1968 SCMR 475 (PLP)

CORNELIUS, C. J.-This appeal by special leave relates to the transfer in Settlement of an evacuee house situated in Rawalpindi. The appellant, Asghar Hussain, has been living in this house ever since February 1959. He is at present, Deputy Director of Industries under the West Pakistan Government but at the time when he entered into possession in February 1959, he held the lower post of Superintendent of Industries at Rawalpindi. The second appellant, Anwar Hussain, is brother to Asghar Hussain and lives with him both are claimants. The house was allotted in the year 1948 to the "Superinten dent of Industries, Rawalpindi Circle, for office-cum-residence," the date of allotment being noted as the 13th March 1948, and the date of delivery of possession as the 16th April 1948. A doubt had arisen at one time whether the allotment was made in favour of the then Superintendent of Industries, or to the Depart ment of Industries, and this was cleared by a letter from the Deputy Rehabilitation Officer to the Superintendent of Industries, stating that "no portion of this building was allotted to M. H. Qaddus Pal by his name but the whole of the building was allotted to the department (Superintendent of Industries) for keeping his office and his official residence." Asghar Hussain was appointed as Superintendent of Industries at Rawalpindi on the 11th November 1953, and took up residence in a part of this house, using the other part as his office. His brother Anwar Hussain, was also living with him. Oil the 5th July 1957, Asghar Hussain was transferred out of Rawalpindi but in February 1959, he was again posted to Rawalpindi and retook possession of the house in his official capacity as to the office part and personally as to the residential part.; When the question of transfer of such properties to claimants came up, be approached the Director of Industries, West Pakistan, for a certificate "to the effect that the Industries Department has no objection to the transfer of this property in my name." To this the reply was given on the 6th February 1960, in a letter from the Director of Industries to the Chief Settlement Commissioner of West Pakistan, which reads as follows: "Mr. Asghar Hussain, Assistant Director of Industries, Rawalpindi, is in possession of House No. 1/111, South Circular Road, Rawalpindi for office-cum-residence. The House being an evacuee property is to be disposed of by the Settlement Authorities. The Directorate of Industries is not interested in the acquisition of this property and will have no objection if it is transferred to the aforesaid officer in view of his right." It was stated before us at the hearing of this appeal that in the interim period on a date, which has not been specified, the office of the Industries Department was removed elsewhere from this house which has since then been in the exclusive possession of Asghar Hussain and his brother. Asghar Hussain put in a C H Form for transfer of the property to himself. In the meantime, certain developments had taken place in respect of this house. A Dr. A. H. Hamid Musa, a member of the West Pakistan Health Service .applied to the Deputy Commissioner, Rawalpindi on the 11th February 1958, asking for allotment of a house in Rawalpindi where his family could stay as he himself had been transferred from Peshawar to a place in the hills called Sami to be Medical Superintendent of a T. B. Sanatorium, and his own house in Rawalpindi was being requisitioned by the Government. The matter was apparently referred to the Rehabilitation Department, and on the 2nd June 1958, a reply was sent to Dr. Hamid Musa saying that the house in dispute "which is at present in occupation of Superintendent of Industries, Rawalpindi Division, Rawalpindi, has been allotted to you," and possession would be delivered to him "as soon as the same is vacated by the above said authority". This action appears to have been taken on the strength of a memorandum issued on the 28th September 1957, from the Rehabilitation Commissioner, West Pakistan, to all Deputy Rehabilitation Commissioners intimating that the Government proposed to take back evacuee property in the possession inter alia of Government Departments, and "allotment of these properties should not be cancelled till further instructions from this office," but in the meantime, Government Departments and other affected should be notified to make "immediate arrangements for the residential accommodation of their officers and for themselves as the case may be." In this letter there was included in the third paragraph an instruction that no further allotments of such property should be made to any Government Department or others from whom it was proposed to retake possession of such properties except with the prior approval of the Rehabilitation Commissioner. A sentence was added that "allotment should only be made to claimant displaced persons and a particular condition applicable to such allotments was expressly cited. It is of some importance to sav at once that the last mentioned order cannot be understood to have the effect of a direction that properties still in the possession of e.g., Government Departments should forthwith be allotted to claimant displaced persons. It can only be understood as applicable to the "further allotment of evacuee houses" and to lay down that such further allotments should be made only in favour of claimant displaced persons under the condition specified. There could, of course, be no question of fresh allotments being made to claimant displaced persons in respect of properties which already stood allotted to e.g., Government Departments without the earlier allotment being cancelled. In the present case, the allotment in favour of the Industries Department in respect of the disputed house was never cancelled. These observations at necessary because in the order of the High Court against which this appeal is addressed, it has, been assumed that authority for allotment of the house in question to Dr. Hamid Musa can be