1. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the order, dated 20-1-1976 passed by the learned Settlement and Rehabilitation Commissioner, Rawalpindi Division, Rawalpindi.
2. The facts of the case briefly stated are that the shop in dispute bearing No.2/120, Jalalpur Jattan, District Gujrat, was transferred to the petitioner by the Deputy Settlement Commissioner, Gujrat on 20-11-195.9 on the N.C.S. Form filed by him on 6-8-1959. This transfer to the petitioner was not challenged even by Abdul Qadeer, respondent No.2 for about four .Years where after on 13-9-1963 he made a miscellaneous application to the Deputy Settlement Commissioner, Gujrat that the shop in dispute had been wrongly transferred to the petitioner.
2. This application was dismissed by the learned Deputy Settlement Commissioner Gujrat by his order, dated 2-12-1965.
3. Appeal preferred by respondent No.2 against the abovementioned order of the Deputy Settlement Commissioner to the Additional Settlement Commissioner, Gujrat was rejected by him by his order, dated 2-2-1966. It was held that respondent No. 2 was not a person possessed of locus standi to challenge the order of transfer of the shop in dispute to the petitioner. H-e, however, directed the Deputy Settlement Commissioner to scrutinize the transfer in favour of the petitioner in the light of some judgment of the High Court in some other case.
4. In view of the observation of the learned Additional Settlement Commissioner referred too above the Deputy Settlement Commissioner examined the case and. By his order, dated 7-7-1966 came to the conclusion after giving a hearing to respondent No.2 that the petitioner was a displaced person from India and was entitled to transfer of the shop in dispute which transfer he maintained.
5. Against this order of the Deputy Settlement Commissioner respondent No. 2 again preferred an appeal to the Additional Settlement Commissioner who rejected the appeal by his order, dated 29- 9-1966.
6. Feeling aggrieved respondent No.2 went up in revision to the learned Settlement Commissioner, Gujrat, who by his order dated 12-7-1967 accepted the revision and transferred the shop in dispute to respondent No.2.
7. Feeling dissatisfied the petitioner filed Writ Petition No.714/R of 1967 in this Court which was accepted and. The case was remanded to the Settlement Commissioner for a decision afresh in accordance with law.
8. On remand, the learned Settlement Commissioner, Gujrat, by his order, dated 20-1-1976 held respondent No.2 to be entitled to the transfer of the shop in dispute and cancelled it from the name of the petitioner.
9. Aggrieved by the impugned order the petitioner has come up in the present Constitutional petition to this Court to seek redress of his grievance.
10. The learned counsel for the petitioner contended:- Firstly, that the order of transfer of the shop in dispute in favour of the petitioner passed as far back as 20-i1-1959 had attained finality as it was not challenged within time in appeal or revision and remained in force for almost four years; Secondly, that the respondent had no locus standi to challenge the transfer of the shop in favour of the petitioner which has also been held by the Settlement Department and therefore the transfer in .His favour by the Settlement Commissioner was illegal; Thirdly,that the P.T.D.(Permanent Transfer heed) having been issued to the petitioner in respect of the shop in dispute the transfer thereof could not be annulled; Fourthly, that the impugned order of the learned Settlement Commis--sioner had been passed in flagrant disregard of the order of the High Court passed in writ petition No.714/R-1967 and by ignoring the material evidence on record. He referred to the statement of Abdul Qadeer, respondent No.2 made before the Deputy Settlement Commissioner in the inquiry proceedings wherein he admitted that he had been a tenant under the petitioner for about eight years which meant that he had been installed in the shop in dispute by the petitioner after the transfer had been ordered in his favour, and Lastly,that the learned Settlement Commissioner erroneously held that the petitioner had paid no rental in respect of the property prior to December 1958 and as such could not be held to be in possession thereof so as to seek its transfer.
4. The learned counsel for the contesting respondents mainly submitted that the P.T.D. Had also been issued to respondent No.2 after the passing of the order by the learned Settlement Commissioner on 20-1-1976 and on the same basis as urged by the learned counsel for the petitioner this P . T . D . Cannot also be cancelled.
