Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Writ Petition No. 268‑R of 1961, decided on 13th July 1961
proviso second‑Applies to persons who had been unable to obtain possession of property allotted to them and not to those in actual possession but whose possession was not supported by an order of allotment.
proviso Second‑Allottee not in posses sion through no fault of his own‑Deemed to be "in possession" Wife entitled to apply for transfer of property‑"Actual possession" of allottee‑husband not necessary for wife's entitlement‑Central Government's Notification, dated 11‑8‑1960‑Central Government's Notification dated 7‑3‑1960.
read with para. 1 of Schd.‑‑"Clai mant"‑Definition‑Successors‑in‑interest of "Claimant"‑Not covered by definition‑May yet apply for transfer of house by virtue of para. 5, Settlement Scheme No. I‑Press Note dated 5‑5‑1960‑Cl. (2) of S. 2 governed by words "unless there is anything repugnant in the subject or context" occurring in beginning of S. 2.
‑Applicatian for transfer of house under para. 1‑Alternative ground under para. 2 not raised before Settlement Authorities‑Can be raised later in writ petition, being pure point of law.
‑Application for transfer of house --Applicant making "misrepresentations" and "false declarations"‑ Informant against such applicant entitled to transfer of such house only if applicant as an "accused" person is "found guilty" after trial‑Press Note dated 29‑9‑1960 explained.
‑Certiorari‑Issued to quash orders of Settlement Authorities, such orders being "in excess of jurisdiction" and "in violation of relevant provisions of law"‑Mandamus‑Issued, directing Chief Settlement and Rehabilitation Commissioner to transfer property to person named‑Constitution of Pakistan (1956), Art. 170.
Dalawar Mahmood and Zaheer Abbass for Petitioner.
Major Muhammad Ishaq and Sardar Muhammad Iqbal for Respondents.
Dates of hearing : 26th, 28th and 30th June 1961.
By means of this writ petition, Mst. Afzal Jahan Begum is challenging an order dated the 1st April 1961 (Annexure M) passed by Malik Fateh Khan, Settlement and Rehabilitation Commissioner, exercising powers of the Chief Settlement and Rehabilitation Commissioner under subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. By means of the said order the Settlement Commissioner set aside an order dated the 11th March 1961, passed by Mr. Farzand Ali Khan, Settlement and Rehabilitation Commis sioner, Lahore, who had remanded this case for re‑decision to the Deputy Settlement Commissioner, after having set aside an order dated the 28th November 1960 passed by the Additional Settlement Commissioner, Lahore, by means of which he had transferred the property in dispute in favour of Begum B. H. Syed, respondent No. 2, and had dismissed the application of the petitioner for transfer of this property.
2. Briefly stated, the facts of this case are that the property in dispute, which is described as 12‑Kacha Habibullah Road, Lahore, was allotted to the petitioner's husband, Major M. Nasir Beg, on the 15th February 1956. At the time of the allotment the property was in occupation of a number of refugee families, who, in spite of all the efforts made by the Rehabilitation Department, refused to vacate it, with the result that Major M. Nasir Beg was unable to obtain possession of the allotted property. On the 11th August 1960, the Central Government issued the following Notification, in exercise of the powers con ferred by the second proviso to clause (6) of section 2 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) :‑
"In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to order that an allottee of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation Authority and who, through 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 this Act."
The Chief Settlement Commissioner issued a press note on the 9th September 1960 inviting applications from those allottees who had not been able to obtain possession of allotted property. The last date of such applications was the 30th September 1960. Major M. Nasir Beg did not apply for transfer of this property, but his wife, presumably, relying on the follow ing Notification dated the 7th March 1960, gave an application for this purpose to the Deputy Settlement Commissioner, on the 14th September 1960 :‑
"The Central Government has decided that where the house is in the possession of the husband in pursuance of the order passed on or before the 20th day of December 1958, by a competent authority, his wife, if staying with him, will also be deemed to be in possession."
One this application the following office note bearing the date 21st September 1960 was recorded :-
"On the basis of the order on page 5, the CH Form of Mst. Afzal Jahan Begum may kindly be accepted in pursuance of recent orders subject to further verifica tion."
It was not stated in this report that the property had already been transferred, or reserved for transfer, in favour of some body else. Underneath this office note is the following order of the Deputy Settlement Commissioner which also bears the same date
"The property has since been transferred and the CH Form is, therefore, rejected."
This order does not appear to have been communicated to the petitioner. On the 1st October 1960, however, a letter (Annexure H') is said to have been addressed to the petitioner by the Deputy Settlement Commissioner, in which the reason given for rejection of her application was different from that mentioned in the order dated the 21st September 1960. This letter reads as follows: ‑
"The Form CH submitted by you is hereby rejected for the reasons that you are not in possession of the property. The relaxation of the Government rule does not apply in your case. There are express provisions that the allottee of the house is entitled for the transfer of the house only when the ejectment proceedings had taken place against the persons in occupation of the property, to accommodate the allottee. This problem does not apply because no such proceedings have taken place in your case. Memorandum from the Secretary (U) to the Rehabilitation Commissioner, West Pakistan, Lahore, No. 5821‑AL‑Reh/57, dated Lahore 29th October 1957 is in the file, by virtue of which the ejectment proceed ings were stayed as your husband was allottee of some other house."
There is no written order on any of the records produced by the Settlement Department transferring this property in favour of respondent No. 2 on the 13th September 1960, but on page 31 of one of the files is recorded, on a separate sheet, the following order under the signature of the Additional Settlement and Rehabilitation Commissioner, Col. J. D. Malik: ‑
"I have already issued instructions re : the disposal of this property. It is, therefore, not to be included in any auction list."
