1984 PLP 1257 (SCMR)

3. On his reposting to Multan in 1959 he filed L. H form dated 6‑11‑1959 for the transfer of this House No.721 Ward No.9, Nawan Shahr, Multan. He stated in that L.H. form that his possession was prior to 1958, and appended a note to the following effect‑‑ I beg to approach your honour with the request that the Honour able Minister of Rehabilitation has very kindly extended his generous hand towards the local Government servants by saying in his recent speech that the locals can buy house in their occupation either by getting the claims of the refugees adjusted or accompanying with the refugees. I very respectfully beg to say that my financial position even does not allow me to dare for applying. I will try my utmost to get a claimant accompanied with me. Otherwise I request that my case be given sympathetic consideration by fixing some percentage of my pay as monthly installment. I could not get prescribed form so I have applied in form L. H

4. This form was rejected 6y a short order that the value of the house was Rs.11,040 and being a local he was not entitled to it. The louse was then placed in the auction list. The appellant sought its deletion and failed on 28‑4‑1960. He appealed to the Settlement Commissioner who remanded the case on 1‑7‑1960 for a fresh decision. In the meantime the respondent who had been successful in obtaining another house in earmarking failed to get that house as it was found to be not evacuee property. He exercised his choice for this house and after scrutiny he was transferred the same and also obtained the P.T.D. 9‑9‑1963 and appendices and P.T.O. were issued to him on 11‑5‑1960 and 23‑7‑1960. On remand the Additional Settlement and Rehabilitation Commissioner taking note of all the facts and holding that the house was of the value of less than Rs. 10,000 disentitled the appellant on the ground that the arrears of rent remained unpaid upto 31‑10‑1966. A revision was then filed and that too was dismissed on 29‑3‑1962.

5. A constitution petition was filed by the appellant challenging the refusal of the Settlement authorities to transfer the house to him but the same was dismissed in limine by the following order: "Since the petitioner who is a local had not cleared the public dues, including the rent of the house in dispute upto the 31st of October, 1960 he was not eligible to apply for the transfer of the house."

6. A Letters Patent Appeal was then filed by the appellant and the learned Judges examined in some detail his entitlement in the background of decided cases and the law applicable to the case and held that in fact the requirement of the clearance of rent in respect of persons who were not in possession in terms of the statutory definition, was a condition precedent for establishing eligibility. The conclusion drawn was expressed as follows‑‑‑ "Our conclusion is that the petitioner's allotment was cancelled after his transfer from Multan and therefore he can only take the benefit of his occupation if he satisfies the conditions laid down in the notification of 13th October, 1959 namely clearance of all public dues."

7. It is in this background that the learned counsel for the appellant has, in the first place, challenged the vires of the Press‑note and considers that it is offensive to the main provisions of section 13 of the Act and para. 22 of the Schedule. He has relied on Waheed Khan v. Settlement Commissioner P L D 1971 Kar. 273 to contend that it was not a condition‑precedent or a clog on the eligibility of a person who is in undisputed occupation of the premises. The appellant's position is considered to be undisputed for the reason that the person for a hose benefit his ejectment was sought, if at all it was sought, in never appeared in contest as a rival claimant. In the absence of such contest, it is contended, the possession even with an ejectment order against him, would remain undisputed.

8. The learned counsel for the respondents, on the other hand, contended that the possession of the appellant over the house did not qualify on the basis of the definition of possession provided in the Act in section 2, clause (6). He was actually seeking benefit of the extended definition of possession as notified on the 13th of October, 1959 in exercise of powers conferred by the second proviso to clause (6) of section 2 of the Act. It was this extended definition of possession which contained a qualification or a pre‑condition the satisfaction of which alone could entitle the appellant to claim its benefit. This condition was of the payment of the rent and the public dues in respect of such a house. The learned counsel for the respondents has also drawn our attention to the fact that the decision cited by the learned counsel for the appellant (Waheed Khan v. Settlement Commissioner P.L.D. 1971 Kar. 273 stands overruled by the decision of this Court in Nazar Ali v. Settlement Commissioner 1975 S C M R

55. The admitted position, according to the learned counsel for the respondents, was that the rent due in respect of this property from the appellant was cleared on 13th of June, 1961 long after the entitlement of the respondent was created and P.T.O. was issued to him. The transfer in favour of the respondent being lawful and in accordance with the provisions applicable to the case it could not be upset by a subsequent act of the appellant.

