' Ali Muhammad has by this constitutional petition sought a declaration that the order dated 19-5- 1982 passed by the Deputy Settlement Commissioner, respondent 3, is without jurisdiction and lawful authority and is of no legal effect and that respondents Nos. 1 to 3 be directed to transfer the disputed property to him.
2. Salwan Building situate at Saddar Road, Peshawar Cantt. Has been the subject-matter of litigation since long and has a chequered history. The facts briefly are that a. Part of the Salwan Building was left incomplete by its Hindu owners Messrs M. R. Salwan and Sons who on the establishment of Pakistan migrated to India. The building was attached and sold in execution of a money decree passed against them by the Senior Civil Judge, Peshawar. The petitioner purchased the building for a sum of Rs, 17,800 at the Court auction and was put into possession of it. The Provincial Government treating the building as evacuee property took over possession of a part of it with the help of police and handed it over to the Electricity Department. The petitioner moved the Deputy Custodian of Evacuee Property for confirmation of the Court sale and for restoration of possession but could not succeed. His appeal to the Additional Custodian and revision to the Custodian of Evacuee Property, West Pakistan, Lahore failed. It was in February 1960 that he submitted an application to the Deputy Custodian for creation of charge and the Additional Settlement and Rehabilitation Commissioner as delegatee of the Custodian per his order dated 1- 9-1964 created a charge amounting to Rs, 96,458. On his appeal to the Settlement Commissioner a fresh enquiry was directed by the latter. The Additional Settlement and Rehabilitation Commissioner per his order dated 17-4-1978 created a charge for Rs, 96,548 and deferred the satisfaction of the said charge till the decision of the case pending in the Supreme Court of Pakistan regarding the transfer of the property on the Settlement side. It was observed by him that if the property became available for transfer after the decision of the case by the Supreme Court of Pakistan the petitioner could apply for its transfer under notification dated 3-2-1960. As a matter of act, the petitioner had already applied for transfer of the said property but his application did not find favour with the Additional Settlement Commissioner whereupon he submitted another application on 5-4-1960 but the same was dismissed.
3. The building became subject-matter of transfer on the Settlement side between different persons. Once it was included in the Earmarking Scheme and was drawn in the name of Yar Muhammad and his wife Mst. Badrun. The respondent 4 had submitted C. H. Form for a fiat in his possession but it was rejected by the Deputy Settlement Commissioner. He, however, succeeded in cancellation of the transfer of the building in favour of Yar Muhammad and his wife. The earmarking of the building was set aside by the Settlement Commissioner per his order dated 7-3- 1964 who directed reconsideration of the aforesaid C. H. Form. Yar Muhammad and his wife assailed this order in Writ Petition No, 96 of 1964 in this Court but could not succeed and their L. P. A.
Was also dismissed. Their appeal to the Supreme Court of Pakistan was dismissed in default and their application for its restoration was also dismissed. It may be pointed out that the petitioner had applied for being impleaded as a party in Writ Petition No, 96 of 1964 but his application was rejected whereupon he brought Writ Petition No, 24 of 1981 impugning the aforesaid order dated 7- 3-1964. On the request of the petitioner his writ petition was, however, dismissed as withdrawn and the order dated 7-3-1964 attained finality on the dismissal of both the writ petitions mentioned above.
4. The laws relating to evacuee property and rehabilitation of displaced persons were repealed by the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 which was superseded by the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 whereby all the pending proceedings stood transferred for final disposal by the officers notified by the Provincial Government in the official Gazette. The Board of Revenue, N.-W. F. P. At one stage ordered the auction of the property and on 28-1-1981 the Deputy Settlement Commissioner, respondent No, 3, referred the matter to the Settlement Commissioner, respondent No, 2, for seeking certain directions. Notwithstanding the dismissal of his application in 1960 the petitioner chose to apply afresh on 11-4-1980 for transfer of the building. The Deputy Settlement Commissioner per his order dated 19-5-1982 dismissed the aforesaid application of the petitioner, the claim of respondent No, 4 regarding Flat No, 2 was accepted and Flat No, 3 was transferred to respondent No,
5. This order has now been assailed by the petitioner in the constitutional jurisdiction of this Court.
5. There is no denying the fact that a charge was created in favour of the petitioner for a sum of Rs, 96,548 by the Additional Settlement and Rehabilitation Commissioner, Peshawar per his order dated 17-4-1978. This order was not questioned by the petitioner, it has attained finality and the petitioner is a charge-holder of the entire Salwan Building to the extent indicated above. His learned counsel, however, strenuously contended that the entitlement of the petitioner to the said building had not yet been finally determined inasmuch as his application dated 27-2-1960 moved in pursuance of para. (5) of Notification No, 2240-PL-R&H-60 dated 3.2-1960 (hereinafter called the Notification) had not so far been disposed of. This statement of fact made at the Bar does not appear to be true. It is interesting to note that in para. 8 of the writ petition reference -has been made to the submission of application dated 27-2-1960 by the petitioner for transfer of the building in question and para. 9 reads as under :- "That the aforesaid application did not find favour with the Additional Settlement Commissioner and the petitioner was informed on 15-3-1960 that as the disputed building had already been drawn in lot in favour of some displaced persons, the petitioner's application could not be considered. The petitioner again in continuation of his previous application submitted another application dated 5-4-1960 to the Additional Settlement Commissioner, who declined to accede to the request on the same ground. The petitioner also submitted application for this purpose to the Chief Settlement Commissioner."
' It is manifest from what has been reproduced above that the application dated 27-2-1960 moved by the petitioner for transfer of the disputed building stood disposed of and he was informed accordingly on 15-3-1960.
