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Writ Petition No. 223 of 1961, decided on 19th/29th April 1963.
Petition ‑ (New plea)‑Point not raised before Settlement Authorities‑Allowed to be raised, being pure question of law‑(Plea that person in possession has a preferential right as against one claiming "indirectly" through son, daughter or spouse)‑Plea same but based on different ground‑Not a new plea‑Plea not available before‑Not barred‑[Haji Ghulam Nabi v. Settlement and Rehabilitation Commissioner, Karachi and others P L D 1962 Kar. 786 considered ; Chief Settlement Commissioner v. Ch. Altaf Hussain and others P L D 1962 Lah. 189 and Ch. Altaf Hussain v. Shabir Hussain and others P L D 1961 Lah. 449 ref.]
Applicant for transfer of house claiming through allotment in husband's favour cannot have benefit of husband's possession "in presence of other applicants" [Altaf Hussain v. Shabir Hussain P L D 1961 Lah. 449 and The Chief Settlement Commissioner v. Ch. Altaf Hussain and others P L D 1962 Lah. 189 rel.].
("Possession")‑Applicant having no locus stands on date of application but entitled to apply after amendment of definition of "possession"‑Fresh application for transfer not necessary.
Notification dated 13th October 1959‑Allottee in possession has preferential right to transfer as against an applicant (wife) claiming through husband's allotment, provided house is indivisible.
Press Note dated 7th March 1960‑Whether based on order "in writing" (Quaere) Press Note has retrospective effect in regard to applications not "finally" disposed of.
Divisibility of house‑Powers to determine delegated to Deputy Settlement Commissioner, etc., by Chief Settlement Commissioner‑Decision of Deputy Settlement Commissioner becomes final irrespective of whether he holds house to be divisible or indivisible.
Where the property is held to be divisible, or indivisible by an officer to whom the power under clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 195 8 has been delegated he is doing so in exercise of the delegated authority and, hence, the rule laid down by the Supreme Court in Bahar Muhammad's case would apply. In other words, that rule would apply even in those cases where an officer holds that a property is not capable of division and has to be transferred as a single unit. On this view of the matter, the order of the Deputy Settlement Commissioner holding that the property in dispute was indivisible became final, so far as the question of divisibility was concerned and that order could not be modified by officers sitting above him. The property in dispute could, therefore, be transferred to one person only.
(Civil Petition for Special Leave to Appeal No. 58 of 1962) ref.
S. A. Nusrat for Petitioner.
A.‑A. G., Akhtar Mahmood and Muzaffar for Respondents.
Dates of hearing: 18th, 26th, 28th and 29th March 1963.
The property in dispute, which is a double‑storeyed bungalow, was in occupation of Riaz Hussain Shah petitioner, Dr. Munawar Ali, husband of respondent No. 3, S. M. Zakir, respondent No. 4, and Nawab Hussain respondent No. 5, Riaz Hussain Shah had been allotted a portion of it with effect from the 17th April 1953, the husband of respondent No. 3 was in occupation of a portion of it since the 16th August 1949, with permission of the Provincial Government and is an allottee under the Rehabilitation Authority since 14th April 1951, Respondent No. 4 is not an allottee, but claims to be such with effect from the 17th November 1949, and respondent No. 5, who is no longer interested in the present dispute, claimed to be an allottee since the year 1949. All these persons applied for the transfer of this property to the Deputy Settlement Commissioner, presumably, in accordance with Settlement Scheme No. 1, framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
2. The Deputy Settlement Commissioner, by means of an order, dated the 24th October 1959, held that this property was indivisible and transferred the whole of it to Mst. Anwari Begum respondent No. 3. The petitioner and respondent No. 4 both filed appeals before the Additional Settlement Commissioner. The appeal of respondent No. 4 was dismissed, but that of the petitioner was accepted, in part, by the Additional Settlement Commissioner, who held that the property was divisible into two portions, transferred the ground floor to the petitioner and allowed respondent No. 3 to keep the first floor.
