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Petition No. 1093‑R of 1962, decided on 17th June 1970.

Art. 98(2)(a) read with Dis placed Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Sched., paras. 4 and 6‑Aggrieved person‑Person neither in possession of disputed house before 20th December 1958, nor making proper application for its transfer‑Not an aggrieved person‑Such person has no locus standi to either agitate for transfer of such house or challenge manner of its transfer.

Qureshi Mahmood Ahmed for Petitioner.

Sardar Hidayat Ullah S. C. (Legal) for Respondents Nos. 1 and 2.

Mian Fazl‑e‑Mahmood for Respondent No. 3.

Date of hearing: 1st May 1970.

‑The facts which form the background of this petition may be summarised as follows. Hazrat Mirza Bashir‑ud‑Din Mahmood Ahmad, now represented by his legal representatives, and to be referred to as the petitioner for purposes of convenience, was a claimant displaced person, who migrated to Lahore on the establishment of Pakistan. In Lahore, he was allotted an evacuee Premises in 1947, known as Rattan Bagh situate at Thornton Road, Lahore. The same, however, was later acquired for the extension of the Mayo Hospital Lahore.

2. In 1959 on the commencement of the settlement; operations, the petitioner submitted an application on CH Form; for transfer for the property known as Jodhamal building, Lahore on the strength of the possession of his daughter and son‑in‑law. It is alleged that is the CH Form that was filed it was mentioned that the petitioner was also in possession of a property known as Khyber Lodge at Murree. (The copy of the said CH Form, however, has not been produced on the record). The property just mentioned, namely, Khyber Lodge, Cart Road, Murree, was allotted to the petitioner for the first time‑ in the year 1956. According to the terms of the allotment order, the allotment was for the summer season, namely, from the 1st of April to the 31st of October of the said year. According to the averments made in the Writ Petition, the petitioner continued to be allotted the same premises each year until 1962 and remained in continuous possession of the premises. It is further alleged that Jodhamal Building, Lahore was declared as a big mansion and was put to auction, in consequence the same could not be transferred to the petitioner, against his CH Form. Failing to obtain transfer of any house in Lahore, the petitioner submitted an application under para. 4 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the Act) to the Chief Settlement and Rehabilitation Commissioner, requesting for the transfer of Khyber Lodge, Cart Road Murree, in his favour. A copy of this application has been placed on the record by the Department. It is undated. However, from the copy of the letter sent to the petitioner by the Settlement Commissioner (Policy) acknowledging the receipt of his application and indicating the action taken by the Department on it (Annex. B), it would appear that the said application was submitted sometimes towards the end of 1961. The action that was taken on the said applica tion was that a report was called for from the Additional Settlement Commissioner, Rawalpindi, by the office of the Chief Settlement Commissioner. On receipt of the report of the Additional Settlement Commissioner, Rawalpindi, the petitioner's case was referred to the Ministry of Agriculturer and Works (Rehabilitation and Works Division) Govt. of Pakistan. According to the petitioner, he received information on 14‑6‑1962 to the effect that his application had been rejected and the Property in dispute had been placed in the auction list. The copy of the order rejecting the petitioner's application, however, has not been produced on the record, but an extract from the auction list pertaining to the auction of evacuee houses and shops at Murree scheduled to be held on 18‑6‑1962 including the present property, has been placed on the record.

3. The present constitutional petition was filed on 15‑6‑1962 to challenge the action of the respondents directing the disposal of the property through auction in support of this petition, the following contentions were raised in the Writ Petition

(a) That the premises known as Ratan Bagh having been acquired for public purpose the petitioner was entitled to an alternative accommodation in lieu of the said property,

(b) that the petitioner having applied for the transfer of the property at Murree under para. 4 of the Schedule to the Act it was obligatory on the part of the Settlement authorities to transfer the property applied for in favour of the petitioner,

(c) that although the evacuee property situated at Murree Hills has been acquired under section 3 of the Act, no Scheme has been framed for the disposal of these proper ties, therefore, the respondents are not competent to dispose of the property in dispute, with the result that the disposal of the property through auction is without jurisdiction,

(d) in the alternative if the Chief Settlement Commis sioner could dispose of the property under Settlement Scheme No. 1, it was incumbent upon him to call for applications from interested persons for the transfer of the property situated at Murree Hills. No notification calling for such applications has been issued and, therefore, respondent No. 1 has acted in excess of his jurisdiction in proceeding to dispose of the property without following the legal procedure,

(e) that the petitioner is in possession of the property in dispute since before the relevant date, namely the 20th December 1958 and in view of the provisions of the first proviso to para. 1 of the schedule to the Act the petitioner cannot be deprived of the property in his possession.

On the basis of these contentions, the following prayers were made :‑

(a) that the order of respondent No. 2 rejecting the application of the petitioner for transfer of the premises be declared to be against law and of no legal effect,

(b) respondent No. 1 be directed to refrain from putting the said property to auction,

(c) respondent No. 1 be further directed to transfer the said property in favour of the petitioner.

