P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑Accepting Writ Petition No. 411/R of 1960, my brother Ortcheson, by his order dated the 22nd of May 1961, issued a writ of mandamus to the Settlement and Rehabilitation Commissioner, Lahore, directing him to implement immediately the orders of the Custodian of Evacuee Property, Punjab, dated the 13th of October 1952 and that of the Reha bilitation Commissioner (General), Punjab, dated the 11th of May 1953, and this order has been challenged by Muhammad Shafi and Abdur Rahim, who were respondents Nos. 2 and 3, respectively, in the writ petition the other two respondents 1n that petition being the Settlement and Rehabilitation Commis sioner, Lahore, who was respondent No. 1, and Muhammad Akram, who was shown as respondent No.

4. The implemen tation directed in the order under appeal would affect the two appellants and they have presented this appeal jointly. Muhammad Akram, who was the fourth respondent in the writ petition disposed of by means of the order which is the subject of this appeal, has presented Writ Petition No. 523/11 of 1961 wherein he challenges the order of the Deputy Settle ment Commissioner Circle 11, Lahore. directing him to vacate that portion of property No. SW‑98‑R/9, Dev Samaj Road, Lahore, which is in his possession. As the Letters Patent Appeal and the Writ Petition relate to the same house and the order of my brother Ortcheson In Writ Petition No. 411/11 of 1960 is to be examined in both of them, these two matters will be disposed of together.

2. The writ petition in which the order appealed against was passed was presented by Mr. M. A. Rashid, Advocate, Lahore, on the 17th of August 1960, wherein it was prayed that the Settlement and Rehabilitation Commissioner, Lahore, be directed by a writ of mandamus or any other appropriate writ to compel the relevant Settlement and Rehabilitation Authorities to implement the orders of the Custodian of Evacuee Property, Punjab, dated the 13th of October 1952, and of the Rehabilitation Commissioner (General), Punjab, dated the 11th of May 1953, both of which were to the effect that the occupants of the house in dispute except Mr. M. A. Rashid and members of his family should be ejected therefrom with all possible expedition. Mr. M. A. Rashid, who had presented the writ petition, had got the house (No. 9, Dev Samaj Road, Ram Nagar, Lahore) under orders of the Additional Settlement Commissioner, Lahore, dated the 8th of June 1960, and as part of the house was in possession of Muhammad Shall, Abdur Rahim and Muhammad Akram, he had invoked the writ jurisdiction of this Court in the exercise of which my brother Ortcheson had passed his order against which the Letters Patent Appeal has been filed. During the pendency of the writ petition presented by Mr. M. A. Rashid. Mr. Farzand Ali Khan, who was then the Settlement Commissioner, Lahore, by his order dated the 13th of February 1961, modified the order of the Additional Settlement Commissioner, Lahore, dated the 8th of June 1960, to this extent that the appellants in this appeal were given a portion of the house in dispute. By means of an application for revision presented In the office of the Chief Settlement and Rehabilitation Commissioner, Mr. M. A. Rashid had attacked the order passed in favour of Muhammad Shafi and Abdur Rahim by Mr. Farzand Ali Khan, Settlement Commissioner, Lahore, on the 13th of February 1961. This Application for revision presented by Mr. M. A. Rashid, which was heard by Malik Fateh Khan, Settlement and Rehabilitation Commissioner, upon whom the powers to hear applications for revision, that vested under the Displaced Persons (Compensation and Reha bilitation) Act, 1958, in the Chief Settlement Commissioner, had been conferred, was dismissed on the 8th of May 1961‑exactly two weeks before my learned brother Ortcheson passed the order under appeal.

3. The main ground taken in the memorandum of appeal presented in this Court by Muhammad Shall and Abdur Rahim was that the learned Judge in Chambers had erred in directing the implementation of the order of the Custodian of Evacuee Property, Punjab, and that of the Rehabilitation Commissioner (General), Punjab, which had been passed quite a decade earlier because on the day that the learned Judge issued a writ for their implementation the two orders had become incapable of valid enforcement, while the main ground taken 9n the writ petition presented by Muhammad Akram was that the Deputy Settlement Commissioner, Circle 11, Lahore, had passed his impugned order the date of which is not clear from its certified copy which is attached to the writ petition as Annexure A, on account of a misreading of the judgment passed by my learned brother Ortcheson on the 22nd of May 1961 in Writ Petition No. 411/11 of 1961.

