P L D 1963 (W (PLP)

This writ petition is directed against the orders of the Settlement Authorities in transferring tenement bearing No. J. M. 885‑1‑32, Gokhley Road, Karachi, in favour of Abdul Majeed Shaida, respondent No. 2.

2. The dispute between the parties is in respect of half portion of a double‑storeyed bungalow situated on Gokhley Road off Clayton Road, Karachi. The bungalow consists of four tenements, namely, J. M. 885/1 on the ground floor; J. M. 885/2 on the first floor; J. M. 885/3 on the first floor and J. M. 885/4 on the ground floor. Petitioner Mst. Noor Jehan Begum is in occupation of tenement No. J. M. 885/1 ; Nafisa Khatun was in occupation of tenement No. J. M. 885/2 ; Vakil Ahmed son of Abdul Majeed Shaida, respondent No. 2, along with Jamil Ahmad his brother, is in possession of tenement No. J. M. 885/3 ; and one S. M. Sadiq, a local, is in possession of tenement No. J. M, 885/4. The Settlement Authorities have divided the building vertically into two portions. One portion consisting of the ground floor and first floor bearing Survey Nos. 885/2 and 885/4 has been treated as a separate unit and transferred to Mst. Nafisa Khatun in pursuance of an order passed by the Deputy Settlement Commissioner dated the 20th of November 1959. There is no dispute in this writ petition about the transfer of this portion. The second portion of the bungalow treated as independent unit consists of the ground floor bearing No. 885/1 and first floor bearing No. 885/3. This portion was transferred to respondent No. 2 on a C. H. Form on the basis of the alleged possession of his son Vakil Ahmed by order of the Deputy Settlement Commissioner dated the 7th of November 1959.

3. Petitioner Mst. Noor Jehan Begum, who also claims to be a claimant in possession, applied for the transfer of the bungalow in question on the 12th of November 1959 and her application was rejected on the 16th of November 1959. The Additional Settlement Commissioner on appeal remanded the case back to the Deputy Settlement Commissioner by order dated the 25th of November 1959. On the 15th of February 1960 the Deputy Settlement Commissioner rejected the petitioner's claim on the following observations : "I have inspected the site. The entrance for the ground floor and 1st floor is one and the same adjoining the gate but inside the compound there is a garage as in occupation of Jamil Ahmad and Vakil Ahmad. The remaining ground floor is in possession of Noor Jehan Begum and her husband Abdul Aziz. The building is not vertically divisible and cannot horizontally be divided. If the applicant Noor Jehan Begum and her husband were in possession of the entire ground floor with a separate entrance then there was possibility for horizontal partition which has been permitted by Chief Settlement Commissioner as a measure of exception. This being the case the entire ground and 1st floor is to be transferred to anyone of the two applicants. As regards the entitlement of both the applicants it may be mentioned that Abdul Majid Shaida has got a verified claim of Rs. 35,000 under Schedule I while Noor Jehan Begum's husband has got his verified claim for Rs. 720 only under Schedule I. The possession of Noor Jehan Begum is no doubt prior to that of sons of Abdul Majid Shaida. Vakil Ahmad holds valid allotment order while Noor Jehan Begum or her husband have no allotment order. The entire 1st floor and a portion of the ground floor (garage) with right use of common entrance gate is in possession of sons of Abdul Majid Shaida. My inspection reveals that practically it is not possible in the least to accom modate both the applicants in this vertically or horizontally indivisible building." Her appeal against the above‑mentioned order was dismissed on the 4th of April 1960. Review Application No. 51 of 1961 which was filed on her behalf was withdrawn with the permission of the Additional Settlement Commissioner on the 22nd of May 1961. The petitioner filed a Revision No. SCK‑176/61 before the Settlement Commissioner on the 8th of June 1961. It was dismissed on the 14th of July 1962. The learned Settlement Commissioner came to the conclusion (1) that the revision application was barred by limitation ; (2) that the petitioner has exhausted her claim and could no longer be considered as a claimant displaced person; and (3) that respondent No. 2's son Vakil Ahmad was in possession of the portion in dispute and was an allottee of the first floor of the portion in dispute and on the basis of the allotment the portion in dispute was rightly transferred in favour of respondent No.

2. The petitioner seeks to challenge the transfer of the portion of the premises in dispute in this writ petition in favour of respondent No. 2 and has asked for a writ under Article 98 of the Pakistan Constitution of 1962.

4. Mr. Zahoorul Haq, the learned counsel for the petitioner, has urged before me that no period of limitation has been provided under section 20 of the Displaced Persons Compensation Act and therefore the view of the learned Settlement Commissioner that the revision petition was barred by limitation is absolutely unwarranted. He has further urged that although the petitioner has exhausted her claim in respect of another property, her right to get the portion of the property in dispute under the Settlement Law has not been taken away. According to the learned counsel the petitioner will still be considered as a claimant displaced person within the definition of "claimant" and "displaced person" under section 2, subsections (2) and (3) respectively. The learned counsel has further urged that the petitioner being a claimant in prior possession of the portion of the property in dispute had preferential right for its transfer and the property has been wrongly transferred in favour of respondent No. 2.

5. The petition is hotly contested on behalf of respondent No. 2 and the Settlement Department. Several objections have been raised in respect of the claim made by the petitioner. Amongst them the following three questions have also been raised :‑ (1) Whether a claimant who has exhausted her claim can be considered to be a claimant displaced person within the meaning of section 2 (2) and (3) of the Displaced Persons Compensation Act to take advantage of the benefits arising out of the Displaced Persons Compensation Act ? (2) Whether for the purposes of the provisos to clause I of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act a claimant can take advantage of the physical possession of his parent, son, daughter or spouse against a competitor; and (3) Whether the concession of Notification No. F. 1., (27)/59‑SI, dated the 13th of October 1959 reproduced below, is meant for a person in physical possession before the 21st day of December 1958, against a person holding allotment of a part of the property "No. F. 1., (27)/59‑SI, 13th October 1959, (Gazette, Extraordinary, 26th October 1959). In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non -claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty‑first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day. Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such amount is adjusted against his claim."

6. The learned counsel for the parties have cited two decisions in support of their contentions. One of them is a Division Bench decision of this Court at Lahore in the case of The Chief Settlement Commissioner, Pakistan, Lahore v. Ch. Altaf Hussain and others (P L D 1962 Lah. 189), and the other is a Single Bench decision in the case of Ch. Altaf Hussain and two others v. Shabir Hussain (P L D 1961 Lah. 449). The contesting respondents have challenged the soundness of the view taken in the Division Bench decision ; the petitioner's counsel has challenged the soundness of the Single Bench decision. These questions are daily cropping up in settlement matters. Any view taken by me on them will not result in finally settling the above‑mentioned questions. In my opinion this is a fit case in which the above‑mentioned questions should be referred to a larger Bench for decision.

7. The office is therefore directed to place this matter before the learned Senior Judge for constituting a Full Bench. The case may be fixed at an early date. K. B. A. Order accordingly.