P L D 1968 Lahore 945 (PLP)

BASHIRUDDIN AHMAD, J.‑

The facts giving rise to this petition under Article 98 of the Constitution are few and simple. Qudratullah, husband of Mst. Madina Begum, was allotted a house in the walled city by the rehabilitation authorities and he continued in possession till it was acquired for Shah Alam Gate Scheme and Qudratullah was allotted House No. 82, Ferozpur Road, Lahore: The upper portion of House No. SW‑1I‑24‑S‑1, situate in Santnagar, Lahore, was then in authorised possession of one Ghulam Hussain. Qudratullah got the possession of the entire upper‑storey in question as a result of exchange with the said Ghulam Hussain under the orders of the Deputy Rehabili tation Commissioner, dated the 4th of February 1953. This portion was duly allotted to Qudratullah by the competent Rehabilitation Authority on the 16th of August 1954. Mst. Madina Begum, wife of Qudratullah, who is a claimant displaced person, applied for the transfer of the upper portion of the property in her possession against the C. H. Form filed by her. Sardar Muhammad also applied for the transfer of a portion of this house in his possession on the ground‑floor and also a room and a kitchen over the portion in his possession against C. H. Form. He claimed to be in possession since the 1st of June 1949, as an allottee. Inamullah Khan who was in possession of a portion of the house in question on the ground floor, considered the house in question not to be an indepen dent unit and in his application for transfer of houses other than the house in dispute clearly mentioned that he or his son was not keen for the transfer of the house in question in their favour. On the 15th of December 1959, the Deputy Settlement Commissioner, provisionally transferred the entire house in favour of Sardar Muhammad and Inamullah Khan jointly (see Annexure P/4).

2. The appeal preferred by Mst. Madina Begum to the Additional Settlement and Rehabilitation Commissioner, was dismissed on the 12th of January 1960. She preferred a revision petition to the Settlement and Rehabilitation Commissioner, Lahore Division, Lahore, who dismissed it on the 1st of August 1960. She then preferred a revision in the Court of the Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore, which filet the same fate. She applied for review before Malik Fateh Khan, Settlement and Rehabilitation Commissioner exercising the powers of the Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore, but that too was dismissed by him on the 504 of August 1961. Mst. Madina Begum then filed the present writ petition contending that she being claimant displaced person was a direct claimant inasmuch as the house was duly allotted to her husband and she had been in its possession throughout. We find that in the order of the Settle. ment and Rehabilitation Commissioner dated the 1st of August 1960 (copy Annexure P/6), the husband of the present petitioner is described as an allottee of a portion of this house since 21st of February 1953. It is thus clear that the allotment order produced by the learned counsel for Mst. Madina Begum at the time of the arguments in this Court, is a genuine document. The Settlement Authorities, however, considered that as the house in question had been transferred jointly to respondents Nos. 5 and 6 who are not inter‑related and also prior allottee, its further division was out of question. Malik Fateh Khan, who exercised the powers of the Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore, also took into consideration the amount of the varified claims of the parties in deciding the matter. In our opinion, there he erred because such a considera tion is irrelevant. It is laid down in Taj Bibi v. Ijaz Hussain Shah, Settlement and Rehabilitation Commissioner, Lahore and another (P L D 1966 Lah. 939 at p. 943), that "it will thus appear that the amount of claim being of a bigger or lower valuation has no consideration and A cannot constitute an item of preference. The order of the learned C. S. C., which is based on this extraneous consideration will have, therefore, to be set aside and declared as being without lawful authority."