3. Both respondents Nos. 3 and 4 filed revision petitions against the order of the Additional Settlement Commissioner. The revision petition filed by respondent No. 3 was accepted by the Settlement Commissioner who held that the property was indivisible and transferred the whole of it to respondent No. 3, by means of an order, dated the 14th April 1960. The revision petition filed by respondent No. 4 was dismissed. The petitioner and respondent No. 4 filed second revision petitions before the Chief Settlement Commissioner who dismissed both on the 20th February 1961. He upheld the order dated the 14th April 1960, passed by the Settlement Commissioner, which order is still operative. The validity of these orders was challenged by the petitioner and S. M. Zakir, respondent No. 4, by means of two petitions filed under Article 11 of the Laws (Continuance in Force) Order, 1958. This judgment will dispose of both these petitions.
4. The learned counsel for the petitioner raised the follow ing contentions during arguments :‑
(1) That respondent No. 3 herself not being an allottee of this property and having claimed this property through her husband she was not entitled to any portion of it in the presence of the petitioner who, admittedly, is an allottee.
(2) Respondent No. 3 gave an application for transfer of the property on the 14th July 1959, under the Notification dated the 19th May 1959, which has been printed at page 305 of the Manual of Settlement Law and Procedure. At that time, only persons who were in possession of such property in pursuance of a lawful order could apply for transfer and, hence, after the definition of "possession" contained in section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was amended and the Central Govern ment issued a Notification on the 13th October 1959, in pur suance of the powers conferred by the second proviso to that clause, persons who were in possession otherwise than in pursuance of a lawful order became entitled to apply, it was obligatory for this respondent to give a fresh application after the change of law took place and as she did not do so, she was not entitled to the transfer of this property.
(3) Respondent No. 3 did not fulfil all the conditions which have been laid down in the Notification dated the 13th October 1959, referred to above, and, hence, she was not entitled to the transfer of this property.
(4) The Press Note, dated the 7th March 1960, which has been printed at page 123 of the Manual of Settlement Law and Procedure and which entitles a wife, who is living with her husband in a property allotted to him, to apply for its transfer not being an order "in writing" within the meaning of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act 1958, respondent No. 3 could not take benefit of her husband's allotment.
(5) When the order, dated the 24th October 1959 was passed by the Deputy Settlement Commissioner transferring the whole of this property to respondent No. 3, the Press Note dated the 7th March 1960, was not in existence and even if that Press Note had been based on an (order) "in writing" and is considered to be valid on its basis, respondent No. 3 cannot claim any right in this property.
(6) Respondent No. 4 not being an allottee and the petitioner being entitled to the transfer of this property, this respondent's case is not covered by the Notification dated the 13th October 1959, and hence, no part of this property could be transferred in his favour.
(7) The house in dispute was held to be indivisible by the Deputy Settlement Commissioner. In doing so, he did not exercise the authority delegated to him by the Chief Settlement Commissioner by means of a Notification dated the 14th October 1959, issued under clauses (4) and (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and, hence, the views expressed by their Lordships of the Supreme Court in Bahar Muhammad's case would be inapplicable to this case, and, therefore, the order of the Additional Settlement Commissioner holding the property to be divisible and transferring a portion of it to the petitioner was a valid order.
5. The learned counsel for respondent No. 4, with a view to defeat the claim of respondent No. 3, joined hands with the petitioner and supported all the contentions raised by the petitioner's counsel. He, however, contended that as this res pondent has been held to be an allottee with effect from the 17th November 1949, by the Settlement Commissioner, he was entitled to a "portion of this property, as it was rightly held to be divisible. In the alternative, he contended that for determining the question of divisibility of the property and the "entitlement" of the petitioner and respondent No. 4, the orders of the Settlement Authorities be quashed and they may be directed to decide afresh, on merits, the claims of the petitioner and respondent No. 4.
6. Before I deal with the various contentions raised by the counsel for the petitioner and respondent No. 4, it is necessary to dispose of a preliminary objection raised by the counsel for respondent No. 3 to the effect that the petitioner cannot be
allowed to raise the following new pleas which were not raised by him before the Settlement Authorities
(i) That the petitioner and respondent No. 4 are "direct" claimants while respondent No. 3 is claiming the property "indirectly" through her husband ;
(ii) that the husband of respondent No. 3 was not holding the property in dispute in pursuance of a lawful order passed by the Provincial Government, or that the case of respondent No. 3 is not covered by the Notification, dated the 13th October 1959 ; and
(iii) that the Press Note dated the 7th March 1960, is not based on an order "in writing."
