1973SCMR 56 (PLP)

HAMOODUR RAHMAN, J.‑The petitioner in this case is the wife of one Muhammad Hayat who entered into possession of an evacuee premises on 1‑4‑1949 and subsequently obtained an allotment order in respect of the portion in his possession on 6‑11‑

51. The respondent No. 1 herein obtained possession of the portion in his occupation on 1‑4‑50 but he obtained an allotment order on 2/3‑11‑1951, that is to say, some 3 days before the allotment order in favour of Muhammad Hayat was issued. During settlement operations both applied for the transfer of these premises. At first the Deputy Settlement Commissioner divided the premises into two portions giving one to each but in revision ultimately the Settlement Commissioner by his order of the 21st of January 1951, transferred the whole of the house to the respondent eliminating the petitioner altogether on the ground that the said respondent being a senior allottee had a preferential right. The petitioner then moved the High Court in its writ jurisdic tion. A learned Single Judge referred the case to a larger Bench, as there appeared to him to be some conflict between the decisions of the Single Judges of the same High Court. The Division Bench, which heard the matter, ultimately decided that if the petitioner based her claim to the transfer of the house on the basis of the allotment order, then even though she would be regarded as a direct claimant her seniority would be determined from the date of the allotment order and the allotment order could not relate back to the date of the original possession. On the other hand, if she based her claim upon unauthorised occupation of her husband under the extended definition of possession, then she would be an indirect claimant, because the notification of the Central Government dated the 7th of March 1960, covers only spouses of authorised occupants, that is to say, allottees. In either event, she would not be in a position to claim preference over the respondent No. 1, as the allotment order in favour of the latter was of a prior date and he was a direct claimant in his own right. The petitioner now seeks special leave to appeal and the, learned counsel has contended that the allotment order merely regularises possession, and therefore, necessarily relates back to the date of the original possession. We see no substance in this con tention. Where a claim is on the basis of the allotment order the date of the allotment order must determine the seniority of the allottee. On the other hand, if he is seeking transfer on the basis of his unauthorised possession then only the date of original possession would become relevant. It is next contended on behalf of the petitioner that the High Court was wrong in considering the petitioner to be an indirect, claimant even on the basis of unauthorised possession. We art again unable to accept the contention of the learned counsel for the petitioner. The wife cannot be regarded in law as in occupation in her own right. She is in the position of a licensee under her husband. It is clear, therefore, that in such circumstances she is only indirect claimant. The right given under the Central Government notification is clearly confined to spouses of "autho rised occupants" and this could only have reference to persons in possession under the allotment orders. There is no substance, therefore, in either, of the contentions raised on behalf of the petitioner. This petition is, accordingly, dismissed. Leave refused.