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Writ Petition No. 446 of 1964, decided on 15th May 1968.

Sched., Para. 1, Settlement Scheme No. I and Central Government Notification No. F. 1‑(2)/59‑SI, dated 13‑10‑59‑Transfer of hoyse‑Auction sale‑Local in possession of house valued at less than Rs. 10,000.00 since 1949 submitting L. H. Form for transfer of same‑House auctioned without disposing of his claim properly‑Order of Assistant Settlement Commissioner rejecting L. H. Form without assigning any reason‑Held, claim of person in possession, in circumstances, not properly considered and treated to be still pending‑House, in circumstances, could not be auctioned‑Such person fulfilling conditions laid down in Notification No. F. 1‑(2)/59‑SI dated 13‑10‑59, even though not having allotment order‑Entitled to be considered for transfer of house.

Abdul Jabbar Khan and others v. Additional Settlement and Rehabilitation Commissioner, Hyderabad and another P L D 1964 Kar. 365; Altaf Hussain v. Shabir Hussain P L D 1962 Lah. 449 and Mst. Noor Jehan Begum v. Settlement and Rehabilitation Com missioner, Karachi and others P L D 1963 Kar. 709 rel.

, Sched., Para. 1 and Settlement Scheme No. I -Deposit of rent due‑Not condition precedent nor requirement for purpose of consideration of case under Settlement Scheme No. 1.

M. H. Siddiqui for Petitioner.

Wasim Hamid Rizvi and Abdul Sattar for Respondents.

Date of hearing: 15th May 1968.

The petitioner and the respondent No. 2 are locals and it is the admitted position that the petitioner is in occupation of an evacuee House No. II‑A/142 since 1949. The case of the petitioner is that he as a local applied for its transfer on the basis of L. H. Form dated 31st July 1959 in furtherance of Settlement Scheme No. 1 and that the L. H. Form was registered at No. 293. It is his case that the petitioner was waiting for the Appendix until he received notice dated 31st July 1961 from respondent No. 2, claiming rent of this house on the basis that respondent No. 2 was an auction‑purchaser of the disputed house for a sum of Rs. 2,500. The respondent No. 2 also filed a suit against the petitioner for his ejectment on 1.8‑1961. The petitioner moved an application before the Additional Settlement Commissioner who forwarded it to the Deputy Settlement Commissioner, the petitioner being informed on 29th September 1961, that his L. H. Form had been rejected by the Assistant Settlement Commissioner on 24‑8‑1959 for want of allotment and that the house had been auctioned. In 1960 an appeal was preferred to the Deputy Settlement Commissioner who rejected the appeal on 11‑1‑1962. This order was challenged by the petitioner before the Additional Settlement Commissioner who on 1‑3‑1962 heard the parties and allowed the petitioner's prayer holding further that the transfer of the house by auction in favour of respondent Abdul Khaliq be cancelled and that it should be transferred to the petitioner on the ground that the petitioner had filed his L. H. Form, that it was rejected by the Assistant Settlement Commissioner without assigning any reasons and since he had fulfilled all the conditions of Settlement Scheme No. 1 and was a local in occupation the house should not have been auctioned in favour of the respondent. In revision the learned Settlement and Rehabilitation Commissioner reversed the finding of the Additional Settlement Commissioner on the basis that the Additional Settlement Commissioner did not have the jurisdiction to sit in judgment over and set aside the orders of an officer of the same rank namely the Additional Settlement Commissioner who had accepted the bid of the respondent made at the auction for the purchase of the disputed property. The other reason was that the L. H. Form of the petitioner according to him was never signed or otherwise endorsed by him. The transfer, therefore, by auction in favour of the respondent was upheld, and this is what the petitioner in this petition is aggrieved with.

2. 'On the admitted facts as have emerged from the arguments of counsel on either side two points arise for determination (1) which of the parties was entitled to the allotment of the disputed house and, (2) whether the order of the learned Additional Settlement Commissioner dated 1.3‑1962 was passed without jurisdiction. The admitted facts as already stated are that the petitioner is a local, that in addition he was and has been in occupation since 1949 and that he was otherwise entitled to claim the transfer of the house on this basis since admittedly the value of the property was less than Rs. 10,000. The learned Additional Settlement Commissioner having no doubt examined the record came to a finding of fact that the petitioner's L. H. Form was on the record and the Assistant Settlement Commissioner bad rejected his L. H. Form without assigning any reasons. Learned counsel for the petitioner has stated that the petitioner had in addition an allotment order which has not been produced here but which is on the record of the civil suit filed by the respondent for the ejectment of the petitioner. Be that as it may, on the face of the record and on the admitted position the petitioner was entitled to the transfer of the property in dispute and since admittedly no reasons have been assigned for rejecting his L. H. Form and since there was no other claimant for this house he was entitled to the transfer thereof and in that position, therefore, his claim was due for consideration and had not been properly disposed of when the property was auctioned to respondent to June 1960. In this connection, learned counsel for the petitioner has rightly relied on Abdul Jabbar Khan and others v. Additional Settlement and Rehabilitation Commissioner, Hyderabaad and another (P L D 1964 Kar. 365) where Wahiduddin Ahmed, J. in considering the case of a person in possession claiming property held that the property cannot be disposed of by auction and that an order setting aside auction cannot be considered to be an order passed in review. The relevant observations are as follows:‑--

