1968 PLP 330 (SCMR)

S. A. RAHMAN, J.-The facts giving rise to this appeal by special leave are as follows: The appellant, Mr. S. N. Naqvi, is a Government servant. While he was posted at Lahore, he was allotted a bungalow, No. 11, Kamla Raja Estate, Canal Park, Lahore, ton the 25th October 1949. in March 1953 he was transferred to Karachi as Director, Meteorological Services. His family, however, con tinued to reside here along with his nephew, Mr. S. M. Yamin who was a professor in a local College. On the 8th October 1953 allotment of half portion of the bungalow was cancelled from the name of the appellant and it was assigned to Mr. Zaheer Babar, the husband of the first respondent Mst. Kiladija Mas toor. Mr. S. M. Yamin, challenged the allotment of this half portion of the bungalow to Mr. Zaheer Babar by an appeal. The Additional Settlement Commissioner on the 22nd February 1955, allowed the appeal and remanded the case to the Deputy Settlement Commissioner, for a fresh decision. Mr. Zaheer Babar then went up in revision to the' Rehabilitation' Commissioner. The order passed by that officer, though in form a dismissal of the revision petition, yet in substance, amounted to confirmation of the possession of Mr. Zaheer Babar in one-half of the bungalow, the position with regard to the other half being allowed to remain as before. When the Settlement operations started in 19590 the appel lant applied for the transfer of the whole bungalow to him and the Deputy Settlement Commissioner on the 18th January 1960 pas sed an order in his favour. A Provisional Transfer Order was issued to him on the 25th January 1960. , On the 4th June 1960, the first respondent filed N. C. H. Form for the transfer of the same property. It may, be mentioned that the appellant is a claimant displaced person, but the respondent, though a displaced person, is not a claimant. The N. C. H. Form of the respon dent was accepted by the Additional Settlement Commissioner in the following terms: "Accepted if otherwise in order and she is in undisputed possession or the house has not been transferred or included in 'E' list" On the 29th June 1961, the respondent was informed by the Settle ment authorities that her Form was not entertainable as the house had already been transferred to the appellant The respondent or her husband, however, continued to submit miscellaneous petitions to the department, challenging the validity of the transfer in favour of the appellant on the ground that he was not in posses sion of the house on the crucial date, namely, the 20th December 1958. A report appears to have been called for by the Additional Settlement Commissioner from the Deputy Settlement Commis sioner on this point. On receiving the report, the Additional Settlement Commissioner directed review of the previous order of transfer in favour of the appellant. The petitioner filed a revision petition before the Settlement Commissioner against this order. In the meantime however, the Deputy Settlement Commis sioner, holding that Mr. Naqvi had left the house for good on the 2nd December 1953, and was not in possession on the relevant date, reviewed the order in his favour, rejected his C. H. Form and ordered the-transfer of the house to Mst. Khadjia Mastoor, respondent. This order too was called in question by the appellant by a revision petition. Mr. Ijaz Hussain Shah, the Settlement and Rehabilitation Commissioner held in revisional jurisdiction that Mst. Khadija Mastoor was disqualified for the transfer of the property in ques tion as she had not submitted a clearance certificate in respect of arrears of rent, along with her N. C. H. Form, that she had sub mitted her Form after the house already stood disposed of and that as refugee Government servant, Mr. Naqvi was entitled to the transfer of the house in which he had been living before and of which he had later retained possession through his close relative. Mr. S. M. Yamin. He added that prior to Mr. S. M. Yamin's independent possession his son or other members of his family had continued to occupy that house. He also observed that Mr. Zaheer Babar was a local and could not apply for transfer of the house. He therefore, set aside the orders passed by the subordinate authorities and allowed the house to remain with Mr. Naqvi. Mst. Khadija Mastoor challenged the order passed by the Settlement and Rehabilitation Commissioner by a petition for a writ under the Laws (Continuance in Force) Order, 1958. A learned Single Judge of the High Court of West Pakistan quashed the order of the Settlement Commissioner and issued a writ of mandamus, directing the transfer of the bungalow to the respondent. This order was affirmed on a Letters Patent Appeal by a Division Bench of the High Court. Special leave to appeal was granted in this case to consider the contention raised on behalf of the appellant that even on, the findings of the Settlement authorities with regard to possession, A he was entitled to the transfer of the house, as he continued to be an allottee of half the house. Another point raised on the peti tion for special leave to appeal was that since the N. C. H. Form of the first respondent was accepted subject to conditions which were not fulfilled, the High Court were wrong in holding that the transfer in favour of the appellant lost its efficacy as soon as it was set aside by the Settlement Authorities. It was further urged that the N. C. H. Form of the respondent could not have been accepted, even conditionally, after the expiry of the prescribed date namely, the 10th November 1959. The learned Judges of the High Court have taken the view that the Settlement Commissioner, in revision, had given no finding that the appellant was in actual physical possession after, 1953. It was observed that the possession of Mr. S. M. Yamin, a nephew of the appellant, would not avail him in this respect, as he is not of the relations mentioned in paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is only the possession of a parent, son, daughter or spouse that can be taken advantage of under this paragraph, by a claimant for transfer. It