P L D 1968 Lahore 1356 (PLP)

Syed Ali Raza for Petitioner. Nemo for Respondents Nos. 1‑

3. Nazeer Ahmad Cheema with Rafiq Ahmad Bangash for Respondent No.

4. Date of hearing : 23rd May 1968. Muhammad Amin's predecessor‑in‑interest Mst. Feroze Bibi, a displaced person from Jammu and Kashmir State, submitted KCH form for the transfer of the house in dispute and the Deputy Settlement Commissioner vide his order, dated the 24th of March 1960, transferred it in her name. Abdul Rahim respondent in the present writ petition filed an appeal before the Additional Settlement Commissioner who remanded the case as his form C H was not considered by the Deputy Settlement Commissioner on the 10th of November 1960. On remand, the Deputy Settle ment Commissioner vide his order, dated the 24th of December 1960, transferred whole house to Abdul Rahim holding him as prior allottee in possession of a major portion of the house. The appeal filed by Mst. Feroze Bibi was dismissed by Mr. S. M. Azhar, Additional Settlement Commissioner, Lahore Division, with the following observation :‑-- "The applicant is dead. It is not proved if the appellant died before filing this appeal or afterwards. The learned counsel who filed this appeal withdrew it. It is, therefore, dismissed." A revision petition was filed by the present petitioner on the 22nd of June 1961, which was also dismissed by the Settle ment Commissioner on the 21st of August 1963. Hence this writ petition.

2. Syed Ali Raza, learned counsel appearing on behalf of the petitioner, contended that the house in dispute could not be transferred to the respondent in preference to the prede cessor‑in‑interest of the petitioner who was a claimant from Jammu and Kashmir State. The petition was admitted on this point. This question was dealt with by a Division Bench of this Court in Agha Shaukut Ali v. Settlement and Rehabili tation Commissioner, Lahore and others (P L D 1965 Lah. 445). At page 455 the learned Judges held as under :‑ "Moreover, by virtue of section 2 of the Displaced Persons Laws (Amendment) Ordinance (XIII of 1964) section 30(5) has been altogether omitted with retrospective effect as if it has never been on the statute Book. No reliance can, therefore, be placed on this provision. The learned counsel, however, maintains that notwithstanding this amendment the position has not changed to any appreciable extent because of a corresponding provision in para. 19 of the Settlement Scheme No. IV which imposes a similar bar on the disposal of houses and shops in possession of displaced persons from the Indian occupied territories of Jammu and Kashmir State to any person who is not a displaced person from those territories. In our opinion, by virtue of the afore mentioned amendment in the Act, the corresponding pro visions in para. 19 of the Scheme also stand repealed by implication. At any rate, they have ceased to exist because of their inherent inconsistency with the Act as finally amended. Now the properties in the possession of displaced persons from Jammu and Kashmir are free to be dealt with is accordance with the Schedule and the Act." Similar question was examined in an unreported case L. P. A. No. 436 of 1963 Abdul Aziz Ayub v. Abdul Ghani, etc. by my Lord the Chief Justice and Fazle Ghani Khan, J. Their Lordships held that paragraph 19 of Settlement Scheme No. IV remains in the field on account of section 16(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1.958. The deletion of section 30(5) by Ordinance XIII of 1964 on the 24th of December cannot take away this restriction on the transfer of the property in possession of Jammu and Kashmir refugees.: The learned Judges in Agha Shaukat Ali v. Settle ment and Rehabilitation Commissioner and others did not consider the validity of paragraph 19 of the scheme with reference to section 16(6) of the Act. They only considered the deletion of section 30(5) and held that the said paragraph of Settlement Scheme No. IV has lost its force, there being no such provision in the said Act. It seems that section 16(6) was not brought to the notice of the learned Judges and they did not consider its effect on the relevant Scheme. This legal. provision was, however, examined by the latter Division Bench A which held that the restriction on the transfer of property an possession of displaced persons from the State of Jammu and Kashmir to any other person is valid in view of section 16(61 of the said Act. I am inclined to follow the latter view. The portion of the house in question was in possession, of the predecessor‑in‑interest of the petitioner. It could not therefore, be transferred to Abdul Rahim.

3. It was further submitted by the learned counsel for the petitioner that both the Additional Settlement Commis sioner as well as the Settlement Commissioner did not apply their mind as to the divisibility of the house. I would, therefore, declare the orders passed by the Settlement Authorities without lawful authority and of no legal effect. The case is remanded to the Settlement Commissioner who will consider the claim of both the parties afresh according to law. It will also be open for him to consider whether the house in dispute is divisible or not. With these observations this petition is accepted, but there will be no order as to costs. Petition accepted.