respondents Nos. 1 and 2 was yet pending verification. Accordingly, they submitted a C. H. Form for the transfer of the building, but as their claim was not verified, the form already submitted was converted into N. C. H. Form, and the building was transferred to them on the 18th of January, 1960, by the Assistant Settlement Commissioner exercising the powers of Deputy Settlement Commissioner. The appellant thereafter submitted her C. H. Form on 20th of February, 1960, for the transfer of the whole building but as it stood transferred to the respondents, she appealed to the Additional Settlement Commissioner, who rejected it by order dated the 17th of April, 1960, on the ground that the residential building was not available for transfer. Thereupon she filed a revision before the Settlement Commissioner, which was dismissed on the same ground on the 12th of April, 1961. She then preferred a second revision before the Chief Settlement Commissioner, who called for a report from the office and on its receipt approved its transfer for disposal to the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner on the 2nd of January, 1962. While this case was pending before the Settlement Commissioner, a writ petition was filed by the respondents in the High Court and a learned Single Judge in Chambers called for a report from the department within one month to examine the competency of the second revision as it was claimed by the respondents that the record had not been called for before the 13th of January, 1962. This has reference to the promulgation of Ordinance II of 1962 dated 13-1-1962, which deleted subsections (2) and (4) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and consequently the Chief Settlement Commissioner was not left with any revisional power as earlier exercised by reference to subsection (2). Ordinance XIII of 1962 was next promulgated which inserted a savings clause in Ordinance II of 1962, which runs as under : "Savings.- For the removal of doubts it is hereby declared that omission by this Ordinance of subsections (2) and (4) of section 20 and subsections (1), (1-A) and (2) of section 21 of the said Act shall not affect, any case or proceedings the record of which was called for under subsection (2) of section 20 of the said Act, or any review proceeding under subsection (1) of section 21 thereof, which was pending immediately before the commencement of the Ordinance : ' Provided that no revision or review under any of the provisions omitted by this Ordinance shall lie against any order made in any such case of proceeding."
5. ' Despite the statement made in the report that after the promulgation of Ordinance II of 1962, the Settlement Commissioner was not competent to entertain a second revision as the record of the case had not been called before the 13th of January, 1962, the writ petition was dismissed as being premature, as from the report it became apparent that the second revision was still pending and had not been disposed of. The Settlement Commissioner who was then seized of the proceedings, held that he was "satisfied that Ahsan-ud-Din had assumed jurisdiction to dispose of the petition for second revision submitted to him on 2-1-1962", therefore, the petition was competent and had to be disposed of. After considering the respective entitlements of the parties on merits and inspecting the property he reached the conclusion that most of the rooms in the portion of the building facing Cunningham Road were in possession of the appellant or her near relatives while some of those in the portion opening into the street were in the possession of the respondents or their near relatives. In this view of the matter, he was of the opinion that the building could easily be divided into two independent portions on this criterion. Accordingly, he ordered so and directed that the portion comprising rooms in all the storeys of the building opening on the main Cunningham Road should be transferred to the appellant and the remaining portion of the building including the courtyard shall stand transferred to the respondents.
6. ' Both the parties filed writ petitions in the High Court and both of them were disposed of by a common judgment as aforestated. The main ground for allowing Writ Petition No, 1135-R of 1966 was that in view of the savings clause inserted in Ordinance II of 1962 by Ordinance XIII of 1962 only such revision petitions were saved from abatement in which the record had been called for under subsection (2) of section 20 of the Act before its deletion. And as the Settlement Department had categorically admitted in the report submitted in the earlier writ petition that the Chief Settlement Commissioner had not called for the record of the case before the 13th of January, 1962, the Settlement Commissioner had no revisional power to dispose of the petition on merits. On merits, the High Court held that as the C. H. Form was submitted long after the property had been transferred in favour of the contesting respondents, it was not available for transfer. Lastly. The High Court held that as the appellant had taken part in the earmarking Scheme she could not avail the benefit of Scheme No, I, as she could only participate in either of the two Schemes. In holding so, the High Court relied on the dictum in Muhammad Zahir and others v. Raheel Begum and others (1).
7. ' In the result, the High Court held her not to be entitled to the transfer of the disputed portion of the building.
