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Writ Petition No. 553 of 1961 (and other petition), decided on 16th June 1963.

‑(Deputy Settlement Commissioner not condoning delay in applying for review in circumstances of case) (High Court directed that delay should have been condoned)‑ Constitution of Pakistan, 1956, Art. 170.

"Possession"‑Includes constructive possession‑Allottee in England; his mother and children in occu pation of house‑Allottee regarded as in "possession"‑[Brown v. Draper (1944) 1 K B Div. 309 ref.].

Settlement Scheme No. I, para. 4‑Withdrawal of application (C H Form) for transfer of house‑Applicant not entitled to move fresh application.

‑Settlement Scheme No. 1, para. 8‑Transfer of house‑(Several occupiers)‑"Limited auction" not warranted by law‑Order recognising "priorities" between applicants‑Set aside.

Mohsin Siddiqi, Ismail Merchant and Sher Ali for Petitioners 1 to 4.

Dates of hearing : 15th and 16th January 1963.

This judgment will dispose of Writ Petitions Nos. 553/1961, 79/1962, 81/1962 and 82/1962 as the points raised in them arise from a common order passed by the Chief Settlement Commis sioner in Revision No. CSC‑R‑570/61, CSC‑R‑571/61 and CSC‑R/501/61, dated the 14th of October 1961. All the parties in some shape or the other are connected with the above mentioned writ petitions.

2. The dispute between the parties is in respect of a building bearing No. S.B. 2/96‑VII‑E‑143, Soldier Bazar Karachi. It is a three‑storeyed building having four tenements i.e. G/1, G/2, G/3 and G/4 on the ground floor, and two tene ments 1/1 and 1/2 on the first floor. Tenement No. 2/1 is on the second storey. G/2 is occupied by Mr. Muhammad Roshan, petitioner in W. P. 82/1962 ; 2/1 on the second storey is occupied by Mst. Bilquis Jahan Begum ; 1/2 on the first floor by Ibrahim Haji Abdullah, and G/1 by Abdus Saeed Qureshi, petitioner in W. P. No. 81/1962. Malik Rafiullah, petitioner . in W. P. No. 79/1962 is in occupation of tenement No. 1/1 on the first floor. The Deputy Settlement Commissioner by order dated the 2nd of December 1959, treated the whole building as a single indivisible unit and transferred it to Mst. Bilquis Jehan Begum. Muhammad Roshan had already withdrawn his claim. As a result of this decision the claims of Ibrahim Haji Abdullah, Malik Rafiullah and Abdus Saeed Qureshi were rejected. On the .7th of January 1960 a P. T. O. was issued in favour of Mst. Bilquis Jehan Begum for the transfer of the said property on an evaluation price of Rs. 48,000. Since Mst. Bilquis Jehan Begum did not possess the requisite verified claim to meet the price of the entire building, by an agreement dated the 7th of January 1960. She associated herself with Fatehyab Khan, Mst. Afroze Jehan and Mst. Somar Jehan, her brother and two sisters, in the acquisition of the said property. Under this agreement Fatehyab Khan acquired 4 annas share Mst. Afroze Jehan and Mst. Somar Jehan acquired 2 annas share each.

