The dispute in this writ petition relates to house No. P/230, Street No. 5 Douglaspura, Layallpur. This house was allotted to Ali Muhammad and Hassan Muhammad, sons of Nabiz Bakhsh respondent, on 28-9-1947, N4bi Bakhsh filed C.H. Form for the transfer of the house in dispute on the basis-- of allotment and possession of his sons. The Assistant Settlement Commissioner examined the case and found Nabi Bakhsh, who was the only applicant, entitled to the transfer of this property and recommended the case to the Deputy Settle--ment Commissioner for necessary orders. The learned Deputy Settlement Commissioner vide his order dated 22-10-1959 transferred this house in favour of Nabi Bakhsh respondent. It may be mentioned here that Shadi Khan petitioner did not-- file his C.H. Form or otherwise applied for the transfer of this house at the relevant time. However, on 5-12-1959, Shadi Khan submitted his 'E' form under Scheme No. V. On 13-12-1959, the lots were drawn but Shadi Khan was not successful in the same. After being unsuccessful in getting a house of his choice-- under the Earmarking Scheme (No. V) Shadi Khan filed his belated C.H. Form on 22- 2-1960. This form was entertained by the Additional Settlement Commissioner subject to the following condition:- "If he was found to be an allottee or in undisputed possession of the house and secondly that the said house has not been included in the list of earmarking."
It is an admitted fact that Shadi Khan was not an allottee of the house in dispute. He was claiming transfer on the basis of possession alone. Nothing has been placed on the record to, show whether the above-mentioned conditions were fulfilled by the petitioner and whether the claim was actually entertained by the Deputy Settlement Commissioner. Shadi Khan petitioner on 7-4-1960 challenged in appeal the order of the Deputy Settlement Commissioner dated 22-10-1959, obviously after the expiry of period of limitation. The Additional Settlement Commissioner vide order dated 29-6-1960 accepted the appeal and remanded the case mainly on the ground that he did not find the order of the Deputy Settlement Commissioner dated, 22-10-1959 on the file. It may be pointed out that the learned Additional Settlement Commissioner did not take into considera-- tion whether the appeal by Shadi Khan was within limitation, or not. There is even no mention of this fact in the judgment. The Deputy Settlement Commissioner after the remand again, transferred the house in favour of Nabi Bakhsh on the ground that he filed his C.H. Form in time and he was found in possession of a portion of the property through his sons Ali Muhammad and Hassan Muhammad in whose favour the allotment order dated 28-9-47 passed by the House Magistrate existed. While rejecting the claim of Shadi Khan petitioner it was held that his possession was definitely in dispute. He was held neither an allottee, nor in undisputed possession and, therefore, none of the conditions imposed by the Additional Settlement Com--missioner while entertaining his belated C.H. Form, was found in his favour. Shadi Khan again filed an appeal which was disposed of by the Additional Settlement Commissioner vide order dated 18-6-1962. He set aside the order of the Deputy Settlement Commissioner dated 7-4-1961 and transferred the house to evacuee pool for the purpose of auction, as according to him the possession of Nabi Bakhsh through his sons was not proved. As regards the claim of Shadi Khan he observed as follows:- "The appellant (Shadi Khan) filed a belated C.H. Form. The house was then already disposed of. His belated C.H. Form was conditionally forwarded to D. S. C. The appellant (Shadi Khan) did not fulfil any of the prescribed conditions. Apart from that he forfeited his right to get this house by not filing CH. Form and instead participating in earmarking proceedings."
Against this order two separate revision petitions were filed one by Shadi Khan petitioner (Revision No. 1082/62) and the other by Nabi Bakhsh respondent being Revision No. 1066/62. The learned Settlement Commissioner disposed of both these revision petitions by a single order dated 15-5- 1964. Regarding the claim of Shadi Khan it was held as under-- "The appeal of Shadi Khan has to be dismissed on two grounds namely (i) that he took his chance in the earmarking scheme by filing his Form `E' on 5-12-1959, and (ii) that he put in his C.H. Form on 22-2-1960 long after the house had been transferred in the name of Nabi Bakhsh."
