1990 PLP 1663 (SCMR)

Dates of hearing: 18th and 21st April, 1990. SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to examine whether the High Court by its judgment, dated 24‑5‑1980 was justified in applying the law laid down by this Court in Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37 instead of following the law laid down in the case of Inayatullah v. Sh. Muhammad Yusuf etc. 1979 SCMR 487.

2. There is an evacuee house in Kanak Mandi, Rawalpindi Saddar. It had three separate portions. Portion No.933 was earmarked for the Railways for allotment to its employees. Its occupant was Hakimuddin followed by Ahmad Hussain respondent No.3, the predecessor‑in‑interest of the appellant. Portion 933‑A was a single room accommodation in possession of Sher Alam, a Jammu and Kashmir refugee. Portion 934 was a Godown being used as residence by Lai Muhammad, the contesting respondent (respondent No.2) also a refugee from Jammu and Kashmir. Hakimuddin and Ahmad Hussain filed separate forms for the transfer of the portion in their possession. So did Lai Muhammad. Sher Alam also applied for the portion in his possession, though he mentioned in his form that the portion below that of his was occupied by Lai Muhammad.

3. In the initial round of determination of entitlement, the house was held to be indivisible. Sher Alam's form was found not on record. The entitlement of Lai Muhammad was considered alongwith Ahmed Hussain and treating Ahmad Hussain as a claimant displaced person, he was given preference and allowed the entire house. Lai Muhammad was not heard at that stage. In the order there was a direction given that he be informed of that order which was passed on 8‑9‑1960. There is no record of his being informed of it.

4. Sher Alam in respect of his form agitated and had various rounds in the settlement department and was ultimately successful in getting recognized that he had filed a proper form, that he was entitled to protection under section 30(5) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act), and for that reason the portion in his possession was excluded from the transfer of Ahmad Hussain.

5. In June, 1974, Lal Muhammad also agitated against the failure to dispose of his pending form. On the reluctance of the department to disclose him the decision with regard to his entitlement, he repeated the application again in November, 1974. The Deputy Settlement Commissioner passed the order on 15‑1‑1975 that as the property already stood disposed of, the same was not available for transfer. That order was affirmed in the Settlement hierarchy. Ultimately, he invoked the constitutional jurisdiction of the High Court. The High Court by the impugned order applied the law laid down by this Court in the case of Ali Muhammad and declared the transfer of the portion occupied by Lal Muhammad as without lawful authority and of no legal effect. After the declaration had been granted, the Deputy Settlement Commissioner by an order, dated 15‑12‑1980 protected the possession of Lai Muhammad and excluded it from transfer of Ahmad Hussain. By that time Fazal Dad the appellant had associated in the transfer and Ahmad Hussain had surrendered all his rights in the property in his favour.

6. Mr. Samad Mahmood, Advocate, the learned counsel for the appellant has mainly relied on the conduct of respondent Lai Muhammad in not agitating against the transfer, in not pursuing his form and in remaining inactive for about fourteen years after filing of the form. He relied on Muhammad Yaqoob Khan v. Member, Board of Revenue, Punjab and others 1984 SCMR 940 and the case of Inayatullah 1979 SCMR 487.

7. Mr. Bashir Ahmad Ansari, Advocate, the learned counsel for the respondent Lai Muhammad, on the other hand contended that Lai Muhammad could lay claim only to that portion which was in his possession and that he could , do so under section 30(5) of the Act and on its repeal by Ordinance NOXIII of 1965 on the strength of Para. 19 of Settlement Scheme No.IV. The Settlement Authorities, according to him, had no jurisdiction in view of these statutory provisions, to dispose of that part of the property which was in possession of Lal Muhammad.

8. The transfer being manifestly against the law, could not at any stage be protected unless the respondent Lal Muhammad had contributed by positive act of submitting to it. The record bore it out that when his entitlement was determined, he was not heard. A direction was given that he be informed of the rejection of his form but this was never done. Even in the proceedings that took place with regard to a portion of the same property between Sher Alain and Ahmad Hussain, this fact that Lal Muhammad was equally entitled to protection as Sher Alain and he was not informed of the rejection was not noted at any, stage. In his very first application Lal Muhammad had made it clear that he had been approaching the authorities for ascertaining the fate of his claim form but the same had not been disclosed to him. In this background, there was no question of laches or inactivity on the part of the respondent Lal Muhammad.

9. At the relevant time when the entitlement came to be determined by the Deputy Settlement Commissioner on 8‑9‑1960, subsection (5) of section 30 of the Act was in the field. It provided as hereunder:‑‑ "Houses and shops in possession of persons displaced from such part of the State of Jammu and Kashmir as is under the occupation of India and are residing in Pakistan shall not be transferred under the provisions of this Act and the possession of such persons shall not be disturbed till their repatriation to the aforesaid State provided that such persons do not contravene or have not contravened any of the terms and conditions on which such houses and shops are held by them or such terms and conditions as may be determined by the Chief Settlement Commissioner from time to time."

10. It was repealed in the year 1965 by Ordinance NOXIII of 1965 when simultaneously Settlement Scheme No.IV took over and para. 19 of it provided as hereunder:‑‑

19. Ban on certain transfers.‑‑(1) Houses and shops in the possession of displaced persons from occupied territory shall not be transferred by a Settlement Authority to any person who is not a displaced person from the occupied territory. (2) A J & K claimant who is not in possession of a house or a shop shall be entitled to the transfer of only such a house or a shop as is in the possession of a displaced person from occupied territory who is either not entitled to or does not desire to claim its transfer to him; Provided that the Chief Settlement Commissioner may exempt an AJ&K claimant from the application of this sub‑paragraph."

11. In view of the these positive provisions of the law, the Settlement Authorities were not possessed of the jurisdiction to transfer such a property to any one except a Jammu and Kashmir refugee. Their act of transferring it was without jurisdiction and against the law on the subject. The case of Inayatullah was one which was amenable to the jurisdiction of the Settlement Authorities and that distinguishing feature has to be fully recognized and given effect to. There is no element of laches on the part of the respondent Lal Muhammad because in view of the law on the subject, whether the property was transferred to him or not, his possession was immune from being disturbed and property in his possession was outside the jurisdiction of the Settlement Authorities except to the extent which could be transferred to a preferential Jammu and Kashmir refugee. Sher Alam had not pursued his claim against Lal Muhammad and Ahmad Hussain had no such claim as to displace that of Lal Muhammad.

12. In view of these facts and the law on the subject, there is no merit in the appeal which is dismissed with no order as to costs. AA./F‑188/S Appeal dismissed.