P L D 1968 Supreme Court 147 (PLP)

(c) if there is more than one applicant for the transfer of the same house, the transfer shall be effected by drawing lots in such manner as may be prescribed." For the implementation of paragraph 4, a scheme has been laid down, which is Settlement Scheme No. V. Briefly, the Scheme provides for drawing up lists of houses available for transfer under paragraph 4, and for publication of these lists for the information of unsatisfied claimants. When applications are invited by the Chief Settlement Commissioner for the transfer of houses under this scheme, a claimant to whom a house has not been transferred under the Act may make application specifying not more than five houses of the category to which such claimant is entitled. As there are normally more than one applicants in respect of each house, the Scheme provides for transfer by the drawing of lots. A claimant who has failed to draw a house in the first drawings in respect of the house selected by such claimant, is entitled to apply again for another set of five houses out of the lists of available houses. 'This process may be continu ed so long as houses are available and there are claimants who have not succeeded in drawing a house under the Scheme, but when an applicant is successful and a house is drawn in such applicants name, the particulars of the house are required under the Scheme to be announced immediately, and a procedure is commenced which, in the absence of refusal by the applicant, necessarily leads to the issue of a transfer order in respect of such house in favour of the claimant. Mst. Ghulam Fatima participated in such a Scheme, and was successful in drawing a house. An appendix in Form No. XI was issued to her on the 31st December 1959, but for reasons into which it is not necessary to enter here, the house was ultimately found not to be available for her. For such a case, paragraph 4 cited above contains no provision. It provides for an earmarking system under which in respect of any single available house more than one applications may be entertained and in such a case, it provides further that the selection of the successful applicant should be by the drawing of lots, and as has been seen above, the procedure for the entertainment of such applications, for drawing of lots, and for the further implementation up to the point of issue of a transfer order has been laid down in detail in Settlement Scheme No. V. While that Scheme provides for a case where an applicant is unsuccessful, namely, that such applicant may participate in further earmarking and drawing of lots, it of necessity makes no provision for a case where after being successful at a drawing of lots, the successful applicant is defeated by the fact of the house not being available for transfer to him. Such a provision would indeed be outside the purview of paragraph 4, for that paragraph deals with the method of transfer of "a house not transferred under paragraphs 1, 2 and 3"' and does not generally deal with the question of satisfaction of claimants out of the compensation pool. Moreover, it provides that a house successfully drawn shall be transferred to the person in whose name it is drawn. The Displaced Persons (Compensation and Rehabilitation)( Act in section 10 originally provide two methods for transfer of property out of the compensation pool. The authority to make such transfers was to be the Chief Settlement Commissioner, and he could make a transfer "on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule." That method had, in the case of Mst. Ghulam Fatima, been tried out, and within the provisions of the Schedule, she had drawn a house successfully, but that success was defeated by the fact of that house being, for reasons falling entirely outside the provisions of the Schedule, not available for transfer in accordance with its provisions. In such a case, the second mode of transfer provided by section 10 would come into operation. This was that the Chief Settlement Commissioner had power to transfer property "in such other manner as may be approved by the Central Government." On the 7th April 1960, the Central Government issued such an instruction which was announced in the form of a Press Note. This instruction laid down a procedure to be followed in the case of "claimants who participated in the earmarking of houses, (and) were successful in the lots, but the houses drawn in their favour could not be transferred to them on account of their acquisition by Government or for any other reason." The decision of the Central Government was that:‑ "such claimants may be permitted to select one of the houses included in a subsequent earmarking list published by the same Settlement Authority or a house which is not included in such a list but is within the jurisdiction of the same Authority and is not transferable to any other person, provided that the value of such a house is fully covered by the amount of compensation available in the Compensation and Rehabilitation Book of the claimant concerned." The contingency that there might be more than one applicants similarly situated, who were seeking transfer of the same house was provided for by the direction that in such a case "the transfer will be effected by the drawing of lots between them". It was further provided that a claimant who was unsuccessful in such a lottery would have another chance to select a house in the same manner. This was a self‑contained scheme, which can only be understood as coming into operation in the specified circum stances, that is when the procedure provided under paragraph 4 of the Schedule and Settlement Scheme No. V and had been exhausted, in respect of a particular claimant, who had succeeded at a drawing of lots, and the contingency had arisen that the house drawn could not be transferred to such claimant. It is quite clear that this supplementary scheme cannot be assimilated within the scope of paragraph 4 of the Schedule and its appurte nant Scheme, and therefore, it must be held to be relatable exclusively to section 10 (b) of the Act and the power given thereunder. It should be pointed out that section 10 was amended in 1962 by an Ordinance to read as under: "