3. The petitioner feeling aggrieved by the refusal on the part of the Settlement Department to transfer this property in her favour filed an appeal which was dismissed on the 28th November 1960, by another Additional Settlement Commissioner (Malik Ghulam Jilani Khan), by means of an order of that date (Annexure J') the operative part of which reads as follows: ‑
"I have heard the counsel for the appellant at length and have also seen the relevant record. The order regarding the transfer of property has been made by the Additional Settle ment Commissioner on 31‑10‑1960 on the report of Director of Enforcement Staff and I am not competent to entertain this appeal. In view of this I dismiss the appeal."
4. The order dated the 31st October 1960, said to have been passed by the Additional Settlement Commissioner (Col. J. D. Malik) is at page 73 of the record of one of the cases and reads as follows: ‑
"D. S. C. Lahore.
Please transfer this property to Begum B. H. Syed."
5. On the same page of this record is a letter dated the 29th October 1960, addressed by the Director of Enforcement, Evacuee Property and Claims, Zone A, Lahore, to the Additional Settlement and Rehabilitation Commissioner Lahore. This letter reads as follows: ‑
"Reference your Memorandum No. ASRC/5/14085, dated the 7th October 1960, addressed to the Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore, forwarding therewith a list of bungalows in respect of which P. T. Os. have already been cancelled by you.
(2) The property mentioned at serial No. 6 of the Appendix A' may be transferred to the informer, namely, Begum B. H. Syed, as none else has supplied the information to the Enforcement Staff, about the illegal transfer of this particular house.
(3) Action taken in this behalf may please be intimated to this office also for the completion of record."
The letter dated the 7th October 1960, addressed by the Additional Settlement and Rehabilitation Commissioner, Lahore, to the Chief Settlement and Rehabilitation Commissioner, which, has bean referred to in the letter of the Director of Enforcement is at page 5 of one of the files produced by the Settlement Depart ment and reads as follows:‑
"Reference :‑Press Note No. 12716‑PI‑Reh.‑60, dated 29th September 1960.
Prior to the issue of the above quoted Press Note a number of persons' had come forward with the information regarding irregular transfers. A list of such persons and the properties involved is attached as Appendix A'.
"The Press Note, however, lays down that the information should be first of all sent to the Director of Enforcement, Evacuee Property and Claims, Zone A, Lahore. A couple of such applications have also come to me. However, the action taken for both categories of persons is exactly the same. Wherever I find that the transfer is irregular irrespective of the source of information I cancel the transfer deed. In my opinion, therefore, there should not be any differentiation between the two types of informants. As far as the transfer to the informants is concerned I would also like to know as to who would give the final sanction. Kindly advise."
Along with this letter is attached a list of nine properties and the property in dispute, namely, 12‑Kacha Habibullah Road, Lahore, is mentioned at serial No. 6. This entry is worded as follows :
| S. No.
| Property No. & location | Name of the informant | Date of information | Name of the person whose P.T.O. has been cancelled. | Date of cancellation | Remarks |
| (a) | (b) | (c) | (d) | (e) | (f) | (g) |
| 6 | 12-Kacha Habibullah Road, Lahore. | Begum Col. B.H. Syed. | 30-4-60 | .. | 13-9-60 |
|
It may be pointed out that in column (e) against serial No. 6, which is now shown to be blank, certain names had been recorded, but those names have been rubbed out. It may also be pointed out that the date 30‑4‑1960 now shown in column (d) has been altered from some other date, which appears to have been rubbed out. On the record of the same case is a copy of an application addressed by Col. B. H. Syed, husband of respondent No. 2, to the Additional Settlement Commissioner, Lahore, purporting to bear the date 30th April 1960. The copy appears to have been received in the office of the Director of Enforcement on the 4th October 1960. This application reads as follows: ‑‑
"I bring an irregularity to your notice in respect of pro perty No. 12, Kacha Habibullah Road, Lahore. This property has been applied for by two persons. One is a non‑claimant and has already changed his mind and is now quite unneces sarily against the provision of the law pressing for the transfer of the property.
"The other applicant is a claimant, who claims to be in possession of the property, but he is not in physical posses sion. There is, therefore, a danger of this property being transferred to unauthorised persons. I would, therefore, very much like to draw your attention to this effect and request that if you find my statement to be correct, this property may be transferred to me.
"I understand that as a policy matter if somebody brings an irregularity to the notice of Settlement Authorities, he then is given a lien on the property concerned."
This application was entrusted to' Sub‑Inspector Rafique Muhammad for report on the 15th October 1960. At pages 9 and 10 of the same record is the report of this Police officer. The last 3 paragraphs of this report read as follows: ‑
"Enquiry reveals that in the said premises there are 25 families as squatters' and, in their brief, statements none of them claimed to be an allottee or a claimant nor any one has ever paid any rent. Except Mr. Muhammad Tahawar, who has filed an NCH, D/14‑11‑59, none of them has claimed transfer of the bungalow through any Settlement Scheme. Mr. Tahawar filed NCH which is not maintainable on account of the indivisibility of the house and subsequently he is found to be not inclined to proceed the case as he is not financially competent. Mr. Tahawar is a mechanic in Railway Depart ment on a monthly salary of Rs. 120 and hails from Lucknow. All other occupants are refugees and non -claimants.
"The file reveals that Begum Afzal Jahan has filed a CH, but she admits in para. 7 of the said application that she does not hold any possession and hence her CH was rightly rejected by the learned D. S. C., Farid Kot House (page 59) as the same was baseless. Her appeal to be heard in the Court of Malik Ghulam Jilani, Additional Settlement Com missioner, Lahore, fixed for hearing on 5‑11‑60.
"The bungalow is occupied by undeserving refugees and requires heavy repairs and if the policy of the Government permits, the bungalow may be transferred in the name of his wife."
