P L D 1968 Lahore 770 (PLP)

By the same order a direction was also issued that the petitioner's compensation book be completed and the house be transferred to him against his claim.

8. The above details were necessary to demonstrate that respondent No. 2 continued in uninterrupted occupation of the property do dispute and that the petitioner was able to secure the allotment of the property vide the Additional Rehabilitation Commissioner's order dated the 8th May 1958 on the incorrect premises that respondent No. 2 had left for Leiah her deceased husband's native town, leaving the property in dispute in occupation of unauthorized person. In such an event various communications threatening her forcible ejectment from the property in dispute would have been addressed to such unauthorized occupants and not to respondent No. 2 who was stated to be no more in occupation of the property.

9. In the meantime, the petitioner submitted his C. H. From on the 7th July 1959, for the transfer of property in dispute purporting to be on the basis of the allotment dated 8‑5‑1958 in his favour. In pursuance of the direction contained in the order of Khan Ahmad Raza Khan, dated the 1st August 1959, the Deputy Settlement Commissioner on the 14th November 1959, issued Appendix X to the petitioner informing him that it had been decided to transfer the property in dispute to him at evaluation price of Rs. 40,800: At this stage respondent No. 2 also filed N.C.H. Form on the 14th November 1959. This seems to have prompted the petitioner to move the Settlement authorities to issue a P. T. O. in his fovour regarding the property is dispute on the basis of the allotment in his favour. The matter was placed before Mr. J. D. Mallick, Additional Settlement and Rehabilitation Commissioner, Lahore, who vide his order, dated the 25th May 1960, refused the petitioner's request on the ground that he relied on a mere "token possession" which was not equivalent to "physical possession" of the property in dispute. He repelled the petitioner's contention that it was purely out of humanitarian consideration that he had agreed to the continued occupation of the property in dispute by respondent No.

2. According to Mr. Mallick the fact remained that the petitioner had failed to secure: physical possession of the property in dispute anal, therefore, it could not be transferred to him under tile Rehabilitation, Scheme unless instructions to the contrary were received. Tl01, petitioner's representation accordingly was "filed".

10. In the meantime, pursuant to the Central Government's Notification No. F. I. (27) 59‑S I dated 13‑10‑59 issued under proviso to section 2 (6) of the 1958 Act which extended the definition of expression "possession", instructions were received according to which in certain specified cases a claimant, non‑claimant or a local, though spot in actual physical possession of evacuee Property might apply for the transfer of evacuee property. On the basis of these instructions, the petitioner appears to have moved once again for the issuance of P. T. O. for the property in dispute in his favour. This time the matter came up before M. M. Hassan D. S. C. exercising powers of the Additional Settlement Commissioner who, after considering the case of the petition and respondent No. 2, came to the conclusion that the order dated the 1st August 1959 passed by Khan Ahmad Raza Khan directing the transfer of the property in dispute in favour of the petitioner was a judicial order which not having been appealed against had attained finality and the property In dispute stood tansferred to the petitioner. Accordingly he sent the papers to the Deputy Settlement Commissioner concerned for "necessary action". A copy of this order is Annex. `L' to the writ petition.

11. Against the above order of Mr. M. M. Hassan, respondent No. 2 filed appeal before Sayyed Ijaz Husain Shah, Settlement and Rehabilitation Commissioner, Lahore which however, was dismissed on the 3rd July 1962, by the following order:‑-- "The respondent (petitioner herein) is present with counsel. The petitioner (respondent No. 2 herein) is not present in spite of three notices. I find no reason to disagree with the concurrent findings of the two lower Courts. The petition is rejected."

