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Writ Petition No. 126 of 1968, decided on 30th November 1971.

S. 2(6) & Sched., para. I read with Central Government Notification No. F. l., (27)/59‑SI, dated 13‑10‑59- H, in occupation of a room in building, using same for holding political meetings‑‑Police, on promulgation of Martial Law in 1958, sealing room and putting H under detention---Room meanwhile allotted to F on 8‑11‑58 by Deputy Rehabilitation Commissioner and F put into possession and later the room transferred to him under Settlement Scheme No. I‑Subsequently transfer in favour of F challenged and contention raised that H dispossessed without show‑cause notice in contravention of S. 7(2), Pakistan Rehabilita tion Act, 1956 and secondly that allotment in favour of F was without jurisdiction and could not form basis for concluding that F was in lawful possession‑Contention negatived.

A room in a building was in possession of one H. On the promulgation of Martial Law on 8‑10‑58 the room which was bring used for political activities was sealed and H was put under detention. On the same date the room was allotted by the Deputy Rehabilitation Commissioner to one F and he was put into possession. On the promulgation of the settlement Scheme No. 1, F applied for the transfer of the room on a C. S. Form and the, room was transferred to him. Later, on his release from detention, H filed an appeal again‑it allotment in favour of F The appeal and revision filed by H were dismissed, Thereafter H filed a writ petition in the High Court. Two‑fold contention was raised; firstly that since H was dispossessed without a show cause notice, in contravention of section 7(2)(b), Pakistan Rehabilitation Act, 1956, possession of F was based on an order which was a nullity in law and secondly the possession of F was not covered by the extended meaning of the term "possession" vide Central Government Notification No. F. I. (27)/59‑SI dated 13‑10‑59. Both the contentions were negatived and it was held that the possession of F was covered by the Notification; F had remained in occupation from 8‑11‑58 onwards and on crucial date viz. 20‑12‑58 his occupation was not under challenge in any Court. The subsequent challenge (after the period of expiry of appeal) by H did not therefore make the occupation of F disputed. Even if the plea was accepted that the order of the Rehabilitation authority was a nullity, still F was entitled to the benefit of the Notification dated 13‑10‑59 to support his entitlement for the transfer of the disputed room.

Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner P L D 1965 S C 356; Vali Muhammad v. Badrul Jalil, Rent Controller P L D 1956 Kar. 250; Badrul Jalil and others v. Vali Muhammad P L D 1956 S C (Pak.) 259; Muhammad Ishak v. Saeeduddin Swaleh P L D 1960 Kar. 48 and Ghulam Nizamuddin Sabri v. Khan Farzand Ali Khan P L D 1961 S C 19 ref.

Abdul Ghafoor v. Settlement Commissioner, Rawalpindi 1968 S C M R 1216 distinguished.

Khalid M. Ishaq for Appellants.

Ghiasuddin and Abdul Majeed Khan for Respondents.

Date of hearing: 29th November 1971.

The petitioner, late Hyder Bux Jatoi, now represented by his legal representatives petitioners Nos. 1 to 5, had prayed for the following reliefs in this petition :

"(1) That it be declared that sealing of the Central room on the ground floor (C. S. No. F/50‑1307, Gidu Road, Hyderabad), did not amount to cancellation of the allotment order dated 26‑11‑1951 in favour of the late petitioner, issued by the Collector and Deputy Rehabilitation Commissioner, Hyderabad.

(2) That it be declared that the allotment order dated 8‑11‑1958 issued by the Deputy Settlement Commissioner, Hyder abad, in respect of the above room in favour of Mr. F. M. Kureshi, respondent No. 2, is incompetent and void.

(3) That it be declared that the provisional transfer order dated 26‑11‑1959 issued by the Deputy Settlement Commis sioner, Hyderabad in favour of respondent No. 2 is incompetent and void.

(4) That it be declared that transfer order dated 12‑6‑1966 Issued by the Settlement Commissioner (Policy), Lahore in favour of respondent No. 2, is incompetent and void.

(5) That the room be transferred to the petitioners on the late petitioners' original L. H. Form submitted in 1959, or under Scheme No. VIII as a part of the residential premises transferred to them.

(5a) That it be declared that the order of the Additional Rehabilitation Commissioner dated 24‑4‑1959 is without lawful authority and is of no legal effect.

