1. ' MUHAMMAD HALEEM, C.J.--Leave was granted to consider: firstly, whether the appellant had locus standi for the transfer of the house; secondly, whether the Settlement Authorities could exercise jurisdiction over a property which is not within the urban area as notified in 1947 and to transfer it to Saleh Ahmad; and, thirdly, whether Saleh Ahmad had any entitlement under the law for the transfer of the property.
2. ' The House No,P/272 in dispute is situate in Partap Nagar, Lyallpur City. On 14th of August, 1947, this house was beyond the limits of Municipal Committee, Lyallpur, and situate in village Chak No,220 R.B. Tehsil and District Lyallpur. The limits of the Municipal Committee Lyallpur were extended on 4th of November, 1947, to include the area in which the disputed house was situate. The petitioner is a local and _ was in occupation of the house alongwith his father and continued to live after his demise. He is a Lawyer by profession and had commenced his practice in 1952. Din Muhammad, his clerk, also occupied a portion of the house and quarters since 1947-48.
3. ' That until 1966 there was no manner of disposal of such properties which were included within such limits and hence the petitioner did not file any form for the transfer of the house as defined in section 2(13) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as "the Act".
4. ' Respondent No,6, herein, who was in occupation of the premises of an industrial concern called Rustom Ice Factory did not bid for its transfer at public auction and, accordingly, it 'was transferred to the highest bidder. However, he approached the Settlement Authorities for the transfer of the residential portion of the Ice Factory or In the alternative to be provided with an alternative accommodation, but the Chief Settlement Commissioner by his order dated 27th January, 1980, denied the first prayer holding that the premises was inseparable from the Factory and held regarding the second prayer that there was no law under which he could be given an alternative accommodation. He thereupon filed a Writ Petition No,54-R of 1960 which was dismissed in limine but an observation was made as under: "However, it appears harsh on the petitioner that he should be ejected without providing an alternative accommodation. The petitioner should apply again to the respondent (Chief Settlement Commissioner) and draw his attention to the provisions of sections 29 and 30 of the Displaced Persons (Compensation and Rehabilitation) Act."
5. ' Against this order, he filed a Letters Patent Appeal and succeeded in getting an interim order on 19-4-1960 by which it was ordered that he should riot be ejected till the disposal of the appeal.
6. Muhammad Din, predecessor-in-interest of respondents 7 to 17 filed his CH form for the transfer of the house to him which was duly registered in CS-II maintained for this purpose which, remained pending and no order was passed thereon.
7. ' Respondent No,6 on the strength of the observation of the High Court while dismissing his writ petition moved an application before the Additional Settlement Commissioner for alternative accommodation and gave a list of three houses. The Additional Settlement Commissioner referred this matter to the Settlement Commissioner (Industries) who by his Memorandum No,4532-RB dated 23-5-1960 directed that he should be given a suitable house from those listed for ear- marking. At about the same time, the Secretary, West Pakistan Rehabilitation Board by letter No,4980/RB, dated 15-6-1960 addressed to the Additional Settlement Commissioner, Lyallpur, advised him to consider the case of Saleh Ahmad for the transfer of one of the houses. On 27th July, 1960, Saleh Ahmad filed an application wherein he requested that Property No,13/272, Partap Nagar, Lyallpur, which was in the occupation of two locals should be transferred to him. The Additional Settlement Commissioner, Lyallpur, by his order dated 24th October, 1960, directed that if the occupants were locals and had filed no forms for its transfer, the property should be transferred to Saleh Ahmad. On the strength of this order, the Deputy Settlement Commissioner on 24-8-1960 without any further inquiry into the facts of the case issued P.T.O. In favour of Saleh Ahmad in respect of the disputed house. Muhammad Din thereupon filed an appeal against this order.
8. ' In the meantime on some information given to the Director of Enforcement, who took up the matter with Mr. Bashir Ahmad, Settlement Commissioner (Policy) who on examining the case found that the "intention of the observation" of the High Court was to provide a house for Saleh Ahmad for residential purposes only and not for its transfer to him. The Secretary, Rehabilitation Board to whom the matter was referred to ascertain as to whether the transfer was regular, found it to be illegal and suggested that instead of cancelling the transfer, the Central Government may be moved under section 10(b) of the Act for obtaining its approval for the transfer of the house to him.
9. The Settlement Commissioner (Policy) before disposing, of the reference heard Saleh Ahmad who contended that the transfer was made in his favour by the Additional Settlement Commissioner, Lyallpur, under the instructions of the Settlement Commissioner on the strength of the observation of the High Court. This contention prevailed with the Settlement Commissioner (Policy) who dismissed the reference by order dated 17-2-1961 as the house stood validly transferred to Saleh Ahmad on the instructions of the Settlement Commissioner (Industries) and that, therefore, there was no irregularity in the disposal of the house.
10. ' On 27th of March, 1961, the Settlement Commissioner (Industries) sent a letter No,1580/RB dated 27-3-1961 to the Central Government for getting its approval for the transfer of the house for which he had no entitlement.The Central Government vide its letter dated 25-4-1961 declined to accept the proposal. The Letters Patent Appeal filed by Saleh Ahmad was not pressed and it was dismissed on 6-2-1962.
