1. HAMOODUR RAHMAN, C. J: This appeal, by special leave, is directed against the judgment of a Division Bench of the former High Court of West Pakistan, Lahore Seat, dismissing a Letters Patent Appeal against the judgment of a learned Single Judge of the said High Court in a petition under Article 98 of the Con--stitution of 1962.
2. The latter petition was filed by the first respondent herein to challenge the validity of the orders of the Settlement Authorities transferring evacuee House No. 841/69 situated in Bazaz Mohallah, Lahore Cantonment, to the appellant herein.
3. The appellant, who is a non-claimant displaced person, occupied a portion of the said evacuee house as an allottee. The rest of the house was in the occupation of the respondent No. 1 and her husband but neither the husband nor the said respondent were allottees in respect thereof.
4. However, when settlement operations started, the appellant filed a "NCH" form for the portion in his occupation and the respondent No. 1 filed a "CH" form as a claimant for the entire premises on the basis of her undisputed possession. In her declaration of eligibility, she only claimed that she was in undisputed occupation but no reference to any allotment order was given either in the "CH" form or in the declaration.
5. The dispute with regard to this house was ultimately referred to the Deputy Settlement Commissioner who, on the 3rd of March 1960, after inspecting the premises, decided that the house was divisible as it consisted of two small self-contained units with separate electric meters, water arrangements and a separate staircase. It appears that the house was also owned by two different evacuee owners. He, accordingly, transferred the unit occupied by the appellant to him and the unit occu--pied lay the respondent No. 1 and her husband to the respondent No. 1. The deohri, however, was kept common and the appellant was ordered to close the windows opening towards the other portion transferred to the respondent No. 1.
6. Both sides felt aggrieved by this order and went up on appeal. The Additional Settlement Commissioner, by his order of the 11th of October 1960, set aside the decision of the Deputy Settlement Commissioner, held the properly to be indivisible and transferred the entire house to the appellant. No reason was,however, given for this.
7. The operative portion of the Additional Settlement Com--missioner's order reads as follows; "The property is regarded as indivisible by both sides with equal vehemence. I am inclined to accept this. In the light of the foregoing I accept the appeal of Mr. Aziz-ur-Rahman and order the transfer of the entire house to him."
8. This order does not disclose that the Additional Settlement Com--missioner had at all applied his own independent mind to the question of the divisibility of the house but held it to be indivisi--ble, because both sides contended that it was indivisible. Again, no reason was given as to why the appellant, a non-claimant, should be preferred to the respondent No. 1, a claimant.
9. Mst. Habib Bano, the respondent No. 1, went up in revision to the Settlement and Rehabilitation Commissioner, but he dismissed the revisional application because it was conceded before him that the respondent No. 1 "had also filed a Form E which contemplates the withdrawal of Form CH."
10. A second revision by Mst. Habib Bano was also dismissed by another Settlement and Rehabilitation Commissioner exercising the powers of the Chief Settlement Commissioner on the 4th of August 196?.. It is from these orders that the respondent, Mst. Habib Bano, went up to the High Court under Article 98 of the Constitution.
11. The learned Single Judge set aside the order of the Additional Settlement Commissioner in appeal and all subsequent orders of the higher Settlement Authorities on three grounds. Firstly, that the Additional Settlement Commissioner had held the house to be indivisible only because both parties so asserted; secondly, that in any event the respondent No. 1 being a claimant in undisputed occupation of the house from before December 1958, had a preferential right to the transfer of the house if it was indivisible and thirdly, that the mere filing of a Form "E" did not automatically result in the withdrawal of Form "CH".
12. In the appeal before the Letters Patent Bench, it appears that only one point was argued, namely, as to whether the filing of the Form "E" amounted to a withdrawal of the "CH" Form and reliance was placed upon a decision of this Court in the case of Ch. Abdul Rashid Khan v. The Chief Settlement Commissioner C. P. S. L. A. No. 73 of 1965, decided on 19th May 1965. The learn--ed Judges of the High Court distinguished this decision on the ground that there the party filing the Form "E--" had actually participated in the earmarking scheme and succeeded in drawing a house but later declined to take the house at the price assessed by the Department. In the present case, it was pointed out, that the respondent No. 1 had not even filled in the declara--tion about the withdrawal of her "CH" Form nor succeeded in obtaining any house in the earmarking scheme. In the circum-- stances, the mere filing of the Form 'E' did not render her ineligible for the transfer of the house for which she had already filed a "CH" Form.
