P L D 1964 (W (PLP)

This is a petition under clause 2 (4) of the Laws (Conti nuance in Force) Order, 1958. The facts giving rise to the petition are these : The petitioner is a registered Society under the Societies Registration Act, 1860 and was formed in 1955 with the object of establishing educational. institutions in the city of Karachi. In the same year on 14th September 1955, the petitioner by a registered lease with respondent No. 5, Mst. Muhammadi Begnm, took lease of bungalow No. 358, an incomplete building and open space with a garden. One of the terms of the agreement was that the Society could put up construction up to the amount of Rs. 20,000 and deduct the amount so spent by monthly instal meDt3 of Rs. 200 out of the monthly rent of Rs.

500. It would appear from the allegations in the petition that the petitioner did complete the construction. It may also be mentioned here that the respondent No. 5 was an allottee of the bungalow in question from the Rehabilitation Authority. She had taken permis sion of the relevant authority before subletting the building to the Society.

2. The respondent No. 5 applied for the transfer of the plot in question under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (hereinafter called the Act). She was transferred the premises by two transfer orders dated the 1st January 190 and 18th June 1960. The transfer dated the 1st January 1960, was in respect of the portion in possession of the respondent No. 5 and the other transfer was in respect of the portion in possession of the Society as tenant. The petitioner had also applied to the Central Government for transfer of the premises in question on the basis that it was a registered Educa tional Society. The Central Government by an order dated the 2nd February 1960, directed the Chief Settlement Commissioner to transfer the premises in question to the petitioner.

3. The petitioner, in the first instance, made, an application to the Settlement Commissioner for implementation of the Government order dated the 2nd February 1960, who transferred the same to the Deputy Settlement Commissioner. The Deputy Settlement Commissioner refused to implement the order of the Central Government on two‑fold grounds. In the first place, he relied upon the order itself which laid down that the property should be transferred to the Society only in case no other person was entitled to it. In the second place, the Deputy Settle ment Commissioner mentioned that the Society had not made an application for the transfer of the property in question under the Act. The petitioner went in appeal to the Additional Settlement Commissioner who came to the conclusion from the evidence on the record "that incomplete building, standing on the said plot was duly completed and further constructions raised by the appellant (the petitioner) on behalf of the respondent in accordance with the terms of the lease deed dated 14‑9‑55." The Additional Settlement Commissioner came to the conclusion that the construction belonged to the respondent and not to the petitioner who had put up the same on behalf of the respondent and deducted the amount of the cost from the rent. He upheld the finding of the Deputy S. C. that the Central Government had ordered the transfer of the property in question on condition that no other person was entitled to it. Can revision the S. C. came to the conclusion that the respondent had "allowed the applicant (the petitioner) very substantial rebate in rent for completing the incomplete building in question under the lease". On further revision to the Chief S. C., the Chief Settlement Commissioner also maintained the order of the Settlement Com missioner.

4. Mr. Munawar Abbas, the learned Advocate has raised four‑fold contentions before me, namely :‑ (1) that the building being incomplete it should have been transferred in accordance with para. 6 of the Notification dated the 3rd May 1960, by the Chief Settlement Commissioner. Under para. 6 an incomplete building which has been completed may be transferred to the occupant who has completed the building, (2) that the building having been converted to another use namely for educational purposes it should have been transferred to the Society under para. 3 (i) of the Notification by the Chief Settlement Commissioner dated 3rd May 1960, (3) that the house having been converted to another use it should have been transferred by the Additional Settlement Commissioner and not by the Deputy Settlement Commissioner, (4) that the order of the Central Government dated the 2nd February 1960, is a valid order. I propose to dispose of these contentions separately.

