G. SAFDAR SHAH, C. J.-This Letter Patent Appeal is directed against the order of a learned Single Judge of this Court dated 30-3-1971, by which he allowed the writ petition of respondents against the order of Settlement Commissioner dated 6-2-1968 holding it to be illegal, without authority and of no legal effect.
2 The background of the case is that evacuee house bearing No. 556/C, situated in Mohallah Telian at Haripur, District Hazara, was allotted, by the Settlement Authorities, to Police Department for the residence of its officials. It is common ground between the parties that in 1958-59, appellant Inayat--ullah, who was then posted as Prosecuting Sub-Inspector at Haripur, was allowed by his Department to occupy this house, that on 13-10-1959 he applied for the transfer of the house in question on LH form, but since the value of the house was more than Rs. 10,000 his application was rejected by the Deputy Settlement Commissioner on 9-11-1959. And it is said that he was informed of the fate of his application.
3. The case of department is that after the rejection of Inayatullah's application, the house was placed in category "C" and earmarked for dis--posal under Settlement Scheme No. V. It is not disputed that a list of "C" category houses was published by the Deputy Settlement Commissioner and in response thereto, the three respondents, who are brothers, jointly applied for its transfer and they succeeded in that behalf on 12-11-1959 when lots were drawn in their favour. Annexure F/A on the record would show that the result of said drawing of lots was published in daily `Kohistan'
Rawalpindi on 20-2-1959. And thereafter notice of transfer was issued to respondents in: Appendix II (Annexure F) on 11-1-1969 and in due course they were also issued a Provisional Transfer Order.
4. The record of the case would show that after obtaining the Provi--sional Transfer Order in their favour, respondent Mohammad Amin, who was then serving as Subedar in one of the Army units, submitted through his. Commanding Officer an application to the Prosecution Office, Abbottabad, requesting that the appellant be directed to pay him rent of the house. And according to respondents, Inayatullah acceded to this request and started pay--ing them rent. However, on 3- 9-1964, Inayatullah submitted an application M the Deputy Settlement Commissioner posing therein as if he was unaware of the rejection of his LH form and requested that it should be disposed of. In. Reply to this application, the Deputy Settlement Commissioner informed him on 24- 9-1964 that his LH form had already been rejected on 9-11-1959, as the price of the house was more than Rs. 10,000 as also that he had been informed of the decision at that time. On receipt of this letter, Inayatullah filed an appeal before the Additional Settlement Commissioner on 29-9-1964. But it was dismissed on 7-11-1964. Against this order, Inayatullah went up in. Revision to the Settlement Commissioner. But since he had not impleaded therein the three respondents, he was asked to implead them, which he did and thereafter they were proceeded against ex parte. In consequence of these proceedings, the learned Settlement Commissioner accepted the revision application of appellant and remanded the case to the Deputy Settlement. Commissioner with direction that the LH form of Inayatullah should be disposed of. On receipt of this order, the Deputy Settlement Commissioner vide his order dated 28-3-1966, transferred the house to Inayatullah. But in: the meantime, respondents filed an application before the Settlement Com--missioner on 15-2-1966, praying therein that the previous ex parte order passed against them should be set aside as they were not served with notice of the proceedings. This application was contested by Inayatullah but even so it was allowed by the Settlement Commissioner on 7-9-1967 and in con--sequence he set aside the transfer order in favour of Inayatullah.
It is common ground between the parties that in due course the learned, Settlement Commissioner heard the revision application of Inayatullah on --merits, accepted it on 6-2-1968, set aside the order of Deputy Settlement Commissioner by which he had rejected the LH form of Inayatullah and remanded the case to him for fresh disposal of his form with direction that he should be heard in support of his application. Faced with this situation --the respondents/brothers came to this Court in its constitutional jurisdiction contending enter alia hat the order of the Settlement Commissioner dated 6-2-1968 was without jurisdiction and consequently of no legal effect whatever. As stated earlier, their writ petition was allowed by the learned Single Judge and hence this Letters Patent Appeal.
5. We have heard Mr. Pir Bakhsh Khan, learned counsel for the appel--lant, Mr. Karimullah Durrani, learned counsel for respondents and Khawaja Nazir Ahmad learned counsel for Department. Mr. Pir Bakhsh Khan has taken us through the judgment of the learned Single Judge, the evidence and record of the Department, which was made available to him by Khawaja Nazeer Ahmad. Mr. Pir Bakhsh Khan has reiterated before us the same contentions which he had raised before the learned Single Judge, namely:-
(1) That the list of `C' category houses was not published in, official Gazette as required by section 2 of Settlement Scheme No. V, and
(2) that the respondents, having already obtained house No. 915/C in Mohallah Jadeed, Haripur under Settlement Scheme No. I were not entitled to another house according to Settlement Scheme No. V.
