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Civil Petition for Special Leave to Appeal No. 184‑P of 1974, heard on 7th February 1975.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 2‑7‑1974 in Writ Petition No. 48 of 1971).

S. 3 read with Notification dated 21‑8‑1959 and Settlement Scheme No. VI‑Respondents not impleaded in proceedings culminating in impugned orders‑Diametrically antagonistic orders relating to extensive evacuee properties made on basis of certain assumptions without any proper inquiry‑Question whether building site situate in area not urban area at time of Independence was transfer able under Scheme No. VI not examined‑Transfer of property in petitioner's favour by Settlement Authority, held, rightly quashed by High Court and orders of' High Court remitting case to Settlement authority to inquire and decide dispute between parties after hearing them maintained.

‑‑ Transfer order even if followed by Permanent Transfer Deed Without any legal effect whatsoever if area in dispute found not transferable under Scheme‑Contention that P. T. D. once issued property ceased to be evacuee property an Settlement authorities became functus officio, held, fallacious‑Question raised‑Germane to competency or jurisdiction, hence, open to further inquiry and decision.

A. R. Shaukat, Senior Advocate Supreme Court instructed by Kh. Wali Muhammad, Advocate‑on‑Record (absent) for Petitioner.

Karimullah Khan Dur rani, Advocate Supreme Court instructed by Qasim Imam, Advocate‑on‑Record for Respondents Nos. 1, 123 and 140 (Caveator),

Nemo for the Remaining Respondents.

Date of hearing : 7th February 1975.

The petitioner herein is a non‑claimant displaced person from the 'former State of Jammu & Kashmir. The respondents and six others, who were writ petitioners with them in the High Court are all local residents of Takht Bhai and severally in possession of either a shop or as the case may be, a house or a composite property situate over certain area in Jhungra Kot, dakhli Takht Bai, District Mardan, which admittedly was evacuee property.

The petitioner claims that by orders dated 23-8‑1953 and 26‑9‑1953 he was "allotted" land measuring about 15 jareebs bearing khasra Nos. 1991/ 1194, 1196, 1197, 1192/1194, 1191, 1991/1/1194, 2229/208‑3, 1193, 1206, 1207, 1190 and 925 situate in Jhungra Kot. The allotment orders are not placed on the file, but it is not the petitioner's case that the above area was allotted to him as agricultural land under the Settlement and Rehabilitation Scheme. Rather it is conceded that he was "allowed the liberty to realise the rent for the area allotted for his subsistence", and that it was "rental allotment". The case of the petitioner however, is that after the above "allotment" he had constructed three mandis, 12 shops and 2 houses at a cost of Rs. 70,000 over the land comprising Khasra Nos. 1206 and 1207 and continued realising the rent therefore from the occupants until January, 1963. On 13‑1‑1963, however, the D. S. C. issued order forbidding him from realising the rent from the occupants and he then filed what is described as "appeal /application" before the Additional Settlement Commissioner for the recall of the above order of the D. S. C. During his inspection of the spot, the learned Additional Settlement Commissioner, also observed that the petitioner had been only recovering the rent from the persons in occupation of the various tenements and that the petitioner's claim that he had constructed these premises at his expense was disputed. Accordingly, the Additional Settlement Commissioner asked the D. S. C., Mardan, to inquire into the matter and submit his report to him, On the basis of the report forwarded by the D. S. C. (not placed on the file), the learned Additional Settlement Commissioner, vide order dated 29‑6‑1965 instead of recalling the prohibitory order issued by the D. S. C. restraining the petitioner from recovering the rent, ordered the transfer of the premises under Scheme Vl in his favour. The reason which influenced the Additional Settlement Commissioner to make that order was that with the issuance of the Notification on 21-8‑1959 under section .l of the Displaced Persons (Compensation and Rehabilitation) Act, i95 , all properties had vested in the Central Government "wholly and absolutely free from all en cumbrances" and therefore, it was no more permissible to the petitioner tee recover the rent in respect of that property, under the previous order made prior to the issuance of the above Notification. It is however, important to point out that the respondents were not parties to the proceedings before the learned Additional Settlement Commissioner.