(5b) That it be declared that the order of the Deputy Settle ment Commissioner dated 29‑6‑1964 is without lawful authority and is of no legal effect

(5c) That it be declared that the order of the Deputy Settle ment Commissioner dated 1‑5‑1965 is without lawful authority and is of no legal effect.

(5f) That it be declared that the order of the Additional Settlement Commissioner dated 31‑5‑1965 is without lawful authority and of no legal effect.

(5g) That the respondents Rehabilitation and Settlement Authority be restrained from transferring the property in dis pute to respondent Mr. F. M. Kureshi.

(5h) That the respondent Mr. F. M. Kureshi be restrained from exercising rights of ownership and/or possession and/or interfering in the disputed property in any manner whatever.

(5i) That the respondent Rehabilitation and Settlement Authorities be directed to transfer the disputed property to the petitioners permanently."

2. The material facts which have given rise to this petition are that late Hyderbux Jatoi was in possession of the whole build ing bearing City Survey No. F/1306, 1307, situated on Gidu Road, Garikhata in the city of Hyderabad. It was known as R. B. Mohandas Building' and has two storeys. The dispute relates to the transfer of a room in this building to respondent No. 2. In 1950 this room was allotted to Faiz Muhammad Kazi while late Hyderbux Jatoi was in detention, but after his release from deten tion, he appealed to the Deputy Rehabilitation Commissioner, Hyderabad, who allowed it vide order dated 26th November 1951. On the promulgation of Martial Law on 8th October 1958, the C. I. D., on 11th October 1958 on their own initiative sealed this room, as it was considered that he held meetings of "Hari Haqdar Committee", which were of a political nature in the context that activities of political parties were banned. On 14th October 1958, late Hyder Bum Jatoi was arrested and detained under the preven tive Law and on 8th November 1958, this room was allotted to respondent No. 2 by the Additional Deputy Rehabilitation Com missioner on being moved in this behalf by an application for its allotment on the same date. Respondent No. 2 was put into possession of this room with police aid. Late Hyder Bux Jatoi on his release from detention tiled an appeal against this allotment which was rejected on 24th April 1959 by the Additional Rehabilitation Commissioner; Hyderabad, The revision was also dismis sed by the Rehabilitation Commissioner on 12th October 1959. Respondent No. 2 continued to remain in occupation of this room until the promulgation of Scheme No, 1 under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, there upon Hyderbux and his brother Ahmed Bum Jatoi submitted L. H. Forms for the portions of the building in their occupation.

How Ahmed Bux Jatoi same into possession of the portion of this building is not clear. Mr. Khalid M. Ishaq is also not certain about it. Respondent No. 2 on C. S. Form applied for the transfer of the room in his occupation treating it to be a shop. The Dy. Settlement Commissioner vide order dated 26th Novem ber 1959 rejected the L. H. Forms of late Hyder bum Jatoi and Ahmed Bux Jatoi and transferred the room to respondent No. 2. It may be mentioned here that other portions of this building which were not in the occupation of late Hyder Bum Jatoi were also transferred to other persons. Late Hyder Bux Jatoi filed a miscellaneous application before the Additional. Settlement Com missioner which was treated as an appeal who vide order dated 18th March 1960, held that this was a trust property and while setting aside the order of the Dy. Settlement Commissioner observed that it should not be disposed of until instructions are received from the Chief Settlement Commissioner. Thereafter, some miscellaneous application was filed by one of the transferees, named Muhammad Ibrahim, before the Dy. Settlement Commis sioner (Judicial) who, vide order dated 29th June 1964, held that the Additional Settlement Commissioner, while setting aside the order of the Dy. Settlement Commissioner, had not cancelled the transfer documents, and therefore they were not affected and accordingly maintained the transfer in favour of respondent No. 2 and the other transferees. At this stage the learned counsel for the Department stated that the Additional Settlement Commissioner (Judicial), did so as it was brought to his notice that the Settlement Officers had no jurisdiction to decide that status of the property which was available in the compensation pool for trans fer to the claimants upon the view taken by the Supreme Court in Devachand Muljlmal v. Deputy Settlement and Rehabilitation Commissioner (PLD 1965 S C 356). The portion of the order of the Dy. Settle ment Commissioner to which Mr. Khalid Ishaq has taken excep tion is reproduced as under :

