P L D 1964 (W (PLP)

The petitioner alone, who is a non‑claimant and has no allotment order in his favour, applied for the transfer of the shop in dispute on the score of his being in its occupation since before the 20th of December 1958. All the Settlement Authorities refused transfer to him on the ground that he had not cleared the arrears of rent. Learned counsel for the petitioner, relying on Bashir Ahmad v. Khushi Muhammad (P L D 1963 Lah. 507) has contended that a condition, such as a clearance of arrears of rent, cannot be imposed on the non‑claimant before he can be considered eligible for the transfer of a house in his occupation. The principle laid down in that authority is not attracted to the facts of the present case, for the reason that the petitioner, though a non claimant displaced person, cannot be deemed to be in possession of the house. That principle applies only in those cases where a person is in possession within the meaning of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which reads as :‑ "`possession' means possession obtained in pursuance of an order passed on or before the twentieth day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Pro vincial Government: Provided that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final: 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 purpose of this Act."

2. Once it is proved that a non‑claimant displaced person is in possession of a property, the Settlement Authorities cannot refuse to determine his eligibility on account of the non‑payment of the arrears of rent. The case of the petitioner is not covered by the definition of "possession", and he claims the benefit of the order of the Central Government which was issued on the 13th of October 1959, in exercise of the powers conferred upon it by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act. The notifica tion of the Central Government issued in this behalf is reproduced for convenience of reference :‑ " . . . the Central Government is pleased to direct that a claimant, a non‑claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty‑first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day: Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such amount is adjusted against his claim." It will be thus clear that mere occupation before the 20th of December 1958, is not deemed to be a possession and the occupant must satisfy certain conditions before he can be deemed to be in possession. If he was a non‑claimant, he had to prove that he was in undisputed occupation of the house or the shop since before the 20th of December 1958, and no other person was entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day, provided that the rent and other public dues in respect of such house or shop had been paid by the occupant from the date of his occupation. A non claimant displaced person taking the benefit of such a notification, before he could be deemed to be in possession within the meaning of this notification, had to clear the arrears of rent. Till such time as the arrears were cleared, he could not be deemed to be in possession within the meaning of second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilita tion) Act. Since the petitioner had not cleared the arrears of rent, although he was in undisputed occupation of the house before the 20th December 1958, he was not in possession of the shop within the meaning of clause (6) of section

2. Under para graph 2 of the Schedule to the Act, a house in possession of a non‑claimant displaced person which he desires to retain, has to be transferred to him on payment of the prevailing market price. The petitioner, under the circumstances, was not entitled to the transfer, and his form has rightly been rejected. The orders of the Settlement authorities cannot be held to be passed without lawful authority.

3. The petition is dismissed in limine. K. B. A. Petition dismissed.