3. We find that the allotment dated the 1st of June 1949, in favour of Sardar Muhammad respondent No. 5 purports to bear the signatures of Khan Bashir Ahmad Khan, Deputy Rehabilitation Commissioner as allotting authority. Khan Bashir Ahmad Khan was posted to Lahore as Deputy Rehabilita tion Commissioner with effect from 3rd of June 1950 (see copy of notification Annexure P‑2) learned counsel for Sardar Muhammad was unable to satisfy us regarding the genuineness of the allotment order in favour of his client. Even if the allotment order in favour of Sardar Muhammad is considered to be genuine, still we find that in the C. H. Form filed by him (copy Annexure P‑1), he simply asked for the transfer of the portion in his possession on the ground‑floor as also a room and a kitchen above it. He did not claim the whole or half of the house for himself. It is now well settled that a person applying for transfer of part only of house cannot claim transfer of more, and the Supreme Court observed in Muhammad Hanif v. Settle ment and Rehabilitation Commissioner Civil Petition for Special Leave to Appeal No. 5 of 1962, decided on the 6th of February 1963 as under:‑ "The order of the learned Judge of the High Court was justified on the ground on which it rested, but we are of the opinion that even otherwise the petitioner had no case. He had applied only for the transfer of a chaubara to him and that chaubara had in fact been transferred to him. He had no right to the transfer of the shop for which he had not applied at all. It is urged before us that the shop and the chaubara constitute one unit. Even if that be so, the petitioner would not be entitled to the transfer of the shop if he never applied for it. This petition is dismissed." There is a reported case Mst. Fazal Bibi v. Mehr Ibrahim and two others (P L D 1966 Lah. 1065), wherein it is laid down that "since he had not claimed transfer of the ground‑floor, he could not claim its transfer as of right. If the remaining portion of the house was transferred to him by the Settlement Commissioner, it was a concession or a privilege shown to him. As a general rule, a person who does not claim the whole house is not entitled by right to the transfer of and should not be transferred the whole house." To the same effect is the authority reported as Mst. Fazlun Nisa Begum v. Chief Settlement Commissioner and others (P L D 1967 Kar. 402).

4. As regards Inamullah Khan, we find from the C. H. Form filed by him that although he mentioned therein that his son, who is a claimant, was in possession of one room and a kitchen in the house in question, still he did not claim its transfer in his favour but applied for the transfer of house No. 6 or house No. 9, Om Street, Sant Nagar, Lahore. Later on, however, it appears an interpolation was made in the entry against serial No. 3 in the C. H. Form (see photostat copy C/1) the word 'not' was scored out and 'yes' was inserted. This seems to have been done with a view to secure the transfer of the house in dispute. No explanation was offered by the counsel for Inamullah Khan about this interpolation in the original form.

5. Inamullah Khan claimed transfer of the house indirectly through his allottee son and in view of the Supreme Court judgment in Abdul Majid Shaida v. Mst. Noor Jehan and another (P L D 1967 S C 221), he could not be preferred to the petitioner occupant whose husband is an allottee. In the reported case the trans feree's son was the allottee and the rival party was merely in possession without an allotment order. The contention that the former was to be preferred to the latter, was repelled by their Lordships of the Supreme Court. It was held that if the rival party was in undisputed occupation of the house, within the meaning of the notification dated the 13th of October 1959, by which the definition of "possession" was extended so as to include within it, persons in undisputed occupation subject to certain conditions, then she could not be defeated by the transferee merely on the ground that his son, who was an occupant of the house, held an allotment order in his favour. We, therefore, held that Lt: Col. J. D. Malik, Additional Settlement and Rehabi litation Commissioner as well as Malik Fateh Khan, Settlement and Rehabilitation Commissioner with powers of the Chief Settle ment and Rehabilitation Commissioner, Pakistan, Lahore, erred in holding that the contesting respondents were direct allottees and as such had to be preferred over the present petitioner, who claimed through her husband.

6. There is string of rulings on the point and we refer to some of them In which it is held that claimant wife for the purpose of transfer can claim possession of house on the strength of her husband's allotment, and as the possession cannot be termed as `indirect' vis‑a‑vis that of another claimant claiming to be direct allottee. These observations are to be found in the case reported as Mst. Sabran Begum v. Muhammad Ismail and others (PLD 1967 Lah. 167). After referring to the Central Government Memo. No. 3223‑PI‑Reh.‑60, dated the 7th of March 1960, printed at page 123 of the Settlement Manual (old Edn.), the learned Judge who decided the reported case observed as under :‑ "I am of the opinion that the above decision was given by the Central Government in exercise of its powers under second proviso to subsection (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and this was meant for the purposes of removing hardships in those cases where a husband or wife, etc. were not eligible to claim the transfer of property under their possession under paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, although one of them might be an allottee of the said property. To illustrate it further, I may say that as in the present case the husband is a non‑claimant and the wife is a claimant but the husband was the allottee and the wife was the non‑allottee the wife could not claim the transfer of the house in her possession on the strength of the allotment of her husband under paragraph 1 of the Schedule, therefore, a decision was given by the Central Government to extend the definition of possession and the wives were also deemed to be in possession if the husband was is possession of a property pursuant to an order of allotment passed on or before the 20th day of December 1958. In this view of the matter it was incumbent upon the Settlement Authorities to have considered the effect of the above decision of the Central Government and to determine the merits of the case in accordance with the extended definition of posses sion treating Mst. Sabre Begum as an allottee claimant on the strength of the order of allotment of her husband which was undisputed. The Settlement Authorities treated the petitioner as an indirect allottee claiming on the strength of her husband's allotment and as such she has been wrongfully eliminated without considering the effect of notification mentioned above."

