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Civil Petition for Special Leave to Appeal No. 240 of 1980, decided on 11th October, 1983.
(On appeal from the judgment and Order, dated 21‑1‑1980 of the Lahore High Court, Lahore, in Writ Petition No.526‑R of 1970).
‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Sched. and Settlement Scheme No.VII, para. 3‑ Transfer of Evacuee Property‑‑Leave to appeal‑‑Granted to consider question whether a person in actual physical occupation of property has superior entitlement to transfer over its allottee in view of terms of para. 3 of Scheme.
Ch. Khan Muhammad Bajwa, Advocate instructed by Sh.Abdul Karimq,..w Advocate‑on‑Record for Petitioner.
Muhammad Hussain, Advocate Supreme Court and Rana M.A. Kadri, Advocate‑on‑Record for Respondent No.l.
Shahzad Jehangir, Advocate Supreme Court for the Settlement Department.
Date of hearing: 11th October, 1983.
The petitioner is in actual physical occupation of a shop situated in Mauza Gheela Khurd, Tehsil and District Rawalpindi while respondent No.l is its allottee. Both applied for its transfer under the provisions of Settlement Scheme No.VII (framed under the Displaced Persons (Compensation & Rehabilitation) Act. 1958.
Whereas the Settlement Department found that the petitioner was entitled to its transfer on account of his undisputed physical occupation of the shop, the High Court in writ jurisdiction set aside the order holding that the possession of the petitioner could only be deemed as permissive, and he could not be preferred over the allottee.
The question whether a person in actual physical occupation has a superior entitlement to transfer over its allottee in view of terms of para. 3 of Settlement Scheme No.VII which provides that:
"All rural properties situated in minor villages other than Pacca houses and shops of the value of Rs.10,000 and above, will be transferred to the occupants free of charge but other provisions for the transfer of properties in the preceding sub‑paragraphs regarding disposal of rural properties in major village, shall mutates- mutandis apply to the disposal of unoccupied rural properties in minor villages." (underlining is ours) requires further consideration.
Leave is granted.
Security Rs.2, 500.
Interim order dated 15‑5‑1980 to continue meanwhile.
S. Q. Leave granted.
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