As regards the revision petition filed by Nabi Bakhsh after referring to the allotment order dated 28- 9-1947 in favour of his son Ali Muhammad it was observed as under:- "On the other hand this allotment letter raises the presump--tion that the allottee continued to remain in possession of a part of the house up to 20-12-1958 and thereafter. This being the position, Nabi Bakhsh was entitled to put in his C.H. Form in respect of house No. 230 on the basis of possession of his son, Ali Muhammad . . . . ."
Shadi Khan produced before the Settlement Commissioner documentary evidence to show that neither Nabi Bakhsh nor his son had ever been in occupation of the house in dispute. It was contended on behalf of Nabi Bakhsh that the Additional Settlement Commissioner by his order dated 18-6-1962 set aside the order of the Deputy Settlement Commissioner dated 7-4-1961 without affording him any opportunity to rebut the allegations against him. While accepting this contention it was observed by the learned Settlement Commissioner as under: "The learned Additional Settlement Commissioner has reversed the order of Syed Iqbal Hussain, n.
S. C. Layallpur so far it relates to house No. 230 in the name of Nabi Bakhsh without affording him any opportunity to answer the case against him. I am, therefore, inclined to hold that he should be given an opportunity of establishing the fact before the D. S. C. Layallpur that he had been in possession of a part house No. 230 before 20-12-1958."
Accordingly the revision petition of Shadi Khan was dismissed, while that of Nabi Bakhsh was accepted to the extent that the case was remanded to the Deputy Settlement Commissioner for fresh decision after determining the possession of Nabi Bakhsh.
2. After the remand the case was again taken by the Deputy Settlement Commissioner. Shadi Khan made an applica--tion that no proceedings should be taken in his absence and without notice to him. Although he was not considered a necessary party to the case, yet be was allowed to watch the proceedings and Nabi Bakhsh was asked questions suggested by him. In other words, Shadi Khan was not only present but participated in the proceedings and was given full opportunity to defend his rights. He had engaged his own counsel as well. On behalf of Nabi Bakhsh respondent his son Ali Muhammad produced relevant material regarding possession of the house in dispute.
That evidence has been mentioned by the Deputy Settlement Commissioner in his order in the following terms:- "He (All Muhammad) has produced an attested copy of the allotment chit of the house in his name and his brother Hassan Muhammad, Exh. P. 1, two certificates, one from Revenue Officer, Electricity WAPDA, Layallpur, that the connection bearing account No. 111 /C-I1 remained in the name of Ali Muhammad and Hassan Muhammad son, of N3bi Bakhsh, house No. 2311, Street No. 5, Douglaspura, Layallpur, and the payment of the bills was made by the consumer from 11-1-1951 to 16-4-1959 vide Exh. P. 2 and the other from Sub-Divisional Officer, Electricity, Branch, Sub-Division, Layalpur-1, to the effect that the meter was actually installed on 25-1-1951 vide No. APP 11215/C, dated 10-1-1951 in the name of Messrs Ali Muhammad, Hassan Muhammad in the premises No. P-230, Street No. 5, Douglaspura. Layallpur. He further produced receipts dated 3-10-1968, 7-4-1959 and 7-7-1961 for the payment of Water Tax, Exh. P. 4 to Exh. P.
5. He also produced original certificate dated 29-5- 1962 issued by the Assistant Accounts Officer of this Department that Muhammad Hassan son of Nabi Bakhsh occupant of P-230, Ward No. 9, Layallpur had paid the arrears of rent up to 31-12-1959 vide Exh. P. 7."