7. We now proceed to consider whether Mst. Madina Begum petitioner is in prior possession. Her husband Qudrat ullah was initially allotted a house in the walled city on the 23rd of September 1947. When it was acquired for the purpose of Shah Alam Gate Scheme, he was allotted a portion of House No. 82, Ferozpur Road, Lahore. One Ghulam Hussain was in possession of the upper portion of the house in dispute and Qudratullah took possession of it by way of exchange under the D orders of the Deputy Rehabilitation Commissioner. Lahore, passed on the 4th of February 1953. Counsel for the contesting respondents contended that the possession thus obtained was not valid and in this connection he relied on Imtizaj Hussain v. Settlement and Rehabilitation Commissioner, Karachi and an other (P L D 1963 Kar. 144). In the case referred to above the Assistant Settlement Commissioner had allowed the exchange in respect of the property situate in the Cantonment area which was outside his jurisdic tion, and it was held that possession thus obtained was not valid. It is thus clear that the above ruling is of no assistance to the contesting respondents in this case. As already observed, Qudratullah was allotted a house on the 23rd of September 1947. He had to quit the house because it was acquired for Shah Alum Gate Scheme. He was then allotted a portion of a house on Ferozpur Road which he exchanged with the present accommodation with the approval and under the orders of competent Rehabilitation Authority. In the circumstances, we have no hesitation in holding that the allotment in favour of Qudratullah for the purpose of transfer of the property in dispute be deemed to have been mace when he was allotted the house in the walled city on the 23rd of September 1947. In this view of the matter Qudratullah is the prior allottee. The Additional Settlement and Rehabilitation Commissioner concerned who dealt with this aspect of the matter observed in the course of the order as under:‑ "Mst. Madina Begum came to occupy this house some time in 1953, whereas Muhammad Ramzan came sometime in 1954. Mst. Madina Begum maintains that she was required to give up her accommodation, which she originally occupied in 1947, under the orders of the Land Acquisition Officer, Improvement Trust, Lahore. This, however, is not exactly borne out by the evidence on record. She entered into a mutual agreement with the previous occupant of the accommo dation in dispute. It appears to be a case of mutual agreement where both the occupants exchanged their accommo dation. Muhammad Ramzan came to occupy his present accommodation on exactly the same basis of exchange sometime in 1954, and the person who gave up this accommodation was one Gulzar Muhammad. This exchange has been the blessing of the learned Deputy Rehabilitation Commissioner. Now both the counsel for the appellants maintain that the accommodations of their clients were in continuations of their possession in the original accommodation, and the dates of their possession are, therefore, to be taken from the dates of their occupation of the previous accommodations. If this is accepted, then the date of occupation of Mst. Madina Begum becomes sometime in 1947, and that of Muhammad Ramzan also goes back to 1947. This is what the learned counsel for the respondent attacks vehemently. He regards the mutual exchange entered into between the: parties as entirely for their own convenience. He also ascribes some ulterior motive to such exchange of property. He maintains that it was certainly not for the sake of the benefit of the majority of displaced person, but it was for the benefit of the appellants concerned. In his opinion, therefore, there is absolutely no justification for converting an arrangement which was prima rily made for their own benefit to gain a second advantage. He maintains that even if this Gulzar Muhammad and Ghulam Hussain had stayed on, they would have certainly taken their stand as compared to the respondent from the dates, which should later be the dates of occupation of the respondent. It is out of question, therefore, to take the dates, Mst. Madina Begum and Muhammad Ramzan's occupation of their previous accommodation and then apply these to the present house. Even if we regard them as successors‑in‑interest. As far as allotment is concerned, of the outgoing occupants, the appel lants should take their possession from the dates from which the former occupied the accommodation. These dates are not prior to the dates of the occupation of the respondent. I fully agree with this view. It is illogical to give the appel lants a second advantage. The first advantage I am inclined to think was gained when this mutual agreement was effected. The appellants might have straightaway gone to occupy a better accommodation. In any case they were not forced to give up their previous accommodation, because they did not (sic) it in their own interest. his goes to prove that they might have some ulterior motive behind this arrangement. After that there is certainly no occasion to grant them a second concession and, therefore, I will certainly regard their possession as later than that of the respondent."