6. The Press Note dated the 29th September 1960, referred to in the letter dated the 7th October 1960, addressed by the Additional Settlement and Rehabilitation Commissioner, Lahore Division, to the Chief Settlement and Rehabilitation Commis sioner, Pakistan, Lahore, which formed the basis of the recommendation made by the Director of Enforcement, has been printed at pages 166 and 167 of the Manual of Settlement Law and Procedure and is worded as follows :‑‑
"Reports have been received that in some cases houses, shops, building sites and other urban evacuee properties have either been sought for transfer or got transferred by ineligible persons by misrepresentation of facts and giving false declarations to the Settlement Authorities. The Chief Settlement Commissioner, Pakistan would appreciate if the members of the public extend their co‑operation and report such cases to the Enforcement Police so that such irregular applications or transfer orders may be cancelled. As an inducement to the informant, it has been decided that if a person gives information about any such case and the accused is found guilty of the charge, the property will be transferred to the informant if he is not ineligible to the transfer of that property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the Rules and Schemes made thereunder.
"Applications on plain paper giving detailed particulars of the property and the name and address of the person to whom it is alleged to have been transferred irregularly along with full facts of the case should be addressed to the Director of Enforcement, Evacuee Property and Claims, Intelligence Bureau, Zone A', Lahore in the case of property situated in the former Punjab and to the Director of Enforcement, Evacuee Property and Claims, Intelligence Bureau, Zone B' Peshawar, in the case of the property situated in the remain ing areas of West Pakistan including Karachi."
7. It would be useful, at this stage, to refer to an earlier Press Note dated the 7th April 1960, which deals with the same subject. This Press Note which has been repro duced at page 132 of the Manual of Settlement Law and Proce dure reads as follows: ‑
"It is believed that a number of houses, shops, building sites and other urban evacuee properties are still in the possession of unauthorised persons who have usurped them in the garb of non‑evacuee properties. The Chief Settlement Commissioner would appreciate if the members of the public extend their co‑operation in unearthing hidden evacuee pro perties of this nature. As an inducement to the informant, it has been decided that if a person gives information about any hidden evacuee property, which is not already entered in the Survey Registers maintained by the Custodian of Evacuee Property, the Rehabilitation Authorities or the Settlement Authorities, the first informant will be given pre ference for the transfer of such property if he is entitled to its transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the rules and schemes made thereunder.
"Applications on plain paper giving particulars of the property, the name of evacuee owner (if known) and the name and address of the person claiming ownership of the property should be addressed to the Director of Enforcement, Evacuee Property and Claims, Intelligence Bureau, Zone A', Lahore, in case of properties situated in old Punjab and to the Director of Enforcement. Evacuee Property and Claims, Intelligence, Bureau, Zone B', Peshawar in the case of properties situated in the rest of West Pakistan including Karachi."
8. Reverting now to the legal battle which was being fought between the two contestants, the petitioner filed an appeal in the Court of Khan Farzand Ali Khan, Settlement and Rehabilitation Commissioner, Lahore, against the order dated the 28th Novem ber 1960, passed by Malik Ghulam Jilani, Additional Settlement Commissioner. Khan Farzand Ali Khan came to the conclusion that although possession of the property in dispute had not been delivered to the petitioner's husband, ejectment proceed ings had been started against unauthorised persons and, therefore, this property could not be treated as "hidden" evacuee property and transferred to the respondent. As a result of these findings the order passed by the Additional Settlement and Rehabilitation Commissioner was set aside and the case was returned to the Deputy Settlement Commissioner concerned, for Te‑decision on merits.
9. Against this order, respondent No. 2 filed a second revision in the Court of the Chief Settlement and Rehabilitation Commissioner, Pakistan. That revision petition was heard by Malik, Fateh Khan, under the authority of the Chief Settlement and Rehabilitation Commissioner, and as stated above, was accepted on the 1st April 1961. While accepting this revision petition Malik Fateh Khan expressed the view that the petitioner was not a claimant, because her father, through whom she was claiming this right, had died prior to the 31st August 1959, and as such, she was not entitled to apply for transfer of the property, as a claimant. The Settlement and Rehabilitation Commissioner further came to the conclusion that as ejectment proceedings had been stayed on the 29th October 1957, and were not pending on the 11th August 1960 when the Central Govern ment's Notification referred to above was issued, the petitioner could not, on the basis of the allotment in favour of her husband, apply for transfer. That Officer also came to the conclusion that although this property had not been transferred in favour of respondent No. 2 on the 13th September 1960, it had been reserved for transfer in her favour on that date and as the petitioner applied for transfer a day afterwards namely, on the 14th September 1960, her claim was rightly rejected.
10. The petitioner's case is that in accordance with the Central Government's Notification dated the 7th March 1960, although she was not in possession of the property in dispute, as she was living with her husband, she will have to be deemed to be in possession and, in accordance with the Central Government's second Notification dated the 11th August, 1960, she was entitled to apply for transfer of this property, because it had been allotted to her husband and for no fault of his he had been unable to obtain its possession. The petitioner's counsel contended that as one of the heirs of her deceased father, the petitioner was entitled to apply under Paragraph 1 of the Schedule to the Act and in any case, she could apply under Paragraph 2 of the Schedule to the Act, as a non‑claimant and, therefore, the property in dispute should have been transferred in her favour on evaluation basis. Regarding the orders said to have been passed by the Deputy and the Additional Settle ment and Rehabilitation Commissioners, Lahore, it was con tended‑, that on the 31st October 1960, for the first tune, and order: of transfer of this property was passed, that no order in favour of respondent No. 2 for transfer of this property had been passed on the ‑13th September 1960, or the 21st September 1960, and that even if any such orders had been passed the same were mala fide, in excess of the powers con ferred on these officers and not in accordance with law. It was further contended that the Additional Settlement Com missioner was not competent to reserve this property for transfer to respondent No. 2, prior to the 29th September 1960, when one of the two Press Notes, on this subject, was issued by the Chief Settlement and Rehabilitation Commissioner, nor could he transfer this property after the aforesaid date, because that Press Note did not have the force of law it had not been issued with the permission of the Central Government and the mode of transfer had not been approved by that Government, in accordance with section 10 (b) of the Act.
