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Civil Appeal No. 26 of 1977, decided on 21st June, 1980.

(On appeal from the Judgment and Order dated 17-9-1973 of the Lahore High Court, Lahore. in Writ Petition No. 390-R of 1971).

-- S. 16(b) read with Settlement Scheme No. VI-Settlement scheme Purpose-Settlement Scheme No. VI, held, prepared expressly for temporary rehabilitation of persons displaced from parts of State of Jammu & Kashmir under occupation of India and residing in Pakistan in terms of S. 16(b) of Act.

--Para. 6-Transfer to Jammu & Kashmir refugees in lieu of claim Transfer of property in dispute in favour of appellant's predecessor, admittedly made in satisfaction of his claim-Such transfer, held, did not affect proprietary rights of Central Government- Appellant, held can have no grievance if transfer in favour of his predecessor cancelled and property resumed by Central Government particularly when his predecessor left country and not heard of.

----Para. 6(d)(iv)-Settlement Scheme though recognizes transfer of his rights in property by transferee to any person, yet it also provides such transfer not to affect proprietary rights of Central Government vested in such property.

A. R. Sheikh, Senior Advocate Supreme Court for Appellant.

Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 5.

Date of hearing : 21st June, 1980.

-This appeal is directed against the judgment of the Lahore High Court dated 19-9-1973 dismissing the petitioner's Constitutional petition in which the resumption of evacuee property No. M/31-A/4, situate on the Mall, Rawalpindi Cantonment by the Chief Settlement Commissioner and its subsequent auction in favour of M. A. Latif was challenged.

2. The facts shortly stated are that the said evacuee property, which is a shop, was transferred to one Khawaja Ghulam Muhammad, a displaced person from the Indian held territories of the State of Jammu and Kashmir on a K. C. S. form in the year 1960. A. P. T. O. was issued in favour of Khawaja Ghulam Muhammad which was followed by a P. T. D. in the year 1962, when the full price of the property was adjusted against his claim and on payment of the settlement fee and other public dues. Sub sequently in the year 1966 the said Khawaja Ghulam Muhammad entered into an agreement of sale with the appellant for the said property for Rs. 50,000 out of which Rs. 30,000 was paid on the execution of the agreement and the balance was agreed to be paid at the time of registra tion of the sale deed, The appellant was already in possession of the subject property as a tenant. The sale remained incomplete for Khawaja Ghulam Muhammad left the country soon after the agreement and his whereabouts are not known to the appellant. The respondent's case is that he has gone back to the Indian-held Kashmir. Admittedly since the said agreement, Khawaja Ghulam Muhammad has not been heard of. On the basis of the intelligence report received by the Settlement authorities, they decided that Khawaja Ghulam Muhammad had gone back to the Indian-held Kashmir where his property was still intact and accordingly the P. T. D. in his favour was cancelled and the property was resumed for, the purpose of disposal in accordance with the relevant Settlement Scheme. The resumption took place in February, 1968, the property was put to auction in September 1968 and the auction was confirmed in favour of the respondents on 19-3-1969. When the appellant learnt of the auction proceedings, he sent a telegram and letters to the Settlement Authorities in an attempt to forestall the auction and the subsequent transfer of the property to the auction purchaser, but the telegram and the letters reached the concerned quarters too late. The appellant challenged the resumption and auction in an appeal, with an application for condoning the delay in filing the same before the Additional Settlement Commissioner who dismissed it as barred by time. The Additional Settlement Commissioner come to the conclusion that the appellant come to know about the auction in September, 1968 buy he slept over the matter for more than a year. In revision, this order was maintained by the Settlement Commissioner but on merits as well.

