Settlement Scheme No. IX

Transfer Order in favour of respondent having attained finality on being upheld by the High Court, the Trial Court had correctly decreed the respondent's suit for possession in his favour

Lower forums as well as the High Court had very minutely examined the record available and decided the matter purely in accordance with law

No misreading or non-reading of material evidence, or jurisdictional error or misconstruction of law was noticed in the impugned judgment, which was based on valid, sound and legal grounds

No question ,f law of public importance was involved in the case

Contentions of the petitioners, in any case, were not tenable

Petitions being without merit and substance, leave to appeal was declined by the Supreme Court.

Petitioner who did not apply earlier for transfer of property in their occupation, applied subsequently for its transfer after repeal of Settlement Laws and introduction of Settlement Scheme No. IX

Petitioners/occupants claimed that they were in occupation of different portion constructed by them

Administrator of Residue Property rejected claim of petitioners holding that entire property in dispute having stood disposed of about twenty years back, nothing was available for transfer to petitioners/occupants under Settlement Scheme NO:IX

Respondent/transferee was transferred a house which, as provided in relevant law, could comprise of only constructed portion and three times its plinth area and any area in excess thereof would remain undisposed of and would be available for transfer under Settlement Scheme No.IX

Only question before Administrator was as to whether there was any area in excess of entitlement of respondent/transferee which could not exceed the constructed portion plus three times its plinth area, but that aspect of the matter was not gone into by Administrator before rejecting claim of petitioners/occupants

Case was remanded to consider that aspect of the matter with the direction to find out as to whether property in possession of petitioners/occupants had been constructed by its evacuee owner or the petitioners themselves

If it was found that property in occupation of petitioners was constructed by petitioners themselves and not by its evacuee owner, Administrator, would be under legal obligation to determine whether area in their occupation was in excess of entitlement of respondent/transferee.

Constitutional petition was not maintainable on the ground of existence of judgment and decree dated 5-7-1978, passed in favour of respondent

Allotment having attained finality could not be re-opened

After repeal of evacuee laws only forum left for resolving such controversies was the Court of general jurisdiction viz Civil Court

Plaintiff was granted decree in earlier round of litigation which was confirmed by High Court in second appeal and it had attained finality

Such decree could not be undone by collateral proceedings

Constitutional petition challenging allotment of 1963 was dismissed in circumstances.

Appellant having raised construction over property in question, applied for transfer of same under provisions of Settlement Scheme No. IX

Other occupants of such property who were similarly circumstanced were allowed transfer of the portion over which they had raised construction, while portion in possession of appellant was not transferred to him

Validity

Appellant's case being exactly the same as that of other transferees who had been granted relied by relevant authorities, appellant, too, was entitled to transfer of the portion of property which was in his possession and over which he had constructed his house

Authorities were directed to transfer constructed portion of property in question, in favour of appellant on terms and conditions which were applicable to such transfer/disposal of property.

Respondent/Authority while passing order of transfer not taking into consideration factum of possession and its commencement

Effect

. Respondent/Authority had no power whatsoever, under Settlement Scheme No.IX to transfer property to petitioners without satisfying itself regarding condition precedent of its being available property under para. 1 (c),and in possession of petitioners within meaning of para. 1 (i), Settlement Scheme No.IX

Initial order of transfer was thus, passed in flagrant violation of sub para. (e) and sub-para (i) of para I of Settlement Scheme No.IX and was on that count null and void

Conveyance deeds issued by respondent/Authority in vicilation of the Settlement Scheme IX, were superstructure raised on nullity and were devoid of legal sanction

Property in question, being a vacant plot could not be deemed to be in possession of petitioners within meaning of subparas. (c), (d) and (i) of para. 1 of Settlement Scheme No.IX

Such property having never been treated as evacuee property on or- before specified date could not be deemed to be available property under Settlement Scheme No.IX and could not be transferred.