11. The petition is contested by respondent No. 1, namely, the Chief Settlement and Rehabilitation Commissioner, on the grounds that the petitioner not being a claimant within the meaning of the Act, she had no right to apply for the transfer under Paragraph 1 of Schedule to the Act and that she had never put forward the plea that the property could be transferred to her under Paragraph 2 of the Schedule to the Act as a non -claimant. Respondent No. 2, namely, Begum B. H. Syed, contests the petition on these grounds and also on the further ground that the Central Government's Notification dated the 11th August 1960, issued under the second proviso to section 2 (6) of the Act was not in accordance with law and as the petitioner's husband was not in actual possession of the property in dispute the petitioner herself could not be deemed to be in possession, within the meaning of section 2 (6) of the Act. For determination of the respective contentions of the parties, it would be necessary to decide the following points: ‑
(1) Was the petitioner's husband in possession' of the property in dispute within the meaning of section 2 (6) of the Act
(2) Was the petitioner in possession' of the property in dispute within the meaning of the aforesaid provision of law
(3) Is the petitioner a claimant' If not, could she apply, as one of the successors‑in‑interest of her father, under. Paragraph 1 of the Schedule to the Act
(4) In case it is held that the petitioner is not a claimant, was she entitled to the property in dispute under Paragraph 2 of the Schedule to the Act
(5) Could this property be transferred to respondent No. 2, in accordance with the Press Notes dated the 7th April 1960 and the 29th September 1960
(6) Were the orders dated the 13th September 1960, the 21st September 1960 and the 1st October 1960, if any, and the order dated the 31st October 1960, passed by the Deputy and Additional Settlement and Rehabilitation Com missioner, Lahore, mala fide and not in accordance with law
12. Before clause (6) of section 2 of the Act was amended by the insertion of the second proviso, a person who was not in actual possession of an evacuee property was not considered to be in possession' of that property, within the meaning of the aforesaid clause. The second proviso to this clause, which was inserted by an amending Ordinance of 1959 was intended 'to cover the' case of those persons, who though they were allottees of evacuee property, had not been able to obtain actual possession of the allotted property. Clause'(6) of section (2) of the Act, as amended, reads as follows :‑
"(6) possession' means possession obtained in pursuance of an order passed on or before the twentieth day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Pro vincial Government
"Provided that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final:
"Provided further that the Central Government may, by order in 'writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the order be deemed to be in possession for the purpose of this Act."
The Notifications, dated the 7th March 1960 and the 11th August 1960, which have been reproduced in an earlier part of this judgment, were issued by the Central Government in pursuance of the power conferred by the second proviso to clause (6) of section 2 of the Act. So far as the second‑men tioned notification is concerned, the learned counsel for res pondent No. 2, contended that the Central Government was not empowered to declare that a person who is not in actual possession of an allotted property shall be deemed to be in possession and that the second proviso to clause (6) of section 2 of the Act was intended to cover the case of those persons who were in actual possession of evacuee property, but their possession was not in pursuance of an order passed by .a Rehabilitation Authority, a Custodian or any other officer authorised or permitted by the Government to allot property to him. In my opinion, this contention has no force, because if the intention of the law‑makers had been that the Central Government should be empowered to pass order with regard to those persons only who were in actual possession of evacuee property but were not holding orders of allotment, and not in the case of those in whose favour orders of allotment had been passed, but who had been unable for some reason to obtain possession of that property, the language of the second proviso to clause (6) of section 2 of the Act would have been different. In my opinion, the proviso, as worded, was intended to cover the case of those who had been unable, for some reason, to obtain possession of evacuee property allotted to them and not the case of those who were in actual possession or evacuee property but their possession was not supported by an order of allotment.
13. The learned counsel for the respondent contended further that as the petitioner's husband had been negligent in not obtaining possession of the property in dispute, after the same was allotted to him in the year 1956, she cannot take benefit of the Central Government Notification dated the 11th August 1960. This contention also, in my opinion, has no force, because there is nothing on the record to indicate that the petitioner's husband was unable to obtain possession, on account of his negligence. On the other hand, a reference to the file of the Rehabilitation Department, which was produced in these proceedings, shows that several attempts were made between the years 1956 and 1959 to put the petitioner's husband into possession of the property in dispute, but for no fault of his he was unable to obtain possession, because the persons who had occupied this property without any lawful authority refused to vacate the premises. In this connection, reference may be made to the copies of the letter, dated the 29th October 1957, 21st February 1958, 22nd October 1958, 1st September 1958, and 14th February 1959 (Annexures B, C, D, E and F, respectively). The letter, dated the 1st September 1958 (Annexure E), makes it absolutely clear that the allottee, namely, the petitioner's husband, had been attending the office of the Rehabilitation Department, and the efforts which that Department was making for having the property vacated, were being made at the instance of the petitioner's husband. The Central Government Notification elated the 11th August 1960 lays down clearly that if a person had been allotted evacuee property and, through no fault or negligence on his part, he has been unable to obtain physical possession, he is to be deemed to be in possession for the purpose of this Act. Keeping in mind the language of this notification, it would be the duty of the person who alleges that an allottee who has not been able to obtain possession of the allotted property was at fault, or had been negligent, to prove that fact and it would not be for the allottee to establish a contrary state of affairs. As, in the present case, there is nothing on the record to indicate that tire petitioner's husband had been at fault in not being able to obtain possession of the allotted property, or that he had been negligent, he is entitled to take benefit of the Central Government Notification dated the 11th August 1960, and lie will, therefore, have to be deemed to be in possession of this property.