The counsel for Shadi Khan petitioner raised certain objection before the learned Deputy Settlement Commissioner regarding the admissibility of certain documents and that All Muhammad and his brother Hassan Muhammad had ever been in possession of the house in question. After considering the contentions of the parties and examining evidence produced before hint the learned Deputy Settlement Commissioner came to the following Conclusion:- "In the presence of the entries in the survey record and the documents Produced by Ali Muhammad this version cannot be accepted that Ali Muhammad or his brother have never been in the house. Otherwise there was no occasion for Ali Muhammad or Hassan Muhammad to get electric connection in their names or to pay the Water Tax. Now the question remains as to when Ali Muhammad left the house before 20-12-1958 or after that. The receipts Exhs. P. 5 and P. 6, and the clearance certificate Exh. P. 7 weigh in favour of the fact that the allottees continued in possession after 20-12-1958. For the facts given above I hold that Ali Muhammad and Hassan Muhammad were living in house No. P/230, Ward No. 9, Layallpur on or before 20-12-1958. Their possession is, therefore, established, the transfer in favour of their father was in order. Since the form originally filed by Nabi Bakhsh, who has since died, the house is now transferred to his successors-in-interest "
3. After the remand the Deputy Settlement Commissioner vide order dated 25-6-1964, referred to above, transferred the house in dispute, in favour of the successor-in-interest of Nabi Bakhsh. This order has neither been challenged in appeal nor Impugned in the present writ petition by Shadi Khan. The writ petition was filed on 29-7-1964 after the order of the Deputy Settlement Commissioner transferring the house in favour of the contesting respondents.
4. Mr. Khalilur Rahman, Advocate on behalf of they contesting respondent raised a preliminary objection that after the dismissal of the writ petition for non-prosecution on, 10-6-1969, the case was restored on 7-6-1971 on the condition that the petitioner was to pay a sum of Rs. 150 before the next date of hearing. According to the learned counsel this condition has not been fulfilled and, therefore, the case should not be treated as restored.
The petitioner deposited the said amount with the Treasurer of this Court on 17-6-1971. The next date of bearing was 13-7-1971. According to the learned counsel for the respondents, payment to the Treasurer of the High Court is not the com--pliance of the order as according to him the amount should have been paid either to the contesting respondents direct or to their counsel.
Reliance in this behalf was paced on Gaya Din v. Lalta Prasad and others (AIR 1936 All. 477).
According to the counsel for the petitioners, since there was no direction in the order to pay the said amount to the respondents or their counsel, no question of its non-compliance arises. In any case, according to him the order being silent or ambiguous, the party should not be penalized for it.
I am not inclined to take technical view of this matter. Broadly speaking the writ petition was restored on the condition of payment of Rs.
150. This order has been comp--lied with in spirit if not in technical sense. The main question was of the payment of this amount and not the mode of the payment. Whether this amount is paid to the respondent or to the Treasurer of the Court is not so material. The deposit with the Treasurer is also on behalf of the Court and payment to the Court or its Treasurer is for the benefit of the respondent. It is g. Well settled principle that act of the Court does not prejudice anyone. In the circumstances, therefore, I consider that the payment to the Treasurer before the next date of hearing is the proper compliance of the order of the Court.
Moreover, law favours adjudication of the case on merits and not its dismissal on technicalities. I am, therefore, inclined to take equitable view and overrule the objection raised on behalf of the respondents.
5. Mr. Hamid-ud-Din, Advocate on behalf of the petitioners raised the following contentions:-
(1) Shadi Khan petitioner (deceased) being a claimant in possession of the house since 1947 and having submitted his C.H. Form on 22-2-1960, was entitled to the transfer of the house and disposal of his claim form under Scheme No. 1.
(2) Where a house is in possession of more than one person and they are claimants, it is incumbent on the Settlement Authorities to apply their mind first of all to the question of divisibility within the meaning of First Proviso to subsection (4) of section 2 of the Act. The Settlement authorities not having done so, there is failure of exercise of jurisdiction vested in them.
Alternatively, if the house be taken as indivisible the Settlement authorities were required to find out who was entitled to its transfer.
(3) The order of the Settlement Commissioner is based on erroneous premises and, therefore, is unsustainable. Both grounds mentioned by him in the impugned order do not disentitle the petitioners from the transfer of the house.
