' The dispute in this writ petition concerns property bearing Nos. CA-1126/5539/5540/5541 (described by the respondents as CA 566/ 5539-40-41) situate in Lakkar Mandi/Patha Mandi, Ilaqa Dabgari, Peshawar City. The property belonged to non-Muslim evacuee and, therefore, it was treated as evacuee property. Gulzada, the predecessor in-interest of the petitioners, who was in possession of the property sought a declaration claiming ownership of the property before the Custodian but he could not succeed. His prayer to this effect was also declined by the Supreme Court and the property was declared as evacuee property. In 1963 the property was transferred to Inayat Muhammad and Azam Khan in open auction by the Settlement Department. Subsequently, they surrendered the property in favour of respondents 2 and 3 and a P. T.
0. Was issued in their favour in 1969. On behalf of the petitioners it is contended that the super- structure on the site in question was raised by the predecessor-in-interest of the petitioners and, therefore, under Settlement Scheme No, VI read with para. 13 of the Schedule of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958, the petitioners even if in unauthorised possession, were entitled to the transfer of the site on payment of the prescribed value thereof. It is also contended that in spite of repeated applications and the forms submitted by the petitioners the P. T. O. Was issued in favour of respondents Nos. 2 and 3 in the year 1969.
From the perusal of the record, however, it appears that B. S. Forms were submitted for the first time by the petitioners on 30-6-1971 under Settlement Scheme No, VIII of 1965 and not under Settlement Scheme No, VI as alleged by the petitioners. Since the P. T.
0. Had been issued to respondents Nos. 2 and 3 on 7-1-1969, they applied on 31-1-1977 for the issuance of P. T. D. The Deputy Settlement Commissioner after hearing both the parties came to the conclusion that the B. S. Forms of the petitioners were submitted after the issuance of P. T.
0. Dated 7-1-1969 in favour of respondents Nos. 2 and 3, therefore, the property was no longer available for transfer under Settlement Scheme No, VIII and hence the B. S. Forms were rejected on 1-3 1979. The petitioners feeling aggrieved went in revision before the Settlement Commissioner but the revision was also dismissed on 26-7-1980 by placing reliance on a judgment of this Court dated 6-12-1978 wherein it was held that the property was acquired by the Central Government free from all encumbrances under section 3 of the Displaced Persons Act, 1958, and after its acquisition the same was transferred to Akhtar Shah and Daulat Shah (respondents Nos. 2 and 3) and P. T.
0. In respect of the property was also issued to them on 7-1-1969. The Settlement Commissioner, therefore, held that B. S. Forms submitted by the petitioners were rightly rejected as they were submitted on 30-6-1971 when the property was no longer available for transfer. The orders of the Deputy Settlement Commissioner dated 1-3-1979 and the Settlement Commissioner dated 26-7- 1980 are impugned in this writ petition.
2. It may be mentioned that it was erroneously contended that B. S. Forms of the petitioners were submitted under Settlement Scheme No, VI of the year 1959 as from the record it is clear that they were submitted A under Settlement Scheme No, VIII of 1965. Under para. 1(1-A) of the Scheme "Available Properties" mean houses, shops, building sites etc., which have not yet been transferred to any person or which may in future become available for transfer on resumption to be made under Chapter II of the Scheme The question that requires determination in the case is whether the property in question was "Available Property" on 30-6-1971 B when B. S. Forms were submitted by the petitioners. The Deputy Settlement Commissioner and the Settlement Commissioner in their impugned orders have held that since the P. T.
0. Was issued to respondents Nos. 2 and 3 on 7-1-1969 i. e. Prior to the submission of the B. S. Forms, the property was no longer available for transfer. It also appears that subsequent to the P. T.
0. The transferees were also given P. T. D. By the Settlement Department. The learned counsel for the petitioners by reference to Ghiasud Din v. Lqbal Ahmad (1), contended that where P. T. D. Was issued before the order of transfer became final the Settlement Authorities were competent to re- open the case to avoid perpetuation of fraud or illegality. It is also urged that where a P. T. D. Had been obtained while an appeal or revision or other judicial proceeding was pending there was no legal bar for the Settlement Authority to reopen the case and that in the present case the order of transfer in favour of respondents Nos. 2 and 3 could not be termed as a "Final Order" because the B.