Both these contentions were considered by the learned Single, Judge in great detail. But finding no force in them, he rejected then. However, before we proceed to consider the arguments of Mr. Pir Bakhsh Khan on, these points, we would like to deal with certain legal questions to show that in view of the facts and circumstances of this case, the appellant bad no locus standi whatever to claim the transfer of the disputed house and thus the LH form submitted by him to Deputy Settlement Commissioner for that purpose would be entirely futile and the consequent proceedings initiated thereon, completely without jurisdiction. A persual of Displaced Persons (Compen--sation and Rehabilitation) Act XXVIII of 1958 (hereinafter called the Act), as originally framed, would show that in order to be able to claim the transfer of a house/shop from the compensation-pool, constituted under section 4 thereof, an applicant was required to show that he was in possession of it, within the meaning of subsection (6) of section 2 of the Act, in pursuance of an order passed on or before 20-12-1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Government. It seems, however, that in view of this restricted scope of "possession" certain genuine cases were found to have been adversely affected and in order to remedy the situation a second proviso was, by Ordinance LIII of 1959, added to subsection (6) of section 2 of the Act, which may be reproduced:-- Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained' possession as aforesaid shall subject to such conditions as may, be specified in the order, be deemed to be in possession for the purpose of this Act."
The Central Government, in exercise of the powers given to it by this proviso, notified on 13-10-1959 an order in which it was said that if a person had not obtained possession in pursuance of a valid allotment order issued before 20-12-1959, in view of the requirement of subsection (6) of section 2 of this Act, he would still be deemed to be in possession subject to the following conditions:-
(a) That person concerned should not have obtained possession of the house or shop as the case may be, in pursuance of an order passed by the competent authority on or before 20th day of December 1958.
(b) That he should have been in undisputed occupation of the house or the shop before the 21st day of December 1958.
(c) That no other person should otherwise be entitled to the transfer of such house or shop in pursuance of a final order passed by com--petent authority before that day.
(d) That the rent and other public dues in respect of the house or shop, should have been paid by the occupant from the date of his occu--pation, and if he is claimant, such amount can be adjusted against his claim."
It would be seen that by this order of the Central Government, a person, who was otherwise not in possession of a house/shop, within the meaning of unamended subsection (6) of section 2 of the Act, was made eligible to seek its transfer provided he was, amongst others, in undisputed occupation of it before the 21st day of December, 1958. The difficulty to the way of appellant, however, is that at no stage was he in undisputed occupa--petition of the house to this case, for it had been allotted to Police Department for the residence of its officials, posted at Haripur, and it was in this background that he was allowed by his Department to occupy that house .As Prosecuting Sub-Inspector. In other words, the appellant cannot be said to have been in undisputed occupation of the house in question, as the Head of his Department could ask him to vacate it at any time or at any rate he could be posted away from Haripur and thus the house had to be vacated by him for the occupation of his successor. In these circumstances, it way evidently futile on his part to have lodged a claim with the Settlement Department for the transfer of that house and consequently whatever pro--ceedings were initiated on that basis would be wholly without jurisdiction.
6. Mr. Pir Bakhsh Khan, the learned counsel, however, argued that regardless of the fact whether a person was or was not, as envisaged by the above extended definition, in undisputed occupation of an evacuee house, he would still have the right to submit to the Department his application on prescribed form with a view to seeking its transfer. However, in spite of repeated questions put to him by us to point out any legal provision in support of his contention, the learned counsel was unable to do so and quite rightly. For no such provision could possibly exist.. In point of fact, if his contention is accepted; it would tantamount to bringing about chaos in the re-settlement operation of displaced persons (which appears to be the principal object of the Act), for in a given situation a domestic servant, who has been allowed by his master, say the occupation of an outlying house, could as well claim its transfer which however, cannot be the intention of the Act or any Scheme made thereunder.