12. It appears that respondent No. 2 moved an applica tion for setting aside the order rejecting her appeal on the ground that she was not properly served for the 3rd July 1962. On an ex parte enquiry by him, Sayyed Ijaz Husain Shah vide his order, dated the 5th July 1962 came to this conclusion that the manner in which notice for the hearing of appeal on the 3rd July 1962, was issued to the respondent No. 2 "smells of foul play" and that he had no hesitation to set aside the ex parte order. Therefore, "in fairness" to respondent No. 2 he restored the appeal and ordered its re‑hearing after notice to the other party for 18th October 1962. On the 18th October 1962, an objection was raised on behalf of the petitioner that the Settlement and Rehabilitation Commissioner had no power to set aside the order dismissing the appeal filed by respondent No. 2 for want of prosecution. To enable the parties' counsel to address him on this law‑point, Sayyed Ijaz Husain Shah adjourned the case to the 14th of December 1962. On this date, the appeal filed by respondent No. 2 was once again dismissed for want of prosecution, as neither party was present. On the 31st August 1963, it was, however, discovered that on the last date of hearing, namely, 14th December 1962, the appeal filed by respondent No. 2 was dismissed by an oversight because the appeal had in the meantime been adjourned to the 31st January 1963. Accordingly, the learned Settlement and Rehabilitation Commissioner restored the appeal once again. In the meantime, Sayyed Ijaz Husain Shah retired from service and the appeal filed by respondent No. 2 was entrusted to Mr. Muhammad Saeed‑uz‑Zaman, Settlement Commissioner, for disposal.

13. At this stage, the petitioner moved Writ Petition No. 1441/R of 1964, by which he claimed the relief that the order passed by Sayyed Ijaz Husain Shah on the 5th July 1962, restoring the appeal filed by respondent No. 2 for hearing on merits be declared without lawful authority and of no legal effect. It was further prayed that Mr. M. Saeed‑uz‑Zaman be restrained from proceeding with the ease under the assumed revisional power under section 23 of the 1958 Act. The writ petition was dismissed in limine on the 22nd October 1964, by a Bench comprising Anwar‑ul‑Haq and Muhammad Akram, JJ. by the following order:‑-- "The impugned order in this case was passed as long ago as the 5th July 1962, whereas the present writ petition was filed on the 20th October 1964. It is conceded by the learned counsel that the petitioner had knowledge of the impugned order and no satisfactory explanation has been furnished for the delay in invoking the jurisdiction of this Court. We, therefore, see no justification to entertain this petition after more than two years, especially when the impugned order only directs that the parties' claim shall be decided on merits. The petition is accordingly dismissed." After the dismissal of the aforesaid writ petition, the Settlement and Rehabilitation Commissioner (Mr. Saeed‑uz‑Zaman Khan) accepted the appeal filed by respondent No. 2 treating it to be a revision petition under section 20(3) of the Act. While accepting the appeal, the learned Settlement and Rehabilitation Commissioner found that the press‑note issued vide F. 3 (3).60A L, which permitted the transfer of houses and shops to allottees without possession in certain circum stances was issued on the 9th September 1960 and, therefore, was unavailing to the petitioner who had filed his C. H. Form long before that day, namely, on the 7th July 1959. He also found that the aforesaid press‑note required the allottees without possession to file proceedings along with the form giving details of the ejectment proceedings and the authority before whom such proceedings were pending on the 11th August 1960 against the occupants. However, no such proceedings were pending at the instance of the petitioner on the aforesaid date and on such document was filed by him. The learned Settlement and Rehabilitation Commissioner further found that respondent No. 2 was resident in Amritsar at the eve of Independence, where her deceased husband was then posted as lecturer in Glancy Medical College, but who early in 1946 had gone abroad for higher studies and but for the holocaust in the wake of Independence, respondent No. 2 would have stayed in Amritsar where she was awaiting the return of her husband, Dr. G. M. K. Bloch. He also found that owing to the education of her children, she did not return to the native village of her husband at Leiah as contended by the petitioner. On the basis of these facts, the learned Settlement Commissioner found "that it was clear that the petitioner (respondent No. 2) had no immediate intention or reasons or desire to leave Amritsar at the time of Parti tion and it was only the communal disturbances that compelled her to come to the territories which now is Pakistan. The petitioner is, therefore, a displaced person." In reaching this conclusion, the learned Settlement and Rehabilitation Commissioner relied upon a judgment of this Court reported in Mahboob Elahi v. Chief Settlement Commissioner (P L D 1963 Lah. 214). Thus, the learned Settlement Commissioner cancelled the P. T. O. relating to the property in dispute issued in favour of the petitioner on twin ground, namely, that he was not qualified to file C. H. Form for its transfer on the 7th July 1959, and, secondly, respondent No. 2 being non‑claimant allottee in possession was entitled to, the transfer of the property in dispute.