4. Before proceeding further, I should mention a few facts which it is necessary to bear in mind fn order to be able to fully appreciate the arguments raised on behalf of the con tending parties in the two matters which are being disposed of by this order. Mr. M. A. Rashid, who is a refugee, was at the time of Partition of British India in 1947 practising as an Advocate at Ludhiana. When he came to Pakistan, he took possession of the house to which this dispute relates. In 1948, Mr. M. A. Rashid was appointed Executive Officer of the Municipal Committee, Sheikhupura. He took up that appoint ment but left some members of his family in the house in dispute. It was in his absence that Muhammad Shafi and Abdur Rahim, the appellants, took possession of a part of the house. According to them, they took possession under a valid allot ment order of which a copy is on the record while according to Mr. M. A. Rashid they were mere trespassers, and he himself held a valid allotment order with regard to the whole of the house. However, he did not produce any allotment order in his favour with regard to the whole or part of the house but as it appears to have been held by each of the Settlement Authorities which dealt with the matter of transfer of the house in dispute that Mr. Rashid was entitled to that part of the house which was transferred to him under the Displaced Persons (Compensa tion and Rehabilitation) Act, and that finding has not been challenged, I do not consider it necessary to enter on a con sideration of the question whether or not an order of allotment had been passed in favour of Mr. M. A. Rashid, and will proceed on the assumption that that part of the house which stands transferred to him had been allotted to him long ago. On the 21st of October 1950, a Deputy Rehabilitation Com missioner, Lahore, passed an order that as the house in which Muhammad Shafi and Abdur Rahim, appellants in this appeal, were residing was above their status they should be ejected therefrom after offering them alternative accommoda tion. This order of the Deputy Rehabilitation Commissioner appears to have been passed on a representation made by Mr. M. A. Rashid which was sent on to the Deputy Rehabili tation Commissioner concerned by Mr. S. M. Rahman Ansari, an Advocate of this Court, who described himself as the President of the Pakistan Mahajar League and recommended the case of Mr. Rashid as according to him it deserved consideration. In appears that before he passed his order dated the 21st of October 1950, the Deputy Rehabilitation Commissioner concerned had heard neither Abdur Rahim nor Muhammad Shah who were going to be affected by his order. However, this omission of the Deputy Rehabilitation Commissioner lost its A significance because Muhammad Shall and Abdur Rahim pre sented an appeal against the order of ejectment passed by the Deputy Rehabilitation Commissioner. This appeal was disposed of by the Additional Rehabilitation Commissioner, Punjab, on the 8th of July 1952, the order of the Deputy Rehabilitation Com missioner being upheld in all respects including the one that Muhammad Shafi and Abdur Rahim shall be ejected only after they had been given some other suitable accommodation. Against this order of the Additional Rehabilitation Commissioner, Muhammad Shafi and Abdur Rahim presented an application for revision before the Custodian of Evacuee Property who by his order dated the 13th of September 1952 declined to Inter fere as the application was barred by time with the result that there was against the appellants an order of ejectment passed by a Deputy Rehabilitation Commissioner on the 21st of October 1950 which was confirmed by the Additional Rehabili tation Commissioner, Punjab, and not changed by the Custodian of Evacuee Property, Punjab who at that time possessed the powers to hear revision applications against orders of Rehabili tation Authorities. No accommodation appears to have been given to Muhammad Shafi and Abdur Rahim appellants and as they continued to be in possession, Mr. M. A. Rashid presented an application to Mr. Fida Hassan, C. S. P. the then Rehabili tation Commissioner (General), Punjab, who, on the 11th of May 1953, passed an order which reads as follows: ‑ "Mr. M. A. Rashid, Advocate, has seen me to‑day and states that despite final order of the Custodian, the other occupants of his house No. 9, Dev Samaj Road, are not being ejected. Mr. Rashid tells me that the R. O. has even suggested alternative accommodation for the other occupants but the case has not been decided for one reason or the other. This is highly unsatisfactory and I should like the D. R. C. to give priority to this case and implement the order within three days. A report should be submitted to me." In spite of this order and a few others, passed by Rehabilitation Authorities subordinate to the Rehabilitation Commissioner (General), Muhammad Shafi and Abdur Rahim continued in possession of a part of the house in dispute which part I might here mention was not the same regarding which an order of transfer has been passed in favour of the appellants by Mr. Farzand Ali Khan, Settlement Commissioner, Lahore, on the 13th of February 1961, which order was confirmed on the 8th of May 1961 because the application which Mr. M. A. Rashid presented for its revision was dismissed. It is not necessary to consider how and when Muhammad Akram, who has presented the writ petition, got possession of a part of the house because the decision of the writ petition presented by him does not call for the consideration of that question.

