1987 PLP 613 (SCMR)

S.A. NUSRAT, J‑‑This appeal, by leave of this Court, is from the Judgment of the Peshawar High Court whereby a Constitutional petition of the appellants was dismissed. 2. The dispute in this case relates to house bearing No.CC‑195/ 1483/1537. situate in Chakka Gali, Peshawar City which was allotted to Haji Ghulam Muhammad, predecessor‑in‑interest of the appellants, on 20th May, 1950. On the promulgation of Settlement Scheme No.1, Haji Ghulam Muhammad applied for the transfer of the said house on N.H. C. form which was registered by the Deputy Settlement Commissioner, Peshawar as bearing No.PSH‑I808(NH) on 8‑8‑1959. Ghulam Muhammad was, however, not informed about the disposal of his N . C . H . form although the then Deputy Settlement Commissioner is alleged to have rejected the form on 14‑10‑1959 on the ground that the disputed house was trust property. This decision too was never conveyed to Haji Ghulam Muhammad. Sometime in 1959 the disputed house was included in ear marking list and in the drawing of lots held on 20‑11‑1959. Bunde Khan, the predecessor‑in‑interest of the respondents Nos.1 to 7 was declared successful. He was issued a notice of transfer for the house, dated 24‑11‑1959 for evaluation price of Rs.19,008. The transfer was accepted by Bunde Khan vide his letter, dated 6‑1‑1960, whereupon a sum of Rs.5,470 was adjusted against the amount of deferred payment available in his compensation book and rest of the amount was ordered to be paid in instalments. Later a P.T.O., dated 19‑5‑1960 was issued to him. After the death of Bunde Khan on 5‑6‑1976, his heirs (respondents Nos.1 to 7 herein), applied through their attorney Jamilur Rehman, for substitution of their names in the P.T.O. to the Deputy Settlement Commissioner which was allowed by order, dated 28‑8‑1976 and a P.T.O., dated 9‑10‑1976 was issued in their favour. 3. The appellants having learnt about the transfer of the house to the respondents moved the Deputy Settlement Commissioner through application, dated 12‑1‑1977 for cancellation of the same and sought transfer of the house in their favour on the basis of the N.C.H. form submitted by their predecessor. A report on the said application was called for from the Naib‑Tehsildar which was duly submitted by him. In this report it was clearly mentioned that the N.C.H. form, dated 8‑8‑1959 filed by Hap Ghulam Muhammad was pending and the property was transferred to Bunde Khan without disposal of the same. It was further stated that the house was sometime back inspected by an Inspector of the Department in connection with the pending form of Haji Ghulam Muhammad who was found to be living in the house alongwith his family, The report further mentioned that the transfer in favour of Bunde Khan was earlier recommended to be cancelled for default in payment of the balance transfer price of Rs.7,386, but the then accountant had recommended that the transfer could not be cancelled as he had paid more than 1/4th transfer price. The report was concluded by saying that a P.T.O., dated 19‑10‑1976 having been issued, the Settlement Authorities had become functus officio in the matter. The Deputy Settlement Commissioner agreeing with the above report ordered that the application may be filed and the applicant may seek his remedy, if so desired, in a competent Court of law, This order was passed without any notice or hearing nor was the appellants informed about the passing of the said order. The appellants allegedly learnt about this order on 13‑4‑1977 on making inquiry from the office about the fate of their application and thereupon challenged the same by filing a revision application, dated 3‑5‑1977 before the Settlement Commissioner, Peshawar Division. The revision was, however, dismissed on 31‑7‑1977 as time-barred. This led to the filing of Constitutional Petition by the appellants in the Peshawar High Court which was dismissed as per impugned judgment on the grounds of laches and that the Settlement Authorities had become functus officio after the issuance of P.T.D. in favour of the respondents. 4. Leave to appeal was granted, inter alia, to examine the contentions that the appellants' predecessor Haji Ghulam Muhammad had made a formal application in form N.C. H. for the transfer of the house on the basis of his admitted possession but no orders were passed on that application by the Settlement Authorities and the house was erroneously or fraudulently transferred to one Bunde Khan who had no desire to take the same; and that Haji Ghulam Muhammad died on 15‑12‑1959 and after his death appellants had been making enquiries in the matter regarding the disposal of N.C.H. form submitted by the deceased but no reply was given to them and instead the house was unlawfully transferred to the respondents. On these premises, it was contended that the entitlement which had accrued to the appellants and their predecessor‑in‑interest for the transfer of the house under the Settlement law, could not be defeated in this manner. 5. The Constitutional Petition of the appellants was dismissed as aforesaid mainly on the ground of laches and the ground that the P.T.D. issued in favour of the respondents was not liable to be cancelled after the issuance of P. T. D. 6. There is no dispute on facts that no action was taken by the Settlement Authorities on the N.C.H. form of late Haji Ghulam Muhammad and the disputed house was included in the earmarking list during the pendency of the same. The learned High Court has also recorded a finding to the same effect, and also noted that it was the duty of the Settlement Authorities to have taken up the form of the appellants. In spite of such findings of fact the Constitutional Petition was dismissed on the ground that the appellants ought to have taken some steps in the matter and approached the relevant Authorities if no action was taken for such a long time by the Authorities themselves in the matter. Nonetheless it was held that the appellants are deemed to have waived their rights whatsoever in the property and the jurisdiction under Article 199 of the Constitution could not be exercised for issuing a direction as prayed. What, however, was not appreciated is the fact that the appellants had approached the High Court for setting aside the orders, dated 5‑4‑1977 and 31‑7‑1977 respectively passed by the Deputy Settlement Commissioner and Settlement Commissioner, Peshawar. The fact with regard to the pendency of the N . C . H . form of late Haji Ghulam Muhammad was within the knowledge of the Settlement Authorities as disclosed in the report of Naib‑Tehsildar referred to above which officer had also pointed out that some action, one way or the other, should have been taken on the said form before the inclusion of the property in the earmarking list. 7. Here it seems pertinent to mention that in the very first notice of transfer, dated 24‑11‑1959 issued to Bunde Khan he was put on notice as under:‑ "This notice is liable to cancellation if it is subsequently found out that the house is transferable to some other person or you are not entitled to its transfer." Besides according to the provisions of the Schedule to the Displaced Persons Act the persons in possession of the acquired evacuee property had a vested right for the transfer of the same and after an application on the relevant prescribed form was submitted, a duty was cast upon the relevant Settlement Authority to dispose of the same in accordance with law. The disputed house, therefore, was no' available for transfer at all during the pendency of the N.C.H. form of late Ghulam Muhammad. Thus, the inclusion of the same in the earmarking list and its subsequent disposal in favour of Bunde Khan was without any foundation. The P.T.D. issued for such transfer, therefore, did not provide any valid cover to it. 8. For the reasons mentioned above, the appeal is allowed and the judgment of the learned High Court is set aside and the order of the Settlement Commissioner, dated 31‑7‑1977 is quashed. In the result the revision petition of the appellants shall be deemed to be pending which is directed to be disposed of by the relevant notified officer having jurisdiction to deal with such remanded cases in accordance with law with notice to the parties. There will be, however, no order as to costs. M.I. /G‑5/S????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.