14. Hence this writ petition. The reliefs claimed are that‑-- (i) the order dated the 28th October 1964 (Annex. 'O') by Mr. M. S. Zaman by which he cancelled the transfer of the house in dispute in favour of the petitioner, and (ii) the order dated the 5th July 1962 (Annex. 'N') by Sayyed Ijaz Husain Shah by which he set his order dated the 3rd July 1962 dismissing the appeal filed by respondent No. 2 for want of prosecution‑ be declared as without lawful authority and of no legal effect.

15. Learned counsel appearing on behalf of respondent No. 2 (Mst. Shahzadi Begum) raised the following two preliminary objections against the maintainability of the writ petition, namely‑ (i) that it is barred on principles of res judicata by virtue of the dismissal in limine of the earlier writ petition No. 144 I /R of 1964, filed by the petitioner; and (ii) that the petitioner is not entitled to any relief in writ jurisdiction by reasons of his "unclean" conduct. As to the first objection, it is not disputed that the general principles of res judicata do apply to proceedings .in writ jurisdiction. See for instance Mirza Muhammad Yaqub v. Chief Settlement Commissioner (PLD1965SC254). The necessity for the application of the general principles of res judicata arises from giving finality to the litigation in cases where there is no statutory provision forbidding the re‑opening of the matter once it is decided by a tribunal of competent jurisdiction. This rests on public policy that no person shall be vexed twice over the same cause. However the above statement must be understood subject to one qualification. As observed by their Lordships of the Supreme Court in C. I. T. v. Waheed‑uz‑Zaman (PLD1965SC171) the general principles of res judicata are applicable with limitation and not with the same strictness as in dispute of civil nature. In such cases the bar of res judicata is to be confined to cases where decision is "not clearly open to some objection or a decision which is reached after proper enquiry". In other words, it would be permis sible to re‑open the matter where there has been no enquiry or on grounds of fresh evidence. In the instant case, the previous writ petition filed by the petitioner was dismissed in limine, mainly on the ground of laches without any determination of the merits of the case. Another ground which possibly weighed with the learned Judge was that by virtue of the proceedings impugned in that writ petition, the parties' claim shall have to be decided on merits. It is thus obvious that on the principles laid down in the latter case, the decision in the earlier writ petition by the petitioner cannot operate as res judicata so as to bar the present writ petition. This is all the more so, when the order dated the 28th October 1964 (Annex. 'O') passed by Mr. M. S. Zaman was never the subject‑matter of attack in that writ petition. I have, therefore, no hesitation in overruling the first objection.

16. In support of the second objection, the respondent's learned counsel argued that the petitioner and late Dr. Bloch were both employed in the same department and the petitioner exploited the information as to the death of Dr. Bloch which must have reached him in course of his official duty as the senior assistant, for the advancement of his personal interest by applying for the allotment of the property in dispute in his name. Further, that he suppressed the material fact from the Additional Rehabilitation Commissioner (Ch. Abdul Hamid that before his demise Dr. Bloch applied for the transfer of allotment of the property in dispute from his name to that of his wife, and that petitioner falsely represented to the Additional Rehabilitation Commissioner (Ch. Abdul Hamid Khan) that respondent No. 2, after the death of her husband, left for Leiah, leaving the property in dispute in the occupation of unauthorised persons. It was urged that but for the false statement, the petitioner might not have been able to secure the allotment of the property in his favour. And, finally, that the petitioner elicited the intervention of the Martial Law authorities through devious means which influenced the Settlement authorities to re‑open the matter which ultimately ended in the issuance of the P. T. O. in his favour.

