P L D 1971 Lahore 1007 (PLP)

(b) the acceptance was subject to the terms and conditions prescribed for the disposal of big mansions by auction, (c) the price was to be paid in lump sum withing 30 days, (d) the furnishing of further documents and particulars was desired to enable issuance of detailed orders such as the names of joint transferees, the share which they respectively wished to have in the property, the compensation books of all the transferees and information whether any amount out of it had been availed of.

9. In this background it is to be seen whether the memo randum, reproduced above, makes the appellants the "trans ferees" or the "provisional transferees" of the property in question.

10. According to this memorandum, except for the matters dealt with therein, the terms and conditions prescribed for the disposal of big mansions by auction are to apply. Settlement Scheme No. III which deals with the disposal of big mansions by unrestricted auction is in two parts. The first part contains the main Scheme while the second part prescribes the terms and conditions of the auction. A perusal of the main Scheme shows that the first nine paragraphs thereof deal with the preparation of lists of big mansions, the auction programmed and conduct of auction while paras. Nos. 10 and 11 deal with the transfer of property. These paragraphs are in the following terms:‑ "(10) When the Chief Settlement Commissioner has accepted the bid and the amounts payable by the auction‑purchaser have been paid in accordance with the terms and conditions of auction, the Chief Settlement Commissioner will pass an order transferring the auctioned property to the purchasers. (11) Where the order transferring the property has been passed and communicated to the transferee the proprietary rights in the property shall, subject to the terms and conditions of auction, stand transferred to him free from all encumbrances."

11. Coming now to second part of the scheme laying down the terms and conditions of auction the following conditions are pertinent for our purposes and to the extent relevant are repro duced hereunder "(12) In case the highest bid made and accepted is that of a local or a non‑claimant displaced person whether bidding singly or jointly with other locals or non‑claimant displaced person, the whole amount of the bid money will be paid within thirty days of the date of receipt of the intimation of acceptance . . . . . (13) In case the highest bid made and accepted is that of a claimant whether bidding singly or jointly with other claimants, each one of the claimants will be entitled to the benefit of deferred payment as well as to the facility of making payment in instalments in respect of his share in the property in accordance with the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act; 1958 as amended . . . . ."

12. In the case in hand the appellants were required to pay the price of the building within 30 days, and were not allowed the facility of making payment by installments and were required to pay the whole amount in lump sum within 30 days. It follows, therefore, that they were to be treated, for the purposes of payment of the price at par with the locals and non‑1 claimants.

13. In these terms and conditions the question of delivery of possession of property is dealt with in para. 18 of the terms and conditions which states: "After the acceptance of the bid, the possession of the property will be given to the purchaser: (i) On payment of the full price where the price is payable in lump sum; (ii) On payment of the first installment where the price is payable in installments after the adjustment of deferred pay ment; (iii) On acceptance of the offer by the Chief Settlement Commissioner where the amount is covered by deferred payment." The above provisions make it clear that where price is payable in lump sum the possession of the property is to be given to the purchaser after the full price has been paid. The question of transfer of property is dealt with in paras. 19 and 20 of the terms and conditions, which are as follows "(19) (a) Where the purchase money has been paid in full, the property will be permanently transferred to the purchaser. (6) Where payment of purchase money has been deferred either wholly or in part the property will be provisionally transferred to the purchaser. (20) (a) Where a property is transferred permanently, the transferee will acquire full proprietary rights in it. (b) Where a property is transferred provisionally proprietary rights will not vest in the transferee; but he will be permitted to lease out the property or to mortgage it or make additions and alterations in it on such conditions as may be prescribed by the Chief Settlement Commissioner." A perusal of the above provisions would show that the question of provisional transfer, by virtue of which the purchaser is permitted to lease out the property, arises only where payment of the purchase money is allowed to be made by installments and payment has been deferred either wholly or in part. Where payment is to be made in lump sum and installments are not allowed the concept of provisional transfer is not envisaged.

