1972 PLP 376 (SCMR)

HAMOODUR RAHMAN, C. J.‑This appeal, by special leave, arises out of an order of a Division Bench of the High Court of West Pakistan, Karachi Seat, summarily dismissing a petition under Article 98 of the Constitution of 1962. The dispute relates to an evacuee property bearing Survey No. F‑50/1216 situated in Risala Road, Hyderabad. It is a small plot of land measuring only 207 sq. yards and originally it had a two‑storied building on it. The appellant claims that he was allotted the ground‑floor of the said building in 1948 and the upper floor was in the possession of one Mohammad Isa who was not an allottee but only a recorded tenant. Respondents Nos. 2, 3 and 4 also claimed that early in 1948, after they were evicted from another evacuee property called "Dholandas Garden" in Hyderabad, they were allotted the upper floor of the said building and a small room on the ground floor along with the said Mohammad Isa who was really the head of the families who were so evicted from "Dholandas Garden". Unfortunately, the building on this disputed plot collapsed on the night of ),9th of August 1956 killing several and injuring some 13 persons including 9 members of the families of the respondents. When Settlement operations started, the wife of the appellant, who was a claimant, filed a C. H. form on the 12th October 1959, for the transfer of the collapsed house, as the appellant himself was not a claimant. Subsequently, the respondent No. 4, claiming to be an allottee along with the other respondents of the collapsed building, applied for the transfer of the site. The C. H. form of the wife of the appellant was rejected on the 2nd of May 1960, by the Deputy Settlement Commissioner on the ground that a vacant plot is not transferable under Settlement Scheme No.

1. But before this, on the 26th of April 1960, the Settlement and Rehabilitation Commissioner, Hyderabad and Khairpur Divisions, had forwarded the application of the respondent No. 4 to the Chief Settlement Commissioner with a recommendation for moving the Government that permission be granted to transfer the site under section 10(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 "on evaluation basis to those who had occupied the same before it (the building) collapsed." Government at first granted this permission by its letter No. F‑5(26)/60‑SI dated the 25th July 1960. But a similar application by Mst. Umme Rehab, wife of respondent No. 2, for the transfer of the plot, was also forwarded on the 25th of June 1960 to the Settlement and Rehabilitation Commissioner, Hyderabad and Khairpur Division, for permission to transfer the property under section 10 of the Act of 1958 as a special case. This too was forwarded to Government. Coming to know of these proceedings the appellant also applied to the Settlement Commissioner alleging that the respondent No. 4 was neither an allottee nor a recorded tenant of the aforesaid premises and, therefore, was not entitled to the transfer of the plot. The appellant, who alone was an allottee and had been regularly paying rents to the Custodian, was alone the maintained, entitled to the transfer of the plot, both according to law as also on compassionate grounds, as he too had lost several dear and near relatives as a result of the collapse of the house. The Government of Pakistan, ultimately, on the 1st of November 1960, wrote to the Settlement Commissioner as follows :‑ " . . . . . whether the plot in question should be transferred to more than one person depends on the issue of fact whether before collapse the building represented one house or more houses. If it was one house, though in the occupation of several persons, then it can be transferred to the person who would have been eligible to its transfer under the law if it had not collapsed on the principle of a claimant having priority to non‑claimants and among claimants priority being given to the one who secured first possession. The question of transfer of the site to other occupants can arise only if the former building was more than one house." After expressing this opinion, the letter of the Government noted as follows :‑ "The recommendation made in your letter No. 269 F & M Reh./60, dated the 10th May 1960 it appeared that the Settlement and Rehabilitation Commissioner, Hyderabad regarded the property as one house. If it is now intended to revise that finding it is presumed that it will be so done after giving opportunity to the interested parties of being heard." After this, on the 11th of April 1962, the Additional Settlement Commissioner, Hyderabad and Khairpur Divisions, reported to the Chief Settlement Commissioner that, having heard all the parties, he found that, according to the Custodian's records, only Mohammad Isa and Yasin Khan were recorded tenants and that Syed Ali Akbar Kazmi and Major S. H. A. Zaidi were given accommodation in the house in lieu of their house in "Mohandas garden" from which they were ejected. He recorded no clear finding as to whether they were allotted this house or whether they were in undisputed possession of any portion thereof from the 20th of December 1958, in order to qualify under the extended definition of "possession" under the Act; but he was of the view that it was not possible to divide the plot which measured only 2760 sq. ft. into portions to satisfy all parties and, therefore, recommended that the plot should be sold by public auction and the auction price should