17. It may be that in certain respects the conduct of the petitioner is not altogether praiseworthy, but it is difficult to reject his writ petition on that ground firstly because he seeks to avoid the impugned order against him as wholly devoid of jurisdiction and, secondly, it equally reflects on the authorities concerned who were either unduly credulous in accepting the petitioner's representation without enquiring whether or not respondent No. 2 was still in occupation of the property in dispute and they also allowed themselves to be influenced by the communication received from the Martial Law authorities. Therefore, after giving my anxious considera tion to the argument on behalf of respondent No. 2, on the point, I do not incline to give effect to it so as to fore close a consideration of the merits of the case. A consideration of the merits of the case is also necessary for a proper disposition of the property in dispute under the 1958 Act.

18. On merits, the first question to which major argu ment in the case was devoted by learned counsel for the parties and which incidentally is the most important question falling for decision in this case, is the locus standi of the petitioner to claim transfer of the property in dispute on the basis of his C. H. form, It is obvious that if the petitioner has no‑locus standi to obtain the transfer of the property in dispute, it would be unnecessary to discuss the remaining questions with regard to the status or the eligibility of respondent No. 2 or even the vires of the final order passed by Mr. M. S. Zaman with regard to the disposition of property in dispute.

19. To support the petitioner's claim for the transfer of the property in dispute, Mr. Gul Muhammad Khan, the petitioner's learned counsel contended that the petitioner's status as claimant not being denied, all that he need show is that he was in possession of the property in dispute within the extended meaning of the expression "possession" as defined by the Central Government under proviso to section 2 (6) of the 1958 Act. The argument was that under the order of Ch. Abdul Hamid Khan, dated the 8th May 1958 (Annex. 'A') property in dispute was finally allotted to the petitioner which was never cancelled at any subsequent stage. Further by virtue of the order made by Mr. Ahmad Raza Khan dated the 1st August 1959 (Annex. 'H') passed with the petitioner's concurrence, the later as allottee came into constructive possession of the property in dispute and, there fore, he must be deemed to be in possession of the same within the extended meaning of the word "possession" as defined in section 2(6) of the 1958 Act. Therefore it was urged that the petitioner's case was covered by paragraph I of the Schedule to the Act under which the petitioner as claimant in possession had a right to secure transfer of the property in dispute as against respondent No. 2, who is a local. The argument in my opinion, is an endeavour to over simply the real question, which lurks in the case.

20. As pointed out in the earlier part of the judgment, the order dated the 8th May 1958, passed by Ch. Abdul Hamid Khan (Annex. 'A') proceeded on the mistaken assump tion that the allotment of the property in dispute stood in the name of late Dr. G. M. K. Baloch. This, on the petitioner's own admission in paragraph I of the writ petition, was contrary to the facts. Before Dr. Baloch died, on his request, the allotment of the property was transferred from his name to respondent No.

2. Chaudhary Abdul Hamid Khan's order did not go so far as to cancel the allotment in favour of respondent No.

2. Secondly, the order of allotment in favour of the petitioner proceeded on the ground that the family of late Dr. Baloch who died sometime ago abandoned the property in dispute, which was then in occupation of some unauthorized locals. This again was a travesty of fact. While implementing the order of allotment in favour of the petitioner, notice dated 20‑5‑58 (Annex. 'B') for ejectment was issued to respondent No. 2 and not to the alleged unauthorized occupants. Not only that, in the course of the contentious proceedings that followed, to secure the ejectment of respondent No. 2 from property in dispute, never for once any unauthorized occupant was named by the petitioner. If there was any such occupant, the notice of ejectment should ordinarily have been addressed to him. Rather the notice and the subsequent proceedings confirm the fact, that respondent No. 2 remained in uninterrupted possession of the property in dispute in his own right as allottee and her ejectment was sought merely on the ground that she was a "local and non‑claimant".