5. The main arguments addressed by learned counsel who appeared for the parties were these. Mr. Sher Bahadur, Advocate, who appeared for Muhammad Shall and Abdur Rahim, the appellants in the Letters Patent Appeal, contended that the order appealed against could not have been, or at least should not have been, passed because the orders the implementation of which was directed had become impossible of implementation by reason of the fact that a part of the house in dispute had been transferred to the appellants. To this contention, Mr. Ghias Muhammad, who appeared for Mr. M. A. Rashid, one of the two respondents in the Letters Patent Appeal, replied that as an order of ejectment had been passed against Muhammad Shall and Abdur Rahim appellants, they could not be deemed to have been in possession of the house in dispute or part thereof and, therefore, the transfer made in their favour by the Settlement Authorities were invalid. He added that the fact that the orders of the Custodian of Evacuee Property, Punjab, dated the 13th of October 1952, and of the Rehabilitation Commissioner (General), Punjab, dated the 11th of May 1953, the implementa tion of which had been directed by Ortcheson, J. in his order under appeal, had not been implemented for such a long time could not be used to the prejudice of Mr. M. A. Rashid and if those orders were not implemented prejudice to Mr. M. A. Rashid was sure to result. Mr. Mushtaq Ali, Advocate, who appeared for Muhammad Akram, the petitioner in the writ petition, contended that the Deputy Settlement Commissioner, Centre 11, Lahore, who had passed the order of ejectment against his client had done so because he was of the view that Mr. Justice Ortcheson had directed the ejectment of Muhammad Akram.

6. Before taking up the contentions raised in the Letters Patent Appeal, I will deal with those that were raised in the writ petition. I have mentioned already that one of the prayers in Writ Petition No. 411/R of 1960, which was presented by Mr. M. A. Rashid, on the 17th of August 1960, was that the Settlement Authorities be directed to exercise their powers under section 29 of the Displaced Persons (Compensation and Reha bilitation) Act to eject some persons who without any entitle ment were in possession of a part of the house transferred to him. No order to that effect was, however, issued by the learned Judge in Chambers, and it was on the basis of the absence of any such order that the learned counsel for Muhammad Akram contended that the impugned order of the Deputy Settlement Commissioner must be vacated on the ground that he had misread the order of Ortcheson, J. The order of the Deputy Settlement Commissioner which is attacked by means of the writ petition is Annexure A to the writ petition and reads as follows: ‑ "Since you are in unauthorised possession of a portion in Property No. SW‑98‑R/9, Dev Samaj Road, Lahore, and no stay order has been granted in your name by the High Court, West Pakistan, Lahore. You are required to vacate the portion in question within 48 hours from the receipt of this notice. In case of non‑compliance you will be ejected by force." It will be noticed that the order does not show under what provision of law it was issued and that it mentions that no stay order had been passed in favour of Muhammad Akram by the High Court. It was apparently this mention of the absence of a stay order from the High Court that led Muhammad Akram, the petitioner in Writ Petition No. 523‑R of 1961, and his counsel to believe that it was on the basis of the order of Ortcheson, J. dated the 22nd of May 1961, that the notice of ejectment was issued. This belief was entirely unjustified and the writ petition has no legs to stand on if its success depends on the grounds taken therein. Faced with this difficulty, Mr. Mushtaq Ali, Advocate, counsel for Muhammad Akram, contended that