S. Forms of the petitioners for the transfer of the property were pending and till they were disposed of in accordance with law, it could not be said that a final order in respect of the property had been made or that the property was no longer available for transfer under Settlement Scheme No, VIII of 1965. In the cited case the grievance of the respondent was that he was a transferee of a portion of the property but the P. T. D. Issued in favour of the petitioner erroneously and illegally showed it to be for the entire house. On learning about the P. T. D. Having been issued for the entire house the respondents filed an appeal before the Additional Settlement Commissioner on the ground that the P. T. D. Was obtained by the opposite party by misrepresentation and fraud. In this background of the case it was observed that where a P. T. D. Had been obtained while an appeal or revision or other judicial proceeding was pending or a party was entitled under the law to take up such proceedings or the proceedings could not be taken up due to an act of the Court or the payment of all the dues had not been made or that the order of entitlement suffered from serious legal infirmity making it void or without jurisdiction or that it was obtained by fraud or issued in contravention of the rules, the Settlement Authority shall have. The jurisdiction to re-open the case unless the period of appeal or revision stood already exhausted. It is not disputed that there is no question of fraud or misrepresentation involved in the case in hand.
' The public auction in favour of Inayat Muhammad and Azam Khan in 1963 and the issuance of P. T.
0. In favour of respondents 2 and 3 were never challenged by the petitioners by taking appropriate proceedings c, The P. T. O. Was issued. On 7-1-1969 after the auction was confirmed and full price paid by the transferees but the B. S. Forms were submitted by the petitioners on 30-6-1971 under Settlement Scheme No, VIII. In support of the contention that the transfer in favour of the respondents had not assumed finality the learned counsel relied on Mst. Sakina and others v.
Muhammad Yamin Khan and others (2), wherein it was held that the Settlement Authorities can correct illegal order and exclude non-evacuee property from the transfer documents if included therein by mistake. On the other hand the learned counsel for the respondents placed reliance on Allah Bux v. Muhammad Ishaq (3), wherein it was observed that:- "In Settlement Scheme No, VIII, however, we find that an interest
(1) PLD 1975 Lah. 780 (2) PLD 1984 SC 3
(3) PLD 1984 SC 47 has been created in respect of properties "which have not yet been transferred to any person". The creation of an interest or an eligibility envisages the absence of vested interest of any one else. It was not and could not be the object of Settlement Scheme No, VIII to interfere with the vested rights of individuals in property".
' It was also observed that:- "In cases where the final order determining the entitlement of a party has been passed by a competent authority in accordance with the law, then notwithstanding the fact that provisional transfer document has not issued, the property will not remain an available property under Settlement Scheme No, VIII. In the case of Khawaja Masood v. Amir Bux (1976 SCMR 8) too an order of transfer without a P. T.
0. Was held to be sufficient to take out the property from the category of available property. In the case of respondent a final order determining his entitlement was passed and thereafter that order remaining, the property could not be an available property for the purposes of Settlement Scheme No, VIII."
' In Sher Muhammad v. Settlement and Rehabilitation Commissioner (1), by reference to Schedule Part II of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it was held that shop already disposed of in auction could not be available for transfer until the confirmation had been refused. Reference may also be made to Nawab Ali and others v. The Settlement Commissioner (2), wherein the order of the High Court was not interfered with for the reason that the writ petition was dismissed by the High Court on the ground that the petitioners had not applied for transfer of the disputed units of the property under Settlement Scheme No 1, but they had sought transfer under the provision of Scheme No, VIII and, therefore, their claim could only be considered as regards to the properties available after the rights of the claimants to the transfer under Scheme No, 1 were exhausted.
3. Keeping in view the principle laid down in PLD 1984 SC 47 and the other cases mentioned above the argument of the learned counsel for the petitioners that the property was "Available Property" at the time of submission of B. S. Forms under Settlement Scheme No, VIII cannot be maintained.
The fact that the B. S. Forms were submitted D by the petitioners after the public auction was confirmed and P. T. O. Issued in favour of respondents Nos. 2 and 3 would disentitle the petitioners to the relief claimed as admittedly no appeal or revision was filed against the transfer by public auction and the issuance of P. T.
0. In favour of the respondents.
4. The learned counsel for the petitioners also referred to the order of the Supreme Court which was passed in Review Petition No, 1-P of 1965 wherein it was observed that the petitioners were still in possession and no proceedings have yet been taken to eject them therefrom. When such a contingency arises, they can take the defence that they cannot be ejected without payment of compensation first. It was observed that there was no ground for review of the Court's previous order which merely held that the Custodian was justified in declaring the property to be evacuee property. In the case in hand
(1) 1974 SCM R 506 (2) 1981 SC MA 1025 during the arguments the learned counsel for the petitioner was asked if his clients were only interested in the payment of compensation for the superstructure allegedly raised by them and upheld in the previous civil litigation, the answer was that they were in fact interested in transfer of the property in their favour. Therefore, the aforesaid order of the Supreme Court passed in Review Petition would be of no help to the petitioners in this case.
5. For the aforesaid reasons the impugned orders are not open to any exception. The writ petition, having no merit, is accordingly dismissed with no order as to costs. n