In earlier round of litigation, Supreme Court had held that the house was indivisible and that it stood transferred to appellant

Settlement Authority subsequently resumed the house on ground that price was not paid

Official respondent found as a fact that appellant got aforesaid resumption order suspended by making mis-statement of fact in his application and that such property had become available for transfer under Settlement Scheme No.IX

High Court maintained finding of official respondent

Because of factual finding of fact that appellant had not paid price before resumption order was passed, appellant's contention that he having paid specific portion of price, property could not have been resumed, was devoid of any force

Material on'record indicated that appellant had not paid requisite 25% of the price before the date of resumption

In this view of matter, Mst. Majeeda Begum's case had no application to the facts of present case

Transfer of a portion of house was permissible under Settlement Scheme No. IX

Previous controversy whether house was divisible or indivisible was for the purpose of determining entitlement of parties to the transfer of house under Settlement Scheme No.l and not for the purpose of Settlement Scheme No.IX

Property being available for transfer, portion thereof, was rightly transferred to claimant respondent

Appellant however, could not make grievance of the fact that a portion of the house had been transferred to claimant respondent and not the entire house

Appeal was dismissed in circumstances.

Authority to decide dispute of evacuee nature of property, before enforcement of Act XIV of 1975, exclusively resided in Custodian under provisions of Act XII of 1957

Settlement and Rehabilitation Authorities were not entitled to determine such disputes

Civil Court to determine evacuee nature of property after repeal of Evacuee Laws and induction of Settlement Scheme No.IX

Mode for determining evacuee nature of property before promulgation of Ordinance XIV and thereafter, stated. A dispute of evacuee nature could be brought before Custodian in two ways, one was under section 41(ii) of the Act XII of 1957 by the Civil Court or any other authority where the question arose whether any property was or was not evacuee property, all the authorities were required to refer the question for determination of Custodian. Secondly section 22 of Act XII of 1957 laid down that wherein any person claiming any right or interest in any property treated by Custodian or Rehabilitation Authorities as an Evacuee Property, had a right to file the petition before the Custodian. The Act XII of 1957 barred any other authority including the Civil Court, Rehabilitation Authority or Settlement Authority from examining the question of Evacuee nature of the property. A Neither the Settlement Authorities nor the Rehabilitation Authorities have powers to adjudicate upon the dispute in respect of the question whether a property is an evacuee or not evacuee. This was the position of law before the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). The Act XIV of 1975 was enforced on 3-2-1975 from a retrospective date i.e. Ist of July 1974. From the said date all the Evacuee Laws including Act XII of 1957 were erased from the statute book. Para 2 of the Settlement Scheme No. IX provides that the Government may appoint such number of Administrators, Deputy Administrators and such other officers as may be necessary for the performance of functions assigned to them under the Scheme. Para.3 of the Scheme provided that the Member, Board of Revenue, may by notification issued from time to time in official Gazette invite application for the transfer of available properties in para.6, while para.5 provides for the scrutiny of such applications.

Record showing that case of reduction of price was still pending and service of notice prior to cancellation had not been effected in accordance with law

While application of transferee for reduction of price was under consideration property could be resumed for non-payment of price

Property not 'available' property and it still stood transferred

No other material was available before High Court to arrive at a contrary conclusion while dismissing writ of petitioner

Petition, held, was rightly dismissed.

Petitioners' application for its cancellation/transfer in their favour dismissed by Deputy Administrator (Residual Properties) and upheld in revision on grounds that property was not available and also for lack of jurisdiction

Administrator (R.P.) observing that allotment of factory against agricultural units being irregular action ought to be taken by Government against same

Supreme Court rejected petition observing that petitioners' remedy was to approach Board of Revenue

Allotment was quite irregular

High Court's order declining to interfere in writ jurisdiction, upheld

Leave to appeal refused.

Notification, dated 11-6-1974 issued by Chief Settlement Commissioner under Settlement Scheme No. IX and signed by Settlement Commissioner on behalf of Chief Settlement Commissioner, held, competently issued.

