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Civil Petition for Special Leave to Appeal No. 99 of 1965, decided on 3rd May 1965.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 14th of January 1 965, in Writ Petition‑No. 2504/R of 1963).

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958),

S. 10 (1) and Sched., paras. 1, 2 & 3‑Non claimant displaced person or a local cannot compete with a claimant whether such claimant himself or his parent, son, daughter or spouse is in possession of property.

Mst. Noor Jehan Begum v. Settlement Commissioner P L D 1963 Kar. 709 and Altaf Hussain v. Chief Settlement Commissioner P L D 1965 S C 68 distinguished.

Dr. Naseem Hassan Shah Senior Advocate Supreme Court (Khawaja Shaukat Ali Advocate with him) instructed by Ch. Khalil ur‑Rahman Attorney for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd May 1965.

The subject‑matter is the transfer of a house situated in Lahore under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as the Act.

2. The relevant facts are that at the commencement of the settlement operations under the Act house No. SWII‑395‑5, Lahore, was in the possession of three persons, namely, Ilam‑ud‑Din petitioner, Abdur Rahim, son of Mst. Zubeda Khatoon (respondent No. 5) and one Muhammad Shafi, who is not a party to these proceedings. Respondent No. 5 filed a C. H. form for the transfer of the whole house on the basis of the possession of her son, Abdur Rahim, while the petitioner filed an NCH form as an allottee in possession. The Deputy Settlement Commissioner, Lahore, who dealt with these forms, held that respondent No. 5, being a claimant, was alone entitled to the transfer of the house and by order, dated the 22nd of January 1960, rejected the peti tioner's NCH form. An appeal preferred by the petitioner from the order of the Deputy Settlement Commissioner was dismissed by the Additional Settlement Commissioner on the 4th of July 1960, with the observations: "Mst. Zubeda Khatoon is a claimant, whereas Ilam‑ud‑Din is a non‑claimant. Ilam‑ud‑Din is an allottee from 26th December 1957 and the date of his possession is 26th December 1956, whereas Mst. Zubeda Khatoon is .an indirect allottee from December 1951. Mst. Zubeda Khatoon, being a claimant‑allottee, has a preferential right over Ilam‑ud‑Din."

3. After the dismissal of his appeal, the petitioner filed two revision petitions and a review application to the higher Settlement Authorities, all of which were dismissed. The petitioner then moved the High Court of West Pakistan, Lahore, in the exercise of its jurisdiction under Article 98 of the Constitution on the ground that as an allottee in possession he had a preferential right to the transfer of the house as compared to respondent No. 5, who had based her claim on the possession of her son, Abdur Rahim. In support of the petition reliance was placed on the decision of a Full Bench of the High Court of West Pakistan (Karachi) in Mst. Noor Jehan Begum v. Settlement Commissioner (P L D 1963 Kar. 709), but the learned Judges did not consider it relevant as the contest ing parties in that case were claimants. The entitlement of Mst. Zubeda Khatoon (respondent No. ‑5) to the transfer of the house in dispute was accordingly upheld and writ petition dismissed on the 14th of January 1965.

4. By this petition leave is sought to appeal from the order of the High Court on the same ground which was canvassed in support of the writ petition. In support of it Dr. Nasim Hassan Shah relied on Altaf Hussain v. Chief Settlement Commissioner (P L D 1965 S C 68), in which it was held that under the first proviso to paragraph 1 of the Schedule to the Act Shabir Husain, respondent, being a claimant in possession of a portion of the house. had preference over Altaf Husain, who though .a claimant was not in possession and had applied for transfer of the house on the basis of the possession of his son. But this does not lead to the conclusion that if Shabir Husain was found to be a non‑claimant, even then he would have been preferred to Altaf Husain on the basis of his possession.

5. An analysis of the relevant provisions of the Act leaves no doubt that claimants have preference over non‑claimants and locals in the matter of transfer of houses and shops. As noticed in an earlier case, claimants, being primary beneficiaries under the Act, have a charge on the compensation pool constituted under section 4 of the Act, while non‑claimants and locals are covered by the secondary object, namely, "rehabilitation of others" and in their case section 6 or the Act provided for constitution of a rehabilitation pool consisting of contribution not exceeding ten crores of rupees by the Central Government for the purpose of rehabilitation of displaced persons other than claimants. There was no provision in the Schedule to the' Act for the transfer of houses and shops to them but subsequently the Act was amended and in the Schedule provision was made for transfer of houses and shops to non‑claimant displaced persons and for transfer of houses and shops to non‑claimant displaced persons and for transfer of houses to locals if their evaluation price did not exceed rupees ten thousand. In order of preference they were, however, placed before the claimants. at Nos. 2 and 3, respectively, with the result that if the latter fulfilled requirements of paragraph I of the Schedule, the non‑claimants and locals did not come into compe tition with them.

6. To overcome this argument Dr. Nasim Hassan Shah maintained that ‑a claimant, who himself is not in possession of a house but applies for transfer on the basis of the possession of one of the relatives named in the opening part of paragraph .1 of the Schedule, is not to be deemed to be in possession for the purposes of determining the entitlement of non‑claimant displaced persons and locals under paragraphs 2 and 3 of the Schedule to the Act. As observed by the learned Judges of the High Court, such an interpretation will nullify the effect of paragraph 1 of the Schedule. The correct approach to the interpretation of paragraphs I, 2 and 3 of the Schedule is that if a claimant is in possession of a house or his parent, son, daughter or spouse is in possession, the house will be transferred to the claimant subject to the qualifications set out in the two proviso to the paragraph viz , that if the house is in possession of more than one person and one of them is a claimant, then the house will be transferred to him. The person, who is not in possession in this context, is the claimant who has applied for transfer on the basis of the possession of the above mentioned relatives. The other qualification is that if there are more than one claimants in possession, then the house will be transferred for the claimant who is in prior possession. No other qualification on the right conferred on the claimants under paragraph 1 of the Schedule can, therefore, be legitimately placed by construing paragraphs 2 and 3 of the Schedule in the manner canvassed for by the learned counsel for the petitioner. In that view a non‑claimant displaced person and a local cannot compete A with a claimant whether he himself is in possession of the house or his parent, son, daughter or spouse is in possession.

7. The Settlement Authorities had, thus, acted in conformity with law in transferring the house in dispute to respondent No. 5, and the High Court rightly declined to interfere with their orders. The petition for special leave to appeal is dismissed.

S. Q. Petition dismissed.

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