even if the order of the Deputy Settlement Commissioner attacked in the writ petition had nothing to do with the order passed by Ortcheson, J. on the 22nd of May 1961, the former order was wrong in law. I cannot accept this contention. The powers of ejectment vesting in the Settlement Authorities are given in section 29 of the Displaced Persons (Compensation and Rehabilitation) Act which makes it clear that an order of ejectment can be passed by the Settlement Authorities mentioned in the section even after the property has been taken over by the Central Government under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act provided the conditions mentioned in section 29 existed. The correctness of this view which was expressed by me in the leading judgment of a Division Bench reported as Haji Abdul Karim v. Tire Chief Settlement Commissioner (P L D 1961 Lah. 394) was not questioned by learned counsel for Muhammad Akram but he contended that even if the power to eject persons existed in Settlement Authorities even after the property had been taken over by the Government under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, it could not be said to exist after the property had been transferred under the relevant provisions of that Act because, according to him, as soon as the property was transferred the Settlement Auth : Cities could not claim to have any concern with it and it become the private property of the person in whose favour the order of transfer had been passed. Mr. Mushtaq Ali, Advocate, added that as an order of transfer with regard to part of the house in dispute had been passed .in favour of Mr. M. A. Rashid and with regard to the rest of the house in dispute in favour of Muhammad Shafi and Abdur Rahim, the Settlement Authorities could not invoke section 29 of the Displaced Persons (Compensation and Rehabilitation) Act to eject Muhammad Akram. In my opinion the arguments of Mr. Mushtaq Ali with regard to section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, are only partly correct. I agree with his contention that) when the property mentioned to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, has been transferred] to someone under the provisions of the Act, it is only that person who can fake proceedings for ejectment against a person whose ejectment is sought and no Government agency can concern itself with the ejectment, but it is clear that the rights of the Settlement Authorities to pass orders under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, continue till the person to whom the property has been transferred under the provisions of the Act becomes its full‑fledged owner. If, therefore, in spite of the order of transfer the whole price has not been paid by the transferee, the power to eject conferred by section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the Settlement Authorities continues to vest in them. Provision on the point appears to have been made in the Act with a view to ensuring that powers to pass orders of ejectment for the reasons mentioned in section 29 should continue till Government and the Settlement Authorities have some interest in the property. Mr. M. A. Rashid, Muhammad Shafi and Abdur Rahim stated at the hearing that they have still to pay some installments of the price for which the property was transferred to them and learned counsel for Muhammad Akram admitted that this was so. It follows, therefore, that the powers of the Settlement Authorities to issue orders under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act vested in them at the time the above‑reproduced order was passed by the Deputy Settlement Commissioner, Circle II, Lahore, with the result that the order impugned by means of Writ Petition No. 523/R of 1961 cannot be said to be invalid. Consequently, I would dismiss the writ petition, but would pass no order as to costs.