6. That the aforesaid application had been rejected finds support from another piece of evidence.
An order had been passed with regard to the disputed building by the Chief Settlement Commissioner on 7-3-1964 in, respect of the claim of Yar Muhammad and his wife Mst. Badrun. This order was questioned by them in Writ Petition No, 96 of 1964 which was dismissed on 25-6-1969 and their letters patent appeal met the same fate on 10-1-1973. They went in appeal to the Supreme Court but the appeal was dismissed in default and restoration of the appeal was refused to them. The petitioner had submitted an application for being impleaded as a party in the aforesaid writ petition but his application was dismissed whereupon he brought Writ Petition No, 24 of 1969 impugning the order of the Chief Settlement Commissioner dated 7-3-1964. The Additional Settlement/ Rehabilitation Commissioner, Peshawar who was respondent No, 3 in the writ petition submitted his comments and the relevant portion of last paragraph is as follows :- "As far the petitioner's application for the creation of charge, it is pending in my Court for judicial enquiry. Regarding his application for the transfer of the property as incomplete building, the same had been rejected by my predecessor and the petitioner informed vide Memo. No, 3489/37, dated 15-3-1960 against which he made a representation through Application No, 6480 which too did not succeed. There was no agitation before the Settlement Commissioner against the above order. "
The allegation made in para..9 of the writ petition that the petitioner was informed on 15-3-1960 about the fact of his application dated 27-2-1960 is corroborated by the comments of the Additional Settlement/Rehabilitation Commissioner referred to above. His representation per application dated 5-4-1960/6-4-1960 was rejected and both the orders of the competent authority were not questioned by the petitioner at all. It can, therefore, be legitimately said that the application dated 27-2-1960 for the transfer of the building by the petitioner stood rejected on 15- 3-1960, it became a closed chapter and the assertion that it was still pending is without any force and substance. The mere fact that the petitioner addressed various reminders and entered into correspondence on the subject would be of little assistance to him as he engaged himself in a futile exercise by beating the dead horse over and over again but could not bring it to life.
7. The learned counsel for the petitioner urged that since the application of the petitioner for transfer of the disputed building was pending, the laws relating to evacuee property and rehabilitation of displaced persons were repealed by the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 which was superseded by the Evacuee Property and Displaced Person Laws (Repeal) Act XIV of 1975 and as a result of such repeal all the pending proceedings stood transferred for final disposal to the officers to be notified by the Provincial Government. The Deputy Settlement Commissioner passed the impugned order on 19-5-1982 whereby the application of the petitioner dated 11-4-1980 for transfer of the building was dismissed in view of the order of the Additional Settlement Commissioner dated 17-4-1978, the claim of respondent No, 4 regarding Flat No, 2 was accepted whereas Flat No, 3 was transferred to respondent No,
5. This order forms the subject-matter of the present writ petition. The learned counsel for the petitioner submitted that the application dated 11-4-1980 for transfer of the disputed building has been made by the petitioner in view of the observations contained in the order of the Additional Settlement Commissioner passed on 17-4-1978. This order pertains to the creation of charge in favour of the petitioner and its last paragraph relied upon by the learned counsel for the .Petitioner reads as under :- "Before parting with the matter I may observe that the petitioner if held eligible for the transfer of this building after the decision of the case which is pending in the Supreme Court of Pakistan and if the property became available for transfer then in that case petitioner Ali Muhammad can apply for the transfer of the building to the Deputy Settlement Commissioner, Peshawar in view of the Notification No, 2240-PL-R&11160, dated 3-2-1960 issued by the then Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore."
The words *underlined by me are significant. These observations are irrelevant and have no legal sanctity. The learned Additional Settlemen and Rehabilitation Commissioner could not confer any rights on the petitioner and could not travel beyond the scope of the matter dealt with by, namely, the creation of charge in favour of the petitioner. It appears that it was probably not brought to his notice that the petitioner had already submitted an application in pursuance of the Notification dated 3-2-1960 and his application had been dismissed by the competent authority. His representation failed, he did not question the order at the higher forum and, as remarked earlier, it had attained finality. It I subsequent to the aforesaid order dated 17-4-1978 that the petitioner chose to submit another application dated 11-4-1980 which has been rightly (Mere in italics) turned down per the impugned order. It follows that the question of entitlement of the petitioner to the disputed property stood finally determined as far back as 1960 and the assertion that it was still pending is not tenable. The endeavour of the petitioner after more than a decade to revive his entitlement to transfer is obviously misconceived.
8. The second point vehemently agitated belier me by the learned counsel for the petitioner was that the impugned order with regard to the transfer of Flats Nos. 2 and 3 in favour of respondents Nos. 4 and 5, respectively, was not sustainable in the eye of law. The question that arises is whether the petitioner who was not entitled to the transfer of the disputed building could challenge the transfer in favour of the aforesaid respondents and the. Answer, I am afraid, lies in the negative. It is observed in Ahmed Jamal v. Nazir Ahmed Khan and others (1) that once it is decided that the petitioners are not entitled to the transfer of the premises, they have no locus standi to object to the transfer thereof to another person. A similar view has been expressed in All Muhammad v.
Makhdoom Sirajul Hag Qureshi (2). The petitioner has, therefore, no locus standi to challenged the transfer of two flats of the disputed building in favour of respondent Nos. 4 and 5.
' Both the contentions urged before me by the learned counsel for the petitioner are without substance and the writ petition which has no merit fails. It is accordingly dismissed with costs. {{FOOT NOTE}}
(1) 1975 SCM R 24 (2) 1975 SCM R 33 {{FOOT NOTE}}