11. He next urged that the statement of respondent No.2 if read as whole does not show that the said respondent was a tenant under the petitioner.
12. The learned counsel for respondent No.2 also submitted that the petitioner is not a displaced person within the meaning of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and is thus not entitled to the transfer of the shop in dispute.
5. I am of the considered view that the contentions raised on behalf of the petitioner have force. It has been correctly pointed out that the order of transfer in favour of the petitioner had not been questioned for four long years and it was only in 1963 that respondent No.2 challenged through a miscellaneous application the transfer in favour of the petitioner. Respondent No.2 being admittedly a tenant under the petitioner according to his own statement made before the Deputy Settlement Commissioner was a licensee under the petitioner and therefore had been rightly held by the Additional Settlement Commissioner to be not possessed of any locus standi to challenge the transfer. The dealing of jihis aspect of lack of locus standi of respondent No.2 has not been correctly viewed by the learned Settlement Commissioner while holding that respondent No.2 had acquired the locus standi in view of the promulgation of Scheme No.VIII. The locus standi to question the transfer in favour of the petitioner which was not questioned by respondent No.2 for long four years who continued paying rent to him has to be seen as on the date of challenge to the transfer and not a subsequent date.
13. The other contentions of the learned counsel for the petitioner about misreading and non-reading of the record, especially the statement of respondent No.2 also have force. It having been clearly admitted by respondent No.2 in his statement that he had been a tenant under the petitioner for eight long years and had been paying rent to him all along through a Karinda of the petitioner the setting aside of the transfer in favour of the petitioner by the Settlement Commissioner an transferring the shop in dispute to respondent No.2 is not warrant on the basis of the material available on record, especially when the Settlement Commissioner has himself also held that the petitioner is a allottee of the shop in dispute.
14. It may also be observed that it has been incorrectly held b the learned Settlement Commissioner that the petitioner has never bee able to establish his claim of physical possession over the shop I dispute. The learned Settlement Commissioner and the learned Additions Settlement Commissioner while considering the transfer of the shopdispute have held a number of times that the petitioner has been ii possession of the shop in dispute as an allottee. Without adverting t, those findings holding to the contrary cannot be allowed to be maintained Yet another aspect of the matter is that the learned Settlement Commissioner has not held correctly that the petitioner was not it possession of a single receipt showing payment of the rent of the shot in dispute to the Rehabilitation authorities before 20-12-1958.
15. The learned counsel for the petitioner has pointed out that these receipts were placed before the Settlement Commissioner but he for reasons best known to him did not refer to them. He has drawn my attention to photostat copies of four receipts filed along with this petition to show that the petitioner had been paying rent to the Rehabilitation Department, with effect from 1-8-1952 till 31-10-1958. He had also produced the originals of these receipts which were seen and returned.
16. These receipts show that the petitioner had been paying rent with effect from 1-8-1952 and last payment was made by him on 30-10-1958 for the period 1-1-1958 to 31-10-1958. This basis of non- suiting the petitioner by the Settlement Commissioner is also therefore not tenable.
17. 6.Before parting with the case it may also be pointed out that the contentions of the learned counsel for respondent No.2 are not well-founded. Nothing has been placed before me in support of the contention that the petitioner was not a displaced person and this contention therefore cannot be given any weight especially when it is a finding of the Settlement hierarchy itself and even so observed in the impugned order.
18. 7.I am also unable to agree with the contention of the learned counsel for respondent No.2 that a conjunctive reading of the statement of respondent No.2 before the Deputy Settlement Commissioner does not show that he was a tenant under the petitioner. In fact this statement abundantly proves that he had been a tenant-at-will under the petitioner for long eight years. He cannot thus be allowed to turn around and set up a different status.
19. 8.In view of the foregoing discussion, accepting this writ petition with costs I order that the order of the learned Settlement Commissioner dated 20-1-1976 being without lawful authority is quashed and direct that the transfer of the shop in dispute in favour of the petitioner be maintained.