P L D 1968 Lahore 1220 (PLP)

WAHIDUDDIN AHMED, C. J.‑--This is a Letters Patent Appeal from the order of a learned Single Judge in Writ Petition No. 952‑R of 1963 which was dismissed in limine on the 1st of October 1963.

2. In this matter the dispute between the parties relates to House No. SW‑II‑36‑S‑14, situated in Sant Nagar, Lahore. This property was allotted to the appellant on the 19th of September 1947. It is alleged that in 1951 the appellant accommodated Zahur Ahmad Khan, respondent No. 2, in two rooms out of the said property. The appellant's case is that in his capacity as a Jammu and Kashmir refugee, on 8th of December 1959, he sent by registered post a K.N.C.H. Form addressed to the Additional District Rehabilitation Officer, Anarkali, Lahore, which was received by the Deputy Settlement Commissioner, Circle 11, on the 9th of December 1959. Respondent No. 2 also submitted a C.H. Form for the transfer of the property in dispute. On the 21st of January 1960, the Assistant Settlement Commissioner recom mended that the house in dispute be transferred to respondent No.

2. This proposal was accepted by the Deputy Settlement Commissioner the same day. Against this order, two appeals were preferred, one by the appellant, and the other by Mst. Shaukat Feroze. On 12th February 1962, the Additional Settle ment Commissioner dismissed both these appeals on the ground that no forms had been submitted by them. The revision petition taken before the Settlement Commissioner by the appellant was also dismissed on the 11th of February 1963. These orders of the Settlement authorities were challenged by the appellant by means of a writ petition, which, as already stated, was dismissed in limine on the 1st of October 1963, leading up to the present appeal before us.

3. In support of the appeal, Mr. Abdul Majid Khan, learned counsel for the appellant, has submitted that under section 16‑B of the Displaced Persons (Compensation and Rehabi litation) Act, 1958 (hereinafter referred to as the Act), Settlement Scheme No. IV was prepared by the Chief Settlement Commissioner, and under Paragraph 19 of that Scheme houses and shops in the possession of displaced persons from occupied territory of Jammu and Kashmir were not to be transferred by the Settlement Authorities to any person who is not a displaced person from that territory. He further contended that the Chief Settlement Commissioner invited the forms by the 7th of July 1959 from refugees of Jammu and Kashmir, and this date was extended up to the 31st of August 1959. His main argument is that the property in dispute, being in possession of the appellant as a Jammu and Kashmir refugee, could not be transferred, in view of the provisions of Paragraph 19 ibid to a person other than a displaced person from the occupied territory of Jammu & Kashmir, It may be mentioned that the learned Single Judge had dismissed the writ petition on the observation that from the Settlement records it was not possible to hold that the appel lant was proved to be a Jammu and Kashmir refugee.

4. Learned counsel for the appellant has taken us through the various orders passed by the Settlement Authorities. The Assistant Settlement Commissioner in this order dated the 21st of January, 1960, clearly mentions the appellant as a non claimant refugee from Jammu and Kashmir but gratuitously observes that the appellant had failed to file "N.C.H. Form" (instead it should have been K.N.C.H. Form). The learned Additional Settlement Commissioner also did not give a definite finding that the appellant was not a Jammu and Kashmir refugee, although it was urged before him that he was a local. He dismissed the appeal of the appellant on the short ground that there was contradiction in the assertion made by the appellant before him and the statement made by him before the Deputy Settlement Commissioner on the 21st of January 1960, that he had filed the K.N.C.H. Form in the office. In this connection he observed as under:‑ "The contention of the appellants is, however, not supported by the signed statement of appellant Abdul Aziz Ayub made before the D. S. C. on the 21st January 1960. In this state ment he has clearly mentioned that he filed the transfer form in the office. The above‑noted contradiction cannot be explained. The record of the D. S. C. as well as the certificate Exh. I clearly shows that the appellant did not file any transfer form in the Settlement Office."