9. The notification whose validity is sought to be examined under the leave granting order appears at page 242 of the Old Settlement Manual and is dated 24th of October, 1960 and is in the following terms: "The last date for the clearance of arrears of rent by non‑claimant displaced persons and locals who desire to associate claimants with them and to utilize Schedule VI of the associating claimants for the clearance of such arrears, has been extended from time to time and the last date now fixed is 31st October, 1960. The Chief Settlement Commissioner has decided that no further extension will be granted for the clearance of rents by non claimant displaced persons and locals and the NCH, KNCH, NCS, KNCS and L.H. Forms still pending with the Deputy Settlement Commissioners concerned will be consigned to record after that date if the arrears of rent are not cleared by the applicants in cash or by association with other claimant by that date. Non claimant displaced persons and locals are advised to avail of this last opportunity to entitle them to the transfer of house and shops in their possession."

10. This notification governed two sets of applicants for the transfer of property. The first category comprised those who qualified for transfer on the basis of possession as defined in clause (6) of section 2 of the Act itself. It is true that so far as this category was concerned as it qualified for transfer on the basis of express provisions of the Act, it could not be disqualified on the basis of an instruction of the Chief Settlement Commissioner curtailing the right granted under the Act. But the case before us is not of a person belonging to that category. Instead we have before us the appellant who wants to benefit from the extended definition of possession which was notified by the Central Government in exercise of a power expressly conferred on it by second proviso clause (6) of section 2 of the Act. The second proviso was introduced by Ordinance No‑III of 1959 on 28th of September, 1959 and it conferred the power on the Central Government in the following words. "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." The power conferred was extensive. It authorized the Central Government to conditionally recognize possession of a particular class or classes of persons and it was in exercise of this power that notification dated 13th of October, 1959 issued. This notification is in the following terms: ‑ No. F.1 (27)/59‑S1, 13th October, 1959.‑‑In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), 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."

12. A week before this notification was Gazetted a Press‑note was issued by the Chief Settlement Commissioner on 7th of October, 1959 (reproduced at p.58 of the Old Settlement Manual) making mention of the extended definition given by the Central Government and calling upon the applicants to clear the rents and other public dues. It was clear that in case of a claimant the arrears of rent etc. if not paid in cash will be adjusted against his claim. This requirement of the payment of rent by all categories of applicants was first examined in the High Court of Lahore in the case of Bashir Ahmad v. Khushi Muhammad P L D 1963 Lahore 507 and it was held that the category of claimants, non‑claimants and locals who qualified on the basis of statutory definition of possession the bar of payment of dues could not be imposed as a pre‑condition for eligibility in view of section 13 of the Act and para. 22 of the Schedule to the Act. In another case decided by the same learned Judge Qamar Din v. Zawar Hussain P L D 1964 (P.W) Lah. 185 the effect of the extended definition of possession was examined and full effect was given to the proviso contained in the notification dated 13th of October, 1959. This view was then approved by this Court in Sarwar Khan v. Chief Settlement Commissioner P L D 1973 SC 210, Nazir Ali v. Settlement Commissioner 1975 S C M R 55, Ghulam Mohammad v. Ziaullah Khan 1969 S C M R 315 and Mehraj Begum v. Settlement Rehabilitation Commissioner 1981 S C M R

717. What we have to ensure in this case is whether the appellant was eligible for transfer under the Notification dated 13th October, 1959 immediately before the property ceased to be available for transfer on account of its transfer to the respondents. The appellant's own case is that he cleared the rent on 31st of June, 1961. Before that, the property stood transferred to the p respondents as appendix had issued to him on 11th May, 1960 and the P.T.O. on 23rd of July, 1960. The appellant being ineligible for transfer on that date, subsequent eligibility when the property ceased to be available for transfer could not entitle him to disturb the transfer in favour of the respondents. We find no merit in his appeal and the same is dismissed with no order as to costs. S. Q. Appeal dismissed.