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Writ Petition No. 281 of 1962, decided on 8th Ma 1963

, Sch., pare. 4 read with Settlement Scheme No. V‑Transfer of houses under para. 4 of Schedule to Act can only be made under Settlement Scheme No. V and in pursuance of applications invited by Chief Settlement Commissioner by Notifica tion‑Application at random by individual claimant as and when he chooses not entertainable‑Word "transfer" for purposes of para. 4 of Schedule to Act‑Means simply transfer of property to claimant subject to several provisions of Act and cannot be interpreted to mean final and completed alienation of property ----Person to whom house has been transferred but no P. T. O. has been issued‑Cannot claim another house by contending that first transfer has not been completed.

Mst. Bakho v. Mst. Sairan and others P L D 1963 Lah. 72 held not applicable.

, Sch.‑Amount of claim compensation cannot be partly used for transfer of one property and partly for another if value of first property transferred can be utilised to exhaust entire compensation value of his claim‑Person thus exhausting his claim ceases to be claimant and is not entitled to transfer of another property.

Settlement Manual, p. 102 ref. . Muhammad Omar for Petitioner.

Major Ishaq Muhammad Khan and Kh. Nazir Ahmad for Respondents Nos. 1 and 2.

Karimullah Durrani for Respondents 3 to 5. Date of hearing : 7th March 1963.

--This writ petition was dismissed by us by a short order on the 7th of March 1963, and this judgment is intended to give reasons for the same.

2. The petitioner Mr. Muhammad Umar Khan, Advocate, is a refugee from United Provinces (India), and was residing in Bungalow No. 67, The Mall, Peshawar Cantonment, when Settlement operations were commenced under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). As he is a claimant displaced person having a verified claim of over Rs. 55,000 (sic), be applied for .the transfer of this house on form C. H. Tile Provisional Transfer Order (P. T. O.) was issued to him in November 1959, but the same was, however, withdrawn by the Settlement Authorities in November 1960, for the reason that the house had already been acquired by the Ministry of Defence of the Government of Pakistan, and as not included in the com pensation pool so as to be available for transfer to claimants. Mr. Muhammad Umar Khan filed a writ petition in the High Court (No. 137 of 1961), challenging "ther equisitioning orders issued in favour of the Ministry of Defence." This writ petition was heard along with six other identical petitions by Habibullah and Sajjad Ahmad, JJ., and dismissed on the 29th of September 1961. However, the Settlement Authorities offered an alternative to the petitioner in the shape of Bungalow No. 2, Residency Road, Peshawar Cantonment. The Deputy Settlement Commis sioner ordered the transfer of this house in favour of the petitioner in November 1960, but that transfer was challenged by way of appeal and revision by the occupants of the house, and the latest position is that a revision petition is still pending before the Settlement Commissioner.

3. A parallel litigation in respect of the transfer of that house was also started by one Major Zafar Husain Mirza who contended that he was in possession of a part of the house and, therefore, entitled to its transfer as a claimant. His C. H. form was, however, not forthcoming and he, therefore, applied that he should be permitted to file a fresh C. H. form. The Deputy Settlement Commissioner appears to have refused such permis sion, but on Major Zafar Husain Mirza's appeal, the Additional Settlement Commissioner passed an order on the 17th of September 1962, remanding the case to the Deputy Settlement Commissioner for taking further evidence and submitting a report. We are informed by Major Ishaque Muhammad Khan, the learned representative of the Settlement Department, that this report has since been submitted by the Deputy' Settlement Commissioner, and the Additional Settlement Commissioner has allowed Zafar Husain Mirza to file a fresh C. H. form for the transfer of house No. 2, Residency Road, and that this C. H. form is to be considered on merits.

4. It will be seen, therefore, that the question of the transfer of No. 2, Residency Road, to the petitioner has still not been finally decided, although the order of transfer passed in his favour by the Deputy Settlement Commissioner holds the field. However, it appears that the petitioner despaired of getting No. 2, Residency Road, and accordingly, applied on the 1st of October 1962, for the transfer of the bungalow now in dispute. He has described this bungalow as bearing No. C. B. 9/C & F/94/A/87, and situate within a compound which contains many other houses and shops of the same evacuee owner. The petitioner sent his application to the Chief Settlement Commissioner and a copy thereof to the Additional Settlement Commissioner, Peshawar. So far no orders have been conveyed to him by any of these authorities on his application, but instead the entire property known as kwatra Building, in the compound of which the bungalow in question is situated, was advertised for public auction as a big mansion, According to the petitioner the auction was scheduled to be held on the 19th of November 1962 and, accord ingly, he presented this writ petition on the 12th of November 1962, praying that the respondents be restrained from putting the bungalow to auction, and further that they should be directed to transfer the same to the petitioner.

