1968 SCMR 473 (PLP)

FAZLE-AKBAR, J.-The facts giving rise to this appeal by special leave to appeal are as follows. The dispute in this case is with respect to a portion of property No. 247/B. V., Montgomery, which belongs to a Hindu who is now an evacuee. Prior to Partition the appellant Dildar Bakhsh, a local, occupied the said portion as a tenant. After migration of the evacuee owner to India, the portion which was in his possession was allotted to him by the Settlement Depart ment and he continued in possession by paying rent to the Department. He then filed a L. H. Form, for transfer of the said portion to him as a residential unit. He based his claim on the ground that its value was less than Rs. 10,

000. This property No. 247/B.V. consists of four, shops, two on one side and two on the other side with a big passage leading to the ihata. The ihata which consisted of one room and a courtyard was in occupation of the appellant and he added a few rooms to it. The Deputy Settlement Commissioner, after inspection of the ihata, held that as its market price was not less than Rs. 15,000 a local was not entitled to it. He accordingly rejected the L. H. Form of the appellant and ordered its disposal by public auction. On appeal, the Additional Settlement Commissioner, while upholding the order of the Deputy Settlement Commissioner, observed: "It has been auctioned for Rs. 40,

000. My appreciation for the value of this property has been correct." The Settlement Commissioner while rejecting the revision petition pointed out that according to Press-Note No. 2755-Admn/Reh/60, dated 2-5-1960, the rent of the whole building was to be taken into consideration and that as the value of the whole property was more than Rs. 61,000 a local was not eligible for its transfer. A second revision filed before the Chief Settlement Commissioner became in fructuous because of Ordinance II of 1962. Dildar Bakhsh then filed a writ petition in the High Court and a learned Single Judge who heard it being of the opinion "tha tthe property claimed by the petitioner is a part of a bigger property and the value of the whole of the property is much more than Rs. 10,000", dismissed the petition in limine. On appeal, the Letters Patent Bench upheld the order of the learned Single Judge. Special leave to appeal was granted in this case to consider "whether the petitioner (appellant) was entitled to get the house in question on the ground that its value was below Rs. 10,000 on the evaluation basis, in view of the provisions of Para. 3 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958". Para. 3 of the Schedule to the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958, is as follows: - "A house which is in' the possession of a local and the price of which determined on evaluation basis does not exceed ten thousand rupees and which such local desires to retain shall be transferred to him on payment of the prevailing market value: Provided that not more than one house shall be transferred to any one local under this paragraph: Provided further that if there is more than one applicant for /the transfer of the same house, the house shall be so transferred to the local, who obtained prior possession." Section 2(9) of the Act says: "price determined on evolution basis" means-- (a) in the case of a house or shop situated within the limits of a cantonment, an amount equal to twenty-five times the gross annual rent of the house or shop, as the case may be, prevailing in 1946 ; and (b) in any other case, an amount equal to- forty times such rent. The Press Note No. 7355. P. 1-Reh/60 dated 2nd May1960, is as follows:- "In accordance with Para. 3 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a local in possession of a house is entitled to the transfer of the house, if its value does not exceed Rs. 10,

000. It has, however, been observed that the locals are being transferred houses the value of which exceeds the prescribed limit after dividing them into portions valued at less than Rs. 10,

000. The Chief Settlement Commissioner desires that complete units of 'houses of the value of Rs. 10,000, or less only should be transferred to the locals in possession and the houses the value of which is more than Rs. 10,000 should not be divided in order to make the local in possession entitled to the transfer of a portion thereof, unless such division existed before partition and sub divided unit is an independent residential premises in every respect." The learned counsel for the appellant has contended that the disputed ihata being an independent unit, would fall within the definition of a house in the Act and that as its value was less than Rs. 10,000 on evaluation basis, the appellant was entitled to its transfer. It may be mentioned here that after rejection of the appellant's L. H. Form the ihata was auction-purchased by one, Khair Din, for Rs. 40,000 and he associated one, Khair Din, in the transfer. The said Khair Din has contested this appeal. He has also filed a certified copy of a Taxation Record Register for the year 1946-47 to show that the ihata was never treated as a separate unit. In the said Taxation Register the shops and the disputed ihata have been described as a double-storeyed seven-room ihata in possession of various persons, including Dildar Bakhsh, an oilman. Further, its annual value was assessed at Rs.

456. This Register only completely demolishes the argument that the disputed ihata was an independent residential unit. Moreover, from the above it is abundantly clear that this ihata would not fall within the definition of a 'house' as given in the Act. The, Settlement Commissioner moreover rightly held that the value of the property was more than Rs. 61,000 and as such the appellant was not eligible for its transfer. In these circumstances, the High Court was justified in declining to interfere with the order of the Settlement Authorities. This appeal is, therefore, devoid of merits and is accordingly dismissed, but without any order as to costs. Appeal dismissed.