P L D 1962 (W (PLP)

KAYANI, C. J.

This writ petition concerns house No. 89/B/7-8, in Peshawar Cantonment which was allotted to Sayed Safdar Hussain, a displaced person non-claimant from Jammu and Kashmir. His mother, Mst. Zainab Bibi, who resided with him, is a claimant from the same area. Applications having been invited for compensation books, she applied in form KA on 6-8-1959 and at the same time appointed her son as her attorney. A day earlier, she had applied in form KCH for the transfer of the house in question. On the 25th of November 1959, she received intimation that the house would be given to her for Rs. 10,

350. On the 13th of January 1960, her son gave it in writing that he did not want this house in lieu of his claim. It was thereupon included in List `C' which was a list of houses that could be transferred to any claimant by drawing lots. On the 21st of February 1960, when lots were drawn, the house fell to respondent No.

4. Mst. Anwari Begum, and she got formal intimation of allotment on the 23rd of April 1960.

2. The reason why Mst. Zainab Bibi's son disclaimed the house, a circumstance which has not been disclosed to us by her learned counsel in the writ petition, is that he wished to have a better house in category 'B', for which purpose he applied on the 13th of February 1960 in form `E'. It must be stated here that an application in form 'E' cannot be made by a Jammu and Kashmir claimant. However, this fact appears to have been lost sight of but when the lots were drawn on the 21st of February 1960. Mst. Zainab Bibi did not get any house. It was clearly a gamble on her son's part in which he had failed.

3. On the 12th of April 1960, she appointed Malik Abdul Latif as her attorney and applied to the Deputy Settlement Commissioner, objecting to the transfer in favour of Mst. Anwari Begum on the ground that her son had no power to give up the claim. Her petition was accepted on the 20th of June 1960, Mst. Anwari Begum appealed to the Additional Settlement Commis sioner who accepted the appeal and restored the order in favour of Mst. Anwari Begum. A revision petition having failed, Mst. Zainab Bibi has brought this writ petition on the grounds (1) that her son having no authority in law to disclaim the house, his disclaimer could not have been accepted by the Settlement Department, (2) that no transfer of the present house could take place in favour of a person who was not a Jammu and Kashmir refugee, and (3) that the possession of the petitioner in her capacity as a Jammu and Kashmir refugee could not be disturbed.

4. The provisions of law which are relevant are the following :- Displaced Persons Compensation & Rehabilitation) Act (XXVIII of 1958) section 30, subsection (5).-"Houses and shops in possession of persons displaced from such part of the State of Jammu and Kashmir as is under the occupation of India and are residing in Pakistan shall not be transferred under the provisions of this Act and the possession of such person shall not be disturbed till their repatriation to the afore said State, provided that such persons do not contravene or have not contravened any of the terms and conditions on which such houses and shops are held by them or such terms and conditions as may be determined by the Chief Settlement Commissioner from time to time." Section 16-B.

"Subject to the provision of subsection (5) of section 30, the Chief Settlement Commissioner shall prepare a scheme for temporary rehabilitation of persons displaced from such part of the State of Jammu and Kashmir as is under the occupation of India and are residing in Pakistan." Settlement Scheme No. IV, Scheme for the rehabilitation of persons displaced from Jammu and Kashmir. Para. 19 sub-para (1)."Houses and shops in the possession of displaced persons from occupied territory shall not be trans ferred by a Settlement Authority to any person who is not a displaced person from the occupied territory." ("Occupied territory" means the State of Jammu and Kashmir, which is under the occupation of India.) Para. 21."Except as otherwise provided in paragraphs 18 and 19- (1) A J. & K. claimant in possession of a house or a shop which he is entitled to retain under para. 1 or para. 8 of the Schedule to the Act, may, if he so desires, submit his application in Form KCH or Form KCS, as the case may be, as specified in appendices III and IV. (2) A non-claimant J. & K. displaced person in possession of a house or a shop, which he is entitled to retain under para. 2 or para. 9 of the Schedule to the Act, may, if he so desires, submit his application in Form KNCH or Form KNCS, as the case may be, as specified in appendices V and VI. (3) A house in the possession of a displaced person from occupied territory not transferred under sub-para. (1) or sub para. (2) shall be transferred to any J. & K. claimant who applies in that behalf and to whom a house has not been transferred under sub-para. (1) and shall be transferred to such J. & K. claimant in the manner provided In para 4 of the Sche dule to the Act. The Chief Settlement Commissioner may prepare a scheme, prescribe forms and invite applications for ibis purpose. (4) Houses and shops not transferred under sub-paras. (1), (2) and (3) shall be sold to the highest bidder in a restricted public auction in which only J. & K. displaced persons shall be allowed to bid. (5) After houses and shops have been transferred under sub-paragraphs (1), (2), (3) and (4) those not so transferred shall be dispossessed of in such manner and subject to such terms and conditions as may be prescribed by the Chief Settle ment Commissioner."

