1. HAMOODUR RAHMAN, C.J.-This appeal by special leave, arises out of a judgment of a Division Bench of the former high Court of West Pakistan, Lahore Seat, upholding the judgment and order of a learned Single Judge of the said Court in a Constitutional, Petition under Article 98 of the Constitution of 1962.
2. It appears that on the 8th August 1959, Gul Muhammad, respondent No: 2 herein, applied for the transfer of house No. D/323 situated at Bagh Mohalla, Jhelum, on the ground that he is a non- claimant in possession of the house. Since there was no other applicant for the transfer of this house, no formal order of transfer was passed but Appendix IX was issued in favour of the said respondent on the 1st December 1959. He paid the departmental dues on the 23rd August 1959, and obtained a P. T. O. On the 23rd September 1961. Thereafter, the transfer price and other dues were also paid by the 3rd May 1962, and a P. T. D. Was issued in favour of the said respondent.
3. There were not challenged by anybody either in appeal or in revision but on tile 2nd May 1961, one Nazir Ahmad a brother of the respondent No. 1. Submitted an N. C. H. Form for the transfer of the premises in his possession, which he descried as D/323, with an application for the con--donation of the delay, before the Settlement Commissioner. This was referred to the Deputy Settlement Commissioner, Jhelum for report. The said Nazir Ahmad appeared before the Deputy Settlement Commissioner on the 29th May 1961 and made a statement to the effect that he and his brothers were in joint possession of a portion of the house described as D/323 and they jointly desired the transfer of the portion in their occupa--tion. The latter, however, reported on the 26th June 1961, that the property having been already transferred to respondent No. 2, Gul Muhammad, was no longer available for transfer. The Settlement Commis--sioner acting on this report, rejected both the application for condonation of delay as well as the form on the 1st April 1963.
4. It is after this that respondent No. I filed a Miscellaneous Application before the Deputy Settlement Commissioner on the 11th February 1963, to the effect that the portion in his and his brother's possession was a separate premises numbered as D/327. The Deputy Settlement Commis--sioner, after obtaining a report from the Excise and Taxation Department, found that the portion, of which transfer was being sought by respondent No. 1, was clearly a part of the house already transferred to Gul Muhammad and that, in any event, respondent No. 1, who had never paid any rent at all to the Department, he .Was not entitled to the transfer of the said premises. The said respondent No. 1 wont up in appeal to the Additional Settlement Commissioner and then in revision before the District Judge, Jhelum, exercising the powers of the Settlement Commissioner. He failed before both of them and then be invoked the writ jurisdiction of the High Court.
5. The learned Single Judge took the view that none of the Settlement Authorities had cared to go into the question whether the portion in occupation of the said respondent No. 1 was separate and distinct from the premises transferred to the respondent No. 2 and that all the reports received from the authorities on his application for the condonation of delay in the submission of N. C. H.
6. Form were fraudulent and incorrect. The orders of the Settlement Authorities were, therefore set aside and the case was remanded for fresh decision to the Deputy Settlement Commissioner.
7. The decision of the learned Single Judge has been upheld in Letters Patent Appeal but leave was granted by this Court merely because leave had been granted in the case of Shabbir Ahmad v.
8. Mst. Kabirn Nisa (1968 SCMR 583) to con--sider whether the transfer of an evacuee property is effective from the date of adjudication of entitlement or from the date of issuance of a P. T. O.
9. The appellant before us is a purchaser from the respondent No. 2. He claims to have purchased this property by a Registered Deed on the 6th December 1962, during the pendency of the application filed by Nazir Ahmad for the consideration of his N. C. H. Forma after condonation of the delay, if any.
10. The question that arises in this case is as to whether on 2-5-1961, when Nazir Ahmad submitted his N. C. H. Form and prayed for condonation of the delay in its submission, the property already stood transferred in favour of respondent No. 2. The P. T. O. In favour of respondent No. 2 was issued a little later on 23-9-1961.
