1989 PLP 4293 (MLD)

WAHIDUDDIN AHMED, J.--This is a petition under Article 98 of the Constitution whereby the petitioner has challenged the order passed by the Settlement Authorities cancelling the transfer of House No. 4/115-2423/3 situated in Hirabad Quarter, Hyderabad.' 2: The facts giving rise to the petition briefly put are these. Khubchand, respondent No. 4 owned the house in dispute along with other house jointly with his brother Asudomal who became an evacuee. Khubchand got a declaration from the. Custodian on 26th August, 1950 in respect of his half share in the house in dispute and other that it was non-evacuee. The petitioner applied for the transfer of the house in his possession under the Settlement Scheme. He had mentioned wrong number of the house in his possession in the application for transfer. The number, however, was ultimately corrected and a provisional transfer order was issued to the petitioner on 28th December, 1960, in respect of house No. 1/115/2423/3.

3. Khubchand. Respondent No. 4 had filed L.H. Form for transfer of the evacuee share. His L.H. Form was dismissed mainly on the ground that he was not in possession of the properties mentioned in the L.H. Form. It would appear from the order of the Deputy Settlement and Rehabilitation Commissioner dated the 6th March, 1961 that a proposal was submitted to the Additional S.C. for partition of these houses so as to separate the share of Khubchand from that of the evacuee share. This was approved by the Additional S.C. In the final result Khubchand got, as would appear from the proposal made by the Deputy S.C. dated the 24th January, 1901 (this has been produced by Mr, Wasim Deputy S.C. (Legal) house No.A/2422, House No 2423/2, and three cells with which we are not concerned. Unit No. 2423/Ms brought in the evacuee pool and transferred to Syed Muhammad Afzal. The house transferred to the petitioner was cancelled by the Deputy S.C. and transferred to the non-evacuee (Khubchand). It may be mentioned that Sirajuddin, Respondent No. 5 was also a transferee of house No. 2422. His transfer was cancelled and the house was transferred to the non-evacuee we may observe that Sirajuddin has been impleaded as a respondent who does not claim any relief, but supports the case of the petitioner.

4. The main question for consideration in this petition is as to whether the Deputy S.C. or for that matter the Settlement Authorities had power to partition the property so as to separate the share of the non-evacuee from the evacuee share. In this connection the contention of the learned advocates for the parties are three-fold, namely:-- (1) Whether under S. 8 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the Act) the Chief S.C. had ample power to divide the property as has been done by the Settlement Authorities; (2) that the property in question being interest or share of the evacuee in the house in question, as the houses were not partitioned between the evacuee and the non-evacuee, it could not be the subject matter of transfer under Settlement Scheme No. 1 of the fact; (3) that the impugned order was passed under para 16 (c) of the Schedule to the Act and, therefore, was a valid order. We propose to dispose of these contentions separately.

5. In order to appreciate the contention of the learned advocate that the Chief S.C. had ample power to divide the property so as to separate the share of the evacuee from non-evacuee, it would be useful to reproduce S. 8 of the Act It runs as under: -- "8(1). For the effective utilization of the pools in pursuance of the provisions of this Act or the rules made thereunder or for the administration of any property in the pools, the Central Government may take such steps for the custody, management and disposal of the pools as it considers necessary. (2) Subject to such orders as Central Government may make under sub section (1) the Chief S.C. may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving, managing or disposing of any property in the pools and may for any such purpose as aforesaid do all acts and incur all expenses necessary or' incidental thereto and may, in suitable cases, create a charge on any such property." Mr. Akhtar Mahmood, the learned Advocate for Respondent. No. 6, contended that sub-clause 2 of S. 8 reproduced above is wide enough to give power to the Settlement Commissioner in exercise of his power to administer and manage the property in the pools to divide the same so as to transfer to the claimants. We do not think that the provision relied upon gives power to the Chief S.C. to divide the property. In this connection the words that require consideration are "such measures as he considers necessary or expedient" The question is whether the word `measure' is wide enough to empower the Chief S.C. to divide the property. `Measure' would mean taking such steps for the purpose of securing, administering or managing the property in the pool and not to divide the same. So far as the question -of division of landed property or houses is concerned, in the absence of any specific power to the Chief S.C., it cannot be so construed. Under the general law the division of agricultural property can be effected by the Revenue Authorities and the other immovable property by the Civil Courts. If the intention of the Legislature was to take away this power from the ordinary Courts it would have been so mentioned. In this connection we may make a reference to certain provisions of the Administration of Evacuee Property Act, Act XII of 1957. There it seems the intention of the Legislature was expressly expressed by giving specific power to the Custodian to partition property. In this connection reference may be made to sub-clause 3 of S. 13 of Act XII of 1957. Under that sub-clause the Custodian could, on the application of a non-evacuee partition and determine the share of the non-evacuee. Similar power was conferred under S. 25 (2) (w) of Act XII of 1957. Under that sub clause the Custodian could partition or permit a Rehabilitation Authority to partition any property or rights therein if a share in such property, or rights consisted of evacuee property. The learned advocates for respondents 4, 5 and 6 had at one stage of the argument contended that the Custodian had delegated the power of partition to the Settlement and Rehabilitation Authorities and, therefore, the partition effected by the Deputy Settlement and Rehabilitation Commissioner was a valid one. On being pointed out, however, that once the property had been acquired under S. 3 of the Act, it was no longer evacuee property and, therefore, the authority conferred by the' Custodian could not be available, the learned advocates gave by their contention. It is clear from section 13 (3) and S. 25 (2) (w) of the Act that where the Legislature wanted to confer a g power on an authority it did so specifically. In the absence of any such specific power a/s 8 of the Act we are unable to read a power to partition property so as to oust the jurisdiction of the ordinary Courts.

