P L D 1966 (W (PLP)

The dispute relates to a house bearing Municipal No. 36/B‑VII, Civil Lines, Montgomery. House No. 44‑B‑II.S‑2 was allotted on the 17th of February 1948 to the petitioner who is a displaced person from Jullundur. This house was later required by the Rehabilitation Department and House No. 263/B‑II was therefore allotted to the petitioner on the 23rd of June 1950 as alternative. He is said to have entered into a transaction of exchange of the property he abandoned in Jhllundur with some property in Montgomery which included House No. 36/B‑VII, i.e. the property in dispute. The petitioner applied to the Additional Custodian of Evacuee Property who issued a no‑objection certificate on the 31st of March 1951 and, after some hurdles, the property, including the house in dispute, stood transferred to him in pursuance of that exchange on the 21st of July 1952. It so happened that House No. 263/BB‑II, which had been allotted to the petitioner and was in his occupation, was required for some other purpose. The Rehabilitation Department, therefore, had a part. of House No. 36/B‑VII .vacated for the petitioner and he moved into it. The remaining portion remained in the occupation of Ch. Abdul Hamid, respondent No. 5, who was its allottee. The relevant portion of the report of Akhtar Ali, Rehabilitation Officer, dated the 3rd of February 1955 which led to the ejectment order against respondent No. 5 by Ghulam Jilani Khan, Deputy Rehabilitation Commissioner, Montgomery, dated the 2nd of March 1955 may be quoted as under:- "In the above circumstances I am satisfied that the possession of Rajab Ali over the portion of the above bungalow is unauthorised and he is not entitled for its allotment. He should therefore be ejected from the bungalow and its possession should be handed over to Karamat Ali Khan, the owner who requires it for his personal residence. He will how ever surrender the possession of the‑house now in his occupation to this Department as soon as he is put in possession of the above bungalow." Learned Deputy Rehabilitation Commissioner passed the following order on this report: "Please keep this place reserved when it is got vacated for P. N. G. as an alternative accommodation."

2. Chaudhury Abdul Hamid, respondent No. 5, was ordered by the Rehabilitation Commissioner (Judicial) to pay the rent of the portion occupied by him to the petitioner on pain of ejectment. Objections were raised by the petitioner to this order which were repelled by the Deputy Rehabilitation Commissioner Montgomery, on the 26th of March 1956.

3. The no‑objection certificate issued by the Custodian was certified to be valid and to have been correctly issued in an order passed by the Deputy Custodian (General), Evacuee Property, Lahore, dated the 16th of October 1956.

4. On the 18th of October 1956 the Custodian of Evacuee Property upheld an objection regarding the exchange of the property of the petitioner with the property in dispute because he was of the opinion that the petitioner should have applied for confirmation of the exchange and not for a no‑objection certificate.

5. In pursuance of this order of the Custodian, the petitioner applied under section 20 of the Pakistan Administration of Evacuee Property Act for confirmation of the transaction of exchange. This application was dismissed by Mr. Aziz Ahmad, Additional Custodian; who ordered that it should be placed before the Custodian of Evacuee Property for orders. Meanwhile the petitioner had also preferred a revision petition to the Custodian against this order of Mr. Aziz Ahmad. The case came up on the 13th of February 1960 before the Custodian who by his order of the same date dismissed the revision petition as well as the application given by the petitioner under section 20 in view of the statement made by the learned counsel for the petitioner with the result that the petitioner ceased to be an owner of the property if he ever validly became one.

6. Meanwhile on the 30th of November 1959 the petitioner filed an application for the transfer of House No. 36/B‑VII on a CH form. 1t, however, transpired that the bungalow had already been transferred by the Deputy Settlement Commissioner by his order dated the 20th of November 1959 to Abdul Hamid respondent No. 5 who had applied on a CH form for its transfer and who was a claimant allottee.

7. The petitioner preferred an appeal‑ against this order which was dismissed by Brigadiar Altaf Hussain, Additional Settlement and Rehabilitation Commissioner. This was followed by a revision petition which was dismissed by the Settlement Commissioner on the 4th of April 1961. A second revision petition met with the same fate on the 4th of June 1962 at the hands of Muhammad Zia Ullah Khan, Settlement Commissioner, who exercised powers of the Chief Settlement Commissioner, because the record of the case had not been called for by the appointed date. Hence this, petition.