10. Power to transfer property from the compensation pool.‑(1) Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule. (2) Notwithstanding anything contained in subsection (1), the Central Government may order the transfer in public interest of any property out of the compensation pool in such manner as it may deem proper." The new subsection (2) confines the power of the Central Govern ment in respect of transfers of property out of the compensation pool otherwise than in accordance with the provisions in the Schedule, the transfers made in the public interest, and in the present case, the transfer sought by Mst. Ghulam Fatima is in her personal interest. However, since her right to seek transfer of a house under the Press Note of the 7th April 1960, arose upon the failure of the Settlement authorities to transfer to her the house which she had successfully drawn under the earmarking scheme on the 3rd December 1959, at which time section 10 in its original form was in operation, she must be held to have gained a vested right to be satisfied out of any subsequent earmarking list of houses available for transfer, by the method laid down in the Press Note. This position was conceded in her favour by the Settlement authorities. On the 13th November 1963, upon her application, an Additional Settlement Commis sioner directed the issue to her of a "choice certificate" enabling her to c1toqse out of any earmarking list, "another house of similar value," similar, that is, in value to the house which she had drawn and which could not be transferred to her. She moved an appeal or revision against this order before the Settle ment Commissioner who on the 3rd April 1965, modified the order of the Additional Settlement Commissioner "to the extent that any `B' category house available for disposal may be transfer red to the petitioner. A B category house in Settlement Scheme No. V is a house whose annual rental exceeds Rs. 360, but does not exceed Rs. 1,

800. Acting under the authority so conferred upon her, Mst. Ghulam Fatima, made application for transfer of the house now in dispute, whose annual rental is Rs.

480. Her application was refused by order dated the 29th June 1965. On a further sub mission made by her, she was told that "the property applied for cannot be converted into a residential house and transferred as a house" and therefore her application could not be allowed. It may be mentioned here that an attempt was made by the 77 Club to secure transfer of the house, which failed, and that another party known as the Aligarh Old Boys' Association also was anxious to secure the house. It is not necessary to consider these later applications. The fact is that today the house still remains untransferred. It has, however, been refused to Mst. Ghulam Fatima seemingly on the ground that because of its user as a Club it cannot be transferred as a house. It may be mentioned however, in this connection that the building was originally a bungalow, and was used as a residence until it was occupied by the 77 Club, sometime before the Partition. Mst. Ghulam Fatima's writ petition to the High Court was rejected by the High Court principally on the ground that the property was not a house within the meaning of the Act, and the Schedule. The learned Judges expressed this opinion in the following words: "In any case, the question is not whether the property falls under any of the other categories (these being houses, shops, industrial concerns, big mansions, etc.) but the question is whether it is a house. We find that on the definition of this term under the relevant law the property cannot be treated to be a house." Certain subsidiary arguments advanced in favour of transfer to Mst. Ghulam Fatima were disposed of on the basis that the property was not a house and having been converted into a club, the question of its disposal had to be referred to the Chief Settle ment Commissioner under clause 20 of Settlement Scheme No. 1, which lays down that where a house has been converted into some other use for which provision has not been made, it is for the Chief Settlement Commissioner to determine whether it is a house or a shop or any other type of property. It was held that the Chief Settlement Commissioner had jurisdiction to decide that the disputed house was a club. The judgment of the High Court ends with the observation that the case of Mst. Ghulam Fatima "falls under paragraph 4 of the Schedule to the Act; and also the matter being pending since before the amendments were introduced by Ordinance II of 1962, the rights which had already accrued to the petitioner could not be taken away by the amendments in question." Mst. Ghulam Fatima was given special leave to appeal against this order on the submission, based on the wording of paragraph 4 of the Schedule, that she had a right to the house notwithstanding that her claim was small, as the value of the house was less than Rs. 25,000 and also because it was thought