6‑A. For a proper appreciation of the various contentions raised, the two Notifications dated the 13th October 1959, 14th October 1959, and the Press Note 7th March 1960, are reproduced below
Notification dated the 13th 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 undis puted 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."
Notification dated the 14th October 1959
"In exercise of the powers conferred upon me by sub section (2) of section 31 of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958, 1, Syed Hashim Raza, Chief Settlement Commissioner, Pakistan, hereby delegate to all Settlement Commissioners, Additional Settlement Commis sioners and Deputy Settlement Commissioners in West Pakistan and Karachi, the powers of the Chief Settlement Commissioner under provisos to subsections (4) and (12) of section 2 of the aforesaid Act."
Press Note dated the 7th March 1960
"The Central Government has decided that where a 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."
7. In support of the preliminary objection raised by the learned counsel for respondent No. 3, he relied on the views expressed in Haji Ghulam Nabi v. Settlement and Rehabilitation Commissioner, Karachi and others (P L D 1962 Kar. 786), in which, following an English decision King v. Williams and others ((1914) 1 K B 608), it was held that before a question of jurisdiction is raised on a petition, objection to jurisdiction must be taken before the Tribunal whose order is being challenged before the High Court, in proceedings for the issue of a writ The learned counsel also referred to two Indian authorities in which somewhat similar views have been expressed. The pleas to the maintainability of which objection is being raised by the learned counsel for the respondent are, in my opinion, pleas on pure questions of law and although they could have been raised before the Settlement Authorities, it would, in my opinion, not be proper for this Court to decline to interfere on the technical ground that those pleas were not raised before the authorities concerned. One of the pleas, namely, that a person, who isi"i relying on his or her own possession, has a preferential right a Is against a person, who is claiming "indirectly" through his of her son, daughter or spouse, is supported by a judgment of this Court reported as Chief Settlement Commissioner v. Ch. Altaf Hussain and others (P L D 1962 Lah. 189), in which the view expressed by me on this point sitting as a Single Judge in that very case Ch. Altaf Hussain v. Shabir Husain and others (P L D 1961 Lah. 449) was approved. The petitioner could not have anticipated the decision given by this Court in this reported case and, hence, such a plea could not be raised by him before the Settlement Authorities. As to the second of these pleas, namely, that the husband of respondent No. 3 was not holding the property in pursuance of a lawful order, it. appears to have been raised before the Settlement Authorities, but the ground on which that plea was raised was somewhat s different from the ground on which that plea is based now anti, hence, on this ground, the petitioner cannot be prevented from obtaining a finding from this Court. The third of these pleas is that the Press Note, dated the 7th March 1960, is not based or an order "in writing" within the meaning of clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958, and this plea having been raised on the strength of a letter addressed as recently as 30th January 1963, by a Section Officer of the Ministry of Rehabilitation to one Muhammad Ismail could not have been raised before the Settlement Authorities, because without this letter nobody could be in a position to know whether the Press Note in question was based on an order "in writing" or not. I, therefore, over‑rule the preliminary objections raised by the learned counsel for the respondent and hold that the petitioner is entitled to raise these pleas before this Court.
8. Coming now to the merits of the case, I find that the first contention raised by the learned counsel for the petitioner, namely, that respondent No. 3 herself being not an allottee of this property and having claimed it through her husband she was not entitled to any portion of it, in the presence of the petitioner, who, admittedly, is an allottee, has considerable force, because it is supported by an authority of this Court reported as Altaf Hussain v. Shabir Hussain (P L D 1961 Lah. 449), in which, sitting as a Single Judge, I held that the expression "possession" referred to in the proviso to paragraph 1 of the Schedule to the Act means possession as defined in the Act and such possession would be of a person who is actually occupying the property and not the possession of someone else. This case was taken up in appeal to a Division Bench and the view which I expressed was upheld by the Division Bench in the judgment reported as The Chief Settlement Commis sioner v. Ch. Altaf Hussain and others. Dealing with this aspect of the matter, the Division Bench held that the language employed in the opening part of paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, makes it clear that an applicant for transfer of a house can take advantage of the possession of a parent, spouse, daughter or son, provided the applicant is a claimant and there is no one else to compete with the applicant. The Court further held that the two provisos to the paragraph deal with entirely different situations and come into play only in those cases in which there are more than one applicant for the transfer of a house‑a case entirely different from the one to which the opening part of the paragraph is applicable. On this view of the matter, subject to my decision as to the effect of the Press Note dated the 7th March 1960, I hold that respondent No. 3 being herself not an allottee and there being more applicants than one for this property, she cannot claim the benefit of her husband's possession under paragraph 1 of Schedule to the Act.
