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Writ Petition No. 3008‑R of 1963, decided on 18th September 1968.
-----Sched., Para. 9‑Two shops transferred to non -claimant displaced person‑Settlement authorities should give due weight to choice of non‑claimant displaced person before cancelling transfer of one of the two shops.
A non‑claimant displaced person had been transferred a shop. He had put in N. C. S. Form for another shop also which was in his possession. The second shop was also transferred to him. He had, however, entered into a deed of association with respondents surrendering thereby all his rights in respect of the second shop and as a result P. T. O. had been issued in the name of respondents in respect of that shop.
On a complaint that petitioner had been transferred two shops, the first shop transferred to him was cancelled by the Settle ment Commissioner in suo motu revision and the transfer of second shop was maintained. The petitioner challenged this decision of Settlement Commissioner on the plea that he had a choice to retain the shop which he wanted and as such the first shop, which was validly transferred to him, should not have been cancelled from his name. The High Court was of the opinion that the Settle ment Commissioner should have given due weight to the choice of the petitioner and cancelled the transfer of that shop which he might have himself surrendered:
Held, that paragraph 9 contemplates that there may be cases of transfer of two shops to a non‑claimant displaced person. It is in this context that a choice has been given to a non‑claimant displaced person and a prohibition has been issued that he will not be transferred more than one shop. In these circumstances, the learned Settlement Commissioner should have given due weight to the choice of the petitioner and cancelled the transfer of that shop which he might have himself surrendered. The Settlement Commissioner was influenced by the fact that in respect of the second shop the petitioner had got respondents associated with him and, therefore, be did not want their claim to be disturbed and has maintained the transfer of the shop in his favour. In doing so, however, he ignored that he was not only acting against the principle laid down in paragraph 9 of the Schedule but also dis regarding that in case the transfer of this shop was cancelled, respondents would be able to recover back whatever they had paid for the transfer of the said shop either to the Department or to the petitioner.
S. Ali Raza for Petitioner.
Ch. Khurshid Ahmad for Respondents Nos. 2 and 3.
Date of hearing: 18th September 1968.
In this writ petition the dispute between the parties is in respect of Shop No. 141, Main Bazar, Shahdara. It was transferred to the petitioner by the Deputy Settlement Commis sioner concerned on the 26th of February 1960, followed by the Issue of the P. T. O. on the 15th of April 1960.
2. It appears that the petitioner had also put in an NCS form in respect of Shop No. 104, Shahdara and on the 24th of November 1960, a direction was issued that it may be transferred to him after the rent clearance certificate was produced. The petitioner, on the 18th of December 1961, entered into a deed of association with respondents Mst. Sarwar Begum and Mst. Akhtar Sultana and surrendered all his rights in respect of this shop in favour of the aforementioned associates. As a result, an amended P. T. O. was issued in the names of Mst. Sarwar Begum and Mst. Akhtar Sultana in respect of the said shop.
3. It seems that on the 15th of February 1963, one Mst. Afzal Begum moved an application to the Chief Settlement and Rehabilitation Commissioner that petitioner Asghar Ali bad been transferred two shops, that he had obtained these shops by fraud and that the transfer of Shop No. 141 in his name may be cancelled. Consequent upon this move, a report was called by the Chief Settlement Commissioner. Both the Deputy Settlement Commissioner and the Settlement Commis sioner submitted a detailed report and the matter was entrusted by the Chief Settlement Commissioner to the Settlement Commissioner for suo motu revision. Acting as such, the Settlement Commissioner, after hearing the parties, set aside the transfer of Shop No. 141 in favour of the petitioner and main tained the transfer in his name of Shop No. 104, vide the order dated the 23rd of November 1963. In this connection, the learned Officer observed as under:‑
"From the facts noted above, it will be seen that no judicial order regarding the transfer of Shop No. 141 has been passed in favour of the respondent, Asghar Ali, that he obtained the transfer order, in respect of Shop No. 104, of which he was actually in possession, as mentioned in his N.C.S. Form and has deliberately executed a deed of association, that consequently Mst. Sarwar Sultana and Akhtar Sultana have acquired rights and entitlement in respect of this property. I am, therefore, of the view that it is not possible to cancel the transfer order passed in his favour in respect of Shop No. 104. I, therefore, cancel the P. T. O. issued to the respondent Asghar Ali in respect of Shop No. 130‑R‑141 Main Bazar Shahdara, Lahore, and uphold the original transfer order of Shop No. 104, dated the 24th November 1961, passed by the Deputy Settlement Commissioner, in his favour. This revision petition is decided as above."
It is this order which is being challenged by means of the present writ petition.
4. In support of the petition, Syed Ali Raza, learned counsel for the petitioner, has urged the following points :‑
(1) That the learned Settlement Authorities have wrongly observed that there was no judicial order for the transfer of Shop No. 141 in favour of the petitioner and that the transfer of this Shop being a valid one it could not be cancelled later on.
(2) That under Paragraph 9 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a non‑claimant displaced person has a choice to retain the shop which he wants to be transferred and that as the first shop was validly transferred, it should not have been cancelled from the name of the petitioner.