5. From the report submitted by the Settlement Authorities it appears that the entire property known as Kwatra Building was first put to public auction on the 10th of November 1959 as a big mansion, but that auction was not finalised. The auction which the petitioner challenged was the second auction and was held on the 19th of November 1962, but that also was not finalised. The property was then put to auction for the third time on the 31st of January 1963, and the highest bid fetched was Rs. 15,05,000. As this Court had granted an interim stay order in 'favour of the petitioner on the 14th of November 1962, the auction was held subject to the result of the present writ petition, in so far as the residential portion now in question was concerned.

6. The auction purchasers made an application that they should be impleaded as respondents before us. This application was allowed on the 5th of March 1963. At the hearing of the main writ petition, the petitioner objected to the auction pur chasers being impleaded as parties to this writ petition, on the ground that there being a stay order in respect of the bungalow in question, the auction purchasers had acquired no rights in it. We, however, see no force in this objection, for the reason that the Settlement Department has been treating the entire property as a big mansion, and the auction conducted by it on the 31st of January 1963, is subject to the result of the present writ petition. In other words, if the present writ petition succeeds, the auction purchasers will be deprived of a portion of the property which they have purchased. The auction pur chasers are, therefore, very much interested in the fate of the present writ petition, and are necessary parties to it.

7. The writ petition has been contested by the Settlement Department mainly on the following grounds :‑

(a) that the property which the petitioner has described as a house is in fact a big mansion known as kwatra Building and cannot, therefore, be transferred to the petitioner as a house ;

(b) that, in any case, the petitioner has no legal right to its transfer ; and

(c) that the petitioner has rushed to the High Court without awaiting a final decision from the Settlement Department on his application dated the 1st of October 1962, as well as in the matter of the transfer to him of No. 2, Residency Road.

8. It seems to us that the first question which needs determination in this case is whether the petitioner has any legal right to the transfer of the house in question, assuming that it is a house and not a part of a big mansion. If it is found that he has no legal right to the transfer of this property, then it will be for us to examine the further question whether this not a part of a big mansion known as kwatra

9. The petitioner, in arguments before us, placed reliance on paragraph 4 of the Schedule to the Act. This paragraph is in the following terms :‑

"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 ;

(b) not more than one house shall be transferred to any one claimant under this paragraph ; and

(c) if there is more than one applicant for the transfer of the same house, the transfer shall be effected by drawing lots in such manner as may be prescribed."

10. The contention of the petitioner is that he is a claimant who has not been transferred any other house, and that there is no other applicant for the transfer of this house, and therefore, the Settlement Authorities are under a statutory obligation to transfer the same to him. On behalf of the Settlement Authorities Major Ishaque Muhammad Khan, on the other hand, strenuously contends that, in the first place, the provisions of paragraph 4 do not come into play unless action is taken by the Chief Settlement Commissioner in accordance with the Settlement Scheme No. V which has been prepared under this paragraph, read with section 16 of the Act. He argues that it is not open to individual claimants to submit applications for transfer of houses as and when they please, but that such applications must be in the manner prescribed by the Chief settlement Commis sioner, and according to the time limits indicated by him. He submits that in the present case the house in question has never been included in any of the lists mentioned in Settlement Scheme No. V and no applications have been invited for its disposal with the result that the application of the 1st of October 1962, made by the petitioner to the Chief Settlement Commissioner, is not covered by any of the provisions of the Act and has to be ignored. It is further contended by Major Ishaque Muhammad Khan that even if we presume that the application has been properly submitted in accordance with the law, the petitioner still does not qualify for the transfer of this house under paragraph 4 of the Schedule to the Act, for two reasons : (a) that he has already exhausted his claim in acquiring four shops in Rawalpindi valued at Rs. 46,000, and, therefore, he is no longer to be deemed to be a claimant, and (b) that a house already stands transferred in his name, namely, 2, Residency Road, and it is not the intention of the Act to allow transfer of more than one house.

11. After hearing the parties at some length, we have come to the conclusion that there is substance in the contentions raised on behalf of the Settlement Department by Major Ishaque Muhammad Khan. The Act was enacted in March 1958, but its enactment did not automatically entitle various categories of claimants and non‑claimants to claim at random the transfer of various properties to which they may be entitled under the Act and the Schedule thereto. For the implementation of the Act, an organisation was to be set up by the Central Government as contemplated in section 9 of the Act. This organisation was to be headed by a Chief Settlement Commissioner. Under section 10 of the Act, the Chief Settlement Commissioner is given the power to transfer or dispose of any property out of the compensation pool, as constituted under section 4 of the Act. This power extends to disposal or transfer either on evaluation basis or by sale, by means of auction or otherwise in accordance with the provisions of the Schedule to the Act, or in such other manner as may be approved by the Central Government. Section 11 of the Act contemplates that the Chief Settlement Commissioner shall, from time to time, by notification in the official Gazette, invite applications for the payment of compensation under the Act from such claimants as may be specified in the notification. According to subsection (2) of section 11, applications shall be made in such form and manner and within such period as may be prescribed and to such authority as may be specified in the notification. One last section which needs to be noticed in this context is section 16 which lays down that subject to the provisions of this Act and the rules made thereunder, the Central Govern ment may, by order in writing, require the Chief Settlement Commissioner or any other officer specially empowered by the Central Government in this behalf to prepare, in anticipation of the settlement of claims, one or more schemes for the grant of interim compensation to widows, orphans or old or infirm persons against verified claims in accordance with the prescribed scale ; for the transfer of immovable property on evaluation basis or otherwise to claimants, non‑claimants or locals in accordance with the provisions of the Schedule ; or for the making of deferred payments by persons to whom property is transferred under the Act.