4. A report was called for from the Chief Settlement Commissioner on the allegations contained in the Writ Petition. The learned Chief Settlement Commissioner has submitted in his report that the petitioner was allotted the disputed premises on seasonal basis for the Season 19j6‑57. In the year 1958 it was allotted to the Divisional Forest Officer. In 1959, the house was again allotted to the petitioner on seasonal basis and the allotment was renewed during the year 1960‑61. According to the conditions of the seasonal allotment, the petitioner was required to surrender its possession to the Department. It is submitted in this connection that the petitioner was not in possession of the property in the year 1958 and his possession over the property being after the 20th of December 1958, and that too as a seasonal allottee, he was not entitled to its transfer. It is further submitted in the report that the petitioner might be entitled to an alternative accommodation in lieu of the house known as Ratan Bagh, Lahore which was acquired for public purposes but he cannot ask for the house in Murree on its basis. He can only ask for an alternative house in Lahore or in any other town in the same Division. In this connection attention is invited to the press‑note dated 16th March 1960 on the subject of alternate accommodation to persons in possession of property acquired for public purposes (printed in the Manual of Settlement Law & Procedure, 1960 Ed., page 123) and the clarification issued to the said press‑note on 4‑5‑1960 (printed at page 143 ibid). It is also submitted in this report that the petitioner did not file any form for the property in dispute, was not in possession of it before the target date (20th December 1958) and he cannot, therefore, object to its disposal by auction. With reference to the averment made in the writ petition that applications were not invited for the transfer of properties situate in Murree through any Notification it is submitted that the Gazette Notification issued inviting applications for transfer of houses in other areas applied also to Murree. It is added that some of the applicants who submitted their forms within time were given provisional transfer orders in the normal course.

5. Before us only two contentions were pressed by Mr. Mahmood Ahmad Qureshi, learned Advocate for the petitioner. In the first place, it is submitted that the petitioner's application submitted to the Chief Settlement Commissioner for transfer of the house at Murree has not been disposed of in accordance with law and, therefore, the property cannot be disposed of through auction without the disposal of the aforementioned application for transfer. In the second place it is submitted that no Notification inviting applications for transfer of the properties in Murree was ever issued and therefore the transfer of the property through auction is against law. In this connection, it is explained that the Schedule to the Act has laid down the order and the manner in which urban evacuee property must be disposed of. According to it the first preference is to be given to a claimant in possession, the next preference is assigned to non‑claimants in possession, then to locals, in case the value of the house in their possession is less than Rs. 10, 000. If the house is not liable to be transferred under the said three paragraphs of the Schedule, it must be disposed of through earmarking, in accordance with the terms of para. 4 to the Schedule. Only if the house cannot be disposed of under paras. Nos. 1, 2, 3 and 4, it can be put to auction under para. 6. It is, therefore, urged that the property in question could not be put to auction straightaway without complying with the above‑mentioned statutory procedure.

6. As regards the first submission, namely, that without disposal of the petitioner's application for transfer the property could not be put to auction, we note that the petitioner submitted his application to the Chief Settlement Commis sioner, although according to paragraph 6 of Settlement Scheme No. 1 an application for transfer must be submitted to the Deputy Settlement Commissioner of the area in which the house or shop applied for is situated. Consequently the application was not submitted to the proper authority. In fact after 13‑1‑1962 (consequent upon the promulgation of Ordinance II of 1962) no order of transfer could be passed by the Chief Settlement Commissioner because under the Scheme it is only the D. S. C. concerned who can pass an order of transfer and although a higher Settlement authority may withdraw a case pending before the Deputy Settlement Commissioner and pass any order in relation to it. However, after the 13th of January 1962 the Chief Settlement Commis sioner having been denuded of the jurisdiction to revise orders passed by any subordinate Settlement authority, could not himself have passed or directed any subordinate authority to pass any orders of transfer on the said application. Moreover, the application submitted by him was under Para. 4 of the Schedule, but as explained in the departmental report the property being situate in Murree could not be transferred to him in lieu of the house in his possession at Lahore.

7. We may here dispose of the contention raised by the learned counsel for the petitioner to the effect that a regular application for transfer of property was not submitted as there was no notification issued by the Chief Settlement Commissioner inviting applications for the transfer of property situate in Murree. In this connection counsel pointed out that the first Notification by the Central Government asking the Government of West Pakistan to acquire, for purposes of the said Act, all immovable evacuee property situated within the Province of West Pakistan was issued on the 21st August 1959, and this Notification exempted property situated within the limits of the Murree Municipal Committee and the Murree Cantonment Board. It is admitted that the properties situated within the limits of Murree Municipal Committee and Murree Cantonment Board were also acquired by the subsequent Notification, dated 24th November 1959 published in the West Pakistan Gazette of 4th December 1959, but it is urged that it was necessary to issue a Notification inviting applications for the transfer of property in Murree, after issuance of the Acquisition Notification dated 24th November 1959. In this connection, reliance is placed on the terms of para. 2 of Settlement Scheme No. 1 which reads as follows :‑‑

"The Chief Settlement Commissioner shall from time to time by Notification in the official Gazette, invite applications for the transfer of property under the Scheme from such persons as may be specified in the Notification."