5. The learned Advocate for the respondent raised two‑fold preliminary objections. He contended, in the first place, that these points have not been agitated before the Settlement Authorities. In support of his contention the learned Advocate relied upon the orders passed by the Settlement Authorities, I have gone through these orders. I find that these points have not been urged before them. Mr. Munawar Abbas stated that he had taken these points in his memo. of appeal or revision as the case was. These memos are not before me. It was the petitioner's duty to have stated in the petition that he had not only taken these points in the memo. of appeal but had pressed them before the Settlement Authorities who had failed to take them into consider ation. No such assertion has been made in the petition: The contention of Mr. Sultan Ahmed therefore must prevail. In the exercise of writ jurisdiction the Court is very reluctant to allow new points to be urged for the first time, more so when the petitioner had an opportunity before four Settlement Authori ties to urge them. In the second place, Mr. Sultan Ahmed urged that the petitioner has no locus standi inasmuch as he was not an applicant of the premises in question. There is not much substance in this contention as the petitioner could challenge the transfer in favour of Mst. Muhammadi Begum on the ground of the order of the Central Government dated the 2nd February 1960.

6. There is not much force in the contention raised by the learned Advocate that the building being incomplete it should have been transferred in accordance with para. 6 of the Notification dated the 3rd February 1960, appearing at page 110 of the Settlement Manual. The relevant portion of this para. runs as under :‑ "An incomplete or damaged building which has been com pleted or repaired by the present occupant of such building may, on an application made in that behalf, be trans ferred to such occupant as a house . . . . . ." It would appear from the above that, in the first place, the petitioner should have applied for the transfer of the building completed by him. It would appear from the order of the Deputy Settlement Commissioner that the petitioner had not applied. In the second place, it cannot be said that the petitioner B had completed the building. It has been found by the Settlement Authorities that the petitioner had completed the building on behalf of the respondent No. 5.

7. There is not much force in the contention that the build ing having been converted to some other use it should have been transferred to the petitioner in view of the Notification of the Chief Settlement Commissioner dated the 3rd May 1960, appearing at page 140 of the Settlement Manual. The relevant portion runs as under (i) A house, a shop or a small industrial concern con verted into a school, college or a hostel, may be transferred to the person or authority running the school, college or the hostel, if the institution has been duly recognised by the Educational Authorities concerned. A vacant building site in possession of the institution if required as a play‑ground for the institution, may also be transferred along with it. The price to be charged for the building and the vacant building site will be the prevailing market value. The above contemplates firstly that an application should have been made by the educational authority and secondly that the house should have been converted into the use of an educational institution by the petitioner itself. In the present case the house was let out by the respondent No. 5 to be used as a College. I cannot therefore be said that the petitioner converted it to the use of a College, It was the respondent No. 5 who converted the building to be used as an Educational Institution.

8. The contention that the building having been converted into another use should have been transferred by the Additional Settlement Commissioner is not of any consequence in view of my finding that the petitioner was not entitled to the transfer under the provision relied upon.

9. The contention that the order of the Central Government dated the 2nd February 1960, is a valid order and therefore it should have been given effect to is also of not much force. In the first place, under section 10 of the Act it is the Chief Settle ment Commissioner who is empowered to transfer a property subject to the provisions of the Act after approval of the Central Government, In other words, the law contemplates that the Chief Settlement Commissioner must himself consider the case of a particular person for transfer of a property. It is only when the Chief Settlement Commissioner has considered the desirability of transferring a property to some one that he is to take the approval of the Central Government. In this case the Central Government on its own ordered the transfer of the property to a petitioner. Moreover, the order of tile Central Government was a qualified one. It stated that it should be transferred to the petitioner only in case' the property was not transferable to any person under the provisions of the Schedule to the Displaced Persons Act. The Settlement Authorities found that the res pondent No. 5 was entitled to transfer under the Schedule to the Act. No other point was urged before me. The petition is dis missed with no order as to costs.

10. There were certain proceedings for ejectment of the petitioner before the Rent Controller. The petitioner had obtained a stay order from this Court on condition of depositing Rs. 10,(00 as rent of the building. Mr. Sultan Ahmed states that be bad agreed to the stay of the proceeding on condition that the petitioner deposited Rs. 10,000 as arrears of rent in this Court. He prays that he should be allowed to withdraw this amount. I do not think that I can grant this request as there is no such condition to the stay order that in case the petition fails, the respondent will be entitled to the amount so deposited in Court. K. B. A. Petition dismissed.