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Petition No. 636 of 1962, decided on 10th April 1963.
Claimant‑Who has exhausted his claim in getting transfer of property‑Does not cease to be claimant so as to be deprived of advantage of Act.
When claimant can take advantage of possession of his parent, son, daughter or spouse.
possession by allotment and possession under Notification‑No difference for purpose of transfer of house‑Preferential claim to be found out by application of Sched. paras. 1, 2, 3 of Act‑Prior possession to be preferred‑Claimant to be preferred to non‑claimant though holding allotment order‑Para. 1 contemplates only one claimant Several non‑claimants in possession of house, and parents or spouse claimants‑House cannot be transferred to claimants‑Claimant in possession of part of house‑Other person in possession claiming through parent, son etc.‑Claimant entitled to transfer.
Zahoorul Haq for Petitioner.
S. A. Nusrat for Respondents Nos. 1, 3 & 4.
Z. H. Lari for Respondent No. 2.
Date of hearing : 19th February 1963.
The following questions have been referred for the decision of the Full Bench :‑
(1) Whether a claimant who has exhausted her claim can be considered to be a claimant displaced person within the meaning of section 2 (2) and (3) of the Displaced Persons Compensation Act to take advantage of the benefits arising out of the Displaced Persons Compensation Act
(2) Whether for the purposes of the provisos to clause 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act a claimant can take advantage of the physical possession of his parent, son, daughter or spouse against a, competitor ; and
(3) Whether the concession of Notification No. F. I., (27)/59‑SI, dated the 13th of October 1959, reproduced below, is meant for a person in physical possession before the 21st day of December 1958, against a person holding allotment of a part of the property No. F. I., (27)/59‑SI, 13th October 1959, (Gazette, Extra ordinary, 26th October 1959).‑In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non‑claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty‑first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day :
Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such amount is adjusted against his claim."
2. The facts giving rise to the above questions briefly put are these :‑
The house, part of which is in dispute, is situated on Gokhley Road, Karachi. The house consists of four tenaments, two on the first floor and two on the ground floor. The Settlement Authorities have divided the house vertically into two portions each portion consists of one of the two first floor tenaments and the one on the ground floor. The portion in dispute consists of the first floor tenament No. 885/3 and ground floor tenament 885/1. These two tenaments were transferred to respondent No. 2 Abdul Majid Shaida on the basis of the possession of his son Vakil Ahmad by the Deputy Settlement Commissioner on the 7th November 1959.
3. The petitioner Mst. Noor Jehan Begum claims to be a claimant in possession. She applied for the transfer of the bungalow in question on the basis of her possession on 12th November 1959. Her application was rejected on 16th November 1959. On appeal the Additional Settlement Commissioner remanded the case to the Deputy Settlement Commissioner who rejected her claim on the 15th February 1960. It would be useful to mention certain facts which transpire from his order. The ground floor of the portion in dispute is in possession of Mst. Noor Jehan. The two tenaments in dispute cannot be divided as independent units. Abdul Majid Shaida respondent No. 2 has a verified claim of Rs. 35,000 while Mst. Noor Jehan Begum's husband has got verified claim of Rs. 720 only. The possession of Mst. Noor Jehan Begum is prior to that of Vakil Ahmad, son of Abdul Majid Shaida. Vakil Ahmad holds an allotment order. Mst. Noor Jehan has no allotment order. The tenament on the first floor is in possession of the sons of Abdul Majid Shaida.
4. So far as the first question is concerned we have come to the conclusion, after hearing the learned Advocates for the parties, that under the Scheme of the Displaced Persons (Com pensation and Rehabilitation) Act 1958 (hereinafter called the Act) a claimant who has exhausted his claim still continues to be a claimant within the meaning of section 2 (2) and (3) of the Act. Sub‑clauses (2) and (3) of section 2 run as under :‑
"2(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 successors- in‑interest of a claimant who dies on or before the thirty first day of August 1959, but does not include any such person whose claim has subsequent to registration been withdrawn or rejected.
(3) "displaced person" means any person who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances in any area now forming part of or occupied by India, has, on or after the first day of March 1947, left or been displaced from, his place of residence in such area and has subsequently become a citizen of Pakistan, or is residing therein, and includes any person who, being a resident of any territory outside India, is for that reason unable to manage, supervise or control any property belonging to him in India or in any area occupied by India, and also includes the successors‑in‑interest of any such person."
5. The main contention of Mr. Lari in support of the proposition that a claimant who has exhausted his claim cannot be considered to be a claimant within the definition given in the Act was that under section 15 of the Act a claimant is entitled to get compensation to the extent of his claim. It is contended that the implication of section 15 of the Act is that after a claimant has received his compensation he becomes a non‑claimant inasmuch as he has nothing further to be compensated for. It was urged that the object of the Act, as would appear from the preamble to the Act, is to provide for the payment of compensa tion to displaced persons and to rehabilitate them. Mr. Lari urged that as soon as a person is compensated to the extent of his claim the object of the Act is fulfilled. He cannot thereafter be said to be a claimant or a displaced person. There is not much force in this contention. The scheme of the Act appears to be otherwise. A claimant does not cease to be a claimant so as to be deprived of the advantage of the Act on the ground that he has exhausted his claim. In other words, a claimant, fort instance, who is entitled to a residential house as well as a shop exhausts his claim by claiming the house is not deprived to claim a shop if he is otherwise entitled. A reference may be made to various paragraphs of the Schedule to the Act. Para. 4 of the schedule, the relevant provision of which runs as under, makes it clear that where the claim of a claimant is even 50 per cent of the value of the house that he claims house can still be trans ferred to him.
