1985 PLP 1470 (SCMR)

M.S. H. QURAISHI, J.‑‑House No; 668, Railway Road,, Rawalpindi, which had been in possession of respondent Ghulam Hussain, a Jammu and Kashmir refugee, was transferred to the petitioner, who is not a Jammu and Kashmir refugee, and a P.T.D. was issued in his favour Ghulam Hussain's appeal and revision before the Settlement authorities having failed, he invoked the ,constitutional jurisdiction of the Lahore High Court, in the result of which the order of transfer in favour of the petitioner was declared to be without lawful authority and of no legal effect. The learned Judges of the High Court relying on Ali Muhammad v. Hussain Bakhsh P L. D 1976 S C 37 held that the property was not available for transfer to a person who was not a Jammu and Kashmir refugee.

2. Subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) read as follows: "Except for the purpose of implementing any scheme prepared under section 16B, 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." Para. 19 of Settlement Scheme No. IV which had been framed under section 16B of the Act, contained a similar provision in the following words; "

19. Ban on certain transfers.‑‑(1) 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. (2)

etc."

3. Subsection (5) of section 30 was, however, deleted by Ordinance XIII of 1964 but para. 19 of Scheme No. IV remained intact. Learned counsel has relied on Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore P L D 1965 Lah. 445 in which while interpreting the effect of the deletion of subsection (5) on para. 19, it was held that "in our opinion by virtue of the aforesaid amendment of the Act, the corresponding provisions in para. 19 of the Scheme also stand repealed by implication." The argument, therefore, is that with the deletion of subsection (5). the embargo placed on transfer .of properties in possession of Jammu and Kashmir refugees to displaced persons other than such refugees was removed. The contention has no force as the view taken by the Lahore High Court in Agha Shaukat Ali's case stood superseded by this Court's pronouncement in Ali Muhammad's case, in which it was clearly held that: "The deletion of subsection (5) of section 30 did not, in any way, detract from the provisions of section 16‑B and the Settlement Scheme framed under it. If the two are read together, the intention of the Legislature becomes manifest that houses and shops in possession of refugees from Jammu and Kashmir State were excluded from the compensation pool out of which evacuee properties were transferred to displaced persons from other parts of India." The transfer made in favour of the petitioner notwithstanding the subsequent issue of P.T.D. in his favour, was, therefore, void.

4. Learned counsel for the petitioner then tried to point out the weaknesses of the respondent's case but that he could do only if the petitioner has a locus standi which unfortunately he has not.

5. No case is thus made out for interference with the impugned judgment of the High Court. The petition is dismissed. M . I Petition dismissed.