(4) There is no provision in the Statute or the Scheme disentitling the petitioners from claiming the transfer of the house under paragraph 1 of the Schedule on the ground that he had participated in the Earmarking Scheme.
(5) The petitioner being in possession and claiming directly had prior and superior claim to that of the contesting respon--dent who was not in possession of the house and claimed transfer indirectly through his sons.
6. I do not think it is necessary to deal with each and every contention raised on behalf of the petitioners because I propose to dispose of the same on a different plan. It is alleged by the petitioners that Shadi Khan was in possession of the house since 1947 and having filed his C.H.
Form, he was entitled to the transfer of the same under Scheme No. 1. It is an admitted fact that at the relevant time Shadi Khan did not file his C.H. Form for the house in dispute. As pointed out earlier, Nabi Bakhsh respondent alone being in the field, was transferred this house on 22-10-1959 against his C. H. Form on the basis of allotment and possession of his sons. Instead of filing his C. H.
Form for the transfer of the house in dispute, Shadi Khan filed "E" Form on 5-12-1959. The lots were drawn on 13-12-1959, but Shadi Khan was not lucky enough to get a house in the same. After being unsuccessful under the Earmarking Scheme, Shadi Khan filed his C.H. Form before the Additional Settlement Commissioner on 22-2-1960. The question, which arises for consideration in this situation, is whether Shadi Khan after being unsuccessful in the earmarking scheme can claim the transfer of the house in dispute on the basis of his belated C.H. Form. Under the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, (XXVIII of 1958) earmarking is defined as under:- "A house not transferred under paragraphs 1, 2 and 3 shall be available for transfer to any claimant who applies in that behalf and to whom a house has not been transferred under paragraph 1, and shall be transferred to such claimant at a price determined on evaluation basis . . . . . . . . . . . . . . . "
Settlement Scheme No. V deals with earmarking (drawing of lots). Any claimant can apply under this Scheme to whom a house has not been transferred under paragraph 1 of the Schedule. The language used makes it clear that before applying under the Earmarking Scheme the condition precedent is that the applicant has not been transferred any house under paragraph No. 1.
However, the situation in the present case, the effect of which we have to examine, is that Shadi Khan failed to file his C. H. Form at the relevant time and instead filed his "E" Form for another house of his choice and after failing to get that house, he then filed his belated C. H. Form, but in the meantime the house had already been transferred to Nabi Bakhsh claimant on the basis of possession and allotment of his sons. According to the official printed "E" Form the applicant before filing his "E" Form has to declare that he has not applied for the transfer of a house to him in Form C.
H. Or that he had applied in form C. H. Registration No.-----, but had withdrawn his applica--tion on ------or the application had been rejected. Thus, position of the Department appears to be that only those claimants can participate in the Earmarking Scheme who have either not filed any C. H.
Forms for the transfer of a house or if had filed any such C. H. Form, have withdrawn the same or it has been rejected. However, there can be an exception to it, for example, if the house in possession of a claimant is still available end there is no other competitor with better claim, perhaps it can be successfully argued that the house can be transferred in favour of the claimant against his C. H.
Form although he had earlier unsuccessfully tried his luck in the drawing of lots scheme. However, in the instant case the position is entirely different. Shadi Khan did not file his C. H. Form for the house in his alleged possession at the relevant time and allowed it to be transferred in favour of Nabi Baksh respondent and did not challenge the same in appeal within the prescribed period.
Later on, he filed his "E" Form for another house of his choice but after remaining unsuccessful, filed his belated C. H. Form for the house in dispute which was entertained conditionally. In this situation, can Shadi Khan claim the transfer of the house in dispute? To arrive at the correct conclusion we will have to examine the various provisions of the statute and the Scheme. The expression "desires to retain" used in paragraphs Nos. 1, 2 and 3 of the Schedule indicates the desirability on the part of the applicant. In other words, the Department cannot impose upon a person, the transfer of a house. The decision rests with the applicant whether he would like to have the house or not.