14. The Central Government Notification dated the 7th March 1960, relied upon by the petitioner, appears to have been issued in pursuance of the powers conferred by the second proviso to clause (6) of section 2 of the Act. This notification lays down clearly that if a house is in possession of the husband, in pursuance of an order passed on or before the 20th day of December 1958, by a competent authority, his wife, if staying with him, will also be deemed to be in possession of that house. Admittedly, the house in dispute had been allotted to the petitioner's husband prior to the 20th December 1958. It is also not denied that the petitioner is living with her husband, namely, Major M. Nasir Beg. On the face of it, the petitioner's case is covered by this notification. The learned counsel for the respondent No. 2, however, contended that the expression "possession" used in this notification can have a reference to actual possession of a house and as the peti tioner's husband was not in actual possession of this house, his wife, though living with him, cannot be deemed to be in possession within the meaning of clause (6) of section 2 of the Act. In my opinion, if the intention of the Central Govern ment had been that only persons in actual possession of a house could take benefit of this notification, the intention could have been made clear by the use of appropriate words. There was nothing to prevent the Central Government from saying that the husband must be in actual' possession of a house and only in such a case wife, if living with him in that very house, would be deemed to be in possession for the purpose of the Act. As the expression "possession" was not preceded by the word "actual" and as the notification does not indicate that the husband and wife must be living in the house in dispute, there is nothing to prevent the petitioner from claiming that although her husband was not in actual possession of this house, as by virtue of the notification, dated the 11th August 1960, he is to be deemed to be in possession of this house, she also, by virtue of the notification, dated the 7th March 1960, is to be deemed to be in possession of that house for the purpose of the Act. For the reasons given above, 1 am of opinion that the contention raised by the learned counsel for respondent No. 2 has no force, and, therefore, the petitioned, will be deemed to be in possession or the house in dispute,' though neither she nor her husband had been able to obtain physical possession of this property.
15. Clause (2) of section 2 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, defines the expression "claimant" in the following words: ‑‑
"(2) claimant' means a displaced person whose claim (excluding claim in respect of agricultural land) has been registered under the aforesaid Act and includes the suecessors in‑interest of a claimant who dies on or before the Thirty‑First day of August 1959, but does not include any second person whose claim has subsequent to registration been withdrawn or rejected."
It should be noted that this definition has to be read with the opening words of section 2, namely, that the subject or context should not give an indication to the contrary. This means that if under a particular set of circumstances a person can be deemed to be a claimant, he can be held to be so even though his case may not be covered by the above‑mentioned definition. As, admittedly, the petitioner's father, through whom she is claiming, died prior to the 31st August 1959, she cannot be held to be a claimant' within the meaning of clause (2) of section 2 of the Act, but (as will be presently seen) as one of the successors‑in‑interest of her father, the petitioner is a claimant for all practical purposes and, as such is entitled to apply for transfer of this property. Reference, in this connection, may be made to paragraph 5 of Settlement Scheme No. I, which was framed by the Chief Settlement Com missioner under section 16' of the Act, in pursuance of the Central Government's directions. According to the aforesaid paragraph of the Scheme, an application on behalf of a deceased claimant is to be submitted jointly by all his heirs, but if there is a disagreement between the successors‑in‑interest of the deceased, on the question of submission of a joint application, each such successor can apply under his own signature, indicating the names and addresses of all the successors‑in‑interest of the deceased. The position was clarified further by issue of a Press Note on the 5th May 1960. That Press Note has been reproduced at page 114 of the Manual of Settlement Law and Procedure, and is worded as follows: ‑
"The successors‑in‑interest of only such claimants as died on or before the 31st August 1959 are to be treated as claimants in their own right and are entitled to all the benefits accruing to the claimants. It has, however, been observed that in certain cases the Claims Authorities have determined the shares of successors‑in‑interest of the claimants in the verification orders where the claimants had died after the 31st August 1959. Since such successors‑in‑interest are not entitled to obtain separate Compensation Books in respect of their share you should please ensure that neither separate Compensation Books are issued nor any property is transferred to them in their own right. "
The words "in their own right", which have been italicised by me, are very significant and indicate that each successor‑in‑interest of a deceased claimant cannot apply for transfer of property, or for the issue of a Compensation Book in his own right, but the right possessed by the deceased claimant does not come to an end on his death and, therefore, all the successors‑in‑interest of the deceased possess jointly the right of the deceased claimant and are entitled to all the privileges and benefit of that right jointly. On this view of the case, the petitioner, as one of the successors‑in- interest of her deceased father, could apply under paragraph 1 of the Schedule to the Act, for transfer of the property as one of the claimants, or all the heirs of the deceased could apply for the same purpose jointly. The question that arises further is whether the petitioner, in her capacity as one of the successors‑in‑interest of her father, could take benefit of the allotment in favour of her husband and, as of right,, say that the property allotted to her husband be transferred in her favour. Paragraph 1 of the Schedule, on which reliance is placed by the petitioner, is worded as' follows :‑
"1. A house in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a house which such parent, son, daughter or spouse does not claim under the pro visions of the Schedule, and if there is more than one such house, then anyone of the houses, which the claimant desires to retain, shall be transferred to him at a price determined on evaluation basis:
"Provided that if a house or a part thereof is in possession of more than one person and one of them is a claimant, then the house shall be so transferred to the claimant:
"Provided further that if a house or a part thereof is in possession of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession."
16. I have held above that the petitioner, in accordance with the Central Government Notifications dated the 7th March 1960 and the 11th August 1960, is to be deemed to be in possession of the house in dispute. In accordance with Paragraph 1 of the Schedule to the Act, the petitioner's father, if he had been alive, could apply for the transfer of this house as a claimant, and for this purpose he could rely on the possession of his daughter. After the death of the petitioner's father, the right possessed by the deceased can be enforced by all her heirs, including the petitioner herself, and, therefore, in her capacity as one of the successors‑in‑interest of her father, she could take benefit of her own possession , of the house in dispute and apply for transfer under the aforesaid paragraph.