21. The order of allotment in favour of the petitioner (Annex. `A') is open to yet another grave objection. It is not the petitioner's case that any notice was issued to respon dent No. 2 before the property in dispute was allotted to the petitioner. It was held in Ghulam Nizam‑ud‑Din Sabiri v. Khan Farzand Ali Khan (P L D 1961 Lah. 19) that a Rehabilitation authority functioning under the Pakistan Rehabilitation Act, 1956 Ch. Abdul Hamid Khan was undoubtedly such authority was not empowered to re‑allot a property without canceling the prior allotment and getting the first allottee ejected in accordance with section 7(2) (b) and that any allotment without following that procedure was without jurisdiction. In that case the allotment of roofs of certain rooms by the Deputy Rehabilitation Commissioner without prior cancellation of allotment in favour of the earlier allottee and subsequent pro ceedings to eject the latter front the use of the roofs was quashed by a writ of certiorari. In reaching that conclusion the learned Judge followed the dictum of their Lordships of the Supreme Court in the case of Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) and gave effect to the principles of natural justice in the maxim audi alteram patrem. Badarul Jalil v. Wali Muhammad (P L D 1956 S C (Pak.) 259) is another direct authority bearing on the point. In that case the Rent Controller, who was also empowered as the Assistant Rehabilitation Commissioner, had the respondent before their Lordships of the Supreme Court ejected summarily from a flat. The respondent had been in continuous possession of the flat under an arrangement with the evacuee owner which was recognized by the Custodian, In the proceedings initiated in writ jurisdiction, the former Chief' Court of Sind found that such ejectment could be ordered after a show‑cause notice was issued and that without such a notice the ejectment was illegal. The above order was upheld in appeal by their Lordships of the Supreme Court and it was held that the respondent could not have been ejected without a show‑cause notice, and that, too, only on the grounds contemplated by section 8 (2) (hl of the Rehabilitation Act. On the basis of these authorities, there fore, I have no doubt in my mind that the order, dated the 8th May 1958, passed by Ch. Abdul Hamid Khan, Settlement Commissioner, purporting to allot the property in dispute, was wholly void on the ground that no notice wash issued to respondent No. 2 before the purported allotment in favour of the petitioner. This might have been due to the misconception that the earlier allotment stood in the name of Dr. Baloch and not in the name of his wife, respon dent No.

2. Be that as it may, the above authorities leave no doubt in my mind that there is no valid allotment in favour of the petitioner nor he can build any claim on the basis of any such allotment for the transfer of the house in his favour, particularly when he was not able to enter into actual physical possession of the property at any time since the date of the purported allotment in his favour.

22. The petitioner's learned counsel, argued that respondent No. 2 was allowed to continue in occupation of the property only on sufference by the petitioner. Not only that since the issuance of the P. T. O. in his favour in pursuance of the order of Mr. M. N. Hassan, respondent No. 2 had been paying rent due in respect of the property and, therefore, the petitioner must be deemed to be in constructive possession of the property in dispute which satisfied the requirement of Notification No. F‑3 (3)/60‑SI, issued by the Central Government under Proviso to subsection (6) of section 2 of the 1958 Act, by which the meaning of "possession" was extended so as to cover the case of a person who held order of allotment of a house or a shop in his favour and for whose benefit ejectment proceedings have been taken by the appropriate authority but who has not been able to obtain physical possession of the house or shop in question through no fault or negligence of his. For relevant purpose the notification reads‑ "In exercise of the powers conferred by the second proviso to clause (a) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to order that the allottees of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabili tation Authority and who, through no fault or negligence of their own, have so far been unable to obtain physical possession of the house or the shop in question shall be deemed to be in possession thereof for the purpose of the said Act." Needless to say that this notification envisages a valid allotment order and not an order which is void ab initio, as issued in favour of the petitioner in this case. As to the contention that the respondent No. 2 has since the issuance of P. T. O. in favour of the petitioner been attorning to him, learned counsel for the respondent relied upon the notice dated the 21st March 1961 (Annex. R/2 to the written statement) which clearly shows that the rent was paid by her under protest section 30 of the 1958 Act. This incident ally also emphasizes that she had never ceased to occupy the house else there was no occasion for such a notice of payment of the rent to the petitioner.