"In my opinion, if any property is auctioned at a time when the application of the persons claiming it are still pending, the auction cannot bind the rightful claimant. If, later on, on the application of such a person the auction is set aside it will not be considered to be an order passed in review jurisdiction. On the other hand, it will be considered to have been passed in the appellate or revisional jurisdiction as the case may be. It is needless to point out that the approval of an auction by Additional Settlement Commissioner is only in the nature of the administrative order."

The observations in paragraph 7 referring to Altaf Hussain v. Shabir Hussain (P L D .1962 Lah. 449) are also relevant for purposes of general consideration of the case and in the context of the decision propose to make and they are to the following effect.:

In those cases where the Settlement Authorities failed to dispose of the application for transfer of house and transferred the property in some other manner, such orders are liable to be quashed. I am in respectful agreement with these observations."

Learned counsel for the respondent has raised the question of the petitioner not having fulfilled one of the conditions namely that he‑had not paid rent as observed by the learned Additional Settlement Commissioner up to the year 1959 further stating that the rent was paid only after the petitioner had filed his revision before the learned Additional Settlement Commissioner and after the bill was issued to him on the 25th January 1962. It is by now established law that the deposit of rents due is not ale condition precedent nor a requirement for purpose of consideration of a case under Settlement Scheme No. 1.

For these reasons I hold that the case of the petitioner as a local claimant in possession was not properly considered that it was rejected by the Assistant Settlement Commissioner without assigning any reasons, let alone valid reasons and this strikes at the first reason for the learned Settlement Commissioner deciding against the petitioner.

3. The next point is with regard to jurisdiction of the learned Additional Settlement Commissioner. Learned counsel for the petitioner has relied on Mst. Noor Jehan Begum v. Settlement and' Rehabilitation Commissioner, Karachi and others (P L D 1963 Kar, 709) where a Full Bench of this Court has referred to the claim of a claimant in obtaining transfer of property and that such a claimant does not cease to be a claimant to be deprived of the advantage of the Act; prior possession has to be preferred. The following observations are relevant for the purpose:

"We are of the view that it would make no difference for the purposes of the nature of a house under the Schedule to the Act if he is in possession of the same either through an allotment order or be is in possession after fulfilling the conditions mentioned in the Notification dated the 13th October 1959. In this connection the definition of possession to the second proviso may be usefully reproduced. It runs as under:‑--

Possession means possession obtained in pursuance of an order passed on or before the 20th day of December 1958, by a Rehabilitation Authority or a Custodian or any, other officer authorised or permitted by the Central or Provincial Government:‑

Provided further that the Central Government may by order in writing direct that the class or classes of persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act.

It would appear from the above that a person who under the Notification dated the 13th October 1959 fulfills the conditions specified therein would be regarded to be in posses sion for the purposes of the Act. There would be no distinction between the possession of such a person and that of the person who has obtained possession in pursuance of an allotment order. The Schedule to the' Act which deals with the manner of disposal of urban evacuee property does not make any distinction in the possession of the person in pursuance of an allotment order and the person who fulfills the conditions of the Notification dated the 13th October 1959, already reproduced. As to which of the two persons, the one who has obtained possession in pursuance of an allotment order and the other who is deemed to be in possession by virtue of the Notification of the 13th‑October 1959, has a preferential claim to the allotment of the house in their possession would depend upon several factors as enumerated in the two providing to paragraphs 1, 2 and 3 of this Schedule."

Their Lordships went on to observe that there was thus no distinction between the possession of such a person and that of a person who has obtained possession in pursuance of an allotment order. In the instant case, even if the claimant did not have an allotment order being a local in possession his case was entitled to consideration and continues to be so. For these reasons the order of the learned Settlement Commissioner cannot possibly be upheld on the basis of claimant being in possession his case was entitled to consideration for a transfer, that his case was rejected if at all without assigning any reasons and since his claim will persist up to the end and the other necessary conditions were fulfilled the petitioner was entitled to the transfer of the house and the learned Additional Settle ment Commissioner rightly held it to be so. I therefore set aside the order of the learned Settlement Commissioner and in allowing, this petition: order that Evacuee. House No. II‑A‑142 be transferred to the petitioner. This petition is thus allowed with; costs.

Petition allowed.

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