5. The first contention of the learned counsel for the petitioner is that under subsection (5) of section 30 of the Displa ced Persons (Compensation & Rehabilitation) Act, since the house in question is in the possession of Mst. Zainab Bibi, a displaced person from Jammu and Kashmir, it cannot be transferred at all under the provisions of the Act and her possession cannot be disturbed until repatriation. Against this proposition of law nothing has been said either by the counsel for Mst. Anwari Begum or by the counsel for the Settlement Department. It would appear that certain arts of the Scheme which has been prepared under section 16-B s also in excess of section 30, subsection (5), although section 16-B expressly makes the Scheme subject to the pro visions of subsection (5) of section

30. For instance, although according to section 30, subsection (5), the transfer of such a 1B house is absolutely forbidden, paragraph 19 of the Scheme permits such transfers except to a person "who is not a displaced person from the occupied territory." Again, paragraph 21 clause (1), permits a Jammu and Kashmir claimant in possession of a house to apply for its transfer. These provisions in so far as they exceed the Act should be deemed to be inoperative. It would appear that when section 16-B, providing for the prepa ration of a Scheme for Jammu and Kashmir refugees, was Inserted in the Displaced Persons (Compensation & Rehabilitation) Act, notwithstaning that a reference was made to section 30,1 subsection (5), it was overlooked that by section 30, subsection (5),I the transfer of a house in possession of a Jammu and Kashmir refugee had been forbidden altogether. Tire provisions of the 4 Scheme which we have reproduced above can operate only after section 30, subsection (5) of the Act has been suitably amended. For the present, we have no hesitation in holding, as advised by learned counsel for all the three parties, that the transfer in favour of Mst. Anwari Begum is void not only because the occupant, Mst. Zainab Bibi, is a Jammu and Kashmir refugee but also because Mst. Anwari Begum Is not a refugee from that area.

6. Secondly, assuming that the petitioner had disclaimed the house which she could claim under paragraph 21, clause (1), of the Scheme and no Jammu and Kashmir claimant had , applied for it under clause (3), then before disposing it of under clause (5), it should have been put to auction under clause (4) and the auction should have been restricted only to displaced persons from Jammu and Kashmir. Mst. Anwari Begum would, in any case, be excluded.

7. As regards the power-of-attorney, we notice that the petitioner had empowered her son (I) to execute, sign, submit and attest on her behalf form KA with regard to her claim (2) to verify or give oral or written statements "whatever" be required or necessary in connection with the said form on her behalf, (3) to receive on her behalf any compensation book which may be issued to her, and (4) "to act and do whatever be necessary in accordance with law on my behalf in securing com pensation for my abandoned property in Jammu and Kashmir." It is argued that under the fourth clause the son had power to do whatever was necessary for the purpose of securing compen sation for his mother, not particularly in relation to the house In question but generally in any other manner permissible by law. It seems possible to accept this argument, because. although an application had been made by Mst. Zainab Bibi in respect of the present house, other modes of compensation were also available, and considering that Mst. Zainab Bibi and her son lived in the same house and the latter himself was at the time serving in the Settlement Department, we find it difficult to believe that she was not aware of what her son was doing, or that she did not approve of it. The very circumstance that we were kept in the dark about the application which the son had made for a category-B house supports this inference. We would not, there fore, be inclined to interfere in this jurisdiction merely on the ground that the power-of-attorney did not strictly or parti cularly authorise Sayyad Safdar Hussain to give up the present house.

8. Since, however, the proceeding in favour of Mst. Anwari Begum is void, we accept the petition only to the extent of setting aside the transfer in her favour. The petitioner will bear her own costs, while the costs of Mst. Anwarl Begum will be borne by the Settlement Department, as it was by reason of an obvious mistake on the part of the Department that the house was allowed to be transferred to a person who was not a Jammu and Kashmir refugee. A. H. Petition accepted.