3. Petitioners Abdus Saeed Qureshi and Muhammad Roshan filed separate appeals against the above‑mentioned order of the Deputy Settlement Commissioner, Karachi. Ibrahim Haji Abdullah also filed an appeal against that order. The learned Additional Settlement Commissioner, Karachi rejected the appeal of Muhammad Roshan on the ground that he had already withdrawn his claim and was not entitled in law to prefer a fresh claim in respect of the tenement in his possession. The appeal of Abdus Saeed Qureshi was dismissed on the ground that he was in England and was not in physical possession of the tenement claimed by him. In a suo motu revisional pro ceeding the learned Additional Settlement Commissioner, however, came to the conclusion that the building in dispute consisted of more than one residential unit and set aside the order of the Deputy Settlement Commissioner transferring the entire property to Mst. Bilquis Jehan Begum and allowed her claim only to the extent of transfer of tenement No. 2/1. Mst. Bilquis Jehan Begum's revision against the order of the Additional Settlement Commis sioner was rejected. The revisions of Muhammad Roshan and Abdus Saeed Qureshi were also rejected. Malik Rafiullah did not file any appeal against the order of the D. S. C. He, however, filed a revision on the 22nd of September 1961 and made a further petition on the 4th of November 1961 in support of his claim jointly with some other persons before the Chief Settlement Commissioner. Muhammad Roshan, Abdus Saeed Qureshi and Ibrahim Haji Abdullah filed three revisions pertaining to property No. S.B. 2/96‑VII‑E‑143, Soldier Bazar, Karachi, which were disposed of by a common order dated the 14th of October 1961 by the Chief Settlement Commissioner. The learned Chief Settlement Commissioner upheld the orders of the Subordinate Settlement Authorities in respect of the claim of Muhammad Roshan and rejected his claim on the ground that having withdrawn it once, he was not entitled in law to agitate it any further. The revision of Abdus Saeed Qureshi was also dismissed on the ground that neither he nor his mother was a claimant and since he was not in physical possession of the tenement claimed by him, he was not entitled to its transfer on the basis of the possession of his mother. Ibrahim Haji Abdullah's revision about the roof terrace on the flat of the tenement transferred to Mst. Bilquis Jehan Begum was also dismissed on the ground that it formed part of the tenement of Mst. Bilquis Jehan Begum and was absolutely necessary for the use of the tenement in her possession. The learned Chief Settlement Commissioner passed no order about the portion in possession of Malik Rafiullah and only remarked that he had filed no revision before him and therefore his case could not be considered by him.

4. After the cancellation of the transfer of the entire property in favour of Mst. Bilquis Jehan Begum, the petitioners in W. P. No. 553/1961 along with other associates applied for the transfer of the remaining portion of the premises available for transfer on tender basis and offered evaluation price on the basis of 50 years rental. The learned Settlement Commissioner by his order dated the 22nd of February 1961, accorded priority to the petitioners in the disposal of these flats at competitive prices. By letter dated the 1st of March 1961, the Deputy Settlement Commissioner (Co‑ord.) and Secretary, Auction Committee, Karachi, accepted the offer of these petitioners at 60 years rental. Mst. Amtul Hafeez, Muhammad Roshan and Malik Rafiulla, the other interested parties, on the 23rd of February 1961, also expressed their desire to obtain the property on tender basis. Their offers were considered by the Additional Settlement Commissioner, who upheld the priority of the petitioners in the above writ petition by order dated the 14th of April 1961 and recommended their case to the Settlement Commissioner with the remark that the transfer of the premises may not be finalised pending decision of the revision preferred to the Chief Settlement Commissioner by the other claim ants. This proposal was accepted by the Settlement Commissioner by his order dated the 30th of April 1961. He further directed that in case the other claimants gave a specifically higher offer than the petitioners, then the P. T. O. should be cancelled for inviting fresh competitive offer, subject of course to the result of revision. Muhammad Roshan and others, on the dismissal of their revision application, again approached the Settlement and Rehabilitation Commissioner and pressed their claim. As a result of their representation the learned Settlement Commis sioner passed the following order on the 6th of November 1961

"The representatives of 3 applicants Muhammad Roshan Khan and others, whose miscellaneous application CS&RC forwarded to me, have shown me my relevant orders passed in revision relating to the building in question. It appears that I gave a judicial decision long ago that the claimant Mst. Bilquis Jehan Begum, who is living in this building and who suffered loss due to the cancellation of her Agreement of Associa tion should be given a priority at the time of disposing of available flats there. But in view of the facts that some of these applicants are also said to be residing in the same building, they should be given a fair chance to acquire the ownership of the flats in their respective possession.

DSC (Disposal) will do well to hold a limited auction among the aforesaid claimants and other occupants actually residing in the flats yet to be disposed of."

5. In all the writ petitions the order for holding a limited auction amongst the parties and other occupants actually residing in the flats has been challenged.

6. Malik Rafiullah in W. P. No. 79/1962 ; Abdus Saeed Qureshi in W. P. No. 81/1962 and Muhammad Roshan in W. P. No. 82/1962 have further challenged the orders of the Settlement Authorities in respect of the tenements in their possession. I shall first take up and dispose of the individual claims of the petitioners before dealing with the common question involved in all the writ petitions.

7. In W. P. No. 79/1962 Malik Rafiullah's grievance is that the Deputy Settlement Commissioner rejected his claim in respect of tenement No. 1/1 on the first floor of the property in dispute on the ground that the entire property had been transferred to Mst. Bilquis Jehan Begum on the 2nd of December 1959 and the flat in question was not available for transfer. Mr. Sherali, his learned counsel, has referred me to the order of the Additional Settlement Commissioner, reproduced in the order of the Deputy Settlement Commissioner, dated the 9th of July 1960, in which the Additional Settlement Commissioner has ordered on the petitioner's application as follows

"If possession is undisputed and the tenement is available for the transfer, CH form may be accepted."

