1975 PLP 55 (SCMR)

SALAHUDDIN AHMED, J.‑The petitioner has become aggrieved by the dismissal of his writ petition by a learned Single Judge of the Lahore High Court. The dispute between the parties is over a house situated in Gobindpura, Rawalpindi. The house fell to the lot of respondent No. 2 Hafiz Fazal Haq in the earmarking scheme and it was transferred to him by the Additional Settlement Commissioner on the 7th of April 1960, and a Provisional Transfer Order was issued to him on the 14th of November 1961. It appears that respondent No. 2 issued a notice to the petitioner on the 20th of June 1960, claiming rent from him. The petitioner received the notice, but did rot pay the rent with the result that an application for ejectment was filed against the petitioner on the 15th of January 1963. The petitioner contested the application and took the plea that no notice bad been served on him by the applicant‑transferee as required under the law. The matter came up before the High Court on a second appeal and it was held that the notice had been duly served on the petitioner. Ultimately the Rent Controller struck off the petitioner's defence for failure to comply with the order to deposit rent, and an order of ejectment was passed against the petitioner. It further appears that the petitioner did not prefer any appeal from the order of ejectment. On the 19th of June 1963, the petitioner for the first time complained before the Additional Settlement Commissioner that the former had filed a N. C. H. Form on the 7th of December 1959, but it remained undisposed of. He claimed that the house in dispute was disposed of in the earmarking scheme without having first disposed of the petitioner's form. The petitioner's application was ultimately rejected by the Deputy Settlement Commissioner on the ground that the house had already stood transferred through an earmarking scheme. This order was finally maintained by the Settlement Commissioner. The petitioner, thereafter, approached the High Court on a writ petition but without any success. It was argued before the High Court on behalf of the petitioner, and the same contention has been repeated before us, that although the petitioner was a non‑claimant displaced person and was in an unauthorised possession of the property in dispute, he was entitled to the benefit of the Notification of the Central Government. dated the 13th of October 1959, even though he had not paid up the arrears of rent. The Notification is as follows:‑ "The Central Government is pleased to direct that a claimant, a non claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the 20th day of December 1958, shall for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the 21st day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day: Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupa tion and, if he is a claimant, such amount is adjusted against his claim." This contention was not accepted by a leaned Single Judge of the High Court on the ground that the Notification dice not apply to a person who had not paid the arrears of rent due from him. This Court had held in the case of Malik Sarwar Khan v. Chief Settlement Commissioner (P L D 1973 S C 210), that it was only in respect of persons who were not in occupation of the premises in pursuance of an order passed by a competent authority that the condition of clearance of rent was imposed. The learned Single Judge relying on this decision held that the petitioner could not be considered to be in possession as he had not paid up the arrears even uptill the date of the High Court's order, and accordingly dismissed the writ petition. In view of the facts and circumstances mentioned above, the petitioner has failed to prove that he had been in undisputed occupation of the house in dispute on or before the 21st of December, 1958, and that no other person was entitled to transfer of the house in pursuance of a final order passed by a competent authority. It may have been noticed that the house was transferred to respondent No. 2 on the 7th of April 1960, by the Additional Settlement Commissioner and a Provisional Transfer Order had been issued to him on the 14th, of November 1961. The petitioner has not alleged that the said transfer has,, not been finalised by the issue of a Permanent Transfer Deed. Furthermore, under the proviso to the Notification, the Notification applied to an occupant who had already paid the rent and other public dues in respect of the house in dispute. Admittedly, the petitioner has not paid such rent or dues uptill now. In these circumstances, we are unable to find fault with the views expressed by the High Court that the said Notification did not apply to the petitioner. It may also have been noticed that the petitioner kept silent uptill the 19th of June, 1963, about the non‑disposal of his N. C. H. Form. This complaint as has been observed by the High Court was raised for the first time after respondent No. 2 had instituted the ejectment proceedings against the petitioner. The learned Single Judge, therefore, held that the petitioner was guilty of laches and delay in respect of the filing of the writ petition. We are unable to find any fault with this part of the order of the learned) Single Judge as well. Having regard to the facts and circumstances mentioned already, we find no force in the contentions advanced on behalf of the petitioner that his N. C. H. Form should have been first disposed of before any transfer was made to respondent No. 2 and that the payment of arrears of rent could be made by the petitioner at any time before the transfer of the property to him. We have already found that the aforesaid Notification of the Central Government did not apply to the petitioner and he was, therefore, not even qualified to put in his N. C. H. Form. Subsection (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, defines 'possession' as follows:‑ "'Possession' means possession obtained in pursuance of an order passed on or before the 20th day of December 1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central Government or Provincial Governments: Provided that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final: Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act." It is, thus, evident from the second proviso that the extension of possession as defined in the section can only be made by an order by the Central Government in writing, and if reference is made to the aforesaid Notification of the Central Government the extension in the conception of possession was made on certain conditions which have not been fulfilled by the petitioner. The conditions not having been fulfilled by the petitioner, he was not entitled to the benefit of the extended definition as given in the Notification. The case of Wahid Khan v. Settlement Commissioner (PLD 1971 Kar. 273) cited on behalf of the petitioner in support of his contention that the payment of arrears of rent could be made at any time and that he was eligible for transfer even without having first paid the arrears of rent does not apply inasmuch as the petitioner has failed to prove that he was in undisputed possession o the house since before the 21st of December 1958. In view of our decision in P L D 1973 S C 210 we are unable to agree with the views expressed by the learned Single Judge of the High Court in P L D 1971 Kar. 273 that a person is eligible to apply for transfer even without having first paid the arrears of rent mentioned in the aforesaid Notification of the Central Government. There is no substance in the petition, and it is, accordingly, dismissed. Petition dismissed.