17. Paragraph 2 of the Schedule to the Act on which, in the alternative, reliance is placed by the petitioner is worded as follows: ‑
"2. A house in possession of a non‑claimant displaced person and which the non‑claimant desires to retain, shall be transferred to him on payment of the prevailing market value:
Provided that not more than one house shall be transferred to any one non‑claimant under this paragraph:
Provided further that if there is more than one applicant for transfer of the same house, the house shall be so transferred to the non‑claimant who obtained prior possession."
18. I have held above that the petitioner was entitled to apply under paragraph 1 of the Schedule to the Act for transfer of this house. In the presence of that finding, it is not necessary to give any determination on this point. It may, however, be stated that if the petitioner had been unable to establish that she could apply under paragraph 1 of the Schedule to the Act for transfer of this house, in her capacity as one of the heirs of her father, there was nothing to prevent her from claiming this property under paragraph 2 of the Schedule to the Act because she is deemed to be in possession of this house and as a non -claimant was entitled to its transfer. The mere fact that no such plea was raised by the petitioner before the Settlement Authorities, or in the present writ petition, would not have been enough to reject her claim, because it was not obligatory for the petitioner to specify the paragraphs under which her claim was being made. Moreover, it is a matter of law pure and simple as to whether the petitioner's case is covered by paragraph 1, or by paragraph 2, of the Schedule to the Act. Such a point of law can be raised even in the absence of specific allegations to that effect in the writ petition.
19. The Press Note, dated the 7th April 1960, which has been reproduced above, deals with the transfer of "hidden evacuee property", a property which has not already been entered in the Survey Registers maintained by the Custodian of Evacuee Property, or by the Rehabilitation and Settlement Authorities. As the property in dispute had been allotted to the petitioner's husband, as evacuee property, and as steps had been taken between the years 1956 and 1959 to have the occupants ejected, in accord ance with the provisions of the Rehabilitation laws, this property could not, by any stretch of imagination, be termed as hidden evacuee property'. On the basis of the Press Note dated the 7th April 1960, assuming that that Press Note had the force of law, this property could not be transferred in favour of respondent No. 2, on the ground that she had given some kind of information about the occupants. That Press Note, therefore, does not, in any way, help respondent No. 2. In fact, it was conceded, during arguments by the learned counsel for respondent No. 2 that no reliance was being placed on this Press Note, for the purpose of transfer of this property. It is, therefore, unnecessary to discuss the matter further.
20. With regard to the Press Note dated the 29th September 1960, which has been reproduced at pages 166 and 167 of the Manual of Settlement Laws and Procedure, the contention of the learned counsel for the respondent No. 2 was that as certain persons, by misrepresenting facts, were seeking to get the property transferred and as respondent No. 2 gave information about this matter to the Settlement Authorities, she was entitled, as of right, to get the property transferred. A perusal of the Press Note dated the 29th September 1960 would show that before any person can take its benefit, two things have to be established. Firstly some person who is ineligible should get the property transferred, or seek its transfer, by misrepresentation of facts, or by giving false decla rations to the Settlement Authorities. Secondly, the person who is seeking to get the property transferred, or has got it transferred, must be found guilty of the charge of misrepresentation of facts or of giving false declarations. In my opinion, respondent No. 2 has not been able to establish that the property in dispute had been transferred to ineligible persons, or that some persons were trying to get it transferred, by misrepresentation of facts, or by giving false declarations. The respondent also has been unable to show that any such person was found guilty of the charge. The respondent having failed to fulfill these two basic conditions, she could not take benefit of the Press Note dated the 29th September 1960, assuming that the same had legal force, and, therefore, the property in dispute could not be transferred in her favour.
21. The learned counsel for respondent No. 2 contended that on the 30th April 1960, when this matter was brought to the notice of the Additional Settlement Commissioner, Lahore, by means of an application of that date, two persons were trying to get the property transferred in their favour. The learned counsel also contended that it was not obligatory for the Settlement Authorities to prosecute those persons and to have them found guilty, before transferring this property in favour of respondent No. 2. A perusal of the relevant records, however, shows that on the 30th April 1960 (assuming that the application bearing that date was, in fact, presented on the date mentioned therein) no person was seeking to get the property in dispute transferred in his favour, nor had this property been transferred to anyone prior to that date. At page 1 of one of the records is an application, dated the 19th November 1959, given by Mr. Wajih7ud‑Din, C. S. P., for transfer of this property, and at page 35 of the same record is an application, dated the 14th November 1959, by one Muhammad Tahawar for the same purpose. Mr. Wajih‑ud‑Din claimed that this property had been allotted to him in the year 1950 by the Rehabilitation Commissioner, while Muhammad Tahawar did not claim to be an allottee, but alleged that he was in actual possession of this property. There is no allotment order on the record of that case in favour of Mr. Wajih‑ud‑Din though there are, on one of the records, a number of applications in which he and his father had asked for its allotment. Both these applications were disposed of by the Deputy Settlement Commissioner by means of an order dated the 18th January 1960, by which he agreed with the following report made by his office a day earlier, namely, on the 17th January 1960 :‑
"Sub:‑P. No. S. E. 17‑R‑12, Habibullah Road, Lahore. The above bunglow is in unauthorised occupation of 25 families. Only two forms have been received from this house as under :
| (1) Muhammad Tahawar s/o Ahmad Ali | NCH‑637 |
| (2) Wajih‑ud‑Din Ahmad s/o M. Salah‑ud‑Din Ahmad | CH‑1837. |
"Muhammad Tahawar has shown his inability to purchase this bungalow as per his statement placed below. After his refusal he has written a letter to the D. S. C.‑I on 4‑1‑60 that the bungalow be transferred in his name. When he has refused, he cannot change his statement under the law. Rent of the bungalow is Rs. 300 p.m. and he is simply an employee of Carriage W/Shop, N. W. R., and has no status to purchase this big bungalow. His NCH 637 may be cancelled.
