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Civil Petition for Special Leave to Appeal No. 218 of 1973, decided on 11th October 1973.

(On appeal from the judgment and order of the Lahore High Court, dated the 20th of March 1973, in Letters Patent Appeal No. 179 of 1966).

‑‑S. 2 (b) read with Notification No. F. 3 (3)/60‑Si, dated 11‑8‑60 Notification applicable only to respect of houses and shops and not of industrial concerns‑Persons claiming property to be industrial concern‑Cannot claim benefit of Notification.

Mian Nusrat Ullah, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

Sh. Mazharul Haq, Advocate Supreme Court instructed by Raja Abdul Razzaque, Advocate‑on‑Record for Respondents. Nos. 2 to 8.

Nemo for Respondent No. 1.

Date of hearing: 11th October 1913.

The petitioner has been aggrieved by the order of a Division Bench of the Lahore High Court allowing the Letters Patent Appeal of respondents Nos. 2 to 8, and setting aside the order of a learned Single Judge of the Court passed in Writ Petition No. 386 of 1,962.

It appears that the property in question was a utensil‑making factory and it had been allotted to the petitioners on the 27th of December, 1952. The Settlement authorities started ejectment proceeding against respondents Nos. 2 to 8, who are displaced persons, and some others on the ground that they were in unauthorised occupation of the property. The Additional Rehabilitation Commissioner directed ejectment only after some suitable alternative accommodation had been provided to the persons ejected. Until the commencement of the settlement operations, however, the said respondents succeeded in preventing their ejectment.

When the settlement operations began the said respondents put in C. H. forms for the transfer of the property on the assumption that it was a house, while the petitioners applied for transfer as an industrial concern' on the basis of their allotment letter dated the 27th December, 1952. By his order dated the 1st of April 1.961, the Addl. Settlement Commissioner transferred the property in question as a factory to the petitioners.

Respondents Nos. 2 to 8 although unsuccessful before the Settlement Commissioner in their appeal from the said order of the Additional Settle ment Commissioner, succeeded in their revision before the Settlement Commissioner. The Settlement Commissioner held that admittedly there was no machinery whatsoever in the property and that it was being used exclusively for residential purposes, and the respondents had built several rooms to meet their needs. The Settlement Commissioner accordingly accepted the revision of the respondents and directed that they should remain in possession of the property in dispute. Upon a review application by the said respondents, the Settlement Commissioner acting as Chief Settlement Commissioner added that the property in dispute be transferred to the said respondents.

The petitioner succeeded in their writ petition before the High Court. The learned Single Judge held that Notification No. F 3 (3)/60‑SI, dated the 11th of August 19615, applied to the petitioners and as such they must be deemed to be in possession of the property for the purposes of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and being claimants were entitled to the transfer of the property. On their Letters Patent Appeal the said respondents, however, again succeeded and the order of transfer dated the 23rd of December, 1961, passed by the Ch. Sultan Muhammad, Settlement Commissioner, in favour of the respondents was restored.

The learned Judges of the Division Bench have rightly held that the Notification dated the 11th of August 1960, applied only to transfer of houses and shops to allottees in possession and not to industrial concerns. In the present case the petitioners admitted that the property was an, industrial concern, and was allotted to them as such. They could obtain a writ only on the grounds mentioned in their petition. The Notification is as follows :‑

"No. F. 3 (3)/60‑S I.‑In exercise of the powers conferred by the second proviso to clause (b) of section 2 of the Displaced Persons (Comp. & Rehb.) Act, 1958 (XXVIII of 1958) the Central Govt. is pleased to order that the allottees of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation Authority and who, though no fault or negligence of their own, have so far been unable to obtain physical possession of the house or the shop in question shall be deemed to be in possession thereof for the purpose of the said Act."

It appears that petitioner Feroze Khan had already been transferred a house, and, therefore, even if the property was a house it could not be transferred to him.

In the present case the respondents have been found to be in actual possession before the 20th of December 1958, and, therefore, they alone were entitled under the law to apply for transfer.

This is not a fit case for interference. The petition is dismissed.

Petition dismissed.

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