9. The second contention raised by the petitioner's counsel, in my opinion, has no force. It is no doubt, true that when respondent No. 3 gave the application for transfer of this property on the 14th July 1959, under the unamended definition of "possession" in clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, she had no locus standi to apply, because her possession was not in pursuance of an order passed by the Custodian or a Rehabilitation Authority and she could get the property transferred, on the strength of her own occupation only, after fulfilling the conditions laid down in the Central Government's Notification, dated the 13th October 1959, issued after the definition of "possession" had been amended and those persons who were previously not entitled to get such property transferred became so entitled. It was, however, noT necessary for the respondent to give a fresh application after the definition of "possession" had been amended and the Central Government notification referred to above had been issued. The previous application which she had given could be dealt with under the changed law, although initially, she had no locus standi to apply for transfer. I, therefore, hold that merely because a second application for transfer of the property was not given by respondent No. 3 she could not be deprived of her right to get the property transferred, if she was otherwise entitled to it.
10. The Central Government's notification dated the 13th October 1959, relied upon by respondent No. 3, lays down several conditions on fulfillment of which a property can be transferred, under the Act, in favour of an applicant whose possession was not in pursuance of a lawful order by the Custodian or any other authority. The first of these conditions is that the applicant should have been in occupation of such a property prior to the 21st December 1958, and that his, or her, possession should be undisputed. The second condition is that no other person is otherwise entitled to the transfer of the property. The third condition is that the rent and other public dues, in respect of such property, are paid by the occupant if he is a non‑claimant, or adjusted against the applicant's claim if he is a claimant. It was contended that two of these conditions are not fulfilled by respondent No. 3, namely, that she was not in "undisputed" possession in her own right before the 21st December 1958, and secondly, that the petitioner being one of the persons, who is otherwise entitled to this property, respondent No. 3 cannot get it, provided the property is held to be indivisible and has to be transferred to one individual. Respondent No. 3 never claimed to have been in possession of this property in her own right. Her claim was that since she was living with her husband and her husband was in lawful possession of this property, she should be deemed to be in "possession" by virtue of the order of the Central Government, as contained in the Press Note, dated the 7th March 1960. This point would be dealt with when dealing with the fourth contention raised by the petitioner. So far as the third con tention of the petitioner is concerned, it may simply be stated that as the petitioner is not entitled to the transfer of this property, being an allottee, one of the conditions of the notification, dated the 13th October 1959, is not fulfilled and, hence, if the property is held to be indivisible, it cannot be transferred to respondent No. 3.
11. Coming now to the fourth contention raised by the petitioner's counsel, there is a substantial dispute between the parties as to whether there was or was not an order "in writing" within the meaning of clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the Central Government, to enable respondent No. 3 to claim that as her husband was in possession in pursuance of a lawful order she should also be deemed to be in possession. The contention of the petitioner was bas(d solely on the contents of the following letter, dated the 30th January 1963, addressed by Mr. Ali Raza, Section Officer, to one Muhammad Ismail, a copy of which was produced, for the first time, during arguments before me :‑
"With reference to your application dated the 29th January 1963, lam desired to say that the decision of the Central Government mentioned in the Chief Settlement Commissioner's Memo. No. 3223‑PI‑Reh.‑60, dated the 7‑3‑60, was taken after discussion with that officer and announced through that Memo. and is not contained in any separate document."
