P L D 1964 Supreme Court 189 (PLP)

S. A. RAHMAN, J.‑The respondents to this appeal which comes to us by way of special leave, applied to the Rent Con troller, Lahore, for ejectment of the appellant from a. certain premises, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (referred to as the Ordinance, in what follows). The respondents held a Provisional Transfer Order in their favour, in respect of the property in question, issued under the Displaced Persons Compensation and Rehabi litation) Act, 1958, (hereinafter referred to as the Act). The appellant resisted his ejectment on the twin grounds that no relationship of landlord and tenant subsisted between the parties and that the property in dispute being a temple, it could not have been transferred to the respondents at all. It was, there fore, contended that the Rent Controller had no jurisdiction in the case. The Rent Controller by order dated the 12th of October 1961, found that the relationship of landlord and tenant subsisted between the parties, on the strength of the P. T. O. issued in the respondents' favour. He declined to go into the question as to whether the property was a Mandir or not, as he felt that he could not go behind the action taken by the Settle ment Authorities in issuing a P. T. O. in favour of the respon dents. An appeal taken by Rahim Bakhsh to the District Judge, Lahore, was dismissed. A second appeal presented to the High Court of West Pakistan was also dismissed in limine by a learned Single Judge of that Court. It appears that a writ petition filed in the High Court for a direction to the Evacuee Property Trust Board to take over the property in question, was also unsuccessful. Special leave to appeal was granted in this case to consider the contentions raised on behalf of the appel lant that the expression "transferee" in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, did'" not include a mere holder of a Provisional Transfer Order, that if the property vested in the Central Government by acquisition, it was beyond the ambit of the Ordinance owing to a noti fication under section 3 thereof, that in the alternative, the property in dispute bad not been acquired by the Central Government by notification under section 3 of the Act and that if the property be in fact a Mandir, it vested in the Evacuee Property Trust Board and was not amenable to transfer under para. 3 of the Scheme notified under the Act. The first contention raised on behalf of the appellant by Mr. M. A. Zullah, is that the property in question having been acquired by the Central Government under section 3 of the Act, the provisions of the Ordinance were excluded from application to this case, by virtue of a notification under section 3 of the Ordinance, issued in the Gazette on 16‑3‑59, bearing the date 12‑3‑59. This notification was to the effect that the provisions of the Ordinance would not apply to "buildings and rented lands, vested in the Central or Provincial Government." As has been pointed out, however, by a Full Bench of the West Pakistan High Court in Abdus Salam v. Waheeduddin (P L D 1955 Lah. 517) the "vesting" of the property in the Central Government, in pursuance of a notification under section 3 of the Act, does not render the provisions of the Ordinance inapplicable. The "vesting" is for certain purposes of the Act, in the Central Government and not absolutely. The notification under section 3 of the Ordinance is apparently designed to cover only those properties which vest in the Central Government, absolu tely, as owners. The Central Government in the present case is under a statutory duty to dispose of the properties for the pur poses of the Act, by its transfer to claimants and others. Undoubtedly, certain rights have been conferred by and under the Act on the P. T. O. holder. Section 30 of the Act declares that persons in possession of any evacuee property and those who have been declared to be tenants occupying such property, from a certain date, would be deemed to be tenants of the transferee on the same terms and conditions as to payment of rent or otherwise, on which they held it immediately before the transfer. Moreover, paragraph 37 of the Settlement Scheme No. 1, framed under section 16 (1) (b) and (c) of the Act, gives express right to lease out and mortgage the property, to a transferee. No doubt, he is not allowed to alienate the property other wise and may even forfeit his right of possession if he fails to pay off the sums due to the Department. That how ever does not detract from the rights that he possesses so long as he observes the conditions of the transfer. It is not therefore correct to say that all rights in the property still vest in the Central Government and that consequently, the case is taken out of the purview of the Ordinance, in pursuance of the notification issued under section 3 thereof. An alternative line of argument advanced on behalf of the appellant was that the property in question in this case did no: stand acquired, by the notification dated the 21st of August 1959, issued under section 3 of the Act, in so far as the not fication in question appearing at page 44 of the Manual of Settlement (Law and Procedure), exempted from its ambit, inter alia, property with regard to which any proceedings were pend ing on the date of the notification, under the Pakistan (Adminis tration of Evacuee Property) Act, 1957, before a Custodian. Reliance was in this connection placed on certain proceedings which were initiated by the Provincial Government, through the Chairman, Lahore Improvement Trust, before a Deputy Custo dian, for a declaration under section 18 of Ordinance XV of 1949, (which was subsequently replaced by the Act of 1957), that Khasra Nos. 864‑868 and 869 measuring 2 kanals, 8 marlas and 213 Sq. Ft. of land were non‑evacuee property. This appli cation appears at page 10 of Part II of