13. Leave was granted in this case to consider whether the view taken by the High Court which appeared to be directly opposed to the view expressed by this Court in the case of Ch. Abdul Rashid Khan v. The Chief Settlement Commissioner was sustainable in law.
14. Before we proceed to deal with the appeal on merits, a preliminary objection has first to be disposed of. The preliminary objection is to the effect that the petition for special leave to appeal was barred by seven days. It appears that the Registry of this Court had noted on the Order Sheet that the date of preparation of the copy had been corrected and over-written. The suggestion is that this had been done in order to bring the petition for special leave to appeal within the period of limitation prescribed. This fact was noted at the time of granting leave to appeal but leave was granted subject to any objection that may be taken on this ground.
15. Learned counsel for the respondent No. 1 has formally raised this objection at the hearing of the appeal and pointed out that his client too had filed an application for the certified copy of the judgment of the High Court on the 31st of March 1967, i.e., a day after the appellant applied for his certified copy but the respondent No. 1's copy was ready for delivery on the 5th of June 1967, and was actually delivered to her on the 6th of June 1967. In the circumstances, it is contended that the original date given in the certified copy filed by the appellant, namely, the 5th of June 1967, was the correct date, and the date 13-6-67 had been inserted subsequently for bringing this petition for special leave within time.
16. The affidavit filed on behalf of the appellant now shows that when he applied for the certified copy he was given a chit, according to the practice of the Lahore Seat of the High Court, on which the date of delivery was mentioned. This was changed from time to time to 13-6-67. Ultimately the copy was delivered on 13-6-67, and on his pointing out, the officer who delivered the copy corrected the date of preparation of the copy to correspond to the date given on the chit.
17. We have now examined the original file of the Copying Section of the High Court and we find that the version given by the appellant is fully corroborated by the record. In the centre of the application for the certified copy, the date 13-6-67 is noted. This was evidently done to keep a record of the date given on the chit. Again, we find that there is no over-writing or correction so far as the date of delivery is concerned either in the Copying Section's record or in the certified copy given to the appellant. The date of delivery in both is given as 13-6-67. That has not been scored out or over-written. In the circumstances, we overrule the objection and hold that the petition was filed within time.
18. Coming now to the merits of the case, it appears to us that the view taken by the High Court as to the effect of the filing of Form 'E' for participation in the earmarking scheme is clearly wrong. After the decision of this Court in the case of Ch. Abdul Rashid v. The Chief Settlement Commissioner, the pint came up for consideration again twice before this Court. In the case of Asghar Hussain v. Dr. A.
19. H. Hamid Musa (1968 SCMR 475) the then Chief Justice, while dealing with this question clearly pointed out that the "mere making of an application in Form 'E' to join in a lottery of earmarked house operates by itself as cancellation of any application made in Form 'CH'. Again, in the case of Sheikh Rashid Ahmad v. Settlement Commissioner (1970 SCMR 278) the earlier view was reiterated.
20. Learned counsel appearing for the respondent has, however, endeavoured to support the reasoning of the High Court in the present case and to contend that the mere filing of an 'E' Form does not automatically result in the cancellation of a 'CH' Form. The earmarking scheme introduced under Settlement Scheme No. V was a scheme for the transfer of houses to claimants by the drawing of lots under paragraph 4 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Under this scheme a claimant, to whom a house has not been transferred under paragraph 1 of the said Schedule, may, if he so desires, apply for the transfer of a house under this Scheme in Form 'E'. Then he has to draw lots, and if he is successful in the drawing of the lots, the house that he draws is to be trans--ferred to him, under paragraph V(d) of the Scheme. If any applicant is unsuccessful in the drawing of lots on the first occasion, he has the right to apply again for another house available for transfer under the Scheme. The houses in this earmarking list are divided into three categories, namely, 'A', `B' and 'C' and the persons participating in this scheme have a wide choice amongst these categories but in accordance with the conditions laid down in the Form itself. One of such conditions is that the applicant has to give a declaration in the following Form:---- "I hereby declare----
(a) that I have not applied for the transfer of a house to me in Form 'CH' that I had applied in Form 'CH' (Registration No------------------) but have withdrawn (my application No---------------- --, dated )/my application has been rejected.
