1. MUHAMMAD HALEEM, C.J.--This appeal, by special leave is against the order of the Lahore High Court, Lahore, dated 19th of June, 1975, by which, Writ Petition No. 1107-R of 1973, was allowed and the order of the Settlement Commissioner, dated 28th of November, 1973, was held to be without lawful authority and of no legal effect.
2. Leave to appeal was granted to consider whether the Provisional Transfer Deed issued in favour of respondent No. 1 was "wholly void"
3. The validity of the Provisional Transfer Deed was challenged on the ground that respondent No. 1 being a refugee from the State of Jammu and Kashmir was eligible for the transfer of .The shop under the Settlement Scheme No. VI issued under section 16-B of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, while the P.T.D, rules having been issued under section 10 of the said Act were not applicable to the transfers in favour of displaced persons from the State of Jammu and Kashmir and hence no finality could attach to the transfer.
4. There is a composite building bearing No. U-395-B having both residential and commercial units.
5. This building is situate in the locality known as Sabzi Mandi, Rawalpindi. The commercial unit is comprised of three shops in a row and bears Nos. U-395, U-395/A and U-395/C. These numbers are entered as such in the survey records of the concerned departments. Shop bearing No. U- 395/C is in the centre while the other to shops adjoin it on either side. Shop No. U-395 was in possession of Muhammad Shoab, a local, since 1947 while shop No. U-395/C was in possession of respondent No. 1, a displaced person from the State of Jammu and Kashmir.
6. In the first round of litigation, the whole property was transferred to Muhammad Hussain, who was in possession of the residential portion, by the Assistant Settlement Commissioner by his order, dated 12th of December, 1959. Respondent No. 1 and one Nabi Bakhsh, brother of Muhammad Hussain, filed separate appeals against this order before the Deputy Settlement Commissioner who after spot inspection by his order, dated 28th of August, 1960, transferred the residential portion to Nabi Bakhsh and shop bearing No. U-395/C -to respondent No. 1 and the other to shops were ordered to be auctioned. Respondent No. 1 not being satisfied filed a second appeal before the Additional Settlement Commissioner claiming the transfer of shop No. U-395/A as part of shop No. U-395/C, who by order, dated 20th of September, 1960, ordered that the part of shop No. U- 395/C in possession of Muhammad Shoab, a local, be transferred to respondent No. 1. Thereafter, a Provisional Transfer Deed was issued on 9th of January, 1967, and at that the no proceedings were pending for the transfer of this portion of the shop. However, Muhammad Shoab, the appellant herein, filed a belated revision against the order of the Additional Settlement Commissioner, dated 20th of September, 1960, before the Settlement Commissioner who dismissed it on 23rd of November, 1968, holding that not only the revision was the-barred, but that the disputed property was not available for transfer.
7. Again the appellant moved the Chief Settlement Commissioner through an application, dated 30th of March, 1973 against this transfer on the ground that it was a case of multiple allotment. The Chief Settlement Commissioner thereupon called for a report from the Deputy Settlement Commissioner who after an inquiry sent a report, dated 8th of May, 1973 stating that the portion allotted to respondent No. 1 was a separate shop and that this transfer was contrary to law.
8. On receipt of this report, the Chief Settlement Commissioner referred the case on 21st of October, 1973 to the Settlement Commissioner for exercising his suo motu revisional powers to set aside the order; and while the case was pending respondent No. 1 made an application for being joined as a party, but his prayer was refused. In that application he contested the case on merits but did not raise any objection as to the jurisdiction of the Settlement Commissioner to review the case of transfer. The Settlement Commissioner by order, dated 28th of November, 1973 held that the disputed shop was a separate entity and cancelled the order for its transfer to respondent No. 1. He further held that it was available property and should be disposed of by unlimited auction. The Deputy Settlement Commissioner thereafter by order, dated 19th of December, 1973, transferred the disputed shop to the appellant under Settlement Scheme No. VIII as being its occupant.
