P L D 1961 (W (PLP)

Briefly stated, the facts of the case, out of which this writ petition has arisen, are as follows. The petitioner, Slier Ahmad, is a refugee from the State of Jammu and Kashmir. In the year 1951, shop No. 128‑B, Dalhousie Road, Rawalpindi Cantonment, was allotted to him. This shop was a part of a large building, the rest of which is in occupation of Dr. Ahmad Ali Khan respondent. By means of an order dated the 7th of December 1959, the Deputy Settlement and Rehabilitation Commissioner trans ferred the whole of this building in favour of Dr. Ahmad Ali Khan respondent, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The petitioner had applied for transfer of the shop in question in his favour, but that request was turned down, on the ground that the building could not be divided, and, hence, could not be transferred to different persons. The petitioner challenged the Deputy Settlement and Rehabilitation Commissioner's order by means of an appeal, but was unsuccessful. The petitioner and one Muhammad Yaqub Fazal, who was also an allottee of a portion of this property, then filed two revision petitions before the Settlement Commissioner, Rawalpindi, who dismissed them on the 9th of March 1960. Dealing with the claim of the petitioner, the Settlement Commissioner observed as follows :‑ "Sher Muhammad is a displaced person from Jammu and Kashmir State. It has been contended on his behalf that a house or shop in occupation of a displaced person from Jammu and Kashmir State cannot be transferred to any one other than a displaced person from Jammu and Kashmir State. This provision has to be interpreted in such a way that the implementation of the Settlement Scheme is not unduly inter preted (sic) I am of the considered opinion that the bar will operate only in such cases where a unit in occupation of a displaced person from Jammu and Kashmir State is either independent or can reasonably be excised from main building. In the present case this is not possible. "I, therefore, reject the petitions of Muhammad Yaqub Fazal and Sher Muhammad, and decide that the whole building be transferred to Dr. Capt. Ahmad Ali Khan." The petitioner then moved a second revision petition before the Chief Settlement Commissioner, and was informed by means of a letter, dated the 15th July 1960, that the said revision petition had been dismissed on the 26th March 1960. After exhausting all the remedies available to the petitioner under the relevant law, he moved the present writ petition, in which he asked for the following reliefs (1) That the orders of the Settlement Authorities be quashed through a writ of certiorari; and (2) that a writ of mandamus be issued to the Settlement Authority, Rawalpindi Cantonment, with the direction that shop No. 128‑B, Dalhousie Road, Rawalpindi Cantonment, be transferred to and settled on the petitioner according to the provisions of law.

2. The second‑mentioned relief, which had been asked for in the writ petition, was given up during the course of the arguments, and a prayer was made that the first‑mentioned relief, namely, quashing of the orders of the Settlement Authorities, by the issue of a writ of certiorari, be granted. For this purpose, the petitioner's reliance is on the provision of subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which reads as follows :‑ "(5) Houses and shops in possession of persons displaced from such part of the State of Jammu and Kashmir as is under the occupation of India and are residing in Pakistan shall not be transferred under, the provisions of this Act and the possession of such persons shall not be disturbed till their repatriation to the aforesaid State provided that such persons do not contravene or have not contravened any of the terms and conditions on which such houses and shops are held by them or such terms and conditions as may be determined by the Chief Settlement Commissioner from time to time." In reply, it was contended on behalf of Dr. Ahmad Ali Khan respondent that as the property in dispute has been held to be indivisible, the protection afforded by subsection (5) of section 30 of the Act is not available to refugee allottees of this property who have migrated from the State of Jammu and Kashmir, and therefore, the Settlement authorities were competent to transfer the whole of this property to the respondent.

3. No doubt, in accordance with the second proviso to sub section (4) of section 2 and the second proviso to subsection (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner is empowered to order that a building, or premises, consisting of more than one residential unit be deemed to be a shop or a house. for the purpose of transfer, and if he does so, the whole of that building can be transferred to a claimant. There can also be no doubt that, by means of a notification dated the 14th October 1959, the Chief Settlement Commissioner has delegated the powers conferred on him by these two provisos, in favour of all Settle ment Commissioners, Additional Settlement Commissioners and Deputy Settlement Commissioners, and in pursuance of the powers s3 delegated, the Deputy, Additional and Settlement Commis sioners of the area concerned were competent to declare that the building in dispute should be deemed to be a house, or a shop, for the purpose of transfer, The question still remains whether, after an order had been passed that the building be treated as a house, or a shop, it could be transferred to a claimant, in violation of the provisions of subsection (5) of section 30 of the Act, if a part of that building was in occupation of a displaced person from the State of Jammu and Kashmir. In my opinion, the answer to this question has to be given in the negative, because the power conferred by the two provisos to subsections (4) and (12) of section 2 of the Act could not be used for doing away with the rights conferred on displaced persons from the State of Jammu and Kashmir by subsection (5) of section 30 of the Act. By declaring that a building should be deemed to be a house, or a shop, for the purpose of transfer, the Settlement Authorities could not allot the whole of that property to a claimant, if a portion of it was occupied by a refugee from the State of Jammu and A Kashmir, because until such refugees are repatriated, the authorities concerned are not competent to disturb them and to order their ejectment. The object behind subsection (5) of section 30 of the Act appears to be to maintain the status quo of such refugees, until they have been repatriated, and that object cannot be achieved if the authorities concerned are permitted to eject them and to transfer the property, in their possession, to other claimants. On this view of the case, the order passed by the Deputy Settlement and Rehabilitation Com missioner, Rawalpindi Cantonment, which was armed on appeal by the Additional Settlement and Rehabilitation Com missioner, and on revision by the Settlement Commissioner, Rawalpindi, cannot be considered to be a valid order. I, therefore, accept this petition and issue a writ of certiorari, quashing the aforesaid orders, to the extent to which they come into conflict with the rights of the petitioner. In the peculiar circumstances of the case, however, I make no order as to costs of these proceedings. K.B.A. Petition accepted.