11. In this case, curiously enough, There is no judicial order determining the entitlement of the respondent No. 2 but the proceedings seem to have commenced with the issuance of Appendix IX on the let December, 1959. Hence the learned counsel for the appellant 'eras contended that the issuance of the Appendix IX amounts to a transfer and--- therefore, the, Deputy Settlement Commissioner, Jhelum was perfectly right in reporting that the house already stood transferred to the respondent too. 2.
12. The learned counsel has referred to Paragraph 29, Scheme No. 1, which requires the Deputy Settlement Commissioner to send a notice convoying his decision to transfer the property to a non-claimant displaced person or local concerned in the form specified in Appendix IX. Lience it is contend--ed that the issuance of the Appendix is the communication of the decision to transfer.
13. The decision to transfer trust, therefore, have preceded the issuance of the Appendix IX.
14. It is unnecessary for me to go into this question because I have already, in the case of Shabbir Ahmad v. Kabrim Nisa (Civil Appeal No. 251 of 1969) .Held that a transfer for the purposes of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, takes place only with the issuance of a P. T. O. And not earlier. In the present case, of course, no question relating to the protection given to a statutory tenant arises for con--sideration but the question is as to whether a belated N. C. H. Form purported to be filed by the brother of respondent No. 1 could have been rejected on the ground that the property had already been transferred.
15. It was so held in the case of Qazi Khalil Ahmad v. Settlement and Rehabilitation Commissioner (PLD 1965 Lah. 384) which purported to rely on certain observa--tions of this Court in the case of Altaf Hussain v. Chief Settlement Commis--sioner (PLD 1961 SC 68).
16. I have also taken the view that the mere fact that the Settlement Authorities have no jurisdiction to fix a time limit for the filing of a claim form does not necessarily mean that they have no right to consider and reject a claim form on merits.
17. Apart from this, it seems to me, that there is another important circum--stance which has not been taken into consideration by the High Court. It will appear that the order of the Settlement Commissioner (Policy) refus--ing to condone the delay and rejecting the belated N. C H. Form filed by Nasir Ahmad on 1-4-1963 was not challenged in appeal or revision by any-1 one and, therefore, it became a final order. It could not Lave been reopened on a miscellaneous application as was sought to be done in due present case by the respondent No. 1. Indeed, it appears that the application of respondent No. 1 was filed nearly two months before the order rejecting the N. C. H.
18. Form filed by Nazir Ahmad. The subsequent proceedings all appear to have boon taken on the basis of this miscellaneous application. Now a miscellaneous application is neither an appeal nor a revision. Therefore, the order rejecting the N. C. H. Form on the basis of the report of the Deputy Settlement Commissioner became final under the provisions of the Displaced Persons Compensation and Rehabilitation) Act, 1958.
19. That the N. C. H. Form itself was rejected is also clear from the prayer in the writ petition of the respondent No. 1 himself at page 23 of the record. The order refusing the condonation may be without jurisdiction or even a nullity in the light of the decision of this Court in the case of Altaf Hussain v. Chief Settlement Commissioner but it cannot be said that the order reject--ing the N. C.
20. H. Form was a nullity. Either Nazir Ahmad or the respondent No. 1 should have challenged that order.
21. Since they did not do so but contented themselves by merely filing a miscellaneous application saying that their application for transfer of the premises in their occupation had nothing to do with premises No. D/323 but related to premises No. D/327, this cannot be considered to be a challenge to the order rejecting the N. C. H. Form nor could the Deputy Settlement Commissioner sit on appeal over the order of the Settlement Commissioner (Policy).
22. I am of the view, therefore, that this appeal should fail on this ground. I would, therefore, dismiss the same but without any order as to costs.
23. SALAHUDDIN AHMED, J.-I agree.
24. MUHAMMAD GUL, J.-I agree.
25. MUHAMMAD AFZAL CHEEMA, J.-I agree.