was also noted in this context that when the question of allotment arose, it was Mr. S.M. Yamin who had contested his ejectment as against Mr. Zaheer Saber, but finally on the 31st December 1955, the Rehabilitation Commissioner decided that Mr. S. M. Yamin was entitled to retain possession of half the house, as a deserving refugee officer. The objection that Mst. Khadija Mastoor had not cleared the arrears of rent due from her or her husband and was therefore, not entitled to the transfer of the house, was repelled on the ground that this was not an essential condition to be satis fied before she could put in her N. C. H. Form under the Act. Since the only impediment in the shape of an order of transfer in favour of the appellant had been removed from the path of the respondent by the order of the Deputy Settlement Commissioner on review, it was found that the respondent was the sole claimant left in the field and was entitled to get the property. It is contended before us by Mr. G. M. Mirza on behalf of the appellant, that the question whether the appellant retained possession of the house through any member of his family, up to the crucial date, namely, the 20th December 1958, or not was a question of fact and in the face of the final order passed by the Settelement Commissioner, the High Court itself should not have adjudicated on that point, but that if there was a doubt in that respect, the case should have been remitted to the departmental a authorities for decision. There is, in our Opinion, a good deal of force in this contention. The order passed by the learned Settlement Commissioner is unfortunately somewhat vague and indefinite so far as this point is concerned. According to that officer, the appellant had retained posses sion of at least a part of the house, by keeping his son there and later through another relation, Mr. S. M. Yamin. It seems, however, that he did not go into the question as to till when the son or any other member of the appellant's family, was in posses sion along with Mr. S. M. Yamin. This question was necessary to be decided in view of the definition of `possession' given in section 2(6) of the Act, the material part of which reads as follows: "Possession" means possession obtained in pursuance of an order passed on or before the 20th day of December 19581 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Governments." The crucial question in the case therefore, was whether the appellant or his son, retained possession of the house till the date mentioned in this definition. The mere fact that in his C. H. Form the appellant had made a statement which was somewhat equivocal in character, to the effect that his nephew, Mr. S. M. Yamin, had been allowed to occupy the half portion, vide A. R. C. allotment order No. 805 dated the 22nd February 1955, does not necessarily lead to the inference that no member of his own family continued to live in the premises till the relevant date. He has also mentioned in his Form that even though he had been trans ferred to Karachi, the house in question had been allowed to stand in his name. In any event, this recital could not be treated as a conclusive admission. The case appears to have been re opened on a report submitted by an Inspector, dated the 7th July 1960, appearing at page 164 of the record, which was endorsed by the Deputy Settlement Commissioner to the Additional Settlement Commissioner. In the inspector's report, there is a reference to a statement made by Mr. S. M. Yamin before him. But that statement has not been fully summarised in that report. We have had access to the Settlement file and seen the statement made by Mr. S. M. Yamin, on the date mentioned. He clearly stated therein that members of Mr. Naqvi's family continued to occupy the house till then, despite Mr. Naqvi's transfer to Karachi and they had been in possession along with him. This was the reason why he had himself not applied for transfer of the house as he regarded Mr. Naqvi as head of the family. The learned Settlement Commissioner stated that he had considered the whole relevant evidence, but he did not give an express finding as to the date till which Mr. Naqvi's family occupied the premises. No doubt, the respondent's case was that no member of Mr. Naqvi's -family was in possession of the house on the crucial date. This consequently became a disputed question of fact, which ought to have been left for adjudica tion by the departmental authorities themselves. Mr. S. M. Yamin's position was that he had not replaced Mr. Naqvi, as allottee, but that his name had merely been added as a member of the old allottee's family, when he was allowed to remain in the house by the Rehabilitation Commissioner. The suggestion therefore, made by the learned Counsel for the respondent that Mr. Naqvi had ceased to be even an allottee, does not prima facie stand established on the record. This is another aspect of the matter which had to be gone into by the depart mental authorities. The High Court could not substitute itself for the departmental authorities in regard to matters of fact. In this connection, reference was also made to entries in a Survey Register, showing that Mr. Naqvi had gone to Karachi in 1953, leaving Mr. S. M. Yamin in occupation. Clearly however, the Survey Register would not show whether any member of Mr. Naqvi's family also remained in possession with Mr. S. M. Yamin or not. The question therefore, would still remain open whether the Settlement Commissioner was justified in affirming the validity of the transfer in favour of the appellant, on the view that he or his family bad retained possession till the crucial date. This aspect of the matter appears to have been lost sight of in the High Court. We, therefore, allow the appeal, set aside the order passed by the High Court and remand the case to the depart mental authorities for re-decision of the question of possession, in the light of the observations made above and for passing such orders as may be called for, in consequence. There will be no order as to costs in the circumstances of this case. Appeal accepted. Case remanded.