found in the third paragraph cited- above. It appears to have been overlooked that double allotment of a single property was not conceivable, the more so when the first allotment was in favour of a Government Department, and the allotted house was actually being used as an office by the said Department as to a part. It being clear that the allotment to the Industries Department had never been cancelled, the question of ejectment of that Department from the house would seem not to arise at all. It was however, raised by Dr. Hamid Musa on the strength of certain office noting in the Rehabilitation Department of which a copy was attached to the writ petition as Annexure 'C'. The noting commences with a reference to earlier orders of the Deputy Rehabilitation Commissioner, in respect of the house in dispute, and after stating that it was in occupation as office of the Superintendent of Industries, Rawalpindi, goes on to mention the policy of the Government to take back possession of evacuee buildings under occupation as Government offices. On this ground alone, it was suggested that the disputed house should be allotted to Dr. Hamid Musa, subject to vacation. This was approved by the proper authority, and at the bottom of this noting there is a direction to the "Reader to issue necessary notice accordingly," Reliance was placed upon this completely vague direction as constituting an order for ejectment to enable Dr. Hamid Musa to take advantage of an instruction issued by the Central Government on the 11th August 1960, to the effect that allottees of a house "for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation authority,, but who have been unable to obtain physical possession thereof through no fault on their part "shall be deemed to be in posses sion thereof," for the purposes of transfer of property to them under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The note mentioned above, although it was made in the Rehabilitation Department, cannot at all be regarded as an order for ejectment proceedings. There could be no question of commencing ejectment proceedings, until the allotment to the Industries Department had first been cancelled. There was deed an order for allotment of this house to Dr. Hamid Musa "subject to vacation" but it is clear that the allotment never took effect at all because the house was never vacated. However, these circumstances did not stand in the way of a Deputy Settlement Commissioner making an order on the 4th September 1959, in the following terms:- "Two C H Forms have been filed for this house (i) Dr. A. H. Hamid Musa, and (ii) Mr. Asghar Hussain, Assistant Director, Industries. The house is allotted by name to Dr. Musa on paper and by designation to the letter under the provisions of C. S. C. letter No. 475/Comp/Reh/59, dated 4-7-59. Dr. Musa applied for the transfer of this house. Merits of both the parties have been duly considered. The house is transferred to Dr. Musa. The form filed by Mr. Asghar Hussain is rejected. He is allowed to earmark another house for him." Although, the order states that "merits of both the parties have been duly considered", it is quite evident that the Deputy Settlement Commissioner never applied his mind to such facts as are requisite for the making of a transfer order. He stated truthfully in this order that the house was allotted "by name to Dr. Musa on paper", but the allotment was worth no more than the paper on which it was written, for it was specifically made "subject to vacation", and on the 4th September 1959, the property had not been vacated and, in fact, has never been vacated by the Industries Department or Asghar Hussain. More over Dr. Hamid Musa could not be deemed to be in possession under the Central Governments instruction of the 11th August 1960, reproduced above, for the simple reason that no ejectment proceeding had been ordered by any competent authority in respect of this house. It is proper to say that this order of the 4th September 1959, does not represent an honest disposal of the case. Asghar Hussain moved an appeal against this order before the Additional Settlement Commissioner who, by order of the 3rd January 1960, accepted the appeal, but without considering the merits of the two applicants. The reason he gave was that in the meantime "Dr. Hamid Musa, has been fortunate in drawing a house in the lottery drawn for houses in 'B' category on 21st December 1959." The circumstances in which this unusual event occurred require to be stated in detail. Having secured an order for transfer of the house in dispute to himself on the 4th September 1959, but knowing that an appeal had been moved against that order, Dr. Hamid Musa on the 15th December 1951, applied in Form 'B' to join in an earmarking lottery, adding the information that the house now in dispute had been transferred to him, but an appeal was pending against the transfer order, and giving an undertaking that in case that appeal was decided in his favour, he would give information accordingly, and withdraw his application in Form 'E'. Mere making of an application in Form 'E' to join in a lottery of earmarked houses operates by itself as, cancellation of any application made in form C. H. Dr. Hamid Musa's Form `E' was entertained Only because he had assumed a duty to relinquish any house that might fall to his lot in the lottery in case the appeal before the Additional Settlement Commissioner resulted in his favour, that it was dismissed. It being an earmarking scheme, it is to be assumed that he was aware of the quality and condition of each of the houses which he had specified in his application in Form in other words, that matters relating to the character and condi tion of any house which might be drawn in his name could not be allowed to be raised by him for the purpose of rejecting such house. Dr. Hamid Musa declined to take the house he had drawn and the reason given is that it is situated close to a prostitute quarter. It is to be noted that his rejection was notified to the Rehabilitation