8. The reasons given by the Additional Settlement and Rehabilitation Commissioner did not appear to us to be sound. The higher Settlement Authorities simply concurred with this finding and red not come to a conclusion independently on this point. Qudratullah was not to be blamed ii the house initially allotted to him was subsequently taken away and since he was in authorised possession of the accommodation which he exchanged, we think that, in all fairness, Qudratullah he deemed to be in prior possession in point of time. The petitioner's claim to the transfer of a portion of the property in her possession which is an independent unit could not be legitimately disregarded. Being a separate and self‑contained portion in occupation of the husband of the petitioner for which she had applied for transfer, its division would have rather helped in settling a displaced person who had been in possession since long.

9. There is no doubt that the house was held to be indivi sible by the Deputy Settlement Commissioner and the higher Settlement Authorities agreed with him but we find that the higher Settlement Authorities did not bear to bring an independent mind on the question of divisibility. The house is fairly big having a large number of rooms and other amenities. The upper portion is exclusive and has an independent stair‑case leading to the portion in possession of the petitioner. The contesting respon dents occupied the accommodation in the ground‑floor. It is altogether different that Sardar Muhammad claimed a room and a kitchen above the portion in his possession. All these facts were specifically mentioned in the grounds of review petition, preferred before Malik Fateh Khan, who exercised the powers of the Chief Settlement and Rehabilitation Commissioner Pakistan, but he did not say a word about these crucial points and proceeded to dismiss the review petition on the short ground that no clerical error or mistake apparent on the face of the record was there in the orders sought to be reviewed.

10. We feel that the divisibility of the house has not been considered properly. The observations made by M. Yaqub Ali Khan, J., while deciding a similar case are in point and we are tempted to reproduce the same in this order :‑‑‑ "The divisibility of the house has also not been considered properly although the Departmental Authorities have repeated mechanically that it is a small house. The rule of divisibility has to be applied uniformally and not arbitrarily. We often come across cases in much houses smaller than the house in dispute which have been divided by the Settlement Authori ties among more than one occupants. In the present case, the house already stands divided into two independent units with self‑contained amenities end all the two contending parties have not only been living in it contendingly for long 17 years. But also expressed the desire that the portion in their respec tive possession be transferred to them. The policy of law is to rehabilitate and settle displaced persons and not to non settle and dehabilitate them."

11. The petitioner has been in occupation of the upper portion of the house for over twelve years. She offered to surrender a morn and a kitchen in the upper‑storey in favour of Sardar Muhammad respondent No.

5. The parties agreed to share the house and a compromise in writing was submitted in this regard which is on the file but on the following day the contesting respondents made an application withdrawing from the compromise which they submitted, was due to misrepresentation on the part of their counsel. The parties to the dispute are literate. We are not prepared to hold that the contesting respondents were misled into the situation by their counsel. In fact, the contesting respondents had a‑reed in Court to share the house with the petitioner and also filed a petition of compromise on these lines but as the Court time had been over the compro mise could not be accepted on that date. It came up before the Court on the following day and the contesting respondents backed out of their commitment.

12. The contention that the writ petition merited dismissal on the ground of laches, is wholly devoid of force because the necessary copies of various orders of the Settlement Authorities I in this case were furnished to the petitioner after considerable delay for which the petitioner is not to be blamed. We think the ends of justice will be fully met if the petitioner is transferred the accommodation in her possession on the first‑floor except a room and a kitchen which she is prepared to surrender in favour of Sardar Muhammad respondent No.

5. The contesting respondents have been in occupation of the accommodation in the ground‑floor which already stands transferred to them jointly. For all these reasons, we accept the writ petition with costs and direct the department to implement the orders and modify the transfer document accordingly. K. B.A. Petition accepted.