1969 PLP 110 (SCMR)

HAMOODUR RAHMAN, J.‑The dispute in this case relates to properties Nos. 105 to 114 (garages) near the motor stand, Murree Cantonment. It originally belonged to one Shamsher Singh, now an evacuee. The petitioner was a tenant under the said Shamsher Singh and was as such recognised as an old tenant by the Rehabilitation Department which also formally allotted the said premises to the petitioner. Thereafter, the Cantonment Board, Murree Hills desired to acquire the said properties. They made a request in that behalf to the Ministry of Rehabilitation and Works, Government of Pakistan, through the Ministry of Defence. The Government of Pakistan accorded approval for the sale of the said properties to the Cantonment Board on the 16th August 1962, on payment of the prevailing market price to be determined by the Chief Settlement Commissioner, but subject to the following conditions :‑ (i) that the properties in question have not been transferred or are not transferable to any person under the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and (ii) that the market value of the properties determined by the Chief Settlement Commissioner is recovered before the transfer is effected. Pursuant to this approval the Cantonment Board, it appears, has been pressing the Settlement Department to fix the price but on the 11th May 1967, the Settlement Department agreed to hand over the possession of the properties immediately on payment of the price calculated on the basis of 25 years' rent on a provisional basis, subject to a necessary adjustment after the final determination of the price. The price, it appears, has not yet been fixed. When Settlement Scheme No. VIII came into operation, the petitioner who is a local, applied for the transfer of the said properties claiming it to be an `available property' within the meaning of the said Scheme. No orders were passed thereon by the Settlement Authorities but the petitioner on coming to know subsequently that the Settlement Department was proposing to transfer the property to the Cantonment Board, Murree, invoked the jurisdiction of the High Court of West Pakistan, under Article 98 of the Constitution. The High Court took the view that since the permission for the transfer of this property had been given long before Settle ment Scheme No. VIII came into operation, the property in question was not an `available property' within the meaning of the said Scheme and dismissed the petition. The petitioner now seeks special leave to appeal and it is contended on his behalf that until the transaction between the Settlement Department and the Cantonment Board is completed and the deed of transfer executed, the property should be treated as available property within the meaning of the Scheme. Available property has been defined in the Scheme as follows " `available properties' means houses, shops, building sites, industrial concerns and cinema houses (whether allotted by the Industries Rehabilitation Board or not) and big mansions and hotels which have not yet been transferred to any person or which may be in future become available for transfer on resumption to be made under Chapter 11 of this Scheme." It will be observed from this that this referred to properties which had not till the coming into force of the Scheme been transferred to any person. One of the modes of transfer recognised by section 10 (2) of the Displaced Persons (Compensation and Rehabilitation) Act is by the order of the Central Government in the public interest. In the present case such an order had been made, in 1962 before Scheme No. VIII came into operation and in pursuance of that order the Settlement Commissioner had entered into an agreement with the Cantonment Board, Murree, to transfer the property upon a price to be fixed by the Department. As there was a dispute with regard to the fixation of the price, it was further agreed in May 1967 that possession of the property will be made over on payment of price calculated on the basis of 25 years' rent on a provisional basis. The Canton ment Board is still ready and willing to take over the properties. In the circumstances it cannot be said that there is no binding agreement between the Cantonment Board and the Settlement authorities for the transfer of the property which cannot be specifically enforced. In this view of the matter we are of the opinion that the High Court was right in taking the view that the properties in question were not available for transfer when Scheme No. VIII came into operation. This n2dtion ii without any substance and is accordingly, dismissed. Leave refused.