Applying the same principle, if a claimant does not apply for the transfer of a house in his possession under paragraph 1, but allows another person to have it, it can safely be inferred that he had no desire to get that house. Thus, the question of desirability can be used both forgetting the house as well as for not getting it. In the instant case, the desire of Shadi Khan is sufficiently demonstrated that at the relevant time he had no desire to get the house in dispute but his desire or choice was for some other house for which he filed his `E' Form. Shadi Khan's desire once expressed for not having the house and the same having been transferred on the desire of Nabi Bakhsh, another claimant in possession the former cannot be allowed to exercise his desire again for the a' house which, as stated above, already stood transferred in favour of Nabi Bakhsh.
7. Apart from the interpretation of paragraph 4 of the Schedule, the principle of estoppel can also be pressed into service against Shadi Khan. Since he did not file his C. H. Form at the proper time for the transfer of the house in dispute be is estopped from claiming the same later on after being unsuccessful in the Earmarking Scheme when the house already stood transferred infavour of his opponent. In the circumstances it can be legitimately presumed that Shadi Khan by his conduct had waived his right, if any, under paragraph 1 of the Schedule.
8. Although, it is true that there is no clear bar either in -the statute or the Scheme to apply under paragraph 1 of the Schedule after a claimant has not been successful under the Ear marking Scheme, yet keeping in view the interpretation of various relevant provisions the intention of the Legislature appears to be clear that if a house bas already been disposed of, the matter cannot be re-opened on an application by an alleged claimant in possession after he has been unsuccessful under Scheme No. V.
9. Thus it is clear that Shadi Khan first by not filing his C. H. Form at the relevant time but allowing Nabi Bakhsh to gets the house against his C. H. Form and later on he (Shadi Khan) by filing his "E"
Form for another house, has disentitled himself to get the house in dispute against his belated C. H.
Form. This conclusion finds support from the principles enunciated by their Lordships of the Supreme Court in Asghar Hussain's case (1968 SCM R 475).
10. Moreover, on 22-2-1960 when Shadi Khan filed his C. H. Form the house in dispute was no longer available for transfer as it had already been transferred in favour of Nabi Bakhsh on 22-10-1959. It was to remove this hurdle that Shadi Khan before the entertainment of his own C. H. Form by the Deputy Settlement Commissioner filed an appeal against the transfer in favour of Nabi Bakhsh. If he was aggrieved by the order dated 22-10-1959, he should have challenged the same earlier within limitation. Furthermore, his own belated form was conditionally accepted by the Additional Settlement Commis--sioner. There is nothing on the record and no finding given by any competent authority in his favour that those conditions have been fulfilled by Shadi Khan. On the other hand, the finding given by the Deputy Settlement Commissioner in his order dated 7-4-1961 is against him. The proper course for him was to satisfy the Deputy Settlement Commissioner that the conditions imposed by the Additional Settlement Commissioner had been fulfilled. In the absence of any such finding in his favour it appears difficult to hold whether actually his claim form was entertained or not.
11. Another serious objection against the petitioners is that after the order of the Settlement Commissioner dated 15-5-64 remanding the case of Nabi Bakhsh to the Deputy Settlement Commissioner, the cage was decided by the Deputy Settlement Commissioner vide order dated 25-6-64. Shads Khan was not only present and represented by his counsel but he fully participated in the proceedings. In spite of this he neither challenged this order of the Deputy Settlement Commissioner in appeal before higher authorities nor impugned the same in the present writ petition. In fact, the allegation of the contesting respondent is that this fact has been deliberately suppressed by the petitioners and, therefore, an adverse inference should be drawn against them.
Apart from this, another fact which clinches this issue is that the case was remanded for the Deputy Settlement Commissioner to determine whether Nabi Bakhsh or his sons were in possession of a part of this house before 20-12-1958 and the finding on this point is based upon cogent reasons supported by documentary and other oral evidence. It cannot be said that the learned Deputy Settlement Commissioner could not arrive at that conclusion on the basis of evidences produced before him. This finding of fact being in the field it is not for this Court in the exercise of extraordinary writ jurisdiction to set aside such finding of fact. If this finding remains as it is, sons of Nabi Bakhsh being allottees in possession, he was rightly transferred the house under paragraph 1 of the Schedule. The house has been treated as one unit and has not been divided by any authority so far. The petitioners in these circumstances cannot claim the transfer of either the whole house or a part of it.
