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Civil Petition for Special Leave to Appeal No. 82‑R of 1977, decided on 3rd May, 1977.

(On appeal from the judgment and order of the Lahore High Court made on 11th March, 1977 in Second Appeal Order No h9 of 1976).

‑‑ S. 10 read with Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), Ss. 10, 31 & 32‑Permanent Transfer Deed in respect of evacuee trust property‑Cancellation of‑Additional Settle ment Commissioner though setting aside order of Deputy Settlement Commissioner yet clarifying to have not himself cancelled permanent transfer deed issued in favour of respondent and leaving it to latter to do so if he found property to be evacuee trust property‑Settlement Commissioner though later coming to conclusion of property being evacuee trust property yet no specific orders passed by any authority for cancellation of permanent transfer deed‑Ordinance (XVI of 1974) and Act (XIII of 1975) having been promulgated meanwhile and such statutes keeping intact transfers falling in certain categories to which present case also belonged, permanent transfer deed issued to respondent before June, 1968, held, remained operative notwithstanding property having been evacuee trust property.

Rana Muhammad Bashir Khan, Advocate and Sh. Abdul Karim, Advocate -on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing : 3rd May, 1977.

The dispute in this case concerns an evacuee property situate outside Shahalam Market, Circular Road, Lahore, which was transferred on 10‑11‑1959 to the respondent by the Deputy Settlement Commissioner. A permanent transfer deed was issued on the 31st of January 1964. The petitioners filed an appeal against this order on the ground that the property was a evacuee trust property, and the same was accepted by the Additional Settlement Commissioner by his order dated the 14th of October, 1964, and the matter was remanded to the Deputy Settlement Commissioner for deciding the question of the nature of the property. In the concluding portion of this order, it was observed by the learned Additional Settlement Commissioner that if the Deputy Settlement Commissioner came to the conclusion that the respondent was not entitled to the transfer of this property then necessary steps should be taken for the cancellation of the permanent transfer deed which had been issued to him.

While considering the matter in remand, the Deputy Settlement Commis sioner referred the case to the Chief Settlement Commissioner, and the latter, by his order dated the 19th of September, 1968, held that the property in dispute was evacuee trust property. This order was challenged by the respondent in appeal in the High Court, but the appeal was dismissed by a Division Bench on 15‑2‑1971, thus confirming the character of the property.

The respondent filed an application before the Rent Controller for the ejectment of the present petitioners on the basis of the permanent transfer deed which had already been issued in his favour. This application was allowed by the learned Rent Controller by his order dated the 17th of March, 1975 on the ground of default in the payment of rent, as the petitioners had denied the relationship of landlord and tenant between the parties. The learned Rent Controller found that in terms of section 10 of Ordinance XVI of 1974 the permanent transfer deed remained intact. The petitioners thereupon filed an appeal which was accepted by the learned Additional District Judge by his order dated the 24th of January, 1976. This Judgment has, however, been reversed in second appeal by a learned Judge of the Lahore High Court by his order dated the 11th of March, 1977 holding that the permanent transfer deed had not been cancelled, and had been saved by section 10 (b) of Act XIII of 1975 which had replaced Ordinance XVI of 1974.

Leave to appeal is sought mainly on the ground that once the Additional Settlement Commissioner, acting in appeal, had set aside the order of the Deputy Settlement Commissioner and remanded the case for holding an inquiry into the nature of the property, the permanent transfer deed issued in favour of the respondent stood cancelled, and could not be validated under the aforesaid Ordinance or the Act. It is next contended that the learned Judge in the High Court has not taken note of the effect of section 32 of the Act which has kept intact all the orders made by the Settlement authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1958).

After hearing the learned counsel for the petitioners and perusing the relevant provisions of Act XIII of 1975) we are inclined to agree with the view taken by the High Court in this matter. We find that although the learned Additional Settlement Commissioner had set aside the order of the Deputy Settlement Commissioner dated 10‑11‑1959 yet he made it clear that he was not himself cancelling the permanent transfer deed which had already been issued by the Settlement Department in favour of the respondent; on the contrary, he observed that if the Deputy Settlement Commissioner found that the property was indeed evacuee trust property then he could take steps to cancel the permanent transfer deed. It is true that, by his order dated the 19th of September, 1968, the Chief Settlement Commissioner came to the conclusion that the property was evacuee trust property, a conclusion which was upheld by the High Court by its order dated the 15th of February, 1977 yet no specific orders were made by any authority for the cancellation of the permanent transfer deed issued in favour of the respondent. While the matters thus rested, Ordinance XVI of 1974 and later Act XIII of 1975 were promulgated for saving certain transfers of evacuee trust property to private parties in lieu of their claims, etc. Clause (b) of subsection (I) of section 10 of the Act contemplates that an immovable evacuee trust property situated in an urban area and utilized bona fide under any Act for transfer against the satisfaction of verified claims in respect of which permanent transfer deeds were issued prior to June, 1968 shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Revenue Trust Board and shall form part of the Trust pool. Thus the intention of the Parliament was clear that the transfers falling in this category were not to be disturbed even through the property was evacuee trust property and did not originally form fart of the compensation pool.

This position is not in any manner altered by sections 31 and 32 of the Act, on the contrary, these two sections have the effect of ensuring that all orders made in respect of the transfer of evacuee trust property before the enactment of this Act shall have effect as if they had been made under this Act. It seems to us that the true position which obtains under these two sections is that the permanent transfer deed already issued in favour of the respondent before June, 1968 remains operative, as it was not cancelled by the Additional Settlement Commissioner who had passed only a conditional order. The High Court was therefore right in restoring the order of the learned Rent Controller.

As a result, the petition fails and is hereby dismissed.

Petition dismissed.

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