"The other applicant Mr. Wajih‑ud‑Din Ahmad is D. C., Kalat, and is not in physical possession of the same house. His CH‑1837 may also be cancelled.
"The bungalow will go for earmarking. "Submitted please". Underneath this report, the Deputy Settlement Commissioner passed the following two‑word order :‑‑‑‑ ‑‑‑‑
"I agree."
It is, thus obvious that on the 30th April 1960, when respondent No. 2 claimed to have given certain information to the Additional Settlement and Rehabilitation Commissioner Lahore, no appli cation of anyone, for transfer of this property was pending nor had this property been transferred in favour of anyone prior to that date. It would also be apparent that no finding had been given by ‑anyone to the effect that the two applicants had, by misrepresentation of facts and by giving false declarations, were seeking to get this property transferred.
22. With regard to the argument that it was not obliga tory for the Settlement Department to prosecute the persons who were seeking to get the property transferred, it is necessary to say a few words. In the Press Note, dated the 29th September 1960, it has been clearly stated that before any such property is transferred to the informant, the accused has to be found guilty of the charge. The words italicised by me, which are mentioned in the relevant Press Note, are very significant and indicate clearly that a person who gets such property transferred or attempts to get it transferred, must be found guilty of the charge of misrepresenting facts and of giving false declarations before the question of transfer of that property could arise. The learned counsel for the respondent, however, contended that the words " accused " and " found guilty " have been used in a loose sense, and that the intention could not be that the applicant should be prosecuted in a Court of law and found guilty and convicted or sentenced. In my opinion, the words " accused " and " found guilty " can have relation only to criminal proceed ings and could not mean that the Settlement Authorities them selves would find the applicant guilty of such a charge. In coning to this ‑conclusion, I am supported by the contents of two letters of the Central Government, which preceded the issue of the Press Note dated the 29th September 1960. These letters, which bear the dates 20th August 1960 and the 21st September 1960, are reproduced below
No. Dy. 1746/60‑SI.
" With reference to your U. O. No. 562‑SC(P)/60 received on the 22nd July 1960, I am directed to say that in exercise of power conferred by section 10 (b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Central Government is hereby pleased to accord approval to the transfer of Bungalow No. 82/83‑H, Model Town, Lahore, to Mrs. Zakir Hussain, wife of Mr. Zakir Husain, Minister for the Interior on the condition that the accused who has been sent up for trial is found guilty of the charge of having wrongfully submitted an NCH form.
" 2. It has further been decided that each proposal for transfer of property to an informant in similar circumstances may kindly be referred to this Ministry for consideration and orders.
3. In the Press Note to be issued on the subject for the words " otherwise entitled to transfer " the words "if the person is not ineligible to the transfer of that property " may kindly be substituted."
No. F‑S (38) 603 I.
" In modification of paragraph 2 of this Ministry's letter No. Dy. 1746/60‑SI, dated the 20th August 1960, 1 am directed to say that in exercise of the power conferred by clause (b) of section 10 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958, the Central Govern ment are hereby pleased to approve that the Chief Settlement Commissioner or any other officer nominated by him may transfer any property out of the Compensation Pool to a person who furnishes information about irregular transfer of that property on the condition that :‑
(1) the property in question is not transferable to any other person under the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and
(2) that the price of the property is determined and recovered in accordance with the provisions of the Schedule to the Act as applicable to a claimant, a non‑claimant displaced person or a local whatever the informant may be."
23. A perusal of the above‑mentioned letters would show that the first case of this kind occurred when a certain house in Model Town, Lahore, was transferred to the wife of Mr. Zakir Husain, Minister for the Interior. The condition imposed, at that time, was that the accused person, who had been sent up for trial, was found guilty of the charge of having wrongfully submitted an NCH form. At that stage, ‑the Central Government reserved to itself the power to transfer such a property presum ably, under section 10 (b) of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958, but, subsequently, when the letter dated the 21st September 1960, was issued, subject to certain conditions, that power was conferred on the Chief Settlement Commissioner, who was authorised further to delegate it to any other officer to be nominated by him. The intention, however, was that before any such property was transferred to an informant, the person who had wrongfully applied for this property should be found guilty by a Court if law, and when in the Press Note dated the 29th September 1960, the words " accused " and " found guilty " were used, those words had a reference to the previous correspondence between the Chief Settlement Commissioner and the Central Government on this subject. As, in the present case, Mr. Wajih‑ud‑Din Ahmad, C. S. P. and Mr. Muhammad Tahawar had not been prosecuted in a Court of law, and as neither of them was found guilty of the charge of misrepresentation of facts and of giving false declarations, even if their applications had not been disposed of prior to the 30th April 1960, no question of transfer of this property, in favour of the alleged informant, respondent No. 2, could have arisen. It may also be pointed out that in the letter, dated the 21st September 1960, addressed by the Central Govern ment to the Chief Settlement Commissioner, it was made quite clear that such property could be transferred to an informant, if it could not be transferred to any other person under the provi sions of Schedule II to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This means that if any other person was entitled to the transfer of such a property, even if information of some kind is given by an informant to the Settlement Depart ment, that informant would not have a right to get the property transferred, in the presence of another claimant. In the present case, this condition was also ignored, when transferring the property in dispute in favour of respondent No. 2. For reasons given above, I am of opinion that the property in dispute could not be transferred in favour of respondent No. 2.