7. I will now take up the consideration of the Letters Patent Appeal and will, in that connection, take up first of all the contention of Mr. Ghias Muhammad, Advocate, that as an order of a ejectment had been passed against Muhammad Shafi and Abdur Rahim as long ago as the 21st of October' 1950, they could not be deemed to have been in possession of the property or any part thereof for the purposes of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and, therefore, the transfer made in their favour under the orders of Mr. Farzand Ali Khan, Settlement Commissioner, Lahore, dated the 11th of February 1961, which was confirmed on the 8th of May 1961, by Malik Fateh Khan who, though an Additional Settlement Commissioner, had been invested with powers of the Chief Settlement Commissioner, could be of no avail to them and consequently, it should be held that they were not in possession and their claim to the property was inferior to that of Mr. M. A. Rashid. In support of his contention that a person against whom an order of ejectment had been passed by a Rehabilitation Authority could not be deemed to be in possession of the property from which his ejectment had been ordered. Mr. Ghias Muhammad relied on the leading judgment I wrote sitting in Division Bench in Khawaja Muhammad Anwar and others v. The Rehabilitation Authority and another (P L D 1960 Lah. 201). The facts of that case were not the same as those of the present one. In that case the question for determination was whether an order of ejectment which had been passed by a Rehabilitation Authority was valid even after the property from which ejectment had been ordered ceased to be evacuee property which question was answered in the affirmative. In the present case, however, the question that arises about an order of ejectment from evacuee property which has subsequently become the property of Government is whether an order which is conditional on the person directed to be ejected being supplied with suitable alternative accommodation makes his possession unauthorised from the date that it is passed or from some further date. Mr. Ghias Muhammad contended that the condition attached to the order of ejectment passed by the Deputy Rehabi litation Commissioner on the 21st of October 1950, which was confirmed by the Additional Rehabilitation Commissioner, Punjab, as well as by the Custodian of Evacuee Property, Punjab, could not change the nature if the order which remained an order of ejectment and that in any case it became a complete order, of ejectment long ago because though offered accommodation by the Rehabilitation Authorities, Muhammad Shafi and Abdur Rahim, appellants had declined to accept it..

8. The complexion of the case will change considerably to the prejudice of the appellants if it were found that they had refused to accept suitable accommodation offered to them under the orders of ejectment passed against them in 1950 by the Deputy Rehabilitation Commissioner which was subsequently confirmed by higher authorities, and it is, therefore, desirable that the question whether or not the appellants had refused accommodation offered to them should be disposed of before any other question is taken up. Some documents material for this question were placed on the record by the appellants when the matter was before my brother Ortcheson, but he did not give a decision on the point, evidently because when the case was before him this aspect had not the importance which it has now attained by reason of the fact that to meet the point against them that they had been ordered to be ejected the appellants mainly rely upon the circumstance that no suitable alternative accommodation had been offered to them and assert that the order of ejectment could not affect them adversely. Mr. M. A. Rashid was given opportunities to prove that the denial of the appellants, that they had been given suitable alternative accommodation, was incorrect, and though all files that he wanted to be in Court were summoned, it could not be shown either by him or his learned counsel that suitable alternative accommodation was offered to the appellants. No doubt, on the file of the Rehabilitation Department relating to the house in dispute which was in Court at the instance of Mr. M. A. Rashid and from which some material in this judgment is taken, there is some material that would show that some houses or parts thereof were proposed to be given to the appellants in order that ejectment under the order dated the 21st of October 1950 may be carried out, but there is also material on the same record that vacant possession of the accommodation proposed for the appellants could not be given to them and, therefore, the proposals were dropped and they could not but have been dropped. I might mention that the Settlement Authorities had not gone into the question whether the appellants had been offered suitable alternative accommo dation and it is for this reason that I have considered the record relating to it and have given the above‑mentioned finding. It can hardly be doubted that a person who is to be ejected only if suitable alternative accommodation is offered to him cannot be considered to have been offered such accommodation if what Is offered to him is either unsuitable or in possession of someone else who is not prepared to vacate it and cannot be compelled to do so. I would, therefore, hold that the appellants had not declined any suitable alternative accommodation, and as far as I can see they were offered none.