12. With a view to do substantial justice between the parties, on the application of the petitioner, I passed an order on the 26th March 1963, for summoning Mr. Ali Raza, to appear as a witness before me on the 28th March 1963, with the relevant documents. It was reported on that date to me that Mr. Ali Raza was not present in Karachi and that no other officer, con versant with the facts of the case, was available at Karachi. I then passed another order, directing the Ministry of Rehabilita tion to send a report to me, as to whether there was, in fact, an order "in writing" by the Central Government on the basis of which the Press Note, dated the 7th March 1960, which has been printed at page 123 of the Manual of Settlement Law and Procedure, was issued No such report has, so far, been received and, therefore, in these circumstances, I cannot be certain whether the contents of the letter, dated the 30th January 1963, are correct and whether, in fact, there was no order "in writing" within the meaning of the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the basis of which the Press Note, dated the 7th March 1960, was issued. As the decision of the case would depend, to a very great extent, on the determination of this question, I intend leaving this matter open, for the present, and propose directing the Chief Settlement Commissioner to make an inquiry into the matter and then give a final determination on the disputed question.
12‑A. The fifth contention is connected with the fourth contention and does not require any independent finding by me. I may, however, add that if the Press Note, dated the 7th March 1960, is based on an order "in writing" by the Central Government, the mere fact that this order was not in existence on the 24th October 1959, when the Deputy Settlement Commissioner transferred the whole of this property, respondent No. 3 would not stand in her way, because final orders had yet to be passed, and it was only at the stage of the passing of the final orders that the relative claims of the parties were to be examined.
13. Coming now to the sixth contention, I find that it is again a disputed question as to whether respondent No. 4, Mr. S. M. Zakir, is or is not an allottee of a part of the property in dispute. In the order, dated the 18th February 1960, passed by the Additional Settlement and Rehabilitation Commissioner (Annexure A'), Mr. S. M. Zakir was described as a non‑allottee and when the matter came up, in revision, before the Settlement and Rehabilitation Commissioner, an allotment order, dated the 17th November 1949, was produced before that officer. It was contended before him that that allotment order was a forged document, but without giving any determination on this question, the Settlement and Rehabilitation Commissioner, in his order, dated the 14th April 1960 (Annexure B'), made, the following observations :‑
"As to the question of the allotment order, being a forged document, I am not giving any finding. This order does not in any manner, interfere with the course of investigation of Special Police. Original order has not been produced before me. I have accepted its copy at its face value and discussed the case of Mr. Zakir, presuming that the document he has pro duced to be genuine. I did not go into its genuineness, as it did not affect the merits of the case of his contestants. Mr. Zakir, however, chose to rely upon it and is, therefore, bound by its contents."
14. The finding of the Deputy Settlement Commissioner to the effect that this respondent was a non‑allottee was neither set aside, nor was it upheld, and the matter remained undecided. In this state of affairs, it will have to be determined first whether respondent No. 4 is in possession of the property in dispute in pursuance of a lawful order, within the meaning of clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958, or whether he is merely in possession, and his case would be covered by the second proviso to clause (6) of section 2 of the Act, read with the Central Government's notifica tion, dated the 13th October 1959. As I propose giving a direc tion to the Chief Settlement Commissioner to re‑decide the case on merits, in so doing, he will also give a determination of this question which, for reasons given above is therefore kept open.
15. The last of the contentions raised by the petitioner's counsel is about the question of divisibility which, in the light of the observations made by their Lordships of the Supreme Court in Bahar Muhammad's case, will have to be dealt with at some length. In that case (Civil Petition for Special Leave to Appeal No. 58 of 1962) their Lordships observed as follows :‑
"The next point urged is that the power to declare a house divisible or indivisible resides only in the Chief Settlement Commissioner and the other Settlement Officers exercise this power as a delegatee of the Chief Settlement Commis sioner and therefore the Chief Settlement Commissioner had no power to interfere with the order of the Settlement Com missioner or the Additional Settlement Commissioner who had found the house to be indivisible. The argument is correct in so far as it is urged that the Chief Settlement Commissioner could not interfere with his own delegated power, but learned counsel for the petitioner has overlooked that this argument in fact goes against the petitioner. The Deputy Settlement Commissioner had pronounced the house to be divisible. This he had done in exercise of a power delegated by the Chief Settlement Commissioner. His decision therefore could not have been interfered with by the Additional Settlement Commissioner."