24. At one stage, the stand of the Settlement Department was that the property in dispute had been transferred to respon dent No. 2 on the 13th September 1960, i.e., about 16 days before the issue of the Press Note, dated the 29th September 1960, but, afterwards, the stand taken up by the Department was that on the 13th September 1960 this property had not actually been transferred in favour of respondent No. 2, but a direction had been given that the same would be transferred to her, if Government Policy, on the subject was in her favour. No order of transfer, alleged to have been passed on the 13th September 1960, is on the record of any of the cases, but on one of the records is an order of that date, indicating that instructions for disposal of this property had been issued, without specifying what those instructions were. There is also on the record of another case a letter bearing the date 13th September 1960, indicating that this property had been reserved ' for transfer to respondent No. 2, but that letter was not preceded by any order of the Additional Settlement and Rehabilitation Commissioner. The Press Note dated the 29th September 1960, on which reliance is placed by the respondent, had not seen the light of the day on the 13th September 1960, and, therefore, it is not understood how the Additional Settlement Commissioner knew that such a Press Note was going to be issued and, in anticipation of Government decision, reserved this property for being transferred in favour of respondent No. 2. Although respondent No. 2's husband claims to have sent an application on the 30th April 1960 to the Additional Settlement Commis sioner, Lahore, and although a copy of that application is said to have been forwarded by him to the Director of Enforcement no action appears to have been taken on that application by the last‑mentioned officer, until the 29th October 1960. A reference to the endorsement made on the copy of the application dated the 30th April 1960, addressed to the Director of Enforcement shows that that application was received by the last‑mentioned officer on the 4th October 1960. the report of Rafiq Mohammad, Sub‑Inspector, was made on the 22nd October 1960, and the letter to the Additional Settlement and Rehabilitation Commis sioner was addressed on the 29th October 1960. A reference to another record produced before me would show that although there is a note, bearing date 1‑5‑1960, on the applica tion dated the 30th April 1960, in the hand‑writing of the Additional Settlement and Rehabilitation Commissioner, Lahore, no action appears to have been taken, in his office, until the 20th August 1960, and even after a report bearing the date 13th September 1960, was submitted to the Additional Settlement Commissioner, Lahore, no orders, in writing, were passed by that officer. My reading of the situation is that no orders with regard to the transfer of this property, or for its reservation, were passed prior to the 29th. September 1960, and it was with a view to help respondent No. 2 that various orders and reports bearing fictitious dates and containing incorrect statements of facts were made, one of these documents being a letter dated the 7th October 1960, addressed by the Additional Settlement and Rehabilitation Commissioner, Lahore, to the Chief Settle ment and Rehabilitation Commissioner Pakistan, with which a list of nine properties, including the property in dispute, was enclosed. That list appears to have been tampered with and the names of the persons who are alleged to have obtained P. T. Os. were rubbed out and the date on which the information was alleged to have been received by the Additional Settlement Commissioner was also altered. It may also be pointed out that the list which was submitted by the Additional Settlement Commissioner, Lahore to the Chief Settlement Commissioner, with his letter dated the 7th October 1960, was of the properties regarding which P. T. Os. had been cancelled. The property in dispute, regarding which no P. T. O had ever been issued, or cancelled, was intentionally shown in that list with a view to mislead the Chief Settlement Commissioner and to obtain orders of transfer from him. Lastly, it may be pointed out that in accordance with the directions contained in the Central Government letter dated the 21st September 1960 such properties could be transferred in favour of informants either by the Chief Settlement Commis sioner or by any other officer nominated by him, and in accor dance with an order dated the 25th April 1961, that power was conferred, for the first time, on Mr. Bashir Ahmad, Settlement Commissioner (Policy) and Khan Farzand Ali Khan, Settlement Commissioner, Lahore Division, and by means of an order dated the 21st June 1961, that power was conferred on the Settlement Commissioners of the areas concerned. From a perusal of copies of these orders, which are reproduced below, it would be apparent that at no stage this power of transfer of property, to an informant, was conferred on the Additional Settlement ‑ Com missioner, Lahore: ‑
No. 3195‑Admn‑Reh/61. Dated the 16121st June 1961.
In supersession of the order bearing endorsement No. 3195‑Admn‑Reh/61 dated the 25th April 1961, it has been decided that reports in all cases regarding hidden, evacuee pro perty or evacuee property transferred irregularly after investi gation by the Director, Enforcement, Zones " A & B ", as the case may be, should be submitted by them to the Settlement and Rehabilitation Commissioner, of the area concerned for disposal. Cases now pending with Mr. Bashir Ahmad, Settlement Commissioner (Policy) and Khan Farzand Ali Khan, Settlement Commissioner, Lahore Division will, however, be disposed of by them."
No. 3195‑Admn‑Reh/61. Dated Lahore, the 25th April 1961.
It has been decided that all reports from informers regard ing hidden evacuee property or evacuee property transferred irregularly after investigation by the Director, Enforcement, Zones " A & B ", as the case may be, should be submitted by them to the Chief Settlement and Rehabilitation Commis sioner, who will examine each ease and entrust them for disposal or decision to either of the following two officers: ‑
| 1. Mr. Bashir Ahmad | Settlement (Policy). | Commissioner |
| 2. Khan Farzand Ali Khan | Settlement Lahore Division, | Commissioner Lahore." |
On the 31st October 1960, when the property in dispute is said to have been transferred in favour of respondent No. 2, the Additional Settlement Commissioner, Lahore, had, therefore, no power to do so.
25. For reasons given above, I hold that the orders dated the 13th September 1960, 21st September 1960,,1st October 1960 and the 31st October 1960, passed by the Deputy and the Additional Settlement and Rehabilitation Commissioners, Lahore (assuming that those orders were passed on the dates mentioned therein) are in excess of jurisdiction and also in violation of the relevant provisions of law. Consequently, the order dated the 1st April 1961, passed by Malik Fateh Khan, Settlement and Rehabilitation Commissioner, suffers from the same defect. I therefore, accept this writ petition and issue a writ of certiorari; quashing all the aforesaid orders. I also issue a writ of mandamus directing respondent No. 1, the Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore, to transfer the property in dispute to the petitioner, under paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. I further direct both the respondents to pa3 costs of this petition to the petitioner.
A. H.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer