AJMAL MIAN, J: --Leave to appeal is sought against the judgment dated 20-12-1989 passed by a learned single Judge of the Peshawar High Court, Circuit Bench, Abbottabad, in writ Petition No.22 of 1983 filed by respondents No.1 to 11, the legal heirs of one Kala Khan, allowing the same and setting aside the order dated 22-5-1983 passed by the Settlement Commissioner in favour of the petitioners.
2. The facts to be noted are that shop bearing No.35 was transferred to deceased Kala Khan, predecessor-in-interest of respondents No.1 to 11, under Scheme No.VII by the Assistant Commissioner/Deputy Settlement Commissioner on the basis of his exclusive possession since 1951. Permanent Transfer Order was issued in his favour on 23-5-1967. The petitioners who are inter se father and son filed an appeal against the aforesaid transfer on the basis of allegation that said Kala Khan was running the shop on their behalf. The above appeal was accepted by the Deputy Settlement Commissioner by his order dated 10-10-1967. Thereupon, the deceased Kala Khan filed revision which was accepted by the Settlement Commissioner by his order dated 5-6-1970 and the case was remanded to the Deputy Settlement Commissioner for decision on the petitioners' appeal afresh. Against the aforesaid order, the petitioners filed Writ Petition No.39 of 1971 which was dismissed by the Peshawar High Court on 6-6-1974. Thereupon the petitioner No.1 filed an application dated 22-7-1974 before the Deputy Settlement Commissioner, Abbottabad, on 24-7- 1974 informing him about the dismissal of his aforesaid petition and requesting him to adjudicate upon his appeal then pending before him in terms of the remand order of the Settlement Commissioner dated 5-6-1970. It appears that in the meantime the Act repealing the Evacuee laws was enacted in January, 1975, which came into effect with effect from 1-7-1974 and by virtue of subsection (2) of section 2 of the aforesaid repealing Act, the pending proceedings were to be disposed of by the notified officers. The learned Deputy Settlement Commissioner by his order dated 31-5-1981 dismissed the petitioners' aforesaid appeal and maintained the Permanent Transfer Order in favour of deceased Kala Khan. Thereupon, the Petitioners filed a revision which was accepted by the Settlement Commissioner by his order dated 22-5-1983 and the P.T.D. In favour of Kala Khan was ordered to be cancelled and the shop was ordered to be transferred to the petitioners. Against the above order, the respondents filed the aforesaid writ petition which was allowed. The petitioners have, therefore, filed the present petition for leave to appeal.
3. We have heard Mr. Malik Fatal Hussain, learned A.S.C. For the petitioners. His main contention was that by virtue of schedule to the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (Act XLV of 1973), all appeals pending before the Deputy Settlement Commissioner or Additional Settlement Commissioner were to be transferred to the Commissioner and were to be disposed of as revisions and, therefore, the Deputy Settlement Commissioner on 31-5-1981 had no power to adjudicate upon the petitioners' appeal. In our view it is not open to the petitioners to urge the above plea after having themselves moved to the Deputy Settlement Commissioner on 24-7- 1974 to decide their appeal. In this regard, reference may be made to the judgment of this Court in the case Noor Ahmed v. Chief Settlement and Rehabilitation Commissioner and others 1975 SCM R 529.
4. Even otherwise on merits, the above contention is devoid of any force as under the repealing Act which came into effect on 1-7-1974 as observed hereinabove, the pending proceedings were to be disposed of by the notified officer in terms of subsection (2) of section 2 of the aforesaid repealed Act. The High Court has recorded as a finding of fact that the Deputy Settlement Commissioner in question was a notified officer in terms of the above provisions. In this view of the matter, the order passed by him was in accordance with law. The petition has no merits. Leave is accordingly refused.