11. ' Saleh Ahmad filed Writ Petition No,270-R of 1962 against the memorandum of 2nd of May, 1962, of the Secretary West Pakistan Rehabilitation Board conveying the refusal of the Central Government to approve the transfer under section 10(b) of the Act. This writ petition was disposed of by the High Court on 26-11-1965. However, certain conclusions were drawn while disposing it of which are: firstly, that the question of transfer of the house to Saleh Ahmad was inextricably Mixed up with the merits of the pending appeal of Muhammad Din which shall be disposed of in accordance with law, and that further if the order of the Central Government is passed without hearing Saleh Ahmad it has no legal effect. Muhammad Din's appeal was dismissed by the Settlement Commissioner on the ground that the transfer of the property in dispute had become once the subject-matter of revision which was disposed of by the Settlement Commissioner (Policy), and, therefore, he could not reopen "the matter finally disposed of by a colleague of equal rank". The result of this order was that the order of the Settlement Commissioner (Policy) dated 17-2-1961 held the field.
12. ' Against this order Muhammad Din filed Writ Petition No,491-R of 1967 to challenge that order. The High Court in paragraph 9 of the judgment noted that Muhammad Din had filed a CH Form for the transfer of the house which bears no date and that, according to Din Muhammad, this form was filed before the transfer of the property in favour of Saleh Ahmad. Saleh Ahmad's contention that it was filed later was also recorded. In paragraph 10 of the order, the High Court also noted that so far Writ Petition No,609-R of 1967 is concerned, the petitioner was admittedly in the occupation of property since 1947 and that he had applied for its transfer on an LH Form in 1966.
13. ' As Muhammad Din's entitlement was not determined in accordance with law, the High Court held that it had no option but to accept the writ petition and to remand the case to the Deputy Settlement Commissioner, Lyallpur, with the following directions: "(1) If the CH Form was filed by Muhammad Din before 24-8-1960. If the answer be in the negative, Muhammad Din shall stand non-suited.
(2) If, however, the answer be in the affirmative, the Deputy Settlement Commissioner shall proceed to take the necessary steps required by Chapter III of Settlement Scheme No,1 for determining the entitlement of Muhammad Din to the property in dispute and the questions already referred to above in paragraph 10. For this purpose the case shall come up before the D.S.C. On 5th May 1974 for recording of the entire evidence which the petitioners, i.e, legal representatives of Muhammad Din want to produce in support of their case. It shall then be adjourned to 29th of May 1974 for recording of such evidence of Saleh Ahmad Khan as he may like to produce. The latter shall be associated with the inquiry throughout and will have the right to cross-examine the witnesses produced by Muhammad Din."
14. ' It was further observed in paragraph 12 of the judgment that if the result of the enquiry be that Muhammad Din is found to be entitled for the transfer of the house in dispute then the transfer in favour of Saleh Ahmad shall be cancelled but if his form is rejected then the transfer in favour of Saleh Ahmad shall continue to hold the field. The application of Malik Muhammad Sarfraz Khan Tiwana for the transfer of the house was held to be incompetent as the property was not available for transfer under Settlement Scheme No,VIII. As for non-filing of the form till 1966, the High Court did not accept the contention of Sarfraz Ahmad that the area in which the disputed house is situated was included in the municipal limits on 4th November, 1947, and that as there was no scheme framed till 1966, he had not filed any form. The High Court held that this contention was being raised for the first time which did not need any consideration.
15. ' The transfer of the disputed house to Saleh Ahmad springs from the entitlement created by the High Court by its observation which had no legal validity as it was not in accordance with the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Chief Settlement Commissioner rightly held by his order dated 27th January, 1960, that the so-called entitlement could not be given effect to. Despite it the Settlement Authorities, namely, the Settlement Commissioner (Industries), the Secretary, West Pakistan Rehabilitation Board and the Additional Settlement Commissioner, Lyallpur, held him to be entitled for the transfer of the house on the basis of the 'observation of the High Court and finally on the strength of the communication of the Settlement Authorities, the Deputy Settlement Commissioner transferred- the house in favour of Saleh Ahmad by issuing a Provisional Transfer Order (P.T.O.) in his favour.
16. ' Subsequently the Central Government on a reference being made to it also disapproved of the transfer by its letter dated 25th of April, 1961. In that view of the matter, no question of any vested right having accrued to Saleh Ahmad arises. As for the entitlement of Din Muhammad it cannot also be sustained as the land on which the disputed house is situated was included for the first time within the municipal limits on 16-4-1966; and in regard to the disposal of the disputed house the Settlement Authorities had no jurisdiction for, its disposal as it was not within the urban limits as on the 14th day of August within the meaning of section 2(13) of the Act. Therefore, there was no occasion for the Settlement Authorities to consider the entitlement of Din Muhammad.
17. ' It was on 16th of April, 1966, that the revised Settlement Scheme No, VII was promulgated which exclusively dealt with the disposal of such houses as the area included within the municipal limits, satisfied the definition of the term "extended area" which meant "an area which has been included by Government in an urban area after the 14th day of August and before the 1st day of January 1961". The High Court, therefore, without going into this question held that the petitioner had no locus standi to question the entitlement of Din Muhammad. The argument was disposed of on the ground that it was not raised earlier. But, in our view, this was crucial as it determined the jurisdiction of the Settlement Authorities.
18. ' The petitioner had filed a form for the transfer of the house on the promulgation of the Scheme as a local and his entitlement needed consideration. Din Muhammad also, therefore, stands eliminated. In this view of the matter, on the conclusion of the hearing, we passed the following order disposing of the appeal: ' the impugned orders of the Settlement authorities transferring the property to respondent No,6, Saleh Ahmad Khan, and the order of the High Court dated 5-8-1974 in Writ Petition No,609-R of 1967 are set aside and the case is remanded to the Notified Officer for determining the entitlement of the appellant to the transfer of house bearing No,P/272 Partap Nagar, Lyallpur City.
19. ' The appeal is accordingly allowed, but with no order as to costs.