9. I will now take up the contention of Mr. Ghias Muhammad, Advocate, who appeared for Mr. M. A. Rashid, the contesting respondent in this appeal, to the effect that notwithstanding the fact that the order of ejectment passed against the appellants by the Deputy Rehabilitation Commissioner, Lahore, in October 1950, contained a condition that they could be ejected only on being offered suitable alternative accommodation, the order remained one of ejectment and its character did not change even if no suitable alternative accom modation had been offered to the appellants. Learned counsel elaborated his contention by saying that as soon as the order of ejectment against the appellants was passed on the 21st of October 1950, it became operative at least to this extent that their possession did not remain that of persons having a right to occupy the property but assumed the character of possession of a trespasser and could not have been treated by the Settlement Authorities as "possession" for the purposes of the provisions of subsection (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and various notifications issued under that subsection by the Central Govern ment. It appears to me that if Mr. M. A. Rashid wanted to have the transfer in favour of the appellants made by the Settlement Authorities set at naught he should, if so advised, have brought a writ petition, because even the ultimate authority in the Settlement Department had not accepted his contention that the appellants were not entitled to that part of the house in dispute which had been transferred to them under the Displaced Persons (Compensation and Rehabilitation) Act, but as, for the purposes of considering whether or not the order passed by my brother Ortcheson on the 22nd of May 1961 should be vacated or modified, it is pertinent to consider whether the transfer made in favour of the appellant was valid, a decision in this case on the point raised is necessary. I am clearly of the view that there is no force in the contention or Mr. Ghias Muhammad, Advocate, that the order of ejectment passed against the appellants on the 21st of October 1950, at once acted as a bar to the appellants being treated to be in lawful possession of the property in dispute. My reason for holding this view is that as worded the order of ejectment passed against the appellants on the 21st of October 1950, could not be acted upon unless the appellants had been offered suitable alternative accommodation. The condition which was attached to the order of ejectment had to be satisfied before ejectment could take place and till that condition is satisfied the order remains a dead letter and cannot in any manner prejudicially affect the appellants. It appears to me that the order was in no material respect different from one under which ejectment can take place only after a specified period had elapsed. Can anybody seriously urge that before the period mentioned in the order of ejectment has elapsed the order results in the possession of the person directed to be ejected becoming that of a trespasser ? Just as till the expiry of the period, until the expiry of which an order of ejectment cannot operate against a person, the possession of the person ordered to be ejected remains lawful, the possession of the person against whom an order of ejectment which has attached to it a condition that it will be carried out only after suitable alternative accommodation is offered to the person whose ejectment has been ordered remains perfectly lawful till such accommodation is offered and the order cannot in any manner prejudice the rights which the person in possession got by reason of his being in possession of the property in question and no valid order of ejectment can be deemed to have been passed against such person till such time as suitable alternative accommodation is offered to him. Consequently, I hold that the transfer made in favour of the appellants by the Settlement Authorities on the basis of their being in possession of a part of the house in dispute suffered from no defect.

10. But as, even if the transfer made in favour of the appellants is not invalid, the result need not necessarily be that the appeal be accepted if the implementation of the orders, the implementation of which was directed by my brother Ortcheson in. his order under appeal, can take place without prejudicing the rights of the appellants, I would be unwilling to allow the circumstance of the transfer in favour of the appellants to stand in the way of the dismissal of the appeal if it were found to have no merit otherwise. In order to ascertain whether the Settlement Authorities were in a position to offer suitable residential accommodation to the appellants, a report was sent for during the hearing of this appeal from the Chief Settlement Commissioner. The report which was sent was to the effect that in the circumstances as they exist at present, it is not possible for the Settlement Authorities to offer any residential accommodation to the appellants. In the order by means of which the report above‑mentioned was sent for it was mentioned that it would be greatly appreciated if Major Ishaq Muhammad Khan, Settlement Commissioner (Legal), were directed to appear in Court. Major Ishaq Muhammad Khan appeared on the last date of hearing of the appeal and addressed arguments. He expressed the view that the order of transfer passed in favour of the appellants by Mr. Farzand Ali Khan, on the 13th of February 1961, was invalid for the reasons that at the time when the order was passed, Writ Petition No. 411/R of 1960, which was disposed of by my brother Ortcheson on the 22nd of May 1961, was still pending. In support of this contention, Major Ishaq Muhammad Khan made a reference to paragraph 17 of Settlement Scheme No. I which is to the following effect: ‑ "Cases pending in other Courts.