16. What happened in the present case was that the Deputy Settlement Commissioner had held that the property in dispute was indivisible and transferred the whole of it to Mst. Anwari Begum respondent No. 3. On appeal to the Additional Settlement Commissioner this order was modified and the property was held to be divisible into two portions, one portion was transferred to the petitioner and the other to respondent No. 3. This order was challenged by respondents Nos. 3 and 4 by filing two revision petitions. The revision petition filed by respondent No. 4 was dismissed, while that filed by respondent No. 3 was accepted by the Settlement Commissioner, who held that the property was indivisible and transferred the whole of it to respondent No. 3. The petitioner challenged this order by filing a second revision petition before the Chief Settlement Commissioner who dismissed it on the 20th February 1961. The net result of all this is that the whole of the property stands transferred is favour of res pondent No. 3.
17. The contention of the petitioner's counsel was that although the power to divide a property conferred on the Chief Settlement Commissioner by clause (4) of section 2 of the Dis placed Persons (Compensation and Rehabilitation) Act, 1958 had been delegated by him in favour of all the Deputy Settlement Commissioners, Additional Settlement Commissioners and Settlement Commissioners, the Deputy Settlement Commissioner ' held that the property was indivisible. In doing so, according to the learned counsel, he did not exercise the powers delegated to him by the Chief Settlement Commissioner and, hence, his order, in this respect, could be modified, in appeal, by the Additional Settlement Commissioner, although the latter's order, in view of the observations made by their Lordships of the Supreme Court, could not be modified, in revision, by the Settlement Commis sioner. In my opinion, where the property is held to be divisible, or indivisible by an officer to whom the power under clause (4) of section 2 of the Act has been delegated he is doing so in exercise of the delegated authority and, hence, the rule laid down by their Lordships of the Supreme Court in Bahar Muhammad's case would apply. In other words, that rule would apply even in those cases where an officer holds that a property's is not capable of division and has to be transferred as a single unit. On this view of the matter, the order of the Deputy Settlement Commissioner holding that the property in dispute was indivisible became final, so far as the question of divisibility, w‑s concerned and that order could not be modified by officers sitting above him. The property in dispute could, therefore, be transferred to one person only.
18. To sum. up, my opinion is that as the property in dispute had been held to be divisible by the Deputy Settlement Commissioner and as that order could not be modified in appeal or revision it had to be transferred to that applicant who had a preferential right. I also hold that if the Press Note, dated the 7th March 1960, issued by the Central Government was based on an order "in writing" of that Government within the meaning of the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, Mst. Anwari Begum, respondent No. 3 could be deemed to be in "possession" of the property, if her husband was in possession of the property in pursuance of a lawful order passed by a Custodian, a Rehabili tation Authority or any other officer authorised or permitted by the Central or Provincial Government. Lastly, I hold that if respondent No. 4 was in possession of the property in dispute in pursuance of such a lawful order, his claim for the transfer of the property had to be considered on its own merits, but if he was not in possession in pursuance of such an order he could rely on the Central Government's Notification, dated the 13th October 1959, issued under the second proviso to clause (6) of section 2 of the Act, provided he fulfilled all the conditions laid down therein, one of the conditions being that no one else is entitled to the transfer of such property. As no clear finding has, so far, been given on the question whether this respondent was in possession of the property in dispute, in pursuance of such an order, the case will have to be decided afresh after a determina tion of this question is given and also it is determined whether the press Note dated the 7th March 1960, is based on an order ‑in writing" or not. I, therefore, declare that the order, dated the 20th February, 1961, passed by the Chief Settlement and Rehabilitation Commissioner is of no legal effect against the rights of the parties and, hereby, direct that officer to re‑decide the revision petition of the petitioner and respondent No. 4, in the light of the remarks made above, after giving a determination on the various points mentioned by me in this order. In the peculiar circumstances of the case, I make no order as to costs.
[Announced by Illahi Bakhsh Khamisani, J. on 29th April 1963].
A. H.
Order accordingly.
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