"As regards the order of the learned Additional Settlement Commissioner, the true copy of which has bean filed by the representative of the Evacuee Trust Property Board it is clear that the learned additions Settlement Commissioner never cancelled the transfer document: issued tea the transferees. He only set aside the order of the then Deputy Settlement Commis sioner and directed the property should neat be transferred until he receives Instructions from the Chief Settlement and Reha bilitation Commissioner about the disposal of the Trust pro perties. He further directed Deputy Settlement Commissioner that if there is anything against this the Deputy Settlement Commissioner should write to him to review this order. It is clear from the order that the transfer documents issued to the transferees were never cancelled. They are intact, as it appears from the file that Deputy Settlement Commissioner never referred the case to the then Additional Settlement and Reha bilitation Commissioner for review his orders, Since Provisional Transfer Order was not cancelled by the then Additional Settlement Commissioner this case does not come within the perview to para. (i) of the Memorandum No. 1951‑Pol/h3 dated the 5th August 1963 as alleged by the Representative of the Trust Property Board."

According to Mr. Khalid Ishaq, this order was passed with out notice to late Hyder Bux Jatoi, but nothing will turn on this as Mr. Khalid Ishaq while arguing the case has only impugned the order of the Settlement Commissioner and also because late Hyder Bux Jatoi filed a misc. application before the Deputy Rehabilitation Commissioner complaining against the transfer of the room to respondent No. 2 but this application was also dismissed by him on Ist May 1965. As the order shows, a report was called from the Assistant Accounts Officer and according to it this room stood permanently transferred to respondent No. 2. It was because of the permanent transfer in favour of respondent No. 2 that the Dy. Settlement Commissioner refrained from inter fering with the transfer. Late Hyder Bux Jatoi appealed to the Additional Settlement Commissioner against this order which was also dismissed on 31st May 1965. 1t was urged before him that the Dy. Settlement Commissioner (Judicial) could not by his order dated 29th June 1964 annul the order dated 18th March 1960 passed by the Additional Settlement Commissioner and though. This contention was held to be correct, yet the Additional Settlement Commissioner took the view that the question whether the property was a trust property could only be decided by the Settlement Commissioner and that he could not decide that question as he had no jurisdiction to do so. Late Hyder Bux, Jatoi lastly submitted a revision before the Chief Settlement Commissioner, who vide order dated 13th March 1966 passed it can for disposal to the Settlement Commissioner (Policy) Lahore who vide order dated 12th June 1967 maintained the transfer in favour of respondent No. 2, but cancelled all the previous orderiR, Mr. KhaJid Ishaq has now stated before me that except for this room the entire portion for this transfer of which both he and Mr. Ahmed Bux Jatoi had applied on L. H. Forms stands transferred to him under Scheme No. VIII. That portion bear s Survey Nos. F/1307, 11/1307-A and F/50. Since Ahmed Bux Jatoi had died in 1962, therefore according to Mr. Khalid Ishad, the portion which was applied by him was also transferred to him. The learned counsel for the department, however, stated that it was on the application of late Hyder Bux Jatoi alone that the portions referred to above were transferred to him. This is. however, of no consequence, for that transfer is not impugned before me.

3. Mr. Khalid Ishaq, the learned counsel for the petitioner has confined his case to impugning only the order of the Settle ment Commissioner dated 16th June 1967. He has challenged the entitlement of respondent No. 2 qua his possession of the shop which was being used as his office for holding "Hari Haqdar Committee" meetings, though in the allotment order dated 8th November 1958, it is described as a house. In this con text, his objections are twofold, firstly, that his possession is based on the orders which are a nullity in law and secondly, that his case is not covered by the extended meaning of the term possession" vide notification dated 13th October 1959 issued by the Central Government under section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which reads :

"No. F. 1, (27)/59‑SI, 13th October 1959 (Gazette, Extra ordinary, 26th October 1959).‑‑‑In exercise of the powers con ferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non-claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the strop since before the twenty‑first day of December 1958, and no other person is otherwise entitled to the transfer of such house car shop in pursuance of a final order passed by a competent authority before that day:

Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such amount is adjusted against his claim."

