P L D 1968 Lahore 157 (PLP)

The petitioner has challenged the orders of the Settlement Authorities under Article 98 of the Constitution with the prayer that they be declared as without lawful authority and direction be issued that the petitioner be transferred the house in dispute.

3. The possession of Mst. Tufail Fatima in a part of these premises is not disputed. The CH form for the transfer of the property was filed by her on the 26th of July 1959. The petitioner is in possession of a receipt bearing serial No. Q/507 dated the same. The fact that she had submitted such a form is admitted by the Settlement Department in their report. It is also stated in the report that the form was returned to Mst. Tufail Fatima because it was not accompanied by any allotment order. Mst. Tufail Fatima again submitted her CH form on the 3rd of November 1959. Without giving any notice to her this was rejected on the ground that the house had already b‑en transferred to Muhammad Amir on the 16th of October 1959. She was not informed about the rejection of her form. She, therefore, applied to the Deputy Settlement Commissioner for the consideration of her case. He called for the report which was submitted to him (Annexure R/1) on the 26th of March 1960. It is admitted in the report that the house was in the occupation of two persons, namely, Muhammad Amir and Mst. Tufail Fatima, that both of them hid submitted CH forms and that the CH form of Mst. Tufail Fatima was rejected and returned as the same was not accompanied by any allotment order. It is admitted that she again submitted the CH form on the 3rd of November 1959. The Deputy Settlement Commissioner on this report passed an order that the petitioner (who in the meantime, after the death of his mother, had succeeded to her as sole legal representative) should go in appeal. The order was passed in his absence and the Deputy Settlement Commissioner ordered that the petitioner should be informed about it. The petitioner filed appeal on the 27th of July 1960. The appeal was dismissed by the Additional Settlement Com missioner on the 22nd of October 1960 on the ground that Mst. Tufail Fatima had not put in the certificate of eligibility along with the CH form. This order was affirmed in revision by the Settlement Commissioner.

4. It is clear that Mst. Tufail Fatima was in possession of the house before the 20th of December 1953. She was a claimant and on the CH form which she had submitted, it was incumbent on the Deputy Settlement Commissioner to have ascertained her an entitlement. Even if she had no allotment order in her favour, she could still claim the benefit of the house q on the basis of the order of the Central Government dated the 13th of October 1959 made by it in pursuance of second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It was held in Barkat Ali v. Muhammad Sharif (PLD 1966 SC 817): "Unless the occupation of a person falls within the definition of `possession', as extended by the notification in question, he would have no right to claim transfer of the property under the Schedule to the Act. As essential condition of entitlement under the Schedule is 'possession'. It seems, however, that the idea behind the extended definition of `possession', contained in the notification, was to confer a benefit on those who were in undisputed occupation of the property before the twenty‑first day of December 1958, even though they held no allotment order in their favour. It would amount to taking away with one hand what is given by the other, if the notification is interpreted to mean that, although the person concerned may be in undisputed occupation of a part of the premises since before the relevant date, he would be defeated by another person in possession albeit a local, provided he relied on an allotment order. This does not appear to be in consonance with the scheme of the Act and the Schedule which evinces a distinct solicitude for claimants as against non‑claimant displaced persons and locals. If the intention was to protect the alleged rights of allottees alone, it is unintelligible why a simpler and clearer formula could not have been adopted to achieve that result. It would have been sufficient to say in that case and no other person is otherwise satisfied to the transfer of such a house or shop in pursuance of an allotment order passed by a competent authority before that date. That would have removed all ambiguity from this clause and placed the matter beyond doubt." The same view was taken earlier by the Full Bench at Karachi in Noor Jehan Begum v. Settlement Commissioner, Karachi (P L D 1963 Kar. 709). The Additional Settlement Commissioner, therefore, could not refuse to determine the entitlement of the petitioner. It was incumbent on the Settlement Authorities to have determined the eligibility of the parties and one who was earlier in possession according to the principle enunciated in Barkat Ali v. Muhammad Sharif was entitled to the transfer of the property. The Additional Settlement Commissioner preferred respondent No. 2 to the petitioner's mother also for the reason that Zshe ceased to be a claimant after she had exhausted her claim towards the transfer of another property. This view was confirmed by the Settlement Commissioner. In support of this finding, the respondent relied on Muhammad Umar v. Chief Settlement Commissioner (P L D 1963 Pesh. 35). Learned counsel for the petitioner canvassed that the principle laid down in this authority was no longer a good law in view of Noor Jehan Begum v. Settlement Commissioner, Karachi, where it was held: "a claimant does not cease to be a claimant so as to be deprived of the advantage of the Act on the ground that he has exhausted his claim." I am respectfully bound by the judgment of the Full Bench. Even if the view taken in Muhammad Umar v. Chief Settlement Commissioner had held the field, it would not have made any difference because, in my opinion, no claim has fully been satisfied or can be satisfied at present for the reason that no person is entitled to receive the compensation for the entire claim which is verified in his name under the Registration of Claims Act. The Central Government has been prescribing the scale of compensation to be paid to claimants against their verified claims under Schedules I, II and III of the Registration of Claims (Displaced Persons) Rules, 1955. By their memorandum No. 7796‑Comp‑Reh/59, dated the 7th of December 1959, they prescribed the scale of compensation to be paid to the claimants against their verified claims as under:‑-- For the first Rs. 5,000 ... 70% For the next Rs. 5,000 ... 60% For the next Rs. 90,000... 50%. For the remainder ... 25% subject to a maximum compensation of Rs. 3 lac A claimant can utilise only the deferred payment of his claim. What the mother of the petitioner must have done is only that she must have utilised her verified claim to the extent of the compensation allowed by the Central Government. By doing so, she, in my opinion, did not cease to be a claimant because there is still some amount left in her claim and the fact that she cannot claim any compensation in lieu of that claim could, in no way, render her to be a non‑claimant. She continues, in the eye of law, to be a claimant. In these circumstances, the order of the Additional Settlement Com missioner is without any lawful basis. The order of the Settlement Commissioner is only one of confirmation of the order of the Additional Settlement Commissioner because he has not adverted to this question at all. The same also merits to be quashed.