8. Learned counsel for the petitioner has contended before me that‑ (a) since the property was not evacuee property on the 20th of November 1959 neither an application for its transfer could be validly made by respondent No. 5 nor could it be transferred by the Deputy Settlement Commissioner who purported to do so by his order dated the 20th of November 1959 because he had the power only to transfer property included in the Compensation Pool and a property which was not evacuee property on that date could not be a part of that pool; (b) if it be assumed for the sake of argument, without conceding, that the property could be transferred, the petitioner had a superior right because for the first time a house was allotted to him on the 17th of February 1948 from which he was made to shift to another house on the 23rd of June 1950 because the former was required by the Rehabilitation Depart ment from which again he had to shift on the 3rd of February 1955 because it was required for the Pakistan National Guards. He was, therefore, to be deemed to be the allottee of the house in dispute ever since the 17th of February 1948. The allotment in favour of respondent No. 5 became inoperative and ceased to have any legal effect after the acceptance of the exchange by the Additional Custodian vide his order dated the 16th of October 1956. The petitioner was, therefore, the senior of the two.

9. The first objection raised by the learned counsel for the petitioner is based on an incorrect appreciation of law on the subject. Mr. Hashim Raza, the‑then Chief Settlement Commis sioner, invited applications for the transfer‑ of houses under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the 19th of May 1959 and the last date for submission of these applications was given in the Notification as the 15th of July 1959. The Notification can be perused at page 305 of the Manual of Settlement Law and Procedure (First Edition). The first Notification acquiring property for the Compensation Pool under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was, therefore, issued on the 21st of August 1959, i.e. at least more than a month after the last date of submitting applications for transfer of property expired. It may incidently be mentioned that respondent No. 5 applied for the transfer of the property in dispute on the 15th of July 1959, i.e. the last date on which an application could be submitted under the Notification referred to above. The determination of entitle ment of applicants to the transfer of property was to be made under Scheme 1 which itself was issued on the 19th of May 1959, i.e. at least three months before the property was acquired.

10. A perusal of the Act would show that the power to transfer property from the Compensation Pool is vested in the Chief Settlement Commissioner under, section 10 of the Act and there is no dispute about the fact that a property which does not form part of the Pool cannot be transferred at all. Settlement Scheme No. 1 was not issued under section 10 of the Act but under section 16(1)(b) and (c) as is borne out by the preamble. The Scheme is published as Appendix XIII at page 269 of the old Manual. Section 16 deals with payment of interim compensation and gives the Central Government the authority to require the Chief Settlement Commissioner to prepare, in anticipation of the settlement of claims, one or more schemes for the grant of interim compensation and for the transfer of immovable property. Subsection (2) of the same section empowers the Chief Settlement Commissioner, acting under such an order, to prepare and execute any such claim prepared under that section. Paragraph 2 of the Scheme empowered the Chief Settlement Commissioner to invite applications for the transfer of property by notification in the official Gazette. Paragraph 4 deals with persons entitled to apply and the manner ‑in which such an‑ application has to be given. Paragraph 6 deals with receipt and acknowledgment of applications. Para. 7 provides for the scrutiny of applications and empowers the Deputy Settlement Commissioner, to return the application with a Memorandum of Objections to the applicant if .he finds that it is not in conformity with the rules and the applicant is required to resubmit it within fifteen days after removing the objections. The same paragraph provides for the registration of the application if it is found complete in all material respects.

11. Chapter III deals with the determination of entitlement. Under paragraph 8, the Deputy Settlement Commissioner can make enquiries in this behalf from any officer and take a decision as to the person entitled to retain the property. Paragraph 10 deals with the enquiry where entitlement is not clear. Para. 13 requires the Deputy Settlement Commissioner to make an order with regard to the entitlement or otherwise of the applicant where at the first hearing all relevant points are clarified. Where there are controversial issues which remained to be resolved the Deputy Settlement Commissioner is empowered by sections 14 and 15 to adjourn the case and to summon witnesses; under Para. 16, the Deputy Settlement Commissioner is required, on being satisfied that no further enquiries are necessary, to pronounce his order. Under the next Chapter, i.e. Chapter IV, the amounts payable by the transferees are to be determined.