3. As was pointed out by the High Court the crux of the dispute in whether the resumption of the property was lawful.

4. Mr. A. R. Sheikh, learned counsel for the appellant invited our attention to Settlement Scheme No. VI framed under the authority of section 16(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This is a scheme prepared expressly for the temporary rehabili tation of persons displaced from such part of the State of Jammu & Kashmir as is under occupation of India and are residing in Pakistan in terms of section I of section 16(b) of the said Act. Clause 2 of the Scheme states that a Jammu & Kashmir claimant or a non-claimant displaced person from occupied territory shall be temporarily rehabilitated in accordance with the relevant provisions of the Act and this Scheme. Clause 4 provides that the claims of Jammu & Kashmir claimants in respect of property abandoned by them in occupied territory shall, be satisfied temporarily by transfer to them of evacuee property. Clause 6 provides that if a claim is wholly or partly satisfied by the transfer of any property, such transfer shall be subject to, among other things, the following terms and conditions :-

(a) The proprietary rights in the property or such part of the property as is transferred to a Jammu & Kashmir claimant in satisfaction of his claim, shall continue to vest in the Central Government.

(b) The transferee shall on repatriation to occupied territory surrender to the Central Government the property transferred to him against the claim.

(c) The transferee may, if he so desires at the time of his repatriation or even earlier, pay to the Central Government an amount equal to the value of the property.

(d) The transferee of such property shall have the right to

(i) . . . . . . . . . . . .

(ii) . . . . . . . . . . .

(iii) . . . . . . . . . . .

(iv) transfer his rights in the property to any person, on the condition that such transfer shall not effect the proprietary rights of the Central Government in the property.

Clause 7 of the Scheme provides that where a property transferred to a Jammu & Kashmir claimant or a displaced person on payment by him in cash, the proprietary rights in such property shall vest in him unconditionally.

5. In the present case admittedly, the transfer made in favour of the appellant's predecessor Khawaja Ghulam Muhammad was in satisfaction of his claim and therefore, the transfer did not affect the proprietary rights of the Central Government in the transferred property. The appellant, therefore, can have no grievance if the transfer in favour of his predecessor was cancelled and the property resumed for the proprietary rights in the transferred property was vested in the Central Government and more so when the transferee Khawaja Ghulam Muhammad had left the country and had not been heard of.

6. Mr. A. R. Sheikh, learned counsel for the appellant pointed out that the appellant had agreed to purchase the transferred property and that it was open to the appellant to pay to the Central Government an amount equal to the value of the claim utilised for the transfer of the property in which event the property would vest unconditionally in favour of the appellant. The submission is irrelevant in as much as though the Scheme recognises that a transferee may transfer his rights in the property to any person it also provides such transfer shall not affect the proprietary rights of the Central Government in the property and furthermore not only the appellant did not pay to the Central Government an amount equal to the value of the Scheme utilised for the transfer of the property which would have resulted in vesting the property unconditionally in his favour but in fact the appellant filed a suit for specific performance against the said Khawaja Ghulam Muhammad as well as the Settlement Department which would mean that the appellant was only interested in obtaining a sale deed in his favour through the Court. The contention would have some substance only if the appellant had paid of at least offered to pay to the Central Government an amount equal to the value of the claim utilised for the transfer of the property in favour of his predecessor Khawaja Ghulam Muhammad.

7. Mr. A. R. Shaikh next contended that the appellant ought to have been informed before the P. T'. D. in favour of Khawaja Ghulam Muhammad was cancelled and the property was resumed. The finding of the High Court is that the appellant had not informed the Settlement Department that he had entered into an agreement for the purchase of the subject property. Even otherwise we are of the view that the appellant had no locus standi in the matter for the transferee was Khawaja Ghulam Muhammad and the proprietary rights in the property continued to remain vested with the Central Government. It was further argued that a notice ought to have been given at least to Khawaj Ghulam Muhammad to which the short answer is that that would have been an exercise in futility for admittedly Khwaja Ghulam Muhammad had left the country and had not been heard of.

8. Before parting we may add that even on the assumption that the appellant had a locus standi, the appellant did not avail of the remedy available to him in law for as found by the learned Single Judge, there was delay in filing the appeal which the learned Additional Settlement Commissioner and the Settlement Commissioner did not deem it fit to condone for though the impugned auction was held in September, 1968, the appellant slept over the matter for more than a year before tiling the appeal in October 1969. The result, therefore, is that this appeal is dismissed with no order as to costs.

Appeal dismissed.

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