1980 PLP 290 (CLC)

6. L.P.A. No. 77 of 1972 filed by Muhammad Sharif respondent was also dismissed on 25th February, 1974 as time barred. After the Letters Patent Appeal filed by Muhammad Sharif respondent was dismissed, the appellant started efforts to get the possession. On an application filed by the appellant the learned Chief Settlement Commissioner by his order dated 3rd June, 1974 directed the ejectment of the unauthorised occupant from the house in dispute under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. On 14th June, 1974 the D.S.C. sought the assistance of the Senior Suprintendent of Police, Rawalpindi, for ejectment of Muhammad Sharif from the house in dis pute under section 29 of the Displaced Persons (Compensation and Re habilitation) Act, 1958, Muhammad Sharif respondent filed Writ Petition No. 1538/R of 1974 challenging the two orders of the Settlement authorities and the learned Judge in Chambers relying upon certain observations-in the case reported as Bank of Bahawalpur v. Chief Settle ment Commissioner (P L D 1976 Lah. 515) held that even a person who is not in authorised possession cannot be ejected. The learned Judge further .held that his right to occupy the property after the amendment under Act IV of 1973 also gives him a right to occupy the property and have the protec tion of section 30 of the Displaced Persons (Compensation and Rehabili tation) Act"_ In the result the learned Single Judge held the orders dated 3rd June, 1974 passed by the C.S.C. as being without lawful authority and of no legal effect.

7. Before us the learned Counsel for the appellant urged that only persons in unauthorised but undisputed occupations of an evacuee house since .before 21 st December, 1958 were deemed to be in "possession" and would become tenant of the transferee by operation of law. In this case the respondent could not claim that he was in undisputed occupation of the property before that date and as such could not claim to be a person in possession within the meaning of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and was not entitled to the protection granted by law. To support his proposition the learned Counsel relied upon Muhammad Anwar v. Rehabilitation Authorities (P L D 1960 Lah. 201), Muhammad Sharif v. Mian Abdul Rashid (2) and Chief Administrative Officer v. Habib Ullah (P L D 1962 Lah. 254).

8. The learned counsel next relies on Agha Muhammad v. Maula Dad (1973 S C M R 604) where it was held that the expression ' possession" in section 30 means only possession which is legal and or/is protected under the relevant rent laws. On the facts of the case it was held that a sub-tenant of evacuee property was not entitled to the protection of section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, and can be ejected. The view also finds support from the case reported as Ayub v. Masjid-e-Noman (6) where the Supreme Court expressed the view that possession under section 30 of the Act is -'possession" within the meaning of section 2(6) of the Act which lays down that "possession" means possession obtained in pursuance of an order passed on or before the 20th day of December, 1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Governments : Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the pur pose of this Act."

9. The appellants in that case were unable to establish that they carne into possession of the property in dispute in pursuance of an order passed on or before 20th of December, 1958 by any Rehabilitation Authority, etc. or under any order of the Central Government as required by section 2(6) of the said Act. The Court held that the appellants were not in possession of the premises in dispute within the meaning of sec tion 30 read with section 2(6) of the Act.

10. Before the learned Judge, in Chambers the counsel for the respondent relied upon the case reported as the Bank of Bahawalpur v. chief Settlement Commissioner and another (P L D 1966 Lah; 515) to contend that no over under section 29 of the Displaced Persons (Compensation & Rehabilita tion) Act, 1958 could be exercised by the Chief Settlement Commissioner after the property had been provisionally transferred to respondent No.

2. The learned Single Judge, relied upon certain observations of the Full Bench to come to the conclusion that even a person who is not in authorised possession cannot be ejected under section 29 after the property has been transferred to an applicant or P. T. O. has been issued. In the second place the learned Single Judge, upon consideration of the effect of repeal of clause (6) of section 2 and the deletion of the reference to possession "on or before 20th December, 1958 appearing in section 30" came to the conclusion that even in case of an unauthorised occupation proceedings could not be taken under section 250 after Provisional Transfer of property. In Bank of Bahawalpur v. Chief Settlement Commissioner and another the Full Bench upon a review of the case law on the subject expressed the view that possession or occupation of a person is autho rised within the meaning of section 29 only when he is eligible to the transfer of a property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and, therefore, a person whether he is an allottee or unauthorised occupant renders himself liable to ejectment under section 29 of the Act if he is not eligible for its transfer. It was further held that section 29 of the Act is not available for ejectment -of a person in possession of a house or shop including a big mansion or a hotel which has been transferred to another by a Provisional Transfer Order or Permanent Transfer Deed.