12. Under Chapter V, intimation of transfer and notice of demand of price has to be made. Section 28 which is the first section of this Chapter runs as follows :‑ "The Deputy Settlement Commissioner shall verify whether the property to be transferred has‑been acquired under section 3 of the Act and if it has not been acquired he shall make a proposal for its acquisition to the Chief Settlement Commissioner through the Additional Settlement Commissioner. After the property has been acquired, the Deputy Settlement Commissioner shall proceed to transfer it to the applicant as hereinafter provided." It is, therefore, clear that it is only after applications for transfer have been received, the entitlement of the applicants have been determined, the amounts payable by the transferees have been settled that the Deputy Settlement Commissioner is required to verify if the property has been acquired under section 3 of the Act and if he finds that it is not so acquired to move fog.' ` its acquisition. In other words, all the steps before the actual transfer of the property can be taken in anticipation of the acquisition of the property and not necessarily after the property bas been acquired.

13. The invitation of applications for transfer of houses; issued by the Chief Settlement Commissioner on the 19th of May 1959 through a Gazette Notification, was therefore in accordance, with law and intra vires. Similarly the application submitted by respondent No. 5 for the transfer of property to him on the 15th of July 1959 was validly presented and received.

14. There is no dispute about the fact that the Custodian of Evacuee Property had by his order dated the 7th of June 1958 decreed that‑‑ "I am unable to understand how the learned Deputy Custodian (General) has given the finding, by order dated 16‑10‑1956 that the exchange is already complete and should tie treated to have been finally confirmed. I set aside this order and remand the case to Mr. Abdul Majid Asghar, Deputy Custodian (General), now Additional Custodian Lahore for hearing and deciding the case on merits if Mr. Karamat Ali makes an application for confirmation of the exchange." Even if it be assumed that the property in dispute had ceased to be evacuee property because of the so‑called exchange, it again became evacuee property on the 7th of June 1958 when the Custodian passed the order referred to above and at no time after that was it declared to be non‑evacuee property because the next order is that of Mr. Aziz Ahmad, Additional Custodian of Evacuee Property, dated the 18th of November 1959 whereby he held that‑ "To sum up I hold that the document dated 30‑4‑49 by Sardar Prem Singh is neither an exchange deed, nor an agree ment to exchange and that it did not and could not convey any interest in the property in dispute to the petitioner and so, the question of confirming any exchange does not arise. The application is, therefore, dismissed with costs." The property was, therefore, evacuee property on the date when the first notification acquiring evacuee property under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was issued. Hence it became part of the Compensation Pool on the 21st of August 1959.

15. The second submission of the learned counsel for the petitioner is not supported by any provision in the Act, the rules made there under, the various Schemes, the Notifications or Instructions. Section 2(6) of the Act defines possession as‑ "Possession obtained in pursuance of an order passed on or before the 20th day of December 1958 by a Rehabilitation authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government; . . . Paragraph 1 of Part I of the Schedule provides that‑ "a house in possession of a claimant . . . . shall be transferred to him at a price determined on evaluation basis; . . . Provided further that if a house or a part thereof is in possession of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession." The word "possession's in the part of, the Schedule quoted' above, therefore, refers to the house transfer of which is being made to a particular person and it is incorrect to say that while computing the date of possession of a house which is to be transferred the date when the claimant got into possession of any other house which he had to leave because it was needed by the Government or the Rehabilitation Department could be taken into consideration.

16. My conclusions, therefore, are that ‑ (a) the entire process of inviting applications for the transfer of immovable property on evaluation basis or otherwise, the submission, receipt, and scrutiny of such applications and determination of the entitlement of the applicants to the transfer of specific properties as well as the determination of the amounts payable by the transferees can be validly made under the Scheme promulgated under section 16 of the Act even without the properties having been actually acquired under section 3 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958; (b) the facts of the present case clearly show that the property in dispute had been validly acquired before it was transferred to respondent No. 5; and (c) that the period during which the petitioner was in possession of Houses Nos.

44. B.ILS‑2 and 263/B.II, Montgomery, cannot be taken into consideration for determining the length of the period during which the petitioner has been in possession of house No. 36/B‑VII, i.e. the property in dispute.

16. The petition has, therefore, no merit and is dismissed, but in the circumstances of the case there will be no order as to costs. K. B. A. Petition dismissed.