23. As a result of the foregoing discussion, I have no hasitation to hold that the petitioner although a claimant not being its valid allottee is not in possession of the property in dispute within the meaning of proviso to section 2 (6) of the Act read with the Central Government notification of the 9th September 1960 and, therefore, could not obtain the transfer of the property under paragraph I read with Settle ment Scheme No. 1 to the 1958 Act. This effectively dis poses of the writ petition, for the foundation of the petitioner's claim for the transfer of the property in dispute is the order of allotment in his favour dated the 8th May 1958, by Ch. Abdul Hamid Khan. This makes it unnecessary to consider the remaining points convassed by the parties' learned counsel. However, since substantial arguments were addressed on the remaining points also, it will be advisable to decide these points, particularly when the property in dispute still remains to be disposed of.

24. Learned counsel for the petitioner argued next that the order dated the 5th July 1962 by Sayyed Ijaz Husain Shah cannot be read as merely dismissing the appeal filed by respondent No. 2 for want of prosecution but constituted a decision on merits, because the learned Settlement Com missioner referred to the concurrent finding of the two Courts below in favour of the petitioner (respondent before him). It is, in my opinion, unnecessary to determine whether the above order could be read as an order dismissing the appeal filed by respondent No. 2 merely for want of pro secution or it could also be read as a decision on merits of the appeal. When the learned Settlement Commissioner examined the circumstances under which the order dated the 3rd July 1962, was made by him, he came to a definite finding that there was no legal service and that the notice issued from his Court smelt of "foul play". In reaching that conclusion the learned Settlement Commissioner believed the version of respondent No. 2 that it was on the 3rd July 1962 at 12‑30 p.m. that somebody delivered the notice by hand through a child found outside in the street. The notice did not bear any post office stamp, although it was to be served through post office. This according to the learned Settlement Commissioner was no service in the eye of law, and respondent No. 2 was not served for 3rd July 1962, when her appeal was dismissed for want of prosecution. On the principle laid down by their Lordships of the Supreme Court in Muhammad Swaleh v. Messrs United Grain and Fodder (P L D 1964 S C 97) the order dismissing the appeal would be coram non judice. In the precedent case, the defendant in the Court of first instance was proceeded ex parte on a date of which he had no notice and the order directing ex parte proceedings against him was held to be void and illegal and not merely irregular. They principle enunciated in that case can well extend to the instant case. Therefore, the order dated the 3rd July 1962. being void ab initio it is hardly of any consequence to determine whether that order was a mere order dismissing the appeal for want of prosecution or could be read an order on the merits of the appeal. Subsequent order passed by Sayyed Ijaz Husain Shah on the 14th December 1962, suffers from similar errors. By an oversight the case was listed for the 14th December 1962, when it was called and again dismissed for want of prosecution, although it was later discovered that the case had in the meantime been adjourned from 14th. December 1962 to the 31st January 3963. Therefore, no valid objection can be taken against the restoration by Sayyed Ijaz Husain Shah of the appeal filed by respondent No. 2 for being heard on merits.