7. Mr. Pir Bakhsh Khan next argued that before his LH form was rejected by the Deputy Settlement Commissioner, he should have, under paragraph 10 of Settlement Scheme I, given notice to appellant to appear before him on a specified date. But since he had done no such thing, the entire proceedings beginning with the order passed by him rejecting his LH form would be entirely without jurisdiction. By advancing this contention, however, the learned counsel seems to have forgotten that in the scheme of Act and the Settlement Schemes made thereunder, the appellant was a complete stranger, he had no locus standi whatever .To seek the transfer of disputed house and consequently the LH form submitted by him to the Deputy Settlement Commissioner and all proceedings initiated on that basis would be entirely without jurisdiction. In these circumstances, the question of giving notice to him, under paragraph 10 of Settlement Scheme No. I would not arise even if it is assumed, which however is incorrect, that he had been given, no such notice.
8. Adverting now to the two contentions raised before us by Mr. Pir Bakhsh Khan, all that can be said is that the finding of the learned Single Judge in that regard would appear to be unexceptional. It is true that under section 2 of Settlement Scheme No. V, the Department would be obliged to publish in official Gazette information regarding "C" category houses. But in view of the facts and circumstances of this case, we agree with the conclusion of the learned Judge that this requirement had been substantially complied with. It is not disputed that information in regard Ro all "C" category houses including the house in question, had been published by the Department in the form of a booklet, that in pursuance of this infor--mation many persons had tried to secure the transfer of disputed house, but, it were respondents who succeeded and consequently the house was transferred in their favour. Not only this, but according to the order of learned Single Judge, he had directed Khawaja Nazir Ahmad, Advocate, to ascertain from the Department if lists of "C" category houses had ever been published in an official Gazette. And he, having made necessary enquiries, submitted his reply in open Court in negative. In these circumstances, we are satisfied that the requirement of section 2 of Settlement Scheme No. V had been substan--tially complied with and consequently the grievance of appellant would seem to be imaginary. ,
9. We also agree with the finding of the learned Single Judge that the joint transfer of one house to all the three respondents under Settlement Scheme No. I would not debar them from seeking the transfer of one house each under Settlement Scheme No. V. After all, if instead of the joint transfer of one house in their favour, the said house had been transferred to one of them, could the appellant then argue that the other two brothers would have no right, under Settlement Scheme No. V, to claim that earth one of them should be transferred a separate house? The inevitable answer would be in negative.
10. Quite apart from this position, it has been established on record that after the disputed house was transferred to respondents, Muhammad Amin respondent had sent to Prosecution Office, Abbottabad, application dated 8-8-1960, requesting therein that the appellant be directed to pay hire rent. The order of the learned Single Judge would show that one Major Ishaq from the Battalion of Mohammad Amin respondent, bad filed an affidavit that the said application was forwarded to the addressee. And ire that behalf he appears to be supported by a copy of letter dated 17-7-1960 from the office of Prosecuting Inspector, Hazara. Not only this, but accord--ing to money-order coupon (Exh. P. W. 6) the appellant is shown to have remitted to respondents on 4-10-1960 Rs. 18-8- 0 as react for the month of August of that year. And in the absence of any contrary evidence that this amount was sent in connection with some other property, it must beheld that he had accepted the claim of respondent to be his landlords as also that the had come to know about the rejection of his LH form, on 9-11-1959 by the Deputy Settlement Commissioner. Had this not been the case, surely he could not have possibly acquiesced in the demand of respondents, moreso when he happens to be a Law Graduate and was at the relevant time, performing the duties as prosecuting Sub-Inspector at Haripur. In any event it has been satisfactorily proved that after having remitted rent to respondents on 4-10-60, the appellant kept quiet for four years and it was on 3-9-1964 that he sent an application to the Deputy Settlement Commissioner that the LH form submitted by him in 1959 was still pending and the same should be disposed of. We are not prepared to believe that the appellant, who is a Law-Graduate, could have possibly awaited, for four years, the fate of his LH form without making in the meantime, any enquiries as to what had become of it. In this view, the stand taken by Deputy Settlement Commis--sioner is believable that he had sent to the appellant a copy of his order dated 9-11-1959 by which he rejected his LH form, particularly when Depart-- mental Register (Annexure D) was produced before the learned Single Judge and it corroborated his version.
11. In view of this discussion, the order of the learned Single Judge appears to be entirely justified particularly when according to the legal position, which however seems to have escaped the notice of his Lordship, the appellant, under the Act and the Schemes made thereunder, was a complete stranger, had no locus standi to submit to department LH form and con--sequently all proceedings initiated on that basis were without jurisdic--petition. This appeal should, therefore, fail and the same is dismissed with, costs.
S. A. H.