necessary to examine the grounds upon which transfer of the house to her had been refused. We have heard from Mr. Zullah an interesting argument presented in favour of the appeal, and Mr. Muhammad Ishaq has assisted the Court on behalf of the Settlement authorities. The 77 Club was also represented before us by counsel but we found it unnecessary to hear any submission on its behalf. The contention of the Settlement authorities is firstly that the property is a club acrd not a house that can be disposed of under the Schedule, and further that the Schedule does not apply, and on the assumption that the property is a house, it fell to be disposed of under the instructions contained in the Press Note of the 7th April 1960. It was pointed out that following this Press Note, on the 24th June 1960, a fresh instruction was issued bringing to an end the system of transfer of house by earmarking and drawing of lots, and directing that ail houses in categories `B' and `C' (these being the houses of the lowest values) should be disposed of by restricted auction among claimants who had obtained compensation books. However, this incident did not affect rights previous accrued in favour of claimants, as is shown by the fact that on the 28th July 1960, a fresh instruction was issued amending the Press Note of the 7th April 1960, whose provisions were repeated and it was announced that "on further consideration it has been decided that such claimant may apply for a house appearing in the subsequent lists of earmarking/ auction . . . or a house, which is not transferable to any other person, provided the value of the house so selected is not more than double the value of his verified claim". The reference to "auction" in this amending Press Note is significant; it takes into account that by the effect of the intervening Press Note of the 24th June 1960, earmarking lists were to be replaced by auction lists. Mr. Zullah attempted to interpret the Press Notes of the 7th April 1960, and the 28th July 1960 as if they were to be read as part of Settlement Scheme No. V, for the purpose of establishing that Mst. Ghulam Fatima could claim as of right a house of value less than Rs. 25,000, notwithstanding that her claim was very much smaller. On the analysis which has already been made in this judgment of the provisions of paragraph 4 and its supporting Scheme, namely, the Settlement Scheme No. V, we find this argument not to be tenable. A case that falls under the Press Note of the 7th April 1960, is clearly one which comes into being after the provisions of paragraph 4 and Settlement Scheme No. V have been finally exhausted for there is nothing in these provision to indicate, and it would be indeed unreasonable to find, that an applicant, who has been successful in a lottery, and secure the property drawn in his favour for reasons entirely outside the context of the said provision, should go through the process of earmarking and drawing of lots again. When such person has been successful at a drawing of lots, for his purposes the provisions of paragraph 4 and the Settlement Scheme No. V have been finally exhausted. Therefore, any provision for making satisfaction of such a defeated lottery winner must be found in provisions made not under section 10 (a) in its original form, but under section 10 (b), and such special provisions are clearly contained in the Press Notes of the 7th April 1960, and the 28th July 1960. It was open to the Central Government to lay down any conditions for the transfer of houses under section 10(b)f and it is clear that in the Press Note of the 7th April 1960, such a special condition was laid down, namely, that a defeated lottery winner could have a house of his choice that was available in and earmarking lists or otherwise, provided that he chose a house of value equal to his verified claim. In the later Press Note of the 28th July 1960, this condition was relaxed and a defeated lottery winner became entitled to a house of his choice available in any existing earmarking or auction list or otherwise, provided that the value of the house was not more than double of his verified claim. Mst. Ghulam Fatima's claim being allowed at Rs. 3,700 only she did not qualify for transfer of the house now in dispute, whose value is Rs. 19,200, either under the first Press Note under the later instructions. Consequently, her claim was rightly rejected, assuming that the property is a house. As to the question, whether the property is a house or a club, and whether a bungalow used as a club falls in a category entirely outside those for which provision has been made in the Displaced Persons (Compensation and Rehabilitation) Act, or its subordinate instruments, we would prefer to say nothing. We would mention however, that section 10 both in its original as well as its amended form provides for power "to transfer any property" and that would seem to include a property utilized as a club even if it does not fall within the description of a house. As the arguments presented before us on behalf of the appellant was based on the premises that the property here in question is a house, we have examined the matter only under the provisions in paragraph 4 of the Schedule and the Settlement Scheme No. V, as well as the provisions in the Central Government instructions of the 7th April 1960 and the 28th July 1960, relating to houses. We find that treated as a house, the property cannot be transferred to Mst. Ghulam Fatima. The appeal is accordingly dismissed, but in the circumstances, we make no order as to costs. K. B. A. Appeal dismissed.