5. It was contended on behalf of the respondent that Mst. Tufail Fatima had not submitted any form in July 1959, and her subsequent form could not be entertained in November 1959, because the property had already been transferred to Muhammad Amir in July 1959. The petitioner has produced before me the original receipt to prove that his mother had submitted the CH form in July 1959. This is further bore out by the report of the department dated the 23rd of January 1964 which was submitted in this petition and also by an earlier report of the Deputy Settlement Commissioner dated the 26th of March 1960 (Annexure R/1). The respondents, if they thought that this was not a correct statement, should have controverted the same by an affidavit, but they have chosen not to do so. I have no reasons to doubt the genuineness of the receipt or the statements made in the reports. The mother of the petitioner had submitted the form. If the form submitted by her was in any way defective or it did not conform to the requirements of law, it was obligatory on the Deputy Settlement Commissioner under para. 7 of Settlement Scheme No. 1 to have returned it to the petitioner asking him to remove the defect within fifteen days and to resubmit the application. It is only on the failure of an applicant to comply with the requirement that his case can be consigned to the record room. The Settlement Authorities returned the form to the petitioner without taking the necessary action under paragraph 7 of the Scheme. The Deputy Settlement Commissioner dial not at any stage call upon the applicant to remove the objection. He did not pass any order consigning the case of Mst. Tufail Fatima to the record room. In those circumstances, her form should be deemed to be pending disposal when the property was transferred in favour of respondent Muhammad Amir on the 16th of October 1959. The order of transfer made in favour of the respondent without first disposing of the form of Mst. Tufail Fatima is illegal and being without lawful authority, is of no legal consequence.