12. As pointed out earlier there were two revision petitions, before Mr. Saeed-ud-Din Khan, Settlement Commissioner one by Shadi Khan petitioner and the other by Nabi Bakhsh respondent.
By the impugned order the revision petition of Shadi Khan was dismissed and that of Nabi Bakhsh was accepted and the case remanded. Shadi Khan has impugned through the Present writ petition only that part of the judgment of Mr. Saeed ud Din by which his own revision petition was dismissed. The order relating to the revision petition of Nabi Bakhsh has not been challenged. It was conceded by the counsel for the petitioners that he was not challenging the order of the Deputy Settlement Commissioner dated 25-6-64 finally transferring the house in favour of Nabi Bakhsh respondent. His argument is that if he succeeds to get the order of the Settlement Commis--sioner set aside, the order of the Deputy Settlement Commissioner will automatically disappear. He has, however, forgotten that the order of the Settlement Commissioner was divided into two parts, dealing with two independent separate revision petitions one filed by Shadi Khan petitioner and the other by Nabi Bakhsh respondent. The proper course for the petitioners was to challenge the full order of Mr. Saeed-ud-Din and apply to the Deputy Settlement Commissioner to stay further proceedings till the disposal of the writ petition, or they should have challenged the order of the Deputy Settlement Commissioner in appeal and revision before the higher authorities and should have also impugned it before this Court. It is un-understandable that after participating in the proceedings before the Deputy Settlement Commissioner Shadi Khan has taken no action against his order either before this Court or before the higher Settlement authorities. His acquiescence before the Deputy Settlement Commissioner and the suppression of this fact in the present writ petition materially affects his bona fides.
13. It was contended by the learned counsel for the petitioners that it was the duty of the Deputy Settlement Commissioner under the Scheme to hold an inquiry and associate all persons in possession claiming the transfer of the house in dispute. In the instant case, however, the Deputy Settlement Commissioner was justified to transfer the house in favour of Nabi Bakhsh as at the relevant time he alone claimed the house on the basis of the allotment and possession of his sons.
The petitioners, in these circumstances, cannot have any serious grievance against the order of the learned Deputy Settlement Commissioner.
14. It was argued on behalf of Nabi Bakhsh respondent that the house in dispute was transferred in his favour by the Deputy Settlement Commissioner vide order dated 22-10-1959. When Shadi Khan petitioner submitted his belated C. H. Form for the first time on 22-2-1960, the house in dispute was no longer available for transfer and it could not, therefore, be transferred to him even if his possession had been accepted. In support of this contention reliance was placed upon Qazi Khalil Ahmad and another v. Settlement and Rehabilitation Commissioner and another (PLD 1965 Lab.
384), Azimullah v. Chief Settlement Commissioner (1968 SCMR 175) and Asghar Hussain and another v. Dr. A. H. Hamid Musa and another (1968 SCMR 475). This appears to be the correct position and the learned counsel for the petitioners could not successfully rebut the same.
15. It was also argued by the learned counsel for Nabi Bakhsh respondent that Shadi Khan petitioner was not found 9n possession of the house by the Settlement authorities. Reference was made to the finding given by the Deputy Settlement Commissioner and upheld by the Settlement Commissioner. On the other hand, the counsel for Shadi Khan petitioner vehemently argued that the petitioner was in possession of a part of the house in dispute and reference was made to various annexures filed with the writ petition. In the exercise of extra G ordinary jurisdiction under Article 98 of the Constitution, it is not for this Court to go into such disputed question of fact.
16. For the foregoing reasons, I find no substance in this writ petition and dismiss the same with no order as to costs.