9. Being aggrieved respondent No. 1 filed a writ petition in the Lahore High Court, Lahore, on 13th of December, 1973, and while this writ petition was pending he also filed a revision on 14th December, 1974 before the Settlement Commissioner. However, no order was passed on this revision application as the constitutional remedy had already been availed of. By order, dated 19th of July, 1975, a learned Judge of the Lahore High Court quashed the order of the Settlement Commissioner, dated 28th November, 1973. Two grounds were raised before the High Court; firstly, that the respondent No. 1 had not filed any Form for the transfer of the disputed shop; and, secondly, that being a refugee from the State of Jammu and Kashmir the transfer of the disputed shop in his favour under Settlement Scheme No. IV was of a temporary nature and the issuance of the Provisional Transfer Deed under section 16-B of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, could not give any finality to it, and as such the transfer was open to challenge. Apart from these submissions, to other grounds were taken such as that the appeals filed by the respondent No. 1 before the Deputy Settlement Commissioner and the Additional Settlement Commissioner were beyond the and that the transfer of the to shops to respondent No. 1 was void ab initio, and, therefore, he was under no obligation to agitate against this transfer to avoid that bar of limitation and the availability of the disputed property.
10. The learned Judge attended to each argument separately and held that the plea as to the non- filing of Form is belated and as it was a question of fact, it could not be allowed to be agitated for the first the in the High Court when despite the opportunities available to him, he had raised no such objection. As to the second argument, it was held that the temporary nature of the allotment was wholly dependent on the fact such as the liberation of the occupied area and the transfer of respondent No. 1 to his original abode, otherwise the transfer was not amenable to an attack on any other ground. Hence there was no jurisdictional error which could come to the aid of the appellant to dislodge him from holding the disputed property. And as for the Provisional Transfer Deed, he must be deemed to have qualified himself for such a transfer, and, therefore, it must be taken to have been issued under the Settlement Scheme No. VI. Accordingly, it was held that finality did attach to the Provisional Transfer Deed and it was no longer open to the Settlement Authorites to re-open the question of the transfer of the disputed shop on the ground of its multiple transfer.
11. The learned Judge placed implicit reliance on the order of the Additional Settlement Commissioner, dated 20th of September, 1960, in which it was held that the portion occupied by the appellant was part of shop No. U-365/C and simply because there was a temporary partition, it could not be regarded as one permanently dividing the shop to give to it a separate entity.
12. Accordingly, the learned Single Judge reached the conclusion that this order could not be reviewed either on the question of identity of the property or its extent after the Provisional Transfer Deed had been issued under the cover of suo motu revision. As to the question of the appeals filed by the respondents being the-barred, it was held that the respondent No. 1 not being a party to the appeals, the plea of limitation could not be- taken against him at this belated stage. Having held so, the question of the orders being void ab initio did not arise as they were found to have been passed with jurisdiction as to the entitlement of respondent No. 1 to the transfer of the disputed shop.
13. The High Court while disposing of the petition was heavily relied on the order of the Additional Settlement Commissioner, dated 20th of September, 1960, wherein he had concluded after spot inspection: "That the portion occupied by the local and adjoining the shop No. U-395-C in the possession of Ferozuddin is a part of U/395-C and that the partition is only temporary, and cannot be taken as a permanent partition when deciding the question of transfer."
14. To all intents and purposes this order had assumed finality before the Settlement Scheme No. VIII had come into operation, and, therefore, the appellant could not claim any entitlement in the context of his occupation under that Scheme. What further has to be emphasised is that he did not also submit any form for its transfer under any other scheme before that date. Nonetheless, the appellant filed a revision before the Settlement Commissioner some eight years after the date of the order who rightly dismissed it for the reasons; that not only it was "hopelessly delayed" but also as the appellant had failed to establish his locus standi vis-a-vis his entitlement to its transfer before the Settlement Scheme No. VIII was promulgated.
15. The finding of the Additional Settlement Commissioner that the disputed portion was a part of the shop transferred to respondent No. 1 being one of fact was the basis for the transfer and had become final on the dismissal of the revision petition by the Settlement Commissioner. Accordingly, it could not be regarded as a case of multiple allotment as this finding could not be re-opened in the exercise of suo motu revisional power as the disputed property had gone out of the compensation pool and the more so as the appellant had no locus standi to challenge the transfer on the basis of his alleged entitlement under the Settlement Scheme No. VIII. Therefore, the order of the Settlement Commissioner, dated 28th November, 1973, had no legal authority and the learned Single Judge in the High Court was correct in setting it aside.
16. The legal question, accordingly, posed for decision does not need any consideration as, on the view of the matter that we have taken, such a question does not arise for decision.
17. For all these reasons, the appeal is dismissed with costs.