"4. A house not transferred under paragraphs 1, 2 and 3 shall be available for transfer to any claimant who applies in that behalf and to whom a house has not been transferred under paragraph 1, and shall be transferred to such claimant at a price determined on evaluation basis
Provided that‑
(a) except in the case of a house the value of which does not exceed twenty‑five thousand rupees, the claim of such a claimant is at least fifty per cent., of the value of the house."
In this connection it may also be mentioned that the scheme of the Act is to transfer property to even non‑claimant displaced persons. A reference may be made to para. 9 of the Schedule. It runs as under :‑
"9. A shop 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 shop shall be transferred to any one non‑claimant under this paragraph
Provided further that if there is more than one applicant for the transfer of the same shop, the shop shall be transferred to the non‑claimant who obtained prior possession."
6. We have come to the conclusion, after hearing the learned Advocates for the parties, that a claimant cannot take advantage of the possession of his parent, son, daughter or spouse. It would be useful for the consideration of this question to reproduce para. 1 of the Schedule. It runs as under :‑ ‑
"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 provisions 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 posses sion of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession."
It was contended that just as a claimant for the purposes of the main clause can take advantage of the possession of his parent, son, daughter or spouse he can also take advantage for the purposes of the two provisos to para. 1 reproduced above. There is not much force in this contention. The proviso is, as a rule, an exception to what is mentioned above it. The main paragraph, as would appear from its perusal, contemplates that the house is in possession of a parent, son, daughter or spouse and that the applicant is a claimant and there is no on else to compete with him.
7. The third question envisages various possibilities. Some are these
(1) that both the persons are in possession of different portions of the house and are claimants. The only difference between them is that the one does not possess allotment order while the other has an allotment order ;
(2) that one of them is a claimant and the other is not ;
(3) that the persons in possession are not claimants but their parent or spouse is a claimant ;
(4) that one of them is a claimant and the other claims through his parent or spouse.
8. Before we proceed to consider the above possibilities we would like to clarify two points namely
(1) whether a person who is in possession of a house in pursuance of an order passed on or before the 20th day of December 1958, is in any disadvantageous position as against a person who is deemed to be in possession of a house or a shop by virtue of the Notification dated the 13th October 1959, already reproduced ;
(2) whether it would make any difference for the transfer of a house if the claimant is in possession of only part of the house which he claims.
9. We are of the view that it would make no difference for the purposes of the transfer of a house under the Schedule to the Act if he is in possession of the same either through an allotment order or he is in possession after fulfilling the conditions mentioned in the Notification dated the 13th October 1959. In this con nection the definition of possession to the second proviso may be usefully reproduced. It runs as under
"Possession means possession obtained in pursuance of an order passed on or before the 20th day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Govern ment
Provided further that the Central Government may by order in writing direct that the class or classes of persons as have not obtained possession as aforesaid shall, subject to such C conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act. "
It would appear from the above that a person who under the Notification dated the 13th October 1959, fulfills the conditions specified therein would be regarded to be in possession for the purposes of the Act. There would be no distinction between the possession of such a person and that of the person who has obtained possession in pursuance of an allotment order. The Schedule to the Act which deals with the manner of disposal of urban evacuee property does not make any distinction in the possession of the person in pursuance of an allotment order and person who fulfills the conditions of the Notification dated the 13th October 1959, already reproduced. As to which of the two persons, the one who has obtained posses sion in pursuance of an allotment order and the other who is deemed to be in possession by virtue of the Notification of the 13th October 1959, has a preferential claim to the allotment of the house in their possession would depend upon several factors as enumerated in the two provisos to paragraphs 1, 2 and 3 o this Schedule.
10. The definition of house contemplates that it can consist of different units and the same can be in possession of various persons. It would further appear from the definition of house that the various persons in possession of the house can apply for the transfer of the same. As to who would be entitled to the transfer would depend upon the two provisos to para. 1 and paras. 2 and 3 of the Schedule to the Act.
11. With the above observations we would now proceed to answer the questions that we have framed above. Our answer to the question where the two persons in possession are claimants, the one is in possession by virtue of the Notification of the 13th October 1959, and the other by virtue of an allotment order, that the house would be transferred to the one who came in prior possession. The allotment order would be of no consequence. To the second question the answer would be where one of the persons in possession is a claimant and the other is a non‑claimant, though holding an allotment order, the claimant would have the right to the transfer of the house. Our answer to the third question would be that where a house is in possession of non‑claimants but their parent or spouse is a claimant, the house cannot be transferred to the claimant, as para. 1 contemplates, as already discussed in reference to question No. 2 that there is only one applicant. Our answer to the fourth question would be that where one of the persons in possession is a claimant and the other claims through his son or parent the claimant would be entitled to the transfer. These answers are based on paras. 1, 2 and 3 of the Schedule to the Act.
12. Our answer to the third question in the reference order in the light of what we have mentioned above is that the possession of the person by virtue of the Notification of 13th October 1959, is as good as that of a person in possession by virtue of an allotment order. As to which of the two persons would be entitled to the transfer of the house would depend upon the considerations mentioned under the two provisos to paras. 1, 2 and 3 of the Schedule to the Act.
A. H.
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