The learned counsel contended that the transfer of the entire property in favour of Mst. Bilquis Jehan Begum was cancelled for the first time on the 29th of November 1960, in suo motu Revision No. 27/1960. According to the learned counsel, there fore, the flat in possession of the petitioner became available for transfer on the 17th of February 1961. Immediately there after the petitioner on the 28th of February 1961 moved an application for the review of the order passed by the Deputy Settlement Commissioner dated the 9th of July 1960 and con tended that the flat in question should be transferred to him. This application was dismissed on the ground of limitation by the Deputy Settlement Commissioner on the same day. The learned counsel contended that the view of the Deputy Settlement Commissioner in this respect is untenable because the period of limitation should not have been calculated from the 9th of July 1960, but from the time the premises became available, namely the 17th of February 1961. The learned counsel also referred me to certain other applications made by the petitioner for the transfer of the flat in his possession on tender basis. He contended that the remarks of the learned Chief Settlement Commissioner that the petitioner had filed no revision application are not correct because on the 22nd of September 1961 the petitioner also made a revision application before the Chief Settlement Commissioner against the order of the Deputy Settlement Commissioner dated the 28th of February 1961 and this application is still undisposed of. The contention of the learned counsel is well‑founded. The petitioner is in possession of the flat in question since before December 1958 and was deprived of it on the ground that it had already been transferred to Mst. Bilquis Jehan Begum. (There is not the slightest doubt that immediately after the flat in question became available he moved the Deputy Settlement Commissioner for its transfer in his favour. In my opinion the learned Deputy Settlement Commissioner fell into an error in dismissing it on the ground of limitation. In the interest of justice the officer concerned should have condoned the delay and disposed of his case on merits. It is quite obvious to me that this petitioner has a good case if he is found to be in possession of the fiat in dispute since before December 1958, because the only obstacle in his way that the building is indivisible no longer exists). I am further satisfied that the Chief Settlement Commissioner's remark that there was no revision pending before him of Malik Rafiullah is also not well‑founded. The Department has not contested in these proceedings that the revision of Malik Rafiullah is not pending before the Chief Settlement Commis sioner. I would therefore direct him to dispose of his revision pending before him on merits. If the petitioner is able to establish that he is in possession of the flat in dispute since before December 1958 and is otherwise also entitled to it, the petitioner has a good claim and due consideration should be given to it.

8. Abdus Saeed Qureshi, petitioner in W. P. No. 81/62, besides other reliefs, has challenged the order of the Chief Settlement Commissioner, dated the 14th of October 1961, in Revision No. CSC‑R‑571/61 on the ground that the learned Chief Settlement Commissioner's observation that he cannot derive the benefit of the possession of his mother and claim the flat No. G/2/1 as a non‑claimant is not warranted on the facts of the case. Mr. Merchant, the learned counsel for the petitioner, has strongly urged before me that the petitioner did not claim the flat in dispute on the ground of the possession of his mother. On the other hand he was allotted the premises in question in 1954, and his real mother and children were staying in it with him. This position is borne out by the facts on the record. This petitioner is at present in England and submitted NCH form directly from there to the Chief Settlement Commissioner. His application was accepted on the 27th of May 1960, by the Additional Settlement Commissioner although it was belated because at that time time‑barred applications were being enter tained. His form was rejected mainly on the ground that he was not in physical possession of the premises in question before or in December 1958. In this connection the learned Additional Settlement Commissioner observed as under in his order dated the 22nd of September 1960

"The only point remains now for consideration is whether he is entitled for the transfer of the same.' The position admitted by the appellant's Advocate is that Abdul Saeed Qureshi is not in physical possession of the property in question before or in December 1958. He has gone to England and he is still there. His argument is that his mother and children all are residing there and, therefore, their posses sion should be considered as the possession of the. appellant but this concession is allowed in the case of the claimants and n,)t in the case of non‑claimants under the Schedule of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a house in possession of claimant can be transferred to him but if it is in possession of his spouse and children. The mother could apply in her own name but she has not done the same."