15. In the face of these provisions it is not possible to accept the contention that the property was provisionally transferred in favour of the appellants by the memo dated 24‑8‑60 (Exh. A/1) or that this was in the nature of a P. T. 0.1 In fact the price in this case was to be paid in lump sum and the benefit of installments was not allowed and, therefore, on the wording of the memorandum itself there was no question of provisional transfer. Moreover, as the terms of Exh. A/1 themselves show this memorandum deals only with the matter of acceptance of the offer and the mode of payment and nothing more. However, under the relevant scheme it is only after the price has been paid in full or its payment is deferred wholly or fn part, that the property is to be transferred permanently or provisionally, as the case may be, to the purchaser. The memo randum in question only conveys the decision of the Settlement Authorities to transfer the property in favour of the appellants and the transfer has not been affected under it. This could take L place only after the conditions laid down in the memorandum dated 24‑8‑1960 (Exh. A/1) had been fulfilled.

16. As to the second document relied upon by the appellants in support of their claim to be treated as "transferees" of the property, within the meaning of that word in section 30 of the Act, it is necessary to examine Exh. A/2. This states:‑‑ "From The Addl. Settlement Commissioner (Ind.), West Pakistan, Lahore. To Messrs Inam Hassan Khan and others Khan Medicos, Beadon Road, Lahore. Subject:‑Big Mansion Bearing No. S‑37‑R/161, Beadon Road, Lahore. Reference your representation dated 8‑10‑65, on the subject noted above. You are hereby delivered notional possession of the property cited as subject, as required in para. 18 of the terms and conditions for the purpose of recovery of rent from the tenants of the property with retrospective effect from 24‑8‑60. (Sd.) M. Muqarrab Khan, Additional Settlement Commissioner (Ind.), West Pakistan, Lahore." This memorandum purports to be issued under para. 18 of Settlement Scheme No. III. Under the said provision, as has already been noticed above, the possession of the property will inter alia be given to the purhaser on payment of the full price where the price is payable in lump sum. The necessary conse quence of the payment of the full price under paras. 19 and 20 of the Scheme is that the property will be permanently transferred to the purchaser and the transferee will acquire full proprietary rights therein. It is not clear from the terms of Memorandum Exh. A/2 as to whether the full price had been paid by the purchasers and on what date. Moreover, if the condition as to payment of full price was fulfilled the appellants would automatically be entitled to the permanent transfer of the property under paras. 19 and 20 of the Scheme.

17. It is further to be observed that Scheme No. III has been framed under section 16(1)(6) and (c) of the Act but the power of transfer of property out of the compensation pool is conferred by section 10 of the Act. A reference to section 16 further shows that the Scheme made there under are subject to the rules framed under the Act. The rules of permanent transfer framed under section 10 of the Act were notified in the official Gazette on the 30th May 1961. These rules will, therefore, to the extent of repugnancy, prevail over the provisions of the scheme. A similar view has been taken in Mst. Bakho v. Mst. Sairan etc. (P L D 1963 Lah. 72). Under rule 3 of these Rules, the name of the "proposed transferee" (i.e., a person who is entitled to the transfer of the property under the Act) or a "provisional transferee" who has paid in full the transfer price, settlement fee and public dues will be entered in a record maintained for this purpose whereupon the property shall stand permanently trans ferred to the "proposed" or "provisional transferee". Thus, the provisions of para. 19 (a) and para. 20 (a) of Settlement Scheme No. III being subject to these rules will stand superseded to the extent of any inconsistency. The result will be that the permanent transfer in the present case would take place in case the full price has been paid after the 30th of May 1961, not merely after the price has been paid in full as required under para. 19 (a) of the scheme, but after the settlement fees under rule 3 of the Permanent Transfer Rules had been paid, because after the enforcement of those rules it will only be on the entry, of the name of the "proposed transferee" in the register mentioned in rule 3 of the Rules that the permanent proprietary rights shall stand conferred on him.

18. The terms of the Memorandum Exh. A/2 wherein it is mentioned that "notional possession" has been given does not reveal the basis on which this has been ordered. Nor is the basis on which this order is grounded decipherable on the present record. If the full price was paid by 14‑10‑65, on which date the above memorandum was issued, the appellants would be entitled 1l not only to the possession of the property but also to its permanent transfer, subject of course to the payment of the settlement fees (if the price was paid after 30th May 1961) Thus rent would be payable to the appellants not on the basis of delivery of notional possession of the property but on account, of its permanent transfer in their favour.

19. The meaning of the word "transfer" for the purposes of section 30 of the Act has been examined in a recent judgment delivered in the case of Messrs Murree Hill Transport Ltd. v. Agha Ghulam Jillani (L. P. A. No. 217/68) and the view has been expressed that: "that word transfer conveys different meanings in different contexts. In a broad sense it means dispose of or sell. In the law of property, it means passing of proprietary rights from one person to another. Under the permanent transfer rules a transferee in whose favour a record of permanent transfer has been made shall be entitled to hold and enjoy the property and all the rights, title and interests appurtenant thereto transferred to him and the right to transfer or alienate the same in accordance with the normal law (vide rule 4). It is true that under the provisions of Settlement Scheme No. I a property can also be deemed to have been transferred for certain purposes after the issuance of a P. T. O. under paragraph 37 of the scheme namely, for purposes of leasing out the property or for mortgaging it. This concept has been explained by the Supreme Court in Rahim Bakhsh v. Ch. Ahmad Bakhsh etc. P L D 1964 S C 189 and the following observations in this connection are relevant. 'Paragraph 37 of Settlement Scheme No. 1, framed under section 16(1)(6) and (c) of the Act gives express right to lease out and mortgage the property to a transferee.' Thus although the title in the property passes to the transferee only after the P. T. D. is granted and the property !n question cannot be considered to have been transferred until then, a P. T. O. holder may be considered to be the transferee for certain limited purposes including the right to deal with the occupant of a premises as a statutory tenant. No such rights have been conferred by any provision whatsoever on the person in whose favour an order of transfer of a property has only been passed. Such an order is in fact only an adjudi cation of the disputes as to the entitlement. Several further steps remain necessary before the title passes."

20. The question that was fiercely argued before us, but which does not seem material now, may, however, be noticed. It was urged with vehemence by the appellants that P. T. Os. are not issued in case of transfers of big mansions and therefore, the letter dated 24‑8‑60 (Exh. A/1) and the letter dated 14‑10‑65 (Exh. A/2) can be treated as equivalent to a P. T. O. The view of the learned Single Judge was to the contrary. He considered that P. T. Os. in connection with the transfer of big mansions can be issued. Reliance for this view was placed on Memo. No. 3808/Comp‑Reh/59 dated 19‑11‑59 printed at page 55 of the Settlement Manual, Law and Procedure (1st Edition) and also at page 564 of the second edition. In my humble opinion the memorandum cited in support of this view by the learned Single Judge is not really relevant. In the first place, as its subject shows, it relates to Settlement Scheme No.

1. In the second place, it provides for issuance of P. T. Os." in all cases where any property is transferred to a "claimant" whereas big mansions can be transferred to non‑claimants and locals as well. Furthermore, according to the above‑mentioned Memo. P. T. Os. are to be utilised only in the case of those claimants who have availed themselves of the benefit of deferred payment in full or in part adjustment of the transfer price of the property and that the P. T. O. should be issued only after the entitlement of the claimant concerned to the transfer of the property has been determined and the transfer price of the property has neither been fully adjusted against the amount of the deferred payment admissible to him or the first installment recoverable from him has been paid by him. In the present case, therefore, where the transfer price was required to be paid in lump sum and the benefit of deferred payment was not allowed the question of issuance of a P. T. O. did not at all arise. This finding, however, is of no avail to the appellants because the document. EXh..'A/1 and Exh. A/2 cannot be equated either with a P. T. O. or a P. T. D., nor has any provisions of law been shown under which they can be so treated. For the ‑ reasons already mentioned a person can be regarded as a "transferee" if he is entitled to hold or enjoy the property and all the rights, title and interests appurtenant thereto transferred to him or some specific rights and interests are expressly transferred to him under any provision of the Act or ‑of a scheme made there under or of any, rule.