5. In the light of the above discussion, it is quite obvious that there is no finding of the Settlement Authorities that the appellant is not a Jammu and Kashmir refugee. His claim was rejected mainly on the ground that he had not filed the K.N.C.H. Form, as alleged by him. With the background of these circumstances, the question that emerges for our consideration is whether it was open to the Settlement Authorities to transfer the property in dispute to respondent No. 2 in view of the provisions of paragraph 19 of Settlement Scheme No. IV (here inafter referred to as the Scheme), which is in the following terms:‑-- "

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." Mr. Gul Muhammad Khan, learned counsel for respondent No. 1 did not place before us any reliable evidence to show that the appellant is not a Jammu and Kashmir refugee. His only contention was that since subsection (5) of section 30 of the Act has been deleted by Ordinance XIII of 1964 on the 24th of December 1964, with retrospective effect, the intention of the Legislature was that the ban on transfer of properties in possession of refugees from Jammu and Kashmir could not be considered to have ever existed. In order to appreciate the contention of the learned counsel, it will be convenient to reproduce here the provisions of section 30 (5) of the Act .‑ "

30. Protection of certain occupants.‑- (5) 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." Subsection (5), quoted above was deleted by section 3 of Ordinance XIII of 1964. In Paragraph 13 of the Schedule it is provided as under :‑ "In section 30, subsection (5) shall be omitted and shall be deemed always to have been so omitted." If this had been the only provision under which ban was imposed on the transfer of properties in possession of refugees from Jammu and Kashmir, we would have accepted the contention of the learned counsel for the respondent that there was never any ban on the transfer of properties in possession of Jammu and Kashmir refugees. It will, however, be noticed that under section 16‑B of the Act, special provisions were made for displaced persons from the occupied territory of Jammu and Kashmir. This provision of law, after its amendment by Act X of 1962, reads as under:‑-- "16‑B. Special Provision for displaced persons from Jammu and Kashmir.‑(1) The Chief Settlement Commissioner shall prepare a scheme for temporary rehabilitation of persons displaced from such part of State of Jammu and Kashmir as is under the occupation of India and are residing in Pakistan. (2) Any scheme prepared under subsection (1) shall subject to the approval in writing of the Central Government, be executed by the Chief Settlement Commissioner. (3) The Central Government may, by order in writing and subject to such conditions as it may deem fit, confer upon the persons aforesaid such rights in respect of the properties transferred to them under the scheme prepared and approved under this section as may be specified in the order." There is no gain saying the fact that Settlement Scheme No. 1V was prepared under this provisions of law. Under Paragraph 19 of the Scheme, quoted above, it is provided that houses and shops in the possession of displaced persons from occupied territory shall not be transferred by any Settlement Authority to any person who is not displaced person from the occupied territory. Thus it is abundantly clear that subsection (5) of section 30 of the Act as considered unnecessary in view of Paragraph 19 of the Scheme and' it was for this reason that in 1962 the provision of section 16‑B of the Act, which originally provided "Subject to the provision of subsection (5) of section 30" was deleted by Act X of 1962. It seems to us that this very reason prevailed with the Legislature to delete the provisions of subsection (5) of section 30 of the Act by Ordinance X III of 1964. Had the intention of the Legislature been that there was to be no ban on the transfer of such properties, it was open to it to delete Paragraph 19 of the Scheme which, however stood intact in spite of the deletion of subsection (5) of section 30 of the Act. We are, therefore, of the view that under paragraph 19 of the Scheme, which is a valid provision of law, any property in possession of a Jammu and Kashmir refugee could not be transferred to a person other than a displaced person from the occupied territory of Jammu and Kashmir. We would, therefore, hold that the Settlement Authorities were not competent to transfer the property in dispute to respondent No.

2. We would, therefore, quash the impugned orders passed by the Settlement Authorities and remit back the case to them for consideration of the claims of the appellant and respondent No. 2 in accordance with law. In passing, we may mention that we are satisfied that the appellant had submitted a K.N.C H. Form on the 8th of December 1959, which was duly received by D. S. C., Circle II on the 9th of December 1939. It will, however, be open to the Settlement Authorities to consider whether the appellant is a genuine refugee from Jammu and Kashmir, whether the property is divisible or not and in what manner the property in dispute should be transferred.

6. In the result, subject to the remarks made above, this appeal is allowed with coats. A.E. Appeal allowed.