P L D 1963 (W (PLP)

Malik Gul Nawaz Ahmad Khan for Respondents. Dates of hearing : 31st October and 1st November 1962. This petition, which was presented on the 8th of May 1962, by Syed Muhammad Munir Shah, a resident of Kunj, District Abbottabad, seeks a writ which would make ineffective the order passed by Malik Fateh Khan, Settlement and Rehabilitation Commissioner, with powers of the Chief Settlement and Rehabili tation Commissioner, Pakistan, dated the 28th of February 1961, which was to the effect that the house in dispute should be trans ferred to Mst. Akbar Jan who held a charge on the property. This order of Malik Fateh Khan modified the order of Mir Ajam Khan, Settlement and Rehabilitation Commissioner, Peshawar who had directed that the house be put to auction and had thereby modified the order of Mr. Muhammad Alam Khan. Additional Settlement and Rehabilitation Commissioner, Peshawar, Camp Abbottabad, who had confirmed the order of the Deputy Settlement Commissioner, Hazara, passed on the 16th of September 1960, whereby the house in dispute was directed to be transferred to Syed Muhammad Munir Shah. The order of the Deputy Settlement Commissioner, Hazara, purported to confirm that of the Assistant Settlement Commissioner, Abbott abad, passed on the 23rd of August 1960, but it appears to me that the Assistant Settlement Commissioner had merely made a report and had passed no orders, but whether the Assistant Settlement Commissioner had sent up a report or passed an order is not very material.

2. The relevant facts may be briefly stated. Mst. Akbar Jan, who is respondent No. 1 in this petition, held a mortgage with possession for Rs. 1,500 in the house in dispute. Syed Muhammad Munir Shah took this house on rent from one Muhammad Shafi who claimed to be the owner of the house. When the matter of transfer of evacuee houses was taken up by the Settlement Authorities, the Assistant Settlement Commis sioner, Hazara, directed that the house be transferred to Syed Muhammad Munir Shah who, according to that officer, was in possession of the property for the purposes of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, whereupon appeals and revisions were instituted with the result already mentioned, namely, that on the 28th of February 1961, Malik Fateh Khan, Settlement and Rehabilitation Commissioner, exercising the powers of the Chief Settlement and Rehabilitation Commissioner, Pakistan, directed the transfer of the house to Mst. Akbar Jan on payment of its market value. This order was passed by Malik Fateh Khan on a petition for revision presented by Mst. Akbar Jan against the order passed by Mir Ajam Khan, Settlement and Rehabilitation Commissioner, Peshawar on the 3rd of December 1960, wherein, as already mentioned. it had been directed that the house be put to auction. Against the order of Mir Ajam Khan, two petitions for revision had been filed, one by Mst, Akbar Jan and the other by Syed Muhammad Munir Shah, each of whom had been impleaded as a party in the petition of the other. Though orders on the revision petition of Mst. Akbar Jan were passed on the 28th of February 1961 by Malik Fateh Khan, the petition presented by Syed Muhammad Munir Shah was disposed of by Malik Fateh Khan on the 20th of June 1961, i.e., nearly four months after the petition presented by Mst. Akbar Jan had been disposed of Malik Fateh Khan held that in spite of the fact that Syed Muhammad Munir Shah was in possession of the property as a tenant, he could not be deemed to be in the possession contemplated by the relevant provisions of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958.

3. Learned counsel for the petitioner raised two main contentions. The first of them was that because Syed Muhammad Munir Shah was in actual possession of the property, he was to be deemed to be in possession notwithstanding the fact that his rights were no better than those of a tenant. The second contention raised was that Malik Fateh Khan erred in disposing of the petition of Mst. Akbar Jan before the petition with regard to the same property presented by Syed Muhammad Munir Shah was taken up because this course had resulted in an order being passed against Syed Muhammad Munir Shah without his getting an opportunity to oppose the passing of the order.