authorities on the 22nd January 1960, a date 19 days after the appeal against him had been allowed by the Additional Settlement Commissioner, and moreover allowed on the ground that he had drawn the unwanted house in a lottery, All the conditions requisite for enforcement of the undertaking he had given when he filed his application in Form 'E' were therefore satisfied. He had undertaken that if the appeal went in his favour, he would relinquish any house that he drew in the lottery. The lottery was drawn on the 21st December 1959. The decision in the appeal was announced on the 3rd January 1960, and went against him. This rendered his participation in the earmarking scheme effective in all respects, i.e., it would be deemed that his application in form C. H. was cancelled as from the filing of his Form 'E' application, and he had to proceed with the scheme till its final termination, that is to say, till transfer of the house he drew was made to him. The only circumstances in which sub stitution of a house drawn in an earmarking scheme by another house are permissible are those specified in the Central Govern ment's instruction of the 7th April and the 28th July 1960, namely, where the house drawn in a participant's favour could not be transferred to him on account of its acquisition by the Government or for any other reason," such claimant would be entitled to choose another house out of an earmarking or an auction list under certain conditions. Mere refusal of a house by the successful claimant in an earmarking cannot be accommodated within the circumstances cited above. Dr. Hamid Musa after his refusal of the house he had drawn in the lottery on the 22nd January 1960, continued to pursue his case for the house here in question by means of a revision petition before the Settlement Commissioner, followed by a review of the Settlement Commissioner's order, and finally a second revision before the Chief Settlement Commissioner. The Settlement Com- missioner dismissed the revision holding that "the pre-requisite of filing Form 'E' is to surrender form C H" and there was no force in Dr. Hamid Musa's contention that the house he had drawn was in the prostitute quarter. This order was made on the 15th March 1960, and his review petition was rejected on the 28th July 1960, on the ground that no mistake was made to appear on the face of the -record. The Chief Settlement Commissioner in the second revision petition moved by Dr. Hamid Musa made a detailed order of the 19th June 1961, in which he pointed out, at the commencement that Dr. Hamid Musa had submitted Form E 90 the 15th December 1959, mentioning therein the appeal in aspect of the house now under dispute and his undertaking to withdraw his Form 'E' application if that appeal went in his favour. Although he succeeded in the lottery, he did not take possession of the house. The Chief Settlement Commissioner took note of the argument raised before him that while it may be true that a person applying in Form `E' should not have submitted an application in Form C H yet that did not mean that a person who applied in Form 'E' could not submit an application in form C H but decided in the concluding paragraph of his order that:- "the petitioner had submitted Form 'E' and has succeeded in getting the house at Rawalpindi. If he refused to get it, it was his own doing." Besides this, the Chief Settlement Commissioner also examined the merits of the respective claims. With reference to Dr. Hamid Musa he noted that he had never been in possession of the house, although. "Somehow or other, he did obtain a conditional order of allotment from the District Rehabilitation Officer, Rawalpindi on 2-6-1958 although the house already stood allotted to the Industries Department, Rawalpindi and through it a portion to respondent No. 2 (Asghar Hussain)" The opinion was expressed that the order of allotment of Dr, Hamid Musa was not valid. Regarding the point of there being instructions for ejectment of which Dr. Hamid Musa could take advantage, the Chief Settlement Commissioner said, quite properly, that as Asghar Hussain "was a legal occupant of a portion of the house in dispute the question of issuing of a notice of ejectment to him could not arise." It may well have been added that the allotment in favour of the Industries Depart ment had never been cancelled and therefore ejectment of that Department or of Asghar Hussain, who was in occupation by authority of the Department was not conceivable. Thus, Dr. Hamid Musa's claim to a transfer on the basis of deemed possession, failed on both grounds, namely that his allotment order was ineffective and that there could never have been any ejectment proceedings in respect of this house. Holding that Asghar Hussain and his brother bad a far better title to me house in dispute than Dr. Hamid Musa, the Chief Settlement Commissioner dismissed the revision petition. Dr. Hamid Musa moved a writ petition before the High Coma and succeeded in obtaining an order for a remand of the case to the Settlement Department for determination of the question. "Whether the petitioned is entitled to the benefit of Notification No. F. 3(3)160-SI, dated 11th August 1960, by reason of a Rehabilitation Authority having issued an order of ejectment." Against this decision, special leave to appeal was given to Asghar ussain and Anwar Hussain. We have heard Dr. Nasim Hasan Shah, in support of the appeal and Mr. D. M. Awan has relied on behalf of the successor-in-interest of Dr. Hamid Musa, who has died during the interval. It is necessary to note that following the acceptance of the appeal of Asghar Hussain lay the Additional Settlement Commissioner, who ordered remand of the case to the Deputy Settlement Commissioner "to decide whether (Asghar Hussain) is actually entitled to transfer of this property under the various relevant rules and instructions issued by the Settlement Commis sioner," on the 9th March 1960, a Deputy Settlement Commissioner directed that transfer of the property to Asghar Hussain and Anwar