4. He laid foundation for the first submission by inviting my attention to section 7 (2) (b) of the Pakistan Rehabilitation Act (XVII of 1956) and contended that late Hyder Bux Jatoi was dispossessed without any show‑cause notice having been issued to him, and therefore upon this premise, as was held in vali Muuhammad v. Badrul Jalil, Rent Controller (1) and this judgment later affirmed by the Supreme Court upon petition fr leave to appeal in BadruE Jahl and others v. fali I1luhnmmud (2), the subsequent allotment in favour of respondent No. 1. was without, juris diction and accordingly the orders of the Rehabilitation Authority could not form the basis for concluding that respondent No. 2 was in lawful possession of the disputed room. Mr. Khalid Ishaq also cited Muhammad Ishaq v. Saeeduddin Swaleh (3) and relied on the following observations at page 54 of report:-

"There is no provision in the Evacuee and Rehabilitation Laws authorising the cancellation of a subsisting allotment by i‑risking a new allotment. Moreover, an allottee cannot be ejected except when he fails tai observe the teams and conditions of the allotment made to him or he is found in the opinion of the Rehabilitation Authority to be an unsuitable person to hold the property allotted to him. Ii' during the subsistence of one allotment order another allotment order is issued then it is merely provisional and moist remain floating in the air to settle down in the place of the former allotment when the former allottee is ejected. Its concurrent existence would not invali date the former allotment order and therefore the former

(1) P L D 1956 Kar. 250 (2) P L D 1956 S C (Pat.) 259

(3) P L D 1960 Kar. 48

allottees need not have appealed against the second allotment order."

He next invited my attention to another judgment reported as Ghulam Nizamudin Sabri v, Khan Farzandali Khan (1) and

emphasised the following observations at page 23 of the report :‑

"After a careful perusal of the various provisions of the Rehabilitation Act, I am of the opinion that the Deputy Settlement Commissioner had no jurisdiction to allot the roofi. In dispute to respondent No. 3 without taking steps to eject him in accordance with the provisions of section 7 (2) (b) of the Act."

He concluded on the premise of the view taken in these judgments that notionally late Hyderbux Jatoi continued to remain in possession even after the property was sealed and its possession was transferred to respondent No. 2. In this context he invited my attention to the fact that after his release from detention late Hyder Bux Jatoi challenged the allotment

in favour of respondent No. 2 before the Additional Rehabilitation Commissioner and the Rehabilitation Commissioner by way of appeal and revision though he was not successful in getting the impugned allotment cancelled. Nevertheless these orders had no legal sanctity and therefore respondent No. 2 could not. claim to be in possession of the disputed room in terms of section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to entitle him to its transfer. Sec tion 2(6) of the Act reads :

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

Provided that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final

Provided further that the Central Government may, by

order in writing direct that a class or classes of such 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. '

He rested his case on the first part of the detinition and claimed that there was no valid order of allotment in favour of respondent No. 2 and therefore his possession could not be taken into consideration while determining his entitlement.

5. From the facts alleged in the petition, which are not

disputed by the respondents, it is clear that the room was

sealed. It is also undisputed that there was an allotment in

favour of respondent No. 2, though its legality is challenged,

and he was put into possession with police aid. If the

entitlement had to be decided merely on notional possession

(1) P L D 1961 S C 19

then the case of the late Hyderbux Jatoi would rest on a sound footing but this is not so. Under the second proviso to section 2 (6) of the Act, the Central Government issued notifi cation dated 13‑10‑1959 by which it recognised the possession of the occupant even without any order of a competent authority provided it was an undisputed occupation. Doubtless the possession of respondent No. 2 was covered under this notification. According to the case of late Hyderbux Jatoi the respondent No. 2 had remained in occupation from 8th November 1958 and onwards. On the crucial date viz., 20th December 1958, hi occupation was not under challenge in any Court though it could have been challenged within 15 days of the order under section 11 of Act XVII of 1956 and the rules framed thereunder. Therefore, even upon the plea that the orders of the Rehabilitation Authority were a nullity, still respondent No. 2 is entitled to the benefit of the notification dated 13th October 1959 to support his entitlement for the transfer of the disputed room.

6. The second contention is in the alternative and it is emphasised that respondent No. 2's undisputed occupation an other conditions are not established to enable him to take benefi of the notification dated 13th October 1959 and therefore it had no application to his case. This is not so, for all that has to be seen is the undisputed occupation on 20th December 1958, which cannot be denied. The subsequent challenge would not make it disputed though late Hyderbux Jatoi may have good reason for not preferring the appeal and the revision earlier against the allotment. The other requirements of the notification were not disputed and it is therefore not possible to conclude that they had not been complied with. Late Hyder Bux Jatoi while arguing his case before the Settlement Commissioner also did not dispute the occupation of responden No. 2, but rested his contention on section 29 of the Act XXVIII of 1958, as it stood before its amendment by Ordinance No. I of 1959. The Settlement Commissioner has set out the contention of late Hyder Bux Jatol in his order which reads as under:‑