(b) that I have not submitted any application in this form to any other authority, Or that I have failed to get any of the houses earmarked in my previous application (Registration No-- ----------------) submitted to ------------------
(c) that I am not a Jammu and Kashmir claimant;
(d) that the information supplied by me is correct to the best of my knowledge and belief and I have neither concealed nor misrepresented any fact;"
21. The learned Judges of the Letters Patent Bench stated that the respondent No. 1, while filing her Form W, "did not make a declaration about the withdrawal of her Form 'CH'." If that was so then the form would have been returned to her for the non---fulfilment of an essential condition for participation in the scheme. The learned Single Judge was more emphatic and stated that she "never withdrew her CH form nor she declared this in her "E" form". It is not known from where the facts were obtained, for, the respondent No. 1 does not say so anywhere and the 'E' form is missing from the Settlement File. It was missing even when the matter was before the High Court. On the other hand, in her writ petition, she admits that she had filed an 'E' form but does not say that the form had not been duty filled in or the declaration required to be given at the foot of the form had not been subscribed to by her.
22. In the written statement filed in the High Court by the present appellant, this point was clearly taken. It was averred that in the 'E' form a declaration has to be filled in to the effect that if the applicant has already applied in Form 'CH' that application has been withdrawn or that it has been rejected; but no counter-statement or replication was put in by the respondent. The respondent does not also say that the Form 'E' was returned to her. Her contention throughout has been that she filed a proper form 'E' but the mere filing of an 'E' form does not amount to a withdrawal of the 'CH' form if the applicant has not actually been successful in drawing any house in this scheme. In the circumstances, we are at a loss to understand as to how the High Court came to the conclusion that the declaration at the foot of Form 'E' filed by the said respondent had not been filled in. The presumption should have been that if the Form 'E' was accepted by the Department, then it had been accepted after proper scrutiny that the requirements had been duly complied with and the declaration made.
23. The declaration attached to Form 'E' appears to us to be in the nature of a condition precedent to participation in the earmarking scheme. This also appears to us to be a reasonable condition, for a person ought not normally to be allowed to participate in two different schemes. The Scheme No. V was really provided for those claimants displaced persons who were not in a position to get a house transferred to them under the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958. Thus, even if they had filed a 'CH' form for a house but they were not certain that they would be held to be entitled to the transfer thereof, they could, if so desired, abandon their claim under the Schedule and participate in the earmarking scheme. In the circumstances, we see no reason to depart from the law laid down by this Court in more than one case. There are no valid grounds for distinguishing those cases from the present. The ratio of these decisions appears to be that the choice has to be made at the time of making the application in Form 'E' and the choice so made is irrevocable. In our view, the filing of the 'E' form did amount to the withdrawal of the 'CH' form, if any had already been filed.
24. This does not, however, decide this appeal, because, we have yet to meet a further objection raised on behalf of the said respondent to the effect that the appellant could not be transferred more than what he had asked for in his 'NCH' form. If he had asked for only the portion in his occupation, then he could not be granted the entire house. In our opinion this is not quite correct for even if a person has asked for the transfer of a portion of a house and the house is held to be indivisible, then he, as a person in possession of a portion, would have the right to the transfer of the entire house, if there was nobody else in the field with a preferential claim or right. In the circumstances, if the house under dispute is indivisible and the respondent No. 1 is disqualified by reason of her participation in the earmarking list then the only person entitled would inevitably be the appellant to whom the Additional Settlement Commissioner had actually transferred the house.
25. We are not, however, satisfied that in the present case any of the Settlement Authorities above the Deputy Settlement Commis--sioner had at any stage applied their minds properly to the question of the divisibility of the house. The Additional Settle--ment Commissioner only proceeded on the basis that both parties were vehemently asserting that it was indivisible and the Settle--ment Commissioner rejected the revision on the ground that the respondent No. 1 had filed an `E' form.
26. The Chief Settlement Commissioner merely endorsed this. There has, therefore, been no proper decision at all on the question of the divisibility of the house after the decision of the Deputy Settlement Commis--sioner.
27. In the result, we allow this appeal but we maintain the order of remand with this modification that the case will now go back, to the Chief Settlement Commissioner to himself decide, after inspection of the house, the question of its divisibility. If the house is found to be indivisible, then it will follow that the house will have to be transferred to the appellant. On the other hand if it is found to be divisible the portion in occupation of the appellant will go to him and the rest will be disposed of by unrestricted public auction in which the respondent No. 1 will also have the right to bid. The position now arising after the promulgation of Martial Law Regulation No. 86, on the 10th of August 1971, will also have to betaken into consideration. If this gives any new right to either of the contesting parties that too should be considered.
28. The appeal is, accordingly, allowed and is remanded to the Chief Settlement Commissioner for decision in accordance with law in the light of the observations made above. In view, however, of the special facts of the case, the parties are left to bear their own costs.