6. For the sake of an argument if the position taken up by the respondent that Mst. Tufail Fatima had not submitted the form is accepted to be correct (which is not so as already observed), then too the property could not be transferred to Muhammad Amir, respondent, on his CH form until the Deputy Settlement Commissioner had considered the claim of Mst. Tufail Fatima as required by sub‑para. (2) of paragraph 8 of the Scheme. Paragraph 8 in Chapter III of Settlement . Scheme No. 1 reads as:‑-- "(8) Ascertainment of entitlement.‑(1) The Deputy Settlement Commissioner shall make such enquiries as may be neces sary from any officer or authority for the purpose of ascertaining the entitlement of the applicant to retain the property applied for. (2) In taking a decision in such cases the Deputy Settlement Commissioner shall take into consideration the claims of all other persons who may have applied for the same property. The Deputy Settlement Commissioner for the purpose of ascertaining entitlement of an applicant and to take a decision in his case is under a statutory obligation as required by clause (2) of paragraph 8 to take into consideration the claims of all other persons who may have applied for the same property. The words "may have applied" are significant. It was contended by the learned counsel for the respondents that in clause (2) of paragraph 8 of Settlement Scheme No. 1, the words "person who may have applied" have to be understood to mean the persons who have actually applied and if they are not so interpreted it would lead to a difficult, if not anomalous, situation The Deputy Settlement Commissioner, he contended, was not to hold the inquiry in vacuum but to conduct the same with reference to the claim of determinate persons and unless he were to do so in respect of the persons who have actually applied for the transfer, it is uncertain as to whom he is to associate in the inquiry. The argument, at first sight, appears to be convincing, but on analysis it loses all its value. Under paragraph 2 of Settlement Scheme No. 1, the Chief Settlement Commissioner "shall, from time to time, by notification in the official Gazette, invite applications for the transfer of property under this Scheme from such persons as may be specified in the notification." He, for the first time, by a notification issued on the 19th of May 1959, invited applications to be submitted to the Deputy Settlement Commissioner by the 15th day of July 1959. The period so fixed was extended by the Chief Settlement Commissioner from time to time. In Altaf Hussain v. Chief Settlement Commissioner (P L D 1965 S C 68), it was held: "The true view, however, of the provisions of paragraph 2 of Settlement Scheme No. 1 seems to be that this is a mere enabling provision which empowers the Chief Settlement Commissioner to invite applications for the transfer of property under the Scheme, from relevant persons, from time to time." It was further held that paragraph 2 of Settlement Scheme No. 1 did not in terms authorise the Chief Settlement Commissioner to lay down a limiting date for submitting forms for the transfer of the property. It means that the Chief Settlement Commissioner could invite applications from a certain date, but it was not competent for him to have fixed date by or before which the applications could be submitted. In this view of the matter, a person seeking the transfer of a property under the Act could apply for its transfer at any time. In Khalil Ahmad v. Settlement and Rehabilitation Commissioner (P L D 1965 Lah. 384), it was held by a Division Bench of this Court: "The house having been already transferred, the application form was therefore rightly rejected and on this premises no fault can be found with the impugned orders of Settlement Authorities." In the light of the observations in Altaf Hussain v. Chief Settlement Commissioner and Khalil Ahmad v. Settlement and Rehabilitation Commissioner, the contention of the learned counsel for the respondents that the words "may have applied" refer to the persons who have actually applied, becomes untenable. Let us assume that the premises are in possession of al claimant and a non‑claimant. The non‑claimant applies for the premises on the 19th of May 1959. The Deputy Settlement Commissioner takes up his case on the 15th of July 1959. Till then the claimant has not applied although he had the intention to do so. According to the interpretation placed by the learned counsel for the respondents the Deputy Settlement Commissioner, when dealing with the case of the non‑claimant on the 15th of July 1959 was not to take into consideration the case of the claimant for the reason that he had not applied and he, therefore, transferred the property to the non‑claimant. Subse quently, the claimant applies for the transfer of the property and the Deputy Settlement Commissioner rejects his application firstly for the reason that he has no power to review his earlier decision and secondly that the application of the claimant could not be entertained as held in Khalil Ahmad v. Settlement and Rehabilitation Commissioner because the property has already been transferred. Such an interpretation of clause (2) of paragraph 8 will lead to absurdity and in fact will frustrate the C very object of the Act, which as held in Rehmatullah v. Deputy Settlement Commissioner (P L D 1963 S C 633), aims at first compensating the claimants. The other contention of the learned counsel for the respondents that if the interpretation is not placed on clause (2) of paragraph 8 as he puts on it, it will be difficult for the Deputy Settlement Commissioner to comply with the provisions because in that case it will not be certain as to who are the persons who may have applied, is equally untenable. The application for the transfer of a house or a shop has to be made on a prescribed form. There is a column provided in the CH, NCH and LH forms requiring an applicant to show if any other person is in possession of the property. On such an information, it becomes known whether or not the premises are in possession of any other person. To associate all such persons as are in possession of a house or a shop when dealing with an application for the transfer of such a property is a salutary provision. It is to enable the Deputy Settlement Commissioner to dispose of the case of a property or premises once for all. If he makes such an enquiry, the persons who have actually applied but their forms for one or the other reason are not before the Deputy Settlement Commissioner can bring the fact to his notice and the Deputy Settlement Commissioner, on such an information, can requisition all the forms with a view to disposing them of simultaneously. In another case, as it has been noted earlier, where there is a person in possession and is eligible to apply, he can even at that stage, before the Deputy Settlement Commissioner transfer the property in pursuance of his enquiry, submit the form. The possibility of any future dispute in respect of the property is thus completely obviated. If, however, the applicant suppresses this information and succeeds in getting an order of transfer in his favour and subsequently it is found out, on the application of any other person, that he was in possession of the premises, the Deputy Settlement Commissioner will have no difficulty in ignoring the order already passed because such an order will be a nullity for the reason that the transferee in that case is guilty of fraudulent misrepresentation inasmuch as he by his conduct made the Deputy Settlement Commissioner to believe that he alone was in possession. He also will be guilty of fraud for having willfully suppressed the names of the other persons in possession. The Deputy Settlement Commissioner did not associate in his enquiry the persons who were in possession and therefore, failed to comply with the provisions of clause (2) of paragraph 8.