"Apart from the arguments advanced by the learned Advocate of the petitioners, Mr. Hyder Bux Jatoi has himself pleaded his case at great length. His main contention is that even up to this date he and the other members of his family have been in continuous possession of the entire property with the exception of one room from which he was ejected during the Martial Law days. He has emphasised again and again in the course of his arguments as well as in the written arguments filed by him, that at the time of his ejectment on 8‑11‑1958 from the room in dispute the following provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 were in force ‑

'Section 29.‑(1) Notwithstanding anything contained in any other law for the time being in force, no order of ejectment passed on or after the seventeenth day of February 1958, by any authority in respect of any house or shop shall be given effect to, and where, fn pursuance of any such order, any person has been dispossessed of any such house or shop, he shall be deemed to be in possession thereof.

(2) Nothing in subsection (1) shall apply to an order of ejectment passed under this Act, or to any person (other than a claimant) dispossessed in pursuance or as a result of an order passed before the aforesaid date by the Rehabilitation Com missioner or by the Custodian.'

Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was subsequently amend with retrospective effect by Ordinance No. I of 1959 and there is no provision in the existing law to safeguard the possession of any person, who may have been ejected after 17‑2‑1958. Mr. Hyder Bux Jatoi, however, has again and again pleaded that the law as it stood on 8‑11‑1958 should apply in his case and he should be deemed to be still in possession of the room from which he was ejected. Consequently, Mr. F. M. Kureshi cannot be treated to be in possession of the room in dispute and has no right to its transfer against his C. H. form."

7. My conclusion, therefore, gains added strength from the factual aspect of the case and accordingly it cannot be disputed now that respondent No. 2 was riot in possession of the disputed room. At this stage Mr. Khalid Ishaq invited my attention to Abdul Ghafoor v. Settlement Commissioner, Rawalpindi (1) in which the Supreme Court while refusing leave held that the possession of the trespasser cannot be deemed to be a possession which can be recognised for the transfer of the house. This case is again distinguishable on facts because it is based on the second notification dated 11th August 1960 wherein the possession of the allottee who was out of possession was recognised in the context that proceedings for ejectment were being taken for the eviction of the trespasser. This is not the case here. No such proceedings were initiated for the ejectment of respondent No. 2 and as such no benefit can be derived from this judgment.

8. Upon the premise that respondent No. 2 was in occupation of the disputed room, there is a clear‑cut finding by the Deputy Settlement Commissioner in his order dated 26th November 1959, while rejecting the L. H. Form of late Hyderbux Jatoi that the disputed room was an independent portion and could be transferred as such. This is what he has said:‑

"Further I inspected the building and am convinced that the portion on the ground floor and the 1st floor above can be vertically separated from the rest of the building and trans ferred as such. The only claimant is Mr. F. M. Kureshi and it can be transferred to him as one house in preference over a local occupant."

The Settlement Commissioner also inspected the site and held as under in his order dated 12th June 1967:‑

"I have inspected the building in the presence of the parties

(1) 1968 S C M R 11286

on 25‑10‑1956 and arn salisied that the room allotted to Mr. F. M. Kureshi has an independent access and can be utilized separately although there will be some inconvenience to the other occupants of the building."

This conclusion of an independent house cannot also be impugned as in any case no person can claim for the transfer of more than one house. Additionally, in view of the order of the Settlement Commissioner that the portion of the building for the transfer of which L. H. Form was submitted was valued at Rs. 18,000.00, it could not also be transferred in terms of para. 3 of the Schedule to a local. In this context, it is doubtful whether late Hyder Bux Jatoi could have a focus standi to question the transfer of respondent No. 2. Mr. Khalid Ishaq was unable to dispute the valuation of the portion of the building particularly in the context of the finding of the Deputy Settlement Commissioner dated 26th November 1959 that it was late Hyder Bux Jatoi who was in possession of the other portion also, though his brother had applied on L. H. Form for its transfer. In the circumstances, I do not see any illegality, in the order of the Settlement Commissioner, particularly when substantial justice has been done to late Hyder Bux Jatoi for he has been transferred both the portions tinder Scheme No. VIII.

9. In the result, I do not see any substance in this petition, which is dismissed with no order as to costs.

K. B. A.

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