be distributed amongst the persons who had suffered as a result of the collapse of the house. The Settlement Commissioner (Industries), Lahore, on the 23rd of August 1962, directed him to proceed according to the directions contained in Government's letter of the 1st November 1960. Thereafter, on 17‑9‑63, the respondents Nos. 2, 3 and 4 applied for joint transfer of the plot at the prevailing market value, whereas the appellant Yasin had already placed on record an earlier revisional application stating that he alone was entitled to the property and not the respondents. In these proceedings before the Additional Settlement Commissioner, the appellant also filed a further affidavit pointing out that he was the only allottee and recorded tenant and that his wife, who was a claimant, enjoyed preferential rights over others; that the respondent No. 4 had never lived in the house; that some of the others to whom the property was proposed to be transferred were only guests of Mohammad Isa; and that some of the others had already received compensation for the loss suffered by them on account of the collapse of the house. The Additional Settlement Commissioner came to the conclusion that, since the plot was indivisible and the respondents were claimants, it should go to them, In these proceedings, no notice was given to the wife of the appellant nor was she heard. The appellant then went on a further revision before the Settlement Commissioner without any success. This was the order he challenged in the High Court, but the High Court too took the view that there was no substance in his allegations, since the plot had been found to be indivisible and transferred according to the directions of the Government contained in the letter of the 1st of November 1960. Leave was granted in this case to consider whether the direction of the Government to treat the property notionally as a house was binding on the Settlement Authority whose duty was clearly to deal with the property as an open building site. The appellant has since died and his wife, Mst. Bela alias Reheman, is appearing not only as his sole heir and legal representative but has also filed an application to be impleaded in her own right on the ground that, since she had filed a C. H. form for the transfer of the property and that C. H. form was rejected on the ground that the property being a vacant plot could not be transferred under Settlement Scheme No. 1 as a house, she was entitled to notice under the directions of the Government contained in the letter of the 1st of November 1960, as an interested party. It is also contended on behalf of the appellant that the power given to the Government under section 10(b) of the Act of 1958, as it then stood, was merely to prescribe a different manner of disposal of the property and not to change the character of the property itself. In so far as the Government had purported to change the character of the property by directing a vacant plot to be treated notionally as a house and transferred as a house, it had acted beyond the scope of the powers given to it under section 10 of the Act of 1958. Section 10, as it then stood, read as follows:‑ "Power to transfer property from the compensation pool Subject to the provisions J this Act and the rules made there under, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool‑‑ (a) on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule; or (b) in such other manner as may be approved by the Central Government." In any event, it is contended on behalf of the appellant, the Settlement Authorities had not complied with the directions of the Government which necessitated a clear and unequivocal finding on the following facts :‑ (1) whether the house, as it originally stood, was divisible or indivisible ; (2) whether it was in occupation of several persons ; (3) if so, who, amongst them, had a preferential right to the transfer of the property. It is pointed out that, all along, the Settlement Authorities had been recommending that the property should be transferred to the respondents on compassionate and humanitarian grounds without coming to a finding as to whether they were entitled to the transfer of the house as persons in possession thereof. Learned counsel appearing on behalf of tee respondents, on the other hand, contends that the power of Government under section 10(b) is very wide. Under this, it could certainly say that a property, which was under the Settlement Law disposable only b5 auction, should be disposed of on an evaluation basis in the same manner as a house. It could also say that it should be disposed of to `A' or `B', even though `A' and `B' were not otherwise entitled to the transfer of the house. In support ~9f this contention strong reliance has been placed on three decisions of this Court in the cases of Major J. H. Naqvi v. The Director, Enforcement Directorate, West Pakistan and others (PLD1966SC512), The Chief Settlement Commissioner v. Jamaluddin and others (1968SCMR697) and Majid Ali Naqvi v. Additional District Judge and Ex‑Officio Settlement Commissioner, Tharparkar (1970 S C M R 375). In the first case, the appellant, a claimant displaced person, had participated in the drawing of lots in respect of a house in Rawalpindi under the earmarking scheme, but was unable to get the house drawn by him, as it turned out to be an industrial concern. Subsequently, the transfer order issued in favour of the appellant with regard