7. There is yet another aspect of the case. The CH form which was submitted by the mother of the petitioner on the 3rd of November 1960 was rejected on the ground that the property had already been transferred in favour of Muhammad Amir, respondent. Ahmad Ali who is the son‑in‑law of Muhammad Amir filed a revision petition against the transfer in his favour and they consented before the Settlement Commissioner on the 19th of February 1961 to divide the property and accordingly portion ABCD of the property was transferred in favour of Ahmad Ali. It unmistakably implies that the original order of transfer in favour of Muhammad Amir had been set aside. The ground on which the claim form of Mst. Tufail Fatima was rejected that the property had already been transferred to Muhammad Amir no longor remained available against her. The property, after the order was set aside by the Settlement Commissioner, had to be disposed of with due regard to the claim of each of the applicant. It was all the more necessary in the case of the petitioner for the reason that at the time when the Settlement Commissioner passed the said order, the revision petition filed by the petitioner was pending before him.

8. Learned counsel for the petitioner contends that Ahmad Ali was not in possession of the premises before the 20th of December 1958 and that he occupied the same subsequently as a licensee of his father‑in‑law, Muhammad Amir and that if the case of the petitioner had been considered along with Ahmad Ali, he would have by all means succeeded against him, because the latter being a licensee was not in possession within the meaning of law. He relied on Shaukat All v. Settlement and Rehabilitation Commissioner, Lahore (P L D 1965 Lah. 445) and Zafar Niazi v. Shufaatullah (P L D 1965 Kar. 52). On these facts, he also contended that I should determine the entitlement of the petitioner vis‑a‑vis Ahmad Ali. On behalf of Ahmad Ali, it is disputed that he was living in the premises with the courtesy of his father‑in‑law. It, therefore, cannot be held, unless an enquiry is held, whether or not the possession of Ahmad Ali was that of a licensee. This question should, in all propriety, be determined by the Settlement Authorities as held in Azmat Ali v. Chief Settlement Commis sioner (P L D 1964 S C 260).

9. For the reasons given above, I declare the orders of the Settlement Authorities, transferring the premises to the respondents, as without lawful authority and of no legal effect and direct the Deputy Settlement Commissioner to hold an inquiry into the entitlements of the parties and pass the necessary orders of transfer of the premises as required by law. There shall be no order as to costs. K. M. A. Petition accepted.