Against the above order, six persons (not being among the respondents herein) filed revision before the Settlement Commissioner, but the parties thereto appear to have entered into compromise which was reduced into writing on 11‑8‑1969. According to the terms of the compromise, the petitioner herein agreed that an area of 1 kanal 4 marlas out of the aforesaid khasra numbers was "transferable" to the petitioners in the revision petition. Indeed the effect of the compromise was that the petitioner herein had relinquished his claim for the transfer of 1 kanal 4 marlas out of khasra numbers. The learned Settlement Commissioner gave effect to this compromise and modified the order of the Additional Settlement Commissioner accordingly. This order is dated 5‑9‑1969.

It appears that in the meantime, the respondents herein, on the basis of their respective possession of different tenements, succeeded in securing transfer order under Settlement Scheme No. VII, P. T. Os. were also issued in their favour. All the tenements are situate within khasra numbers referred to above, for which the petitioner had secured rental allotment. The Additional Settlement Commissioner, however, by order dated 21‑12‑1970 cancelled the P. T. Os. in favour of the respondents apparently because of the proceedings initiated by the petitioner herein, culminating in the order of the Settlement Commissioner dated 5‑9‑1969.

This led the respondents and several others to move Writ Petition No. 48 of 1971 to‑ seek the quashment of orders following the three orders namely

(i) order dated 29‑6‑1965 by the Additional Settlement Commissioner purporting to transfer the aforesaid khasra numbers to the petitioner under Settlement Scheme No. VI ;

(ii) order dated 5‑9‑1969 by the Settlement Commissioner, in revision petition taken against the order at No. I above, giving effect to the compromise to which the respondents were not parties ; and

(iii) order dated 21‑12‑1970 cancelling the P. T. Os. earlier issued in favour of the respondents herein.

A learned Single Judge of the Peshawar High Court by order dated 2‑7‑1974 accepted the writ petition and quashed the above order and remitted the case to the Settlement Commissioner directing him or an officer named by him, to enquire to determine the dispute between the parties, after hearing the parties and affording proper opportunity to the respondents. Certain preliminary objections about the competency of the writ petition without seeking alternative remedy under Act XXVIII of 1958 were overruled.

The petitioner now seeks leave to appeal against the above order of the High Court.

After hearing Mr. A. R. Shaukat, Senior Advocate, for the petitioner and Mr. Karimullah Khan Durrani, Advocate for the caveator‑respondents, we feel that in the circumstances of the case, the order made by the learned Single Judge was just and proper order in the circumstances of the case. For instance, it was not contended before us that the respondents were made parties to the proceedings culminating to the three orders impugned in the High Court. It appears diametrically antagonistic orders relating to the extensive evacuee properties in dispute were being made, on the basis of certain assumptions without any proper enquiry. For instance, Settlement Scheme VI was designed for the transfer of "evacuee plots" on which claimants or others had "put up permanent buildings". On the petitioner's own showing, he had built Mandis, shops etc. in khasra Nos. 1206 and, 1207. If that be so how he can claim transfer of 15 jareeb of land, needs to be seen.

Moreover, as pointed out by the learned Single Judge, Takbt Bai was rural area at the time of Independence. The entire estate and the Frontier Sugar Mills were declared as town on 19‑11‑1959. The question therefore, is whether a building site situate in an area which was not an urban area at the time of Independence race could be transferred under Scheme No. VI when under the relevant Notification the Scheme was confined to "the transfer of urban building sites".

Learned counsel for the petitioner submitted that a P. T. D. had already been issued is favour of the petitioner and therefore, the property has ceased to be evacuee and the Settlement Authorities have become functus officio, The argument is fallacious. The question raised is germane to the compe tency or the jurisdiction and if on enquiry it is found that the area in dispute measuring about 15 jareebs were not transferable under Scheme VI, the transfer order even if followed by P. T. D. will be without any legal effect whatever.

Therefore, it is eminently a fit case for proper enquiry by the Settlement Commissioner. I would dismiss the petition with costs.

Petition dismissed,

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