11. The learned Single Judge appears to have proceeded oil the assumption that the respondent was a person in "possession" for the purposes of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and for that matter had a right to occupy the property after the amendment introduced by Evacuee Property and Displaced Persons. Laws (Amendment) Act (LV of 1973). came into force whereby clause (6) of section 2 defining `possession" was deleted and the word "on or before the 20th of December, 1958" were simul taneously omitted from section

30. The amendment, in the opinion, of the learned Judge in Chambers made it clear that "the possession or occupation of even an unauthorised occupant at whatever time could not be taken away under section 29 of the Displaced Persons Act, 1958.

12. In view of the judgment of the Supreme Court in Ayub v. Masjid-e-Noman (I) it is difficult to imagine how the respondent who was consistently held as being in unauthorised occupation of the property in dispute, could be held to be a person in "possession" within A the meaning of section

30. We have no doubt that the observations made by the Full Bench protect only persons who are in possession within the meaning of section 30 read with section 2(6) and cannot be invoked by the respondent who was not in "possession" of the house. The learned Judge, in Chambers appears to have been influenced by the observations made by the Full Bench that even where a P. T. O. has been issued, the provision of section 29 cannot be invoked. This aspect of the Full Bench Judgment appears to have been modified by the Supreme Court on appeal. According to the majority view of the Supreme Court in Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner (P L D 1977 S C 164) the Chief Settlement Commissioner continues to enjoy the power to eject or cause any person to be ejected from any property available for disposal under the Displaced Persons and Rehabilitation Act, 1958 before 'a Perm anent Transfer Deed is issued. Admittedly no Permanent Transfer Deed has been issued in this case. The Chief Settlement Commissioner had, therefore, the jurisdiction to have the respondent ejected.

13. We are unable to agree with the learned Judge in Chambers that the amendment introduced by the Evacuee Property & Displaced Persons Laws (Amendment) Act (LV of 1973) conferred any right on the respondent who has all along been in unauthorised occupation of the property. In Sadiq Ali v, M. D. Arif (P L D 1975 Lab. 284) a Division Bench of this Court held that the amendments had not been given retrospective effect. It was observed that the legislature intended the definition of possession to be omitted only-with effect from the date the Act (LV of 1973) was promul gated. Therefore, prior to the enactment of that Act, the expression "possession" used in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, had to be understood in the manner it was speci fically defined in section 2(6) of the Act.

14. The learned counsel for the appellant contended that the res pondent was a mere licensee of an unauthorised person who stepped in only when his licensor had been finally defeated in his claim. He relies upon Mosood Hussain v. Muhammad Saeed Khan (P L D 1965 Lah. 11), Shaukat All v. Settlement & Rehabilitation Commissioner, Lahore (P L D 1965 Lab. 415) and Zafar Niazi v. Shujar Ullah (P L D 1965 Kar. 52) to contend that even relatives residing with allottee as licensee are not persons in possession within the meaning of sec tion 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and are not entitled to any protection.

15. In the end it was claimed that the right of the parties had been finally determined by the order dated 4-2-1970 in W. P. No. 640/R of 1970 whereby the earlier writ petition was dismissed with the observation that the respondent had been held to be not in possession by the Custo dian and that order passed against him had attained finality.

16. Before we close it may be mentioned that the learned counsel for the respondent kept content with challenging the jurisdiction of the settlement authorities under section 29 and placed reliance on the Bank of Bhawalpur Ltd. v. Chief Settlement and Rehabilitation Commis sioner (P L D 1966 Lah. 515) later followed in Muhammad Amin v. Jamshed Ali (P L D 1967 Lah. 856) and Sind Employees' Social Security Institution v. Dawood Cotton Mills Ltd. (PLD1977SC177 ) discussed above and nothing was submitted in reply to the other argu ments advanced by the learned counsel for the appellant. In the result we set aside the judgment and order of the learned Single Judge declaring the order dated 6-4-1974 passed by the learned Chief Settlement Commissioner as being without lawful authority.

17. The appeal is accordingly allowed with costs. S. Q. Appeal allowed