to a house chosen by him under a choice certificate was also cancelled on the ground that an enquiry with regard to it was pending investigation by the Enforce ment Department and as such the house was not available for transfer. The High Court held that the appellant had no locus standi to object to the transfer thereof made in favour of another person. The appellant came up on appeal to this Court. His appeal was dismissed but in the judgment it was observed that the view of the High Court that clause (b) of section 10 of the Act of 1958 was also "subject to the provisions of the Act and the rules made thereunder" was clearly wrong. It was pointed out that the limitations mentioned in the opening words of the section related only to the powers of the Chief Settlement Commissioner and not to those of the Central Government and that they did not have the effect of negativing the power of the Central Government to approve of a different mode of transfer. There is nothing in this decision to support the wide contention of the learned Advocate for the respondents that the Government could make any kind of order under section 10(b). The second case does, however, support the contention that the words of clause (b) comprehend not merely the mode of transfer simpliciter but even the selection of the person to whom the property is to be transferred, irrespective of the provisions of the Schedule to the Act. The third case rearms the above views. The learned counsel has also challenged the right of Msr. Bela to claim the transfer of the house on the basis of the possession of her husband under paragraph 1 of the Schedule to the Act of 1958. Paragraph 1 reads as follows :‑

"A house in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a house which such parent, son, daughter or spouse does not claim under the provisions of the Schedule . . . . ." It is said that, since the husband of Mst. Bela, namely, the appellant, had himself claimed the transfer of the property, the wife was not entitled to claim on the basis of the possession of her spouse. It is also contended that, since Mst. Bela did not take any steps to challenge the rejection of her C. H. form for over eight years, she ought not to be allowed to come in at this stage, and in support of this contention reliance is placed on two decisions of this Court in the cases of Abdul Rehman v: Hakim Syed Ahmad Khan (1968 S C M R 1268) and Fazalur Rahman Mohd. Iqbal v. Chief Settlement Commissioner (1970 S C M R 556). The question before us at this stage is not as to whether the deceased Yasin or his wife was entitled to the transfer of the property but whether the Settlement Authorities had followed the directions given by the Government in its letter of the 1st of November 1960, which has been quoted earlier. It is clear from a perusal of the orders of the Settlement Authorities that none of them ever applied their minds to the questions which were required to be decided under these directions. They, throughout, felt that they could proceed on the basis that, on compassionate or on humanitarian grounds, the respondents had a better claim, merely because they were also claimants and they had been displaced from another property on which they had originally been settled. But this was not the direction of the Government. The Government's direction, even if it could have been validly made under section 10(b) of the Act of 1958, was to find out as to who were the persons in possession of the property and then to decide as to whether the property was divisible or not. If it was not divisible, then, from amongst the persons in possession, claimants were to receive preference over non‑claimants and between claimants, those in prior possession were to be given preferential treatment. On the other hand, if it was found that the house, as it originally stood, was divisible, then the question would arise as to who were the persons in possession of the house and again amongst them who were entitled to a preferential treatment. None of the Settlement Authorities have considered these questions although there is on the record the letter of the Additional Settlement Commissioner, dated 11‑4‑62, wherein it is stated that the house at one stage had two tenements, (No. F/52‑1316 and F/50‑1316/1) but there is no finding by the Settlement Authorities after the directive of the Central Government on this question nor is there any clear finding as to whether the respondents were in continuous possession from the 20th of December 1958, so as to qualify for the transfer of the property under the notifications of the 7th of March 1960 and the 11th of August 1960. Unless this decision is made, the transfer of the property to the respondents cannot be upheld because their right to the transfer must first be established. It appears that the High Court also did not consider this aspect of the matter. On this ground alone, therefore, this appeal must be allowed, the order of the High Court and the Settlement Authorities set aside, and the case sent back to the Settlement Commissioner to decide the questions indicated earlier. Since the case is being remanded to the Settlement Commis sioner, notice should also be given to Mst. Bela to establish whether she is in any way entitled to the transfer of the' property in her own right or as the heir of her husband Mohd. The costs of this appeal will be costs in the cause before the Settlement Commissioner. Appeal accepted.