The observation of the learned Chief Settlement Commissioner, therefore, that this petitioner had claimed the property on account of the possession of his mother is not correct. In fact the question for consideration was whether the petitioner should be considered to be in possession of the property as as allottee in view of the fact that his family was staying in the premises in his absence in England. None of the Settlement Authorities has applied his mind to this aspect of the case. Mr. Merchant contended that a tenant may be absent from a place but if the premises taken by him on rent are occupied by his family, the possession of the tenanted premises will be considered as that of the tenant and not of his family. His contention is that the person who took the premises on rent will be treated in law as tenant of the premises and not the person who is staying in it. In support of his contention the learned counsel has referred me to a decision of the English Courts in the case of Brown v. Draper ((1944) 1 K B Div. 309). In that case a husband was the tenant of a house on weekly tenancy. After occupying the house for some months he left it on account of disputes with his wife, but he left his wife and child in occupation of the house, and continued to pay the rent. It was held that the wife's possession must be regarded as that of the husband and could not be treated as unlawful so long as the husband had the right to claim the protection of the Acts. The observations of the Appellate Court in the above mentioned decision fully support the petitioner's contention that as his family members were living in the flat in question, in law the possession would be that of the petitioner and not of his children or of his mother. In my opinion the view of th e Settlement Authorities that the petitioner was not in possession of the flat in dispute when he claimed it cannot be supported on the provisions of the Displaced Persons Compensation Act. The definition of "possession" does not at all say that the claimant must be in physical possession of the property. A constructive possession also will be a valid possession in law. In the absence of any negative provision to this effect, the constructive possession of a person will be treated to be as good possession for purposes of claiming the property under the Displaced Persons Compensation Act. I would, therefore, set aside the order of the Settlement Authorities and direct them to transfer the flat in question to the petitioner if he is otherwise found entitled to it.

9. It was urged by Mr. Mohsin Siddiqui that the family of the petitioner no longer resides in this flat. The effect of this contention will also be taken into consideration by the learned Settlement Authorities.

10. This brings me to the writ petition of Muhammad Roshan viz. W. P. No. 82/ 1962. It is not disputed that Muhammad Roshan is in possession of Flat No. G/2 since before the 21 st of December 1958. His claim in respect of this flat was rejected by the Settlement Authorities on the ground that although he submitted his claim in respect of it on the 13th of July 1959, but he withdrew his CH form on the 24th of September 1959, unconditionally. When he submitted another CH form on the 19th of July 1960, it was rejected on the ground that he had already withdrawn a CH form once and was not entitled in law to reagitate the matter. Mr. Merchant, the learned counsel for the petitioner, contended that the reason for with drawing the CH form on the 24th of September 1959 was that he did not like to get the whole building. The learned Deputy Settlement Commissioner in his order dated the 9th of July 1960, has disbelieved this reason and rejected the petitioner's plea in this respect. The learned counsel has not been able to point out to me any illegality in the above‑mentioned finding of fact. The withdrawal application made by him contains no reasons. In these circumstances I agree with the view of the learned Settlement Authorities that if a person has surrendered his right by with drawing his CH form, he is not entitled to reclaim the same property. He is therefore not entitled to claim the flat in dispute on the basis of his claim. The relief of the petitioner to this extent therefore cannot be granted.

11. I will now deal with the common question involved in all the writ petitions. The learned Settlement Commissioner by order dated the 6th of November 1961, has directed the disposal of the flats available in the above‑mentioned property by limited auction amongst the parties and other occupants actually residing in the flats yet to be disposed of. It is contended on behalf of the petitioners that there is no provision in the Displaced Persons Compensation Act authorising the Settlement Authorities to dispose of evacuee property by holding a limited or restricted auction. The Settlement Authorities have not contested the writ petitions. In my opinion the contention of the petitioners in this respect is not without foundation. I will, therefore, set aside the order of the Settlement Commissioner dated the 6th of November 1961. The petitioners in Writ Petitions Nos. 79/1962, 81/1962 and 82/1962 have further challenged the orders of the Settlement Authorities granting priority to the petitioners in Writ Petition No. 553/1961. These orders are also set aside. The Settlement Authorities, after settling the claims of Malik Rafiullah and Abdus Saeed Qureshi, will dispose of the remaining property available for transfer in accordance with the relevant provisions, instructions, rules and schemes after giving due consideration to the rights of the parties in all the writ petitions.

12. In the light of the above remarks, the writ petitions are allowed. The parties will bear their own costs.

A. H.

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