Hussain and on the 5th May 1960, a Provincial Transfer Order was made out in their favour. No direct proof of this was led in the proceedings before the High Court but these facts are mentioned in the written statement filed in answer to the petition before the High Court and has never been controverted. The matter was referred to in the petition for special leave before this Court and nothing in the nature of a denial on this point appears in the concise statement filed on behalf of the respondent to this appeal. There is no indication that Dr. Hamid Musa obtained stay of the remand proceedings ordered by the Additional Settlement Commissioner. The order of the High Court proceeds to a great extent on the view that Asghar Hussain was not in possession of any portion of the house on or immediately before the 20th December 1958, that being originally the "relevant date" for the purpose of the Displaced Persons (Compensation and Rehabilitation) Act. Dr, Nasim Hasan found no difficulty in showing that this view of the High Court was misconceived. The learned counsel referred to an instruction issued on the 1st August 1959, regarding transfer of evacuee houses, which had been placed at the disposal of Govern ment Departments for allotment to Government servants and conveying the decision of the Chief Settlement Commissioner that "a house duly allotted to a Government servant by a depart- men('of Central or Provincial Covernment may be transferred to him, provided he was in possession of such a house in pursuance of an order issued by competent authority on or before the 20th December 1958." This was amended by an order issued by the Central Government on the 3rd August 1960, to the effect that 'a claimant who did not satisfy the condition of having obtained possession of the property by an order passed by a competent authority before the 20th December 1958, but was in possession of a house in pursuance of such an order passed after the 20th December 1958, but before the 3rd August 1960, should for the purposes of the Act, be deemed to be in possession provided that his occupation was undisputed and "no other person is otherwise entitled to the transfer of such house.in pursuance of a final order passed' by competent authority," As a result of the later instruction, the date 20th December 1958, no longer remained a final or terminal date in respect of officers occupying houses allotted to Government Departments and occupied by them under the authority of the allottee Department, but was extended to possession so obtained under orders made on or before the 3rd August 1960. There is no question of Asghar Hussain's occupation of the residential portion of this house having ever been disputed, and, as to the remainder of the house, which was occupied as an office, the occupant, namely the Industries Department by its letter to the Chief Settlement Commissioner, dated the 6th February 1960, which has been mentioned had made it clear that it had no objection to that part of the property being transferred to Asghar Hussain. No other person or authority was in a position to raise a dispute regarding that part of the property. Being claimants in possession of a part, Anwar Hussain and Asghar Hussain were entitled to the transfer of the whole house in the absence of any other entitlements thereto. On the point of the success of Dr. Hamid Musa's application in Form `E', the view taken by the High Court seems to be that the application in Form `E' was not competent and therefore the, transfer of the house under C H form was competent. The High Court appears to have ignored the fact that Dr. Hamid Musa was allowed to participate in the earmarking under a condition, namely, that if he succeeded in his attempt to obtain transfer of the house now in dispute, he would withdraw his application in Form 'F'. Nor has the High Court noticed that this condition not having been satisfied, namely, that. Dr. Hamid Musa failed in the appeal before the Additional Settlement Commissioner, which went in favour of the present appellants, he was bound to go on with his application to the conclusion of the earmarking procedure as provided under Settlement Scheme No. V. The view taken in this respect by the Settlement authorities seems to us to have been perfectly correct. The High Court has thought the case set up by Dr. Hamid Musa as to the existence of an ejectment proceeding in respect of the house in dispute to deserve serious notice. It has been seen above that the only foundation for such a belief that Dr. Hamid Musa was able to provide was a line in certain noting in the Settlement Department directing a Reader "to issue necessary notice accordingly." It was not noticed by the learned Judges that the house in dispute was allotted to Dr. Hamid Musa "subject to vacation" and that to make this allotment effective, it was a necessary pre-condition that the earlier allotment should be cancelled, which was never done. Without such cancellation of the allotment, nothing in the nature of "ejectment proceedings" could conceivably be commenced. The direction "to issue neces sary notice" must be interpreted and understood against the background that the occupant was an important Government Department, which could not be required to vacate without formal correspondence, and in the absence of agreement, without formal proceedings. Nothing of the kind appears to have taken place; if it had been otherwise, Dr. Hamid Musa who apparently had access to papers in the Rehabilitation Department, could not have failed to adduce documentary proof therefrom. The direction to the Reader is totally inadequate basis for the further enquiry ordered by the High Court. We consider that the view taken by the High Court on each point decided in the judgment under appeal is unsustainable. We accordingly allow this appeal, and reversing the order of the High Court direct that the writ petition should be dismissed. In view of the fact that Dr. Hamid Musa has died in the interval, we make no order as to costs. Appeal accepted.