6. As we have come to the conclusion, that the Settlement Authorities did not possess any power to partition the property in dispute the question would be as to what course was open to the parties or to the Settlement Authorities to divide the property. In this connection we may usefully make a reference to the case of Malik Nisar Ahmad' v. The Deputy Commissioner, Rahim Yar Khan, PLD 1956 Lah.

429. In that case SA. Rahman, C.J., as he then was, was considering the provision of the Pakistan Administration of Evacuee Property Ordinance. After considering the various sections of the Ordinance he came to the conclusion that the Custodian did not have the right to partition land. He observed in those circumstances that the partition could be effected either by mutual agreement or through the Civil Courts. In the circumstances of the present case also we are of the view that, in the absence of any authority under C the Act, the remedy was to either have recourse to private partition or to go to the Civil Court and the Settlement Authorities could not partition the property.

7. It was very strenuously contended by Mr. Akhtar Mahmood that the property in this case consisted of the share of the evacuee Asudomal in the houses in question and therefore could not be transferred under the Settlement Scheme. What he meant was that in the absence of any partition of the share of the evacuee from non-evacuee it could not be said as to what portion of the property was evacuee or non-evacuee. The learned advocate's contention, therefore, was that the Settlement Scheme or for that matter the Act' did not contemplate transfer of such interest in any property. There is not much force in this contention. Under S 3 of the Act the Central Government may for ally of the purposes of the Act by Notification in the official gazette acquire any evacuee property. In the first place, the question is whether this property could be acquired or not. As to what is evacuee property a reference may be made to Act XII of 1957. Under that the "evacuee property `means any property in which an evacuee has any right or interest in joint Hindu family property which would accrue upon the evacuee by the partition of the same; and `property' is defined as property of any kind and includes any right or interest in such property, and any debt or actionable claim, but does not include any right to use. Evacuee property' is not defined under the Settlement Act. It would, therefore, lie permissible to make a reference to Act XII of 1957. Moreover, the word `property' is wide enough to include also an interest of the nature that Asudomal had in the joint property with his brother Khubchand. We are of the view that the share that Asudomal had in the property in dispute could be acquired by the Central Government. Once property had been acquired it will form part of the pool under S. 4 of the Act for the purposes of payment of compensation to claimants. In that view of the matter whatever formed part of the compensation pool could be; transferred under S. 10 as it stood at the time when the property in question wasp transferred to various claimants. The relevant portion of S. 10 reads as under:-- "Subject to the provisions of the Act and the rules made thereunder the Chief S.C. may transfer or dispose of any property out, of the compensation pool: (a) on evaluation basis or by sale by means of auction or otherwise in accordance with the provisions of the Schedule, or (b) in such other manner as may be approved by the Central Government. There is nothing in the Schedule to the Act to take away the power of the Chief S.C. from transferring the interest in question to claimants. All that can be said is that the claimant transferees cannot claim to have any specific share in the houses transferred to them as the transferees cannot claim to have more interest than Asudomal had in the houses in question. We are of the view that the transfer of the houses in dispute to the petitioner was not bad in law. The provisional transfer order has to be read so as to be confined to the right of Asudomal and no more.

8. Mr. Akhtar Mahmood and the other advocates also very strenuously contended that in the present case the transfer should be deemed to have been made by the Settlement Authorities under para 16 (c) to the Scheme of the Act. It would be useful to reproduce para 16 (c) m order to consider the contention of the learned advocates. It runs as under:-- "16-C. Where the property is indivisible and is owned partly by a displaced person or a local, the Chief Settlement Commissioner, may transfer the property to such person if his share in. the property exceeds such limit as may be specified by the Central Government". The limit specified by the Central Government is not less than 1/3rd share in the property. In the first place, the advantage of para 16 (c) can be taken only by the local or a displaced person who is an owner off not less than 1/3rd share in the property to be transferred. This claimant displaced persons cannot be said to be owners of the property in dispute and, therefore, the provision under para 16 (c) could not be attracted so as to benefit them. The only person that could take advantage was Khubchand. There is nothing before us on the record to show that he had ever made an application under para 16 (c). In the second place,' the property admittedly is divisible and, therefore, also para 16 (c) would not apply. At any rate, we have gone through the order of the Deputy S.C. and they, Settlement Commissioner, they have not passed any order under para 16 (c) reproduced above.

9. For the reasons given above, we would allow the petition and restore the transfer in favour of the petitioner dated the 28th December, 1960, subject to the observations that we have already made in respect of his interest in the property. The parties will bear their own costs. H.B.T./A-585/x.