25. Petitioner's counsel also questioned the competency of Mr. M. S. Zaman to hear, what he described as the revision petition originally filed by respondent No. 2 before Sayyed Ijaz Husain Shah which on his retirement was entrusted to Mr. M. S. Zaman for disposal. It appears that Mr. Zaman was then posted as the Additional Settlement Commissioner, Lahore, but by virtue of S. R. O. 845(K)/62 issued by the Rehabilitation and Works Division on 29‑10‑63 under section 9 of the 1958 Act, he was invested by the Central Government "with the powers of Settlement Com missioner for Lahore Division, for the performance of duties and functions assigned to him by or under the said Act with immediate effect". According to learned counsel, this notification fell short of conferring upon Mr. Zaman, the power of hearing revision petition under section 23(3) of the Act. The subsection is in the following terms:‑- "A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may at any time call for the record of any case or proceedings under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order relating to the entitlement of a person to the transfer of a property or to a matter involving title for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation thereto as he thinks fit." The argument is that at the material time, Mr. Zaman was ,not appointed (substantively) as the Settlement Commissioner, nor is there anything to show that he was specially em powered by the Chief Settlement Commissioner to hear revision against the order of any subordinate Settlement authority. Learned counsel stressed the fact that S R.O. 845(R)/63 dated 29‑10‑63 merely authorized him to "exercise" the power of the Settlement Commissioner without appointing him as such and he remained for all intents and purposes the Additional Commissioner, Lahore and was, therefore, inherently incompetent to hear any revision. There is force in the argument, so far as it goes. But it proceeds on a misconception of the true nature of proceedings pending before Mr. Zaman. The argument overlooks, the fact, that respon dent No. 2 had reality filed an appeal under section 19(1)(c) of the 1958 Act and not a revision under section 20(3) of the Act, before Sayyed Ijaz Husain against the order of Mr. 1\

4. M. Hassan, whereby he transferred the property in dispute in favour of the petitioner. Indeed the grounds listed in Annex. 'N' to the petition are entitled as "Appeal under section 19(1)(c) . . . . . against the order dated 19‑12‑60 of Mr. M. M. Hassan, Additional Settlement Commissioner,. whereby he refused to transfer property (in dispute) to the appellant. It is significant to note Mr. Hassan was then appointed as the Deputy Settlement Commissioner Lahore, though he also exercised the powers of the Additional Settle ment Commissioner. Another point to be noticed is that what Mr. Hassan decided by his order dated 19‑12‑60 (Annex. `L') was not an appeal against the order of any Deputy Settle ment Commissioner, but the case regarding the transfer of the property in dispute which was sent to him on remand by the Additional Settlement Commissioner, for (fresh) decision. Therefore, the order dated 19‑12‑60 must be deemed to have been made by Mr. Hassan in exercise of his original (and not appellate) jurisdiction against which appeal was taken before Sayyed Ijaz Husain Shah. The mere fact that Sayyed Ijaz Husain Shah or Mr. M. S. Zaman erroneously described the proceed ings as proceedings in revision will not alter the true nature of the proceedings. Therefore, what Mr. M. S. Zaman in reality decided by means of his impugned order dated 28‑10‑1964 (Annex. `O') was appeal against the order of Mr. M. M. Hassan and not a revision. On this view of the matter, the impugned order of Mr. M. S. Zaman is not hit by section 20(3) of the Act.

26. As to whether Mr. M. S. Zaman was competent to bear the appeal against the order of Mr. M. M. Hassan, one must presume in favour of such competency in the absence of any indication to the contrary, for as pointed out earlier he had been specially empowered to exercise the powers of the Settlement Commissioner in Lahore.

