1975 PLP 225 (SCMR)

ANWARUL HAQ, J.‑‑This appeal, by leave of the Court, concerns the transfer of evacuee house bearing No. 60‑M, situate in Mandi Burewala in the Multan District. The house was under allotment with the Department of Central Excise and Land Customs since 1947, for use as office‑cum‑residence of the inspector, Central Excise and Land Customs, at Burewala. The appellant Nazir Ahmad occupied the house in his official capacity in August 1959 on his posting to Burewala. On the 28th of August 1959, he filed a CH form for the transfer of the entire house. On 26‑1‑1960, the Central Excise and Land Customs Department, issued a certificate saying that the house had been in possession of the Department since 1947, Mr. Nazir Ahmad, Inspector, Central Excise, Burewala, had been allowed to occupy it as care taker from August 1959, that he was paying the rent regularly and that the Department was not prepared to purchase the house. Without disposing of the CH form filed by the appellant, the Settle ment Authorities included the house in the earmarking list. On 22‑1‑1960, the appellant made an application for the deletion of the house from the earmarking list, but the same was rejected by the learned Additional Settlement Commissioner, Multan, the very next day on the ground that no valid allotment order had been produced by the appellant. Thereupon the appellant filed a revision petition which was dismissed by the learned Settlement Commissioner by his order dated the 2nd of May 1961, on the ground that the appellant had not produced a valid allotment order in his favour and was not in possession of the house on the 20th of December 1958. This order was, however, modified in review on the 23rd of June 1961, in view of the instructions contained in the Press Note issued by the Chief Settlement Commissioner on 3‑8‑1960, regarding the transfer of houses occupied by Government servants under departmental allotments. As a result, the house was transferred to the appellant. In the meantime, however, the house had been transferred, under the earmarking scheme, to Mst. Sultana Bibi, on 13‑8‑1960. She filed an application for a second review of the order made by the Settlement Commissioner on 23‑6‑1961 in favour of the appellant. This application was rejected by this officer on 3‑1‑1962. Aggrieved by the last order of the Settlement Commissioner, the respon dent invoked the writ jurisdiction of the former High Court of West Pakistan at Lahore. The petition was accepted by a learned Single Judge of that Court by his order dated the 23rd of November 1965. It was held that there was no order in favour of the present appellant by a competent authority as mentioned in clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). The learned Judge observed that in his view the appellant was not entitled to the benefit of the Press Note dated the 3rd of August 1960, and therefore the order of transfer passed in his favour on review by the Settle ment Commissioner on the 23rd of June 1961 was without lawful authority. As a consequence the transfer in favour of the respondent under the earmark ing scheme was restored. The appellant filed an appeal under clause (10) of the Letters Patent, but the same was dismissed by a Division Bench of the High Court by its order dated the 1st of February 1966. Leave to appeal was granted in this case to examine the contention that the High Court was in error in thinking that the words "competent authority", appearing in the Notification of the 3rd of August 1960 could not include an allottee Department of the Government. It was further con tended that this Notification had to be read in conjunction with the previous Memorandum of the Ist of August 1959, from which it would appear that allotment made by a Government Department was to be deemed to be an allotment by a "competent authority". The question of the transfer of evacuee houses placed at the disposal of the various Government Departments was, for the first time, dealt with by the Chief Settlement Commissioner in his Memorandum No. 1600‑Comp Reh./59, dated 1st August 1959. It laid down that :‑ "The Chief Settlement Commissioner has decided that a house duly allotted to a Government servant by a Department of the Central or Provincial Government may be transferred to him under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, provided he was in possession of such house in pursuance of an order issued by a competent authority on or before the 20th December 1958. If more than one Government servant has been in possession of the same house, the person who was in possession immediately before the 20th December 1958, will be entitled to its transfer. This concession will also be admissible to a Government servant who was in possession of a house immediately before the 20th December 1958, but was required to surrender it by a competent authority for allotment to another Government servant after that date. The applications received in forms CH, NCH and LH from Government servants in possession of houses by virtue of allotment orders issued by competent authorities other than a Rehabilitation Authority or a Custodian may be disposed of in accordance with the above decision." It will be seen that according to these instructions of the Chief Settlement Commissioner allotments made by Government Departments, at whose disposal evacuee houses had been placed, were to be deemed to be allotments made by a "competent authority" so as to entitle the Government servants in possession of such houses to claim their transfer In accordance with the relevant provision of the settlement law. The High Court was, therefore, clearly at error in thinking that such allotments could not be regarded as having been made by a "competent authority" within the meaning of clause (6) of section 2 of the Act. Although in the Memorandum dated the 1st of August 1959, the relevant date for possession has been mentioned as the 20th of December 1958, yet this date automatically stood extended on the issuance of an order in the following terms, by the Central Government on the 3rd of August 1960 :‑ "In exercise of the power conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958 (XXVIII of 1958) the Central Government is pleased to direct that a claimant, a non‑claimant displaced person or a local who has not obtained possession of a house in pursuance of an order referred to in the said clause but is in possession of a house in pursuance of an order passed by a competent authority after the twentieth day of December 1958, but not later than the date of this order shall, for the purposes of the aforesaid Act be deemed to be in possession thereof if such claimant, non‑claimant displaced person or local is in undisputed occupation of the house and no other person is otherwise entitled to the transfer of such house in pursuance of a final order passed by a competent authority" This Order of the Central Government being of general application, clearly applied to the Government servants who had been earlier made eligible to transfer of houses in their possession under the Memorandum of the 1st of August 1959. The same view was adopted by this Court in Asghar Hussain and another v. Dr. A. H. Hamid Musa and another (1968 S C M R 475). As a result of the instructions issued by the Chief Settlement Commis sioner on the 1st of August 1959, and the order dated 3rd of August 1960, issued by the Central Government, it has to be held that the appellant was in possession of the house in dispute under a valid allotment order issued by a competent authority before the 3rd of August 1960. As such he was to be deemed to be in possession of the house in accordance with the defini tion of that term as contained in clause (6) of section 2 of the Act, and therefore entitle! to its transfer as a claimant displaced person under paragraph I of the Schedule to the Act. The house was not available for disposal under the ear‑marking scheme on the 13th of August 1960, as much before that date the appellant had submitted his CH form on 28th of August 1950, and an entitlement in his favour had been created by the order of the Central Government issued on the 3rd of August 1960. The learned counsel for the respondent attempted to argue that the present case was distinguishable from that of Asghar Hussain, referred to above, on the ground that Asghar Hussain had first occupied the house in 1953 and subsequently in 1959. We regret we see no merit in this submis sion as the transfer was approved by this Court in favour of Asghar Hussain on the basis of his subsequent continuous possession since 1959, It was for this reason that the order of the Central Government dated the 3rd of August 1960 was applied to his case. For the foregoing reasons we consider that the High Court was in error in interfering with the order of transfer made in favour of the appellant by the learned Settlement Commissioner ore 23rd of June 1961. We would, therefore, accept this appeal, set aside the orders made by the High Court in the writ petition and the Letter Patent appeal, and restore the aforesaid order of the Settlement Commissioner. In view of the legal questions involved in the case, we would leave the parties to bear their own costs. Appeal accepted.