the record and was apparently submitted in 1956. The property in dispute is included in these Khasra numbers and it is therefore maintained on behalf of the appellant that it was excluded from acquisition under the above‑mentioned notification. As this was a new point raised on behalf of the appellant, time was given to Dr. Nasim Hasan Shah, learned counsel for the contesting respon dents, to investigate the matter further. It now transpires that there is a mistake in the document appearing at page 10 of Part II of the record. The application that was submitted to the Deputy Custodian, really referred to Khasra Nos. 864, 868 and 869 only and not to Khasra Nos. 864‑868 and 869 as appears to have been erroneously mentioned in Annexure `B' at page 10. Reference in this connection may be made to Annexure 'R/4', another document which has now been produced for our consideration by learned counsel for the respondents. The property in dispute to the present case is not within these specific Khasra numbers. The appellant is only in possession of a part of the property which is comprised of a building. It is, however, argued on behalf of the appel lant that the building in question also bears No. S‑38‑R‑139 in the municipal records and this number covers the lands bearing the specific Khasra numbers, which formed the subject‑matter of the application to the Deputy Custodian. That by no means leads to the inference that the property in dispute was actually being adjudicated upon by the Deputy Custodian. The municipal number may cover more than one Khasra number, but we are only concerned with the question whether the Khasra numbers in dispute in the present case, were involved in the proceedings before the Custodian, within the meaning of the notification of 1959. The answer we consider, must be in the negative. Even if there could be entertained some doubt as to whether this was the correct position or not, the fact is important that the Custodian eventually found the property to be evacuee property, by order dated 8‑9‑59. On 25‑8‑61, another notifica tion was issued by the Provincial Government, to the effect that all properties which were the subject of inquiry before certain dates were eventually held to be evacuee properties by the Custodian, would also be deemed to have been acquired. A least from the date of this notification, the acquisition would be complete, of even those Khasra numbers which were the subject of adjudication by the Custodian, in this case. The transfer order in favour of the contesting respondents had been issued earlier than the date of this decision but the position would be regularised after this notification and it could not be disputed at the present moment that the respondents had acquir ed rights as transferees in this property. There then remains the question whether any part of the property in dispute is a temple and consequently it was not open to the Settlement Authorities to transfer it to a claimant. This matter has engaged the attention of the Settlement Autho rities as well as the Evacuee Property Trust Board on a number of occasions. They were moved in this respect either by the appel lant himself or his father or other occupants of the property. Local inquiries were made at the instance of these authorities and after a thorough investigation, the finding was recorded that there was no temple in the premises. Reliance was placed in this connection on behalf of the appellant, on an entry in a jamabandi, showing that there was a temple in the building. That at best raised a presumption but not an irrebuttable one. In all probability, a family idol had been kept by the Hindu family owning the premises, in one room of the building, when they had occupied it prior to the Partition. The idol had most pro bably been removed so that it could not be said that the property constituted a religious trust. All that was found was a piece of stone lying in one room during the investigation by the Settle ment Authorities, which was claimed on behalf of the appellant to be a part of afoot of an idol. This was too flimsy a basis for sustaining the argument that the property in question had the characteristics of a religious trust. Indeed, the history of the property even during the time when the evacuee owners were here, in their correspondence with the Lahore Corporation, suggests otherwise. This correspondence has been brought to our attention on behalf of the respondents. On the factual plane, therefore, it would appear that the matter, after a proper investigation, had been clarified and the contention raised on behalf of the appellant in this respect cannot be allowed to prevail. It was sought to be argued by Mr. Zullah that the question as to the nature of the property itself was, by law, required to be determined by the Custodian and no other authority was competent to express a final opinion on this question, in the face of the provisions of section 41 of Act XII of 1957. The position of the property, however, has changed by the acquisi tion under section 3 of the Act in this case. Prima facie, the property having gone into the pool for distribution under the Act, the acquisition notification has extinguished whatever right or interest the evacuees might have possessed in the property. This is expressly provided for in subsection (3) of section 3 of the Act. A reference to the Custodian therefore, in these circumstances, would be inapt. After a finding of fact that them was no temple in the premises, the property has been duly acquired. The upshot of the whole discussion is that the P.T.O. issued in favour of the respondents must have its full force and the appellant has become a statutory tenant under the respon dents who are the P.T.O. holders. The Rent Controller had therefore jurisdiction in the case. The appeal fails and is hereby dismissed with costs. A. H. Appeal dismissed.