‑Where the question of possession of the property or any other question having a bearing on it is still sub judice before a Rehabilitation Authority or any other competent authority or Court, the Deputy Settlement Commissioner shall await the decision of that Authority or Court in that case and shall postpone the determination of the entitlement of the applicant for the time being." This Scheme for transfer of houses and shops to persons in possession was prepared by the Chief Settlement Commissioner under section 16 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and was approved of by the Central Government. The date on which the Scheme came into force is not known because the only thing shown to Court in this regard was the book "Manual of Settlement Law and Procedure," October 1960 Edition, in which it occurs at pages 269 to 305 as Appendix 111, and that book does not give the date of the coming into force of the Scheme and it is not known whether it was in force at the time the order of transfer in favour of the appellants was passed. I will, however, proceed on the assumption that the Scheme relied upon by Major Ishaq Muhammad Khan was applicable to the order of transfer passed in favour of the appellants. There is no doubt that at the time that Mr. Farzand Ali Khan, Settlement Commissioner, Lahore, passed the order of transfer in favour of the appellants, Writ Petition No. 411/R of 1960 was pending, but the question for determination is whether the pendency of the writ petition made the order passed by Mr. Farzand Ali Khan on the 13th of February 1961 void and inoperative. It appears to me that Paragraph 17 relied upon by Major Ishaq Muhammad Khan cannot have the effect on the order of Mr. Farzand Ali Khan which it was contended it had The fact that transfer is made under the Displaced Person (Compensation and Rehabilitation) Act, 1958, during the pendency of proceedings mentioned in Paragraph 17 of the Settlement Scheme No. I, cannot make the transfer invalid. If the order of a Court or other Tribunal shows that the order of transfer made by the Settlement Authorities was invalid it will be open to the Chief Settlement Commissioner, in exercise of his power of revision, to bring the order in conformity with the order o the Court or other. Tribunal whose order may be preferable to that of the Settlement Authorities, but till that is done the order of transfer passed by the Settlement Authorities would remain valid and binding. It is not without significance that in the present case the transfer made in favour of the appellants by Mr. Farzand All Khan on the 13th of February 1961 found favour even with the Chief Settlement Commissioner who refused to exercise powers of revision on an application in that behalf made by Mr. M. A. Rashid which was dismissed on the 8th of May 1961.

11. What I have said above will have shown that if the appeal is not accepted the appellants will suffer irreparable loss without having even the remotest chance of getting any benefit. As the order of ejectment against them did not become operative and is not to be considered to have been passed for the reasons given by me already, the appellants are to be deemed in possession of a part of the house in dispute, and this possession would give them a right to get that part of the house which was in their possession if it is found that the building is divisible into more houses than one which in fact has been found by the Settlement Authorities to be the case. I am inclined to think that the appellants were entitled to claim that they be transferred that portion of the building of which they had possession but as they did not do so, and they have not urged that they had been refused all that they were entitled to, I would not enter into the consideration of the question whether the order of transfer passed on the 13th of February 1961, by Mr. Farzand Ali Khan, Settlement Commissioner, in favour of the appellants which was affirmed by the Chief Settlement Commissioner on the 8th of May 1961, is not less favourable to them than it should have been. The fact is that if the orders the implementation of which had been directed in the order under appeal are imple mented now and the appellants are ejected from the property in dispute they will be without a house in spite of the fact that under the law in force they were entitled to one. Non‑implemen tation of the orders directed by Ortcheson, J. to be implemented has not been shown to have resulted even remotely from any act or omission of the appellants who are men of no substance or influence. I cannot lose sight of the fact that if alternative suitable accommodation was available and was not offered to the appellants, the fault yeas not that of the appellants. It is clear that if the orders directed by my brother Ortcheson to be implemented are implemented the appellants, who were not even remotely blameworthy for the orders not having been implemented earlier, will suffer for what was the fault if fault it was‑of officers of a Department of Government. Consequently, I would accept the appeal and vacate the order passed by Ortcheson, J on the 22nd of May 1961, but as regards costs, I would direct that they be borne by the parties themselves not only in this appeal but also in the proceedings before my brother Ortcheson. SHAKIRULLAH JAN, J.‑I agree. A. H. Appeal accepted.