8. ' Unamended subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is similarly worded as section 435 of the Criminal Procedure Code and in both these provisions the record is called for by the Court or the authority for the purpose of satisfying itself as to the propriety, legality or correctness of the order either suo motu or upon information given in this behalf. At that stage technically there is no material for assessing as to the defects in the order, and it is for that purpose the record is called for and examined to achieve satisfaction. Section 115 {{FOOT NOTE}}
(1) PLD 1973 Note 82 at p..115 {{FOOT NOTE}} ' of the Civil Procedure Code also provides for the scrutiny of the record for examining as to whether the inferior Court had committed any violation of any of the three contingencies mentioned therein. If for achieving satisfaction as to the legality, propriety or correctness of the order a report suffices then the purpose of scrutinisation of the record is fulfilled in which case it would not be necessary to call for the record. This is what was achieved by the Chief Settlement Commissioner from the report, which is evident by his approval, on 2nd of January, 1962, of the note of his Reader dated the 31st of December, 1961 for the disposal of the case by the Settlement Commissioner exercising his delegated power according to law. This obviously meant that the impugned order prima facie required correction, as it was not free from doubt. There was thus the assumption of jurisdiction for exercising revisional power even before the Ordinance II of 1962 was promulgated which was again amended by Ordinance XIII of 1962 by an insertion of the savings clause which gave competency to those revision petitions in which the record was called for. This savings clause had no application as cognizance of jurisdiction was already acquired. There was consideration by the High Court of the steps taken to exercise revisional power as it only took note of the earlier admission of the Settlement Department that the record had been called after the crucial date, and, therefore, it was hit by the savings clause.
9. ' This conclusion in our view is erroneous and we are of the opinion that the second revision was competently disposed of.
10. As to the property not being available for transfer on account of the issuance of the P. T.
11. 0., it is also not a valid reason as its issuance does not deprive the aggrieved party of its right to an appeal or revision under sections 19 and 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The transfer, accordingly, is subject to this statutory right. This proposition is well-settled as there cannot be a deprivation of a valuable right given by a statute by an act of Settlement authority without the right being exercised. In this connection reference may be made to Rahim Bakhsh v. Dost Muhammad and another (1), Mst. Inayat Bibi v. Umar Din (2) and Ahmad Abbas Zaidi v. Settlement Commissioner (3). Accordingly, there was no bar for the Settlement Commissioner to consider the respective entitlement of the parties for the purpose of division and the transfer of the divided portions to those entitled.
12. Lastly, the argument that the appellant could have only participated in either of the two Schemes again has no merit. This contention was purportedly justified by the counsel for the respondent on the basis of the dictum in case of the Managing Committee, Masjid Muhajrin v. Zainab Bibi (4), but the learned counsel failed to notice that therein the transfer of plot was claimed simultaneously under two Schemes, but as the claimant failed to obtain transfer under one Scheme which was financially more beneficial, yet again revived his claim under another Scheme under which the entire Khasra number had been transferred to the contesting respondent in whose favour a P. T. D.
13. Was issued as far back as the 6th of November, 1965. It was in this context that it was held that he cannot be permitted to' press his claim under the subsequent Scheme when the transfer had assumed finality upon the matter having gone out of the purview of the appellate or revisional authority. This dictum has no application in the instant case. {{FOOT NOTE}}
(1) 1982 SCMR 665 (2) 1978 SCMR 163
(3) PLD 1968 Lab. 166 (4) 1974 SCMR 230 {{FOOT NOTE}} ' Further the case of the contesting respondents before the Settlement Commissioner was that being the only persons who had applied for the transfer of the building, they were entitled to its transfer even though they might have been in possession of one room. It was never contended before the Settlement Commissioner that the appellant having participated in the earmarking Scheme she was deprived of her right to participate for the transfer of the house under Scheme No,
1. Even before the High Court no such ground was taken, but an argument was raised at the time of hearing and due effect was given to it that she had disentitled herself to seek transfer on this basis.
14. As the Settlement Commissioner had got applied his mind to this plea we consider that the High Court should not have gone into its merits without there being any treatment of it by the authority empowered to deal with it in the first instance. Earmarking is a mode of disposal of urban evacuee property in the schedule which in effect lays down that where a claimant displaced person is not successful in obtaining a transfer of a house under paragraph 1, 2 or 3, he can apply for the transfer of a house on evaluation basis under this mode. Nowhere in the schedule it is laid down the converse of it and what has to be emphasised is that not more than one house can be claimed be it under para. 1 of the schedule or para. 4 of the schedule, i. e., by earmarking. The only principle upon which he can be deprived of transfer under either Schemes is where the earlier transferee, had acquired a vested right, which stood perfected.
15. ' The High Court has relied, for holding, as it did, that she could not participate in Scheme No, 1, on Muhammad Zahir and others v. Raheel Begum and others, but we fail to see how the dictum based, as it is, on the procedural plane could be followed in the absence of any bar either in the schedule or Scheme No, I or V. Besides, this dictum will not have any application as there is no simultaneous participation in the two Schemes and for that reason also it has no analogy.
16. ' For all these reasons, we hold that the High Court erroneously allowed the writ petition.
17. Accordingly, we would set aside the impugned order and recall the writ, and, consequently, the order of the Settlement Commissioner will now hold the field. The appeal succeeds and is allowed, but there will be no order as to costs.