P L D 1975 Lahore 1267 (PLP)

Property No. S. W. 101‑R‑24 situated at Sanda Road in Krishan Nagar, Lahore was in the occupation of Mst. Sardar Begum, petitioner and Taj Muhammad, a stranger to the present proceedings. The petitioner is admittedly a displaced person from the State of Jammu & Kashmir and was the occupant of the house since 1950. She was a claimant and consequently filed an application for the transfer of the house to her. under Scheme No. Iv. By order dated 10‑3‑1960, the Deputy Settlement Commissioner transferred the whole property in dispute to her rejecting the case of Taj Muhammad, who had filed an N. C. H. Form as well as that of Aftab Ahmad Khan, who had filed a C. H. Form. It may at this stage' be noticed that neither of these persons was displaced from the State aforementioned. ' The unsuccessful contestants for the transfer of the property filed an appeal, which was accepted by the Additional Settlement Commissioner, who remanded the case for fresh decision to the Deputy Settlement Commissioner. On 30‑6‑1961, the Deputy Settlement Commissioner heard the case all over again and after having recorded oral as well as documen tary evidence, transferred the property again to the petitioner. Taj Muhammad thereafter did not agitate against this order and vanished from the scene. Aftab Ahmad Khan, however, challenged this transfer in favour of Mst. Sardar Begum, on the ground that he was a Government servant for whose benefit a notice of ejectment had been issued to Mst. Sardar Begum and the proceedings ordered by Rehabilitation Authorities and had not through no fault or negligence of his own so far resulted in transfer of physical possession of the house to him. The learned Additional Settlement Com missioner rejected the appeal on 1‑9‑1963; but Aftab Ahmad Khan assailed it successfully by a revision petition before the Settlement Commis sioner, who accepted the same on 7‑10‑1969. Hence this petition. The question raised by the petitioner before this Court is whether it was open to the learned Settlement Commissioner to have applied the press note dated 9‑9‑1960, reproducing the Gazette Notification No. 2099‑CSC relating to the transfer of houses to applicants, who had applied to the Rehabilitation Authorities and could not take over physical possession for no fault or negligence of their own. This in fact is the notification under which the Settlement Commissioner has given the property in dispute to respondent No.

1. The opening paragraph of the Gazette Notification shows that it has been issued by the Chief Settlement Com missioner in the exercise of‑ "the powers conferred on him by paragraph 2 of Settlement Scheme No. I prepared under section 16(1)(b) and (c) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and para. 20 of Settlement Scheme No. IV prepared under section 16(b) of the aforesaid Act." The question is whether a notification issued under a Scheme can over ride the provisions of the Scheme itself. No such powers have been reserved by the Chief Settlement Commissioner under either of the Rehabilita tion Schemes to vary or alter them by a notification under a power derived by them from that Scheme itself. Paragraph 19 of the Settlement Scheme No. IV runs as follows "Houses and shops in the possession of displaced persons from occupied territory shall not be transferred by a Settlement Authority to any person, who is not a displaced person from the occupied territory." Any notification issued under paragraph 20 of Settlement Scheme No. 1V has, therefore, to be necessarily subject to the provisions of paragraph 19 and could not override it. In other words action can b: taken under the notification only for the only benefit of a person‑ a) who was a Government servant; (b) who was a displaced person from Jammu & Kashmir; (c) for whose benefit an ejectment order has been passed against the occupant ; and (d) the said order had not been implemented through no fault or negligence of the aforesaid beneficiary. In the present case while Mst. Sardar Begum was a displaced person from Jammu & Kashmir and, therefore, entitled to the protection of paragraph 19, Aftab Ahmad Khan was admittedly a refugee from East Punjab and his case is not covered by Scheme No. IV. Any property in the occupation of a dis placed person from Jammu & Kashmir could not be vacated for the purpose of transfer to him since paragraph 19 was an effective bar to it. The opening lines of the notification make it abundantly clear that it is to be applied to cases falling under either Scheme subject to the provisions of the Scheme by which a particular case is governed. In other words persons entitled to the benefit of Scheme No. I would be able to take advantage of this notification only to the extent that Settlement Scheme No. I is applicable to their cases and similarly the persons, who are governed by Settlement Scheme No. IV would be entitled to the benefit under this notification subject to the Scheme. The order passed by the learned Settlement Commissioner on 7‑1a‑1969 transferring the property to Aftab Ahmad Khan on the sole ground that he was a Government servant militates against paragraph 19 of Scheme No. IV as he was not a displaced person from Jammu & Kashmir while the property was in possession of a displaced person from that State and is without lawful authority and void and is hereby declared as such. The petition is accepted but there shall be no order as to costs because no one has appeared for the respondent. S. A. H. Petition accepted.