4. It appears to me that the first of the above‑mentioned two contentions has no force. I am not prepared to accept the contention of Mr. Aftab Husain, the learned Advocate for the petitioner, to the effect that a tenant in possession of evacuee property can claim a better right to the transfer of that property than the person who put him into possession of the property as a tenant. The possession contemplated by the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is no doubt physical possession, but I am clear in my mind that a landlord who has let out property to a tenant has to be deemed to be in possession of the property in spite of the fact that he is not in actual physical possession thereof. The facts of the present case are very uncommon because though ordinarily evacuee property was, ever since 1947, let out by the Rehabilitation or the Settlement Authorities, in the present case as the house had been mortgaged with possession, the mortgagee had let out the property. It is mentioned in order of the Assistant Settlement Commissioner that one Nanak. and, who is an evacuee, had mortgaged the house in dispute with possession to Mst. Rahmat Jan for a sum of Rs. 1,500 (Rupees fifteen hundred only) on the 5th of September 1947 and on the 28th of January 1949, Mst. Rahmat Jan sold her rights in the property to Mst. Akbar Jan who was handed over the possession of the house by the original mortgagee. This transfer was confirmed by the Custodian on the 22nd of October 1951. The petitioner, Syed Muhammad Munir Shah, had taken the house on rent from Muhammad Shafi, the husband of Mst. Akbar Jan for whom her husband was evidently acting in this matter. The value of the house is less than Rs. 10,000 and consequently it could be transferred even to a person who was not a displaced person for the purposes of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on payment of the price of the house determined under the formulae acted upon in the Settlement Department. The first objection of learned counsel for the petitioner to the impugned order of Malik Fateh Khan must, therefore, be repelled.

5. I will now deal with the second contention of the learned counsel for the petitioner. He said that as the order passed on the 28th of February 1961 by Malik Fateh Khan, whereby he modified the order of the Additional Settlement and Rehabilitation Commissioner, which was to the effect that the property should be sold by auction, acted to the prejudice of Syed Muhammad Munir Shah, it was incumbent on Malik Fateh Khan to hear him before passing the order. Muhammad Munir Shah had been impleaded as a party by Mst. Akbar Jan in the petition lodged by her against the order passed by Mir Ajam Khan, Settlement Commissioner, Peshawar, and though it is unlikely that the petition for revision had been heard by Malik Fateh Khan without sending a notice regarding the hearing to Syed Munir Shah, who was the sole respondent, I will proceed on the assumption that no notice had been sent. The order against which the petition for revision was lodged by Syed Muhammad Munir Shah had directed that the house be sold by auction to the highest bidder. This order cannot be said to have given anything to Syed Muhammad Munir Shah of which he was deprived by reason of the order of Malik Fateh Khan, and I am not prepared to hold that section 20 (5) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had application. It is true that if the house had been put to auction, Syed Muhammad Munir Shah stood just as much chance of purchasing it by making the highest bid as any one else, but there was no guarantee that he would succeed in getting the house. It must be remembered that the order of the Settlement Commissioner, Peshawar, Mir Ajam Khan, was passed on a revision petition presented by Mst. Akbar Jan against the order of a lower Settlement Authority by means of which the house had been directed to be transferred to Syed Muhammad Munir Shah. That he believed that his rights to get the house had been adversely affected is clear from the fact that Syed Muhammad Munir Shah considered it necessary to present a petition for revision against the order of the Additional Settlement Commissioner, but the question to consider is whether the sending of a notice to him regarding the hearing of the petition of Mst. Akbar Jan was necessary. If it were necessary to serve notice on persons likely to be affected when an order of sale by auction is changed to one of sale to a particular person all the world would have to be heard before the order regarding the sale by auction is converted to an order for sale to a particular person. I would agree with the contention of the learned counsel for the petitioner only to this extent that the better course for Malik Fateh Khan was to hear the petitions of the two competing parties at one and the same time, but I find no ground for holding that the order Malik Fateh Khan passed on the 28th of February 1961 on the petition for revision presented by Mst. Akbar Jan to any manner affected the rights of Syed Muhammad Munir Shah and for that reason it was incumbent on Malik Fateh Khan to hear Syed Muhammad Munir Shah before passing the order.

6. In view of what I have said above, I hold that there is no good ground to interfere with the impugned orders in exercise of writ jurisdiction. Consequently, I dismiss the petition but pass no order as to costs. K. B. A. Petition dismissed.