S. 2 (c)-Evacuee Property Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2) General Clauses Act (X of 1897), S. (J (b) -Government of Baluchistan Notification No. 362;12-6/71 (Rev), dated 17th January, 1972-Government of Baluchistan Notification No. 12-6/74 (Revenue), dated 18th November, 1974-Central Government Notification No. S. R. O. 646 (1)/71, dated 31st December, 1971 -Appointment of Member, Board of Revenue as Chief Settlement Commissioner not made by name, nor it was an appointment of the Member but appointment was made by designation of Member, Board of Revenue-Repeal of Displaced Persons (Land Settlement) Act, 1958, held, had not divested Chief Settlement Commissioner of power for purpose of Act -Member, Board of Revenue, therefore, could be assigned functions of Chief Settlement Commissioner by virtue of, inter alia, S. 30 (1-A), Displaced Persons (Land Settlement) Act, 1958.

Property in dispute previously transferred to petitioner by Authority as available property-, was subsequently cancelled from his name by Revisional Authority for disposal through auction

Petitioner otherwise entitled to get disputed property transferred to him under Settlement Scheme No.IX, held, could not be ousted from same for disposal through auction.

Transfer of evacuee house-Settlement authorities transferred house in favour of appellant who himself declined to accept that transfer due to his inability to pay transfer price

Settlement authorities consequently cancelled transfer from his name and transferred same to respondent

Right of appellant, held, was extinguished and he could not question legality of orders of Settlement Authorities

Form of appellant under Settlement Scheme No. IX subsequently filed was rightly rejected in circumstances.

Administrator, Residual Properties quite conscious of question of limitation while hearing revision and remanding case for fresh decision

Such disposal by Administrator, held, indicated that he impliedly condoned the delay in filing revision Limitation Delay

Revision (civil)].

Art. 185(3)-Settlement Scheme No. IX-Entitlement of respondent ordered to be considered under Settlement Scheme No. IX, property having been taken to be "available property" in her occupation-Supreme Court, having attended to all aspects and keeping technicalities of procedure apart, held, that claimant displaced person carrying on business in premises since long was being accommodated and technical view of matter may have at belated stage i.e., leave to appeal, deprived her of interest in property, refused leave to appeal.

Respondents small claim-holders having little allotment Petitioners, held, cannot be allowed to purchase excess allotment in preference to respondents-Excess allotment, however, can only be allotted to respondents in lieu of pending units-If some allotment left same shall be sold to petitioner in accordance with Settlement Scheme IX.

Art. 9-Settlement Scheme IX- Writ jurisdiction-Scope of factual inquiry in-Property transferred to S as single unit Petitioner vehemently stating, subsequently property cancelled and included in auction list-Petitioner also contending property consists of two shops-On application of S, however property deleted from list by Deputy Settlement Commissioner-Petitioner submitting in 1977 form for transfer of same property (in his occupation) under Settlement Scheme IX-Deputy Settlement Commissioner rejecting form on ground no formal orders of cancellation passed and property not available under Scheme-On remand Deputy Settlement Commissioner passing same order -Document (of cancellation) relied upon by petitioner neither certified nor attested even by counsel-Nothing on record to refute or belie finding that no formal order of cancellation passed by competent authority-Held, in circumstances, finding property not available for transfer under Scheme IX has to tae approved and whether property consists of two shops, question of fact and .cannot be gone into by High Court in writ jurisdiction.

Para. 19 read with Para. 1(e) "Competent authority"-Conflict existing between para. 19 and definition of "competent authority" in para. 1 (e)

Former must prevail-Competent authority, hence, held, Committee as provided in para. 19 and not Deputy Administrator, Residual Property- [Interpretation of statutes].

S. 10 and Settlement Schemes Nos. VIII & IX-Transfer of property-Report of Settlement Inspector and order of Deputy Settlement Commissioner showing that predecessor-in-interest of petitioner filed N. C. H. form for transfer of property in dispute- During pendency of form property, held, cannot be auctioned -Auction as such set aside and case remanded to Deputy Settlement Commissioner for disposal of form-Such order not challenged by auction-purchaser/respondent through appeal or revision Deputy Settlement Commissioner declining to transfer property on ground that no form was filed (despite his former order that form was filed and finding of appellate Court to this effect)-