P L D 1966 (W (PLP)

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)

S. 2(6) & Sch., Part II‑Transfer of shop Person found in possession of shop on or before 20‑12‑58 Settlement Authority having transferred property to him not justified in annulling transfer on basis of spot inquiry held long after 20‑12‑58. Faizanul Haq for Petitioners. S. Wasim Hamid Rizvi, Additional Settlement Commissioner, (Legal) for Respondents. Date of hearing: 10th January 1966. The dispute in this case concerns shop No. 1831 situated in B' Ward, Larkana. Separate forms were submitted by the two petitioners, Abdul Habib and Abdul Rahman, for its transfer and separate orders were passed in their favour, thus resulting in duplicate transfer. On this fact having been discovered, the Deputy Settlement Commissioner obtained permission of the Additional Settlement Commissioner for reviewing the previous orders and carried out a spot inspection on the 20th of September 1961. In an order passed on that very day he observed that his spot inspection had revealed that Abdul Habib had left the shop after the promulgation of Martial Law and was no longer trading at the said shop, which had since been taken over unauthorisedly by Abdul Rahman who was also not trading by himself but through his brother‑in‑law, Muhammad Shakoor. The learned Deputy Settlement Commissioner went on to say that as Abdul Habib had abandoned the shop, his NCS form was rejected and as Abdul Rahman had come into possession after the 20th of December 1958, he was also not entitled. Accordingly he directed that the shop be disposed of by auction. The two petitioners filed the appeal and revision which were rejected by the Additional Settlement Commissioner and the Settlement Commissioner respectively. 2. In the present petition, the position taken up by the two petitioners is that they had entered into a partnership agreement in 1957 under which both of them were carrying on business jointly and that they had not abandoned the possession of the shop. On behalf of the Settlement Department it is contended that the spot inspection clearly showed that Abdul Habib had abandoned the business, whereas Abdul Rahman had come into possession after the prescribed date and accordingly, none of them was entitled to the transfer of the shop. It is further submitted that the petitioners have not come with clean hands, for the reason that they did not mention the factum of partnership or of the possession being with other person, in the forms submitted by them. Even though it is true that the factum of partnership was not mentioned in the application forms submitted by the two petitioners, nor they mentioned the possession of the other, yet the fact remains that the transfer orders made in their favour have been reversed by the learned Deputy Settlement Commissioner on the basis of a spot inspection carried out as late as the 20th of September 1961. The relevant date for the purpose of possession entitling a person to the transfer of the property is the 20th of December 1958. I find that, in the order passed by the learned Deputy Settlement Commissioner on the 20th of September 1961, there is no clear finding that petitioner Abdul Habib, who was admitted the first person in possession, had abandoned his possession before the 20th of December 1958, or that he was not in possession on the date he made his application for the transfer of the shop. On the contrary, the further finding recorded by this officer that Abdul Rahman came into possession of the shop long after the prescribed date, goes to show that before that date Abdul Habib was in possession, as it is not the case of the Department that the shop was found to be locked or without any occupant. It seems to me, therefore, that the learned Deputy Settlement Commissioner has not acted judicially in this matter, as it was his duty to do while holding an inquiry regarding the factum of possession of both or either of the petitioners. The Appellate and the Revisional Authorities have simply maintained the findings recorded by the Deputy Settlement Commissioner in his order dated the 20th of September 1961. 3. For the reasons given above, the orders passed by the Settlement Authorities in this case are declared to be without lawful authority and of no legal effect, and the Deputy Settlement ,4 Commissioner is directed to hold a fresh inquiry into the question of possession of the petitioners and then to dispose of their application forms according to law. The parties are left to bear their own costs. K.B.A. Petition accepted.