Counsel has emphasised the words "from time to time" and submitted that the significance of these words is that if some property was not initially acquired and was subsequently acquired by another Notification, a fresh Notification was to be issued inviting applications for transfer of such properties, thus notifications to this end were to be issued from time to time.

8. We find no force in this contention. The notification for the transfer of houses and shops in the possession of claimants, non‑claimants displaced persons and locals was issued on the 19th of May 1959 even before the issuance of the Notification of acquisition under section 3 of the Act of 21st August 1959. The relevant portion of the said Notification is as follows :‑

"No. 5596‑Comp‑Reh/59.‑In exercise of the powers conferred upon me by paragraph No. 2 of Settlement Scheme No. 1 for the transfer of houses and shops to claimants, no claimant displaced persons and locals prepared under section 16 (1) (b) and (c) of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, as amended by Ordinance No. 1 of 1959, I, Syed Hashim Raza, Chief Settlement Commissioner, Pakistan, invite with immediate effect applications for the transfer of houses and shops in the possession of claimants as follows :‑

(1) A claimant who is in possession of a house which he is entitled to retain under paragraph 1 of the Schedule to the aforesaid Act or a shop under paragraph 8 of that Schedule, may, if he desires to retain it, submit his application in Form CH or Form CS, as the case may be, as prescribed in Appendix I and Appendix II respectively to Settlement Scheme No. 1.

(2) Applications shall be submitted in duplicate to the Deputy Settlement Commissioner of the area in which the house or shop applied for is situated."

Thus it is apparent that the above Notification was a general invitation to interested persons who could apply for transfer of properties if they were eligible for its transfer. No doubt in the face of the exemptions contained in the first Notification of 21 August 1959, no application with respect to property situated in Murree could be submitted, but as soon as the subsequent Notification of 24th November 1959, was issued it became possible for persons interested in transfer of property situated in Murree to submit applications for transfer of house etc. in their possession. We do not think that it was necessary that a fresh notification should have been issued each time any property not taken into the compensation pool was brought into it. Moreover, we note that no invitation was issued by the Chief Settlement Commissioner after the promulgation of the Notification of acquisition dated 21st August 1959. Our attention was drawn to the Notification No. 6566. P. Reh./59 dated 28th October 1959, inviting applications for transfer of houses and shops by the 10th day of November 1959 (printed at page 73 of the Manual of Settlement 1960 Ed.). This Notification, according to its own terms was issued to enable persons who are entitled to transfer of houses or shops under the Government of Pakistan, Ministry of Rehabilitation Order No. F. 1(27)159 S. I. dated 13th October 1959 (this Notification enabled non‑allottees, but persons in undisputed possession of the property to claim transfer of houses on the basis of their undisputed possession). Furthermore, if a formal invitation was indeed necessary after the issuance of the Notification of 24th November 1959, the press‑note dated the 12th July 1960 on the subject of entertainment of belated applications (printed at page 157 of the Manual of Settlement 1960 Ed. can be construed as a formal invitation to that effect wherein it is stated:

"The Chief Settlement Commissioner has decided that the entertainment of belated applications for transfer of houses and shops should be totally stopped by 15th July 1960. No application Forms CH, NCH etc. will be entertained after that date . . . ."

Thus the petitioner had three days within which to put in an application for the transfer of the property at Murree.

9. The most important factor, however, which militates against the contention of the petitioner is that he was not in possession of the house in dispute before the target date, namely, the 20th of December 1958. It has been stated in the report, and not refuted by the petitioner, that the petitioner was not allotted the house for the 1958 season, and that the house in that season, stood allotted td some other person. Hence he was not in possession of it during any part of the year 1958. In these circumstances, the petitioner not being in possession of the house on the relevant date, had no locus standi to agitate' for the transfer of the property. He cannot therefore be deemed to be an aggrieved person and entitled to challenge the transfer of the property through auction.

10. The observations just made, disentitle the counsel for the petitioner to raise the contention, which he attempted to argue before us, that order prescribed in the schedule regarding the nature in which properties falling in the compensation pool are to be transferred has been violated in this case. If the petitioner was indeed in possession of the property and had applied for its transfer, but the property was ordered to be t disposed of by auction, the objection raised by the petitioner that this procedure violated the rights given to him under the Schedule to the Act, would have had some weight. In the event the petitioner himself is not entitled to the transfer of the property and has no vested right to claim its transfer. We con sider that in these circumstances he has no locus standi to object to the transfer of the property through auction. As already held by us, the petitioner neither put in a regular application for the transfer of this house nor is he entitled to its transfer. We, therefore, find no weight in the second contention urged on his behalf.

11. The overall conclusion of this discussion is that this petition must fail and is accordingly dismissed. The parties, however, are left to bear their own costs.

A. E.

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