There is no doubt that the learned Settlement Commissioner was wrongly influenced by the fact that there was no judicial order to respect of the transfer of Shop No. 141 Mr. Ali Raza, learned counsel for the petitioner, has referred me to the order dated the 26th of February 1960, of the Deputy Settlement Commissioner by which Shop No. 141 Main Bazar, Shahdara, was transferred to the petitioner (Annexure 'E' at page 29). The short question, therefore, for consideration in this case is whether the Settlement Commissioner was justified in cancelling the transfer of Shop No. 141 and maintaining the transfer of Shop No. 104 in favour of the petitioner. In my view the order of the learned Settlement Commissioner cannot be said to be a just and reasonable one because, on the facts of the present case, it is quite clear that so far as the transfer of the first shop is concerned, namely Shop No. 141, it was absolutely a valid transfer. The fraud, if any, was played in respect of the second shop, namely, Shop No. 104, and both in law and equity the transfer of the second shop should have been cancelled. It seems to me that the learned Settlement Commissioner was influenced by the fact that in respect of Shop No. 104 the petitioner had got respondents Nos. 2 and 3 associated with him and, therefore, he did not want their claim to be disturbed and has maintained the transfer of the shop in his favour. In doing so, however, he ignored that he was not only acting against the principle laid down in Paragraph 9 of the Schedule but also disregarding that in case the transfer of this shop was cancelled, respondents Nos. 2 and 3 would be able to recover back whatever they had paid for the transfer of the said shop either to the Department or to the petitioner.
5. The contention of Mr. Ali Raza, learned counsel for the petitioner, that Paragraph 9 of the Schedule gives a choice to a non‑claimant displaced person to retain any shop he likes is supported by the contents of the said Paragraph which reads as under:‑
"9. A shop in possession of a non‑claimant displaced person and which the non‑claimant desires to retain, shall b. transferred to him on payment of the prevailing market valueL
Provided that no more than one shop shall be transferred to any one non‑claimant under this paragraph:
Provided further that if there is more than one applicant for the transfer of the same shop, the shop shall be transferred to the non‑claimant who obtained prior possession."
It will be noticed that this paragraph contemplates that there may be cases of transfer of two shops to a non‑claimant displaced person. It is in this context that a choice has been given to a non‑claimant displaced person and a prohibition has been issued that he will not be transferred more than one shop. In these circumstances, the learned Settlement Commissioner should have given due weight to the choice of the petitioner and cancelled the transfer of that shop which he might have himself surrendered.
6. In reply, Ch. Khurshid Ahmad, learned counsel for respondents Nos. 2 and 3 has urged the following points‑:
(1) In case a non‑claimant displaced person has applied for two shops, he had to exercise the option under Paragraph 9 at the time of the transfer of the first shop and is bound under the law to disclose to the Department about the second shop and to surrender his NCS form with regard to that shop. In case he fails to do so and obtains the transfer of a second shop, then the transfer of the first shop will be by suppression of facts and fraud.
(2) That by his own conduct the petitioner has created a valuable and vested right in favour of respondents Nos. 2 and 3 and now he cannot turn round and say that he does not want the transfer of the second shop.
(3) That when an equitable and just order has been passed, a writ petition is not maintainable.
(4) That the petitioner cannot take advantage of his own fraud.
7. These arguments have received my anxious consideration. It was brought to my notice by Mr. Ali Raza, learned counsel for the petitioner, that Mst. Afzal Begum is the real sister of the contesting respondents and that the present is one of those cases to which respondents Nos. 2 and 3 after taking advantage through the wrong action of the petitioner has stabbed him in his back. In this behalf, Ch. Khurshid Ahmad has pleaded no instructions and is not in a position to deny this allegation, as, according to him, no such point was raised in the writ petition. Whatever array be the position, the fact remains that so far as the transfer of the first shop is concerned the learned Settlement Authorities have committed two errors in considering this case. Firstly, they were under the mistaken belief that there was no valid transfer order in respect of Shop No. 141 in favour of the petitioner, and, secondly, they have been under the impression that this shop was in possession of the father of the petitioner and that it was the father who was entitled to its transfer and not the petitioner. In this connection, they failed to consider that Piran Ditta, the father of the petitioner, had died in 1953 and since then the petitioner had been in possession of Shop No. 141; and, therefore, he was the only person who could ask for its transfer, as he ultimately did as far back as the year 1960. On these facts it is quite clear that the transfer of this shop on the 26th of February 1960, in favour of the petitioner was perfectly valid one. If the case of the petitioner is considered in this light in respect of Shop No. 104, it would be further clear that it was, the transfer of Shop No. 104 that was obtained by fraud. Both in law and equity, the penalty, if any, should have been imposed in respect of that shop rather than in respect of Shop No. 141. I would, therefore, set aside the impugned order and direct that the transfer in favour of the petitioner of Shop No. 141, will remain intact and that of Shop No. 104 is set aside. The petitioner is directed to pay back all the advantages that he may have derived under the deed of association, if any. The Department is also directed to reimburse respondents Nos. 2 and 3 in respect of the amount of compensation book which may have been deducted towards the price of the said shop from: them.
8. In the result, subject to the remarks made above, the petition is allowed, with no orders as to costs.
A. E. Petition allowed.
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