21. I should not, however, be understood as having upheld the contention of the appellants that as P. T. Os. are not expressly mentioned under Scheme No. III they are not used in the case of transfers of big mansions. Paragraph 19(b) of Settlement Scheme No. III itself provides that where payment of the price has been deferred either wholly or in part, the property will be provisionally transferred to the purchaser; and according to para. 20(b) where a property is transferred provisionally proprietary rights will not vest in the transferee but he will be permitted to lease out the property or to mortgage; it or make additions and alterations in it on such conditions as may be prescribed by the Chief Settlement Commissioner. A reference to the pro forma of the P. T. O. shows that it contains exactly the above‑mentioned provisions. Thus were a big mansion is transferred provisionally there appears to be no bar to the issuance of a P. T. O. It is also not correct that the department has not been utilizing P. T. Os. in the matter of transfer of big mansions. I find that in two Full Bench judg ments of this Court, relating to the question whether the occu pants of big mansions can avail of the safeguards contained in section 30 of the Act, namely, Bank of Bahawalpur Ltd. v. Chief Settlement and Rehabilitation Commissioner (P L D 1966 Lah. 515) and Dr. Cawas C. Mehta v. Additional Settlement and Rehabilitation Commissioner etc. (P L D 1963 Kar: 938), P. T. Os. had in fact been issued to the transferees of the big mansions in both cases. It is only on account of the terms on which the big mansion in question has been ordered to be transferred to the appellants that the question of issuance of a P. T. O. in their favour does not arise.

22. The result of this discussion is that the appellants can deal with the occupants of the property as their statutory f tenants if they can show that the property stood permanently transferred in their favour by 8‑11‑65, when the notice under section 30 of the Act was issued to the respondent.

23. I would, therefore, uphold the order of remand of the case to the Rent Controller but for the limited purposes of allowing the parties to lead evidence on the question of the date of payment of the full price of the property. If this was made after 30th May 1961, the learned Rent Controller should also allow evidence on the question whether the settlement fees has been paid and the requisite entry in the register mentioned in rule 3 of the permanent transfer rules duly made before the date of issuance of the notice under section 30, namely, 8‑11‑65 because the relationship of landlord and tenant between the parties shall be deemed to have come into existence only if the property stood permanently transferred in favour of the appellant before the. said date.

24. I am also in respectful agreement with the finding of the learned Single Judge that the order of the Rent Controller directing the deposit of rent beyond the period of three years was in excess of his jurisdiction, in view of the dictum of their Lordships of the Supreme Court in Ashfaq-ur‑Rehman v. Ch. Muhammad Afzal (P L D 1968 S C 230).

25. The argument of the appellants that they were prevented from prosecuting their , application before the Rent Controller owing to the stay orders granted by this Court, in connection with the writ petitions filed by certain parties to challenge the validity of the orders of transfer passed in their favour and, therefore, the time during which the proceedings remained sus pended on account of this Court's orders should be excluded under section 15 of the Limitation Act, has no force. In fact the said provision of law has no application to the present proceedings as it only deals with the question of suits or applications for execution of decrees and not to proceedings of the present kind.

26. I may lastly mention that the finding of the learned Single. Judge on the question of the competency of an appeal against the order of deposit under section 13(6) of the Rent Restriction Ordinance was not seriously questioned before us. The learned Single Judge in the course of his judgment has elaborately discussed this point and has rightly held that an order under section 13(6) of the Rent Restriction Ordinance being appeal-able, under section 15 of the Ordinance, the findings which constitute the substratum of such an order are liable to be scrutinised; in the course of the appeal proceedings.

27. The upshot of this discussion is that the appeal succeeds to the extent that the validity of the order dated 24‑8‑60 (Exh. A/1) whereby it was decided to transfer the property in question in favour of the appellants does not require further scrutiny. However, the said order does not make the appellants either the "transferees" or " provisionally transferees" of the property so as to enable them to deal with the occupants of the property as their statutory tenants. I would accordingly uphold the order passed by the learned Single Judge, remanding the case back to the learned Rent Controller, subject to the modification mentioned in para. 23 above. As the appeal succeeds in part, I would leave the parties to bear their own costs. ANWAR‑UL‑HAQ, J.‑I agree. S. A. H. Appeal partly allowed.