27. Finally, learned counsel for the petitioner argued that on the facts established, respondent No. 2 was a local and cannot be declared a displaced person and therefore entitled to the transfer of the property in dispute under paragraph 2 of the Schedule to the 1958 Act. It was further argued that even as a local, she cannot be transferred the property, for its value is more than Rs. 10,

000. Mr. M. S. Zaman on the other hand based himself on the following facts to declare respondent No. 2 as non‑claimant. He accepted the version on behalf of respondent No. 2 that her husband, Dr. Baloch was, at the relevant time, posted as Assistant Professor of Medicine in Glancy Medical College at Amritsar, though he belonged to Leiah in Muzaffargarh District. Early in 1946, he went to England for higher studies leaving his wife and family at Amritsar, to enable his children to pursue their studies uninterrupted. However, the eve of partition of British India in 1947 his family had per force to leave Amritsar owing to large‑scale communal riots and took shelter in Pakistan. Doctor Baloch on return from abroad re‑joined the family at Lahore in 1948 and joined the Staff of K. E. Medical College, Lahore. Learned Settlement Com missioner took the view that the principle laid down in Mahboob Rahi v. Chief Settlement Commissioner (P L D 1963 Lah. 214) became applicable to the above facts and, therefore, respondent No. 2 must be held to be a non‑claimant in her own right. I have given my anxious consideration as to whether on the above facts respondent No. 2 could be held as non‑claimant. The precedent case upon which the learned Settlement Commissioner based his conclusion is distinguishable on facts. That was a case of a businessman, whose original home was in the territories which are now part of Pakistan but was residing in what is now India at the time of Independence, where he was doing some business and, therefore, had no immediate desire to leave his residence in India or animus revertendi to his original place of residence. Hence he was held to be a "displaced person" within the meaning of section 2(3) of the Act. In the instant case, however, it is not denied that Dr. Baloch had not gone to Amritsar as a matter of choice but entirely owing to the exigencies of public service. As an employee of the Provincial Government he was liable to serve at any place in what was then the Province of Punjab. He had been posted to Amritsar, but had no intention to stay there permanently even if Partition had not intervened, for unlike a businessman he had not gone there as a matter of choice but under the orders of Government. In this view of the matter, therefore, Dr. Baloch could not have acquired for himself the status of a displaced person had he not gone abroad and his wife who had accompanied him as his con sort, would not acquire better status than Dr. Bloch himself. Indeed, somewhat similar question came up before the Supreme Court in Civil Petition for Special Leave to Appeal No. 172 of 1962 Imdad Ali Mailk v. Settlement Commissioner (Policy) and their Lordships held that a civil servant, who was at the time of Independence posted in the areas now forming part of India, cannot be given the status of a displaced person when owing to a stress of circumstances prevailing at the time he opted for service in Pakistan. A Government employee, in such circumstances, in the opinion of their Lordships can in no sense be regarded as a displaced person. In the precedent case, the petitioner before their Lordships was native of a village in Gujranwala District but was posted at Calcutta two years before Independence and had to leave the place owing to civil disturbance. In my opinion, the case of respondent No. 2 is more akin to the case before their Lordships of the Supreme Court than the case of a businessman in the case of Mahboob Elahi relied upon by the learned Settlement Commissioner. I have no doubt in my mind that respondent No. 2 had not taken up residence at Amritsar as a matter of her personal choice, but entirely due to posting of her husband at that place owing to the exigencies of public service. Therefore, she cannot acquire the status of a non‑claimant because of the fortuitous circumstance of her husband's posting at Amritsar. A fortiori, the property in dispute cannot be transferred to her as non‑claimant.

28. The result, therefore, is that respondent No. 2 is in possession of the property in dispute, as a local allottee which is "available property" within the meaning of paragraph 1(1) of Scheme No. VIII and liable to be disposed of in the manner prescribed in Chapter III ibid and not under the provisions of Seheme No.

1. This makes the C. H. form filed by the petitioner and N. C. H. form filed by respondent No. 2, redundant for the relevant purpose.

29. For reasons recorded in paragraphs 19 to 21, the writ petition fails and is dismissed and the property in dispute still remains available for disposal in accordance with law. In the peculiar circumstances of the case, I make no order as to costs. A.H. Order accordingly.