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Civil Petitions for Special Leave to Appeal Nos. 352 and 353 of 1973, decided on 5th April 1974.
(On appeal from the judgment and order dated 28‑5‑1973 passed by the Lahore High Court, Lahore in L. P. A. No. 794 (of 1966 and 228 of 1971, respectively).
--------Sched., para. 160‑Property partly evacuee and partly non -evacuee‑One‑third portion owned by a local M and two‑thirds by evacuee and in occupation of displaced persons‑M, held, could claim transfer of remaining two‑thirds only, if in possession thereof, and not otherwise.
Gul Muhammad Khan, Bar‑at‑Law, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate‑on‑Record for Petitioner (in both the Petitions).
Saeedur Rahman Farrukh, Advocate Supreme Court instructed by Sh. Salahuddin, Advocate‑on‑Record for Respondents Nos. 3 to 6 (in Civil Petition No. 352 of 1973).
Nemo for Respondents (in Civil Petition No. 353 of 1973).
Date of hearing : 5th April 1974.
.‑‑The petitioner owns 1/3rd share in the properties bearing No. P‑173 and P‑175 Ward No. 6, in the City of Lyallpur. The remaining 2/3rd share in both the properties is admittedly evacuee and is in occupation of displaced persons. The Settlement Commissioner has directed that the petitioner's 1/3rd share be separated by partition. The petitioner felt aggrieved and filed two writ petitions in the High Court for quashment of the orders of the Settlement Commissioner on the ground that he was entitled to the transfer of both the buildings under para. 16(c) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act. The paragraph is to the effect :‑---
"Where a property is indivisible and is owned partly by a displaced person or a local the Chief Settlement Commissioner may transfer the property to such person if his share in the property exceeds such limit as may be specified by the Central Government."
By the notification issued on the 3rd November 1959, it was prescribed that the share of a displaced person or local shall not be less than 1/3rd to entitle him to the transfer of the property under paragraph 16(c).
Both the petitions were dismissed by a learned single Judge in limine. In the Letters Patent Appeal filed by the petitioner arising from one of the writ petitions a Division Bench of the High Court rejected the claim of the petitioner on the short ground that under paragraph 16(c) a property which was partly evacuee and partly non‑evacuee could be transferred under paragraph 16(c) only to such persons who were in possession. Reference was made to paragraph 2 of the Schedule which makes it clear that it is only the persons in possession of houses or shops who were made eligible to submit Forms CH, CS and NCH etc., for their transfer. As the petitioner was not in possession of either of the two buildings nor had he submitted any such Form his claim under par'agripb''16(c) was not tenable.
The petitioner seeks leave to appeal reiterating the 'same ground which did not find favour with the High Court. His learned counsel was however unable to meet the reasons given by the learned Judges, rejecting the writ petitions that the petitioner had neither applied for transfer of the two buildings nor was he in possession of either of them, and as such he was not entitled to the transfer of the evacuee portion of the two buildings to him.
We agree with the learned Judges that under the Schedule of the Dis placed Persons (Compensation and Rehabilitation) Act houses and shops were to be transferred only to those persons who were in possession thereof or whose spouse, son or daughter was in, possession. There is thus little substance in both the petitions except to observe that in effecting partition of the two buildings, the claim of the petitioner to receive 1/3rd share in the frontage may be kept in view. In case he is not given any share in the frontage of the two buildings he may be compensated by allocation of a larger share in the back portion. The manner in which the partition will be effected nevertheless will be the exclusive discretion of the Settlement authorities.
With the observations made above the petitions are dismissed.
Leave refused.
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