12. The combined effect of the provisions of the Act, referred to above, is that the Settlement organisation headed by the Chief Settlement Commissioner is responsible for the imple mentation of the Act, and that at least two necessary steps in such implementation are ; (i) that the Chief Settlement Commis sioner shall prepare one or more schemes, when required to do so by the Central Government ; and (ii) that applications shall f be invited, by notification in the official Gazette, from claimants etc., for the payment of compensation to them in accordance with the provisions of the Act. It is clear to us that unless these steps are taken, it is not open to any individual claimant to put in an application for the transfer of any property, by way of compensation, as and when he pleases. The action, in fact, taken by the Chief Settlement Commissioner and the Central Government, in pursuance of the provisions of the Act just referred to, conforms to these requirements. In the first instance, Settlement Scheme No. I was promulgated and applications were invited from claimants, non‑claimants and locals who were entitled to the transfer of houses under paragraphs 1, 2 and 3 of the Schedule to the Act, as well as to the transfer of shops under paragraphs 8 and 9 thereof. Then Settlement Scheme No. II was promulgated for the transfer of certain industrial concerns and unregistered factories. Then came Settlement Scheme No. III for the disposal of big mansions and hotels by unrestricted public auction. This was followed by Settlement Scheme No. IV for the rehabilitation of persons displaced from the State of Jammu and Kashmir. Next came Settlement Scheme No. V for the transfer of houses to claimants by the drawing of lots under paragraph 4 of the Schedule to the Act. This is the scheme with which we are concerned in the present case. This scheme con templates the preparation of lists of houses, divided into three categories according to their annual rental, and paragraph 4 of this scheme lays down that the Chief Settlement Commissioner shall, from time to time, by notification in the official Gazette, invite applications for the transfer of houses under this scheme. Paragraph 5 contains further instructions as to the manner in which the applications are to be made. It is thus clear to us that transfer of houses under paragraph 4 of the Schedule to the Act could only be made under Settlement Scheme No. V and in pursuance of applications invited by the Chief Settlement Commissioner by notification, from time to time, in the official Gazette. It is not disputed by the petitioner that so far no such applications have been invited by the Chief Settlement Commis sioner in respect of the house in question.

13. The petitioner, however, contends that Settlement Scheme No. V has no application to his case for the reason that it lays down a procedure for the drawing of lots, which has reference only to clause (c) of paragraph 4, namely that if there is more than one applicant for the transfer of the house, the transfer shall be effected by drawing lots in such manner as may be prescribed. It is contended by the petitioner that in the instant case he is the only applicant for the house in question and, therefore, there is no need for the drawing of lots, with the result that the provisions of Settlement Scheme No. V need not be invoked. The petitioner's contention is, however, without substance and is based on a fallacy. It is true that if there is only one application for a house which falls within the purview of paragraph 4, it will be unnecessary to draw lots as the applicant will be the only person entitled to its transfer, but the question is when should the applications be submitted. We have already indicated that the provisions of the Act and the Schedule thereto do not come into operation automatically but they have to be implemented by the Chief Settlement Commissioner through the medium of preparing schemes and then inviting applications in pursuance thereof. We cannot be persuaded to hold that it is open to an individual claimant to make an application at random for the transfer of any property he choses, and at any time he likes. In the present case this is exactly what the petitioner has done. He has just selected the house in question and has put in an application, without such applications having been invited and without the house having been included in the list of houses prepared under Settlement Scheme No. V which has reference to paragraph 4 of the Schedule to the Act. Under these circumstances, it is not surprising that the petitioner is the only applicant for the transfer of this house, as it was not publicly made known that the house was available for transfer under paragraph 4 of the Schedule. If such a practice was to be permitted, the result would be that there would be secret transfers of various pro perties to individual claimants, without the other claimants ever coming to know of the availability of such properties. Such a practice would be against the express provisions of the Act as well as against public policy and the interests of the claimants at large. We have, therefore, no doubt that, assuming that the house in question is a house which falls within the purview of paragraph 4, and is not a part of a big mansion, then the only way it can be disposed of to claimants under paragraph 4 is by its inclusion in a list to be prepared under Settlement Scheme No. V and on a consideration of the applications which may be submitted for its transfer by claimants on being invited to apply in this behalf by the Chief Settlement Commissioner on a prescribed form and within a prescribed period. As these requirements are not fulfilled in the present case, the application made by the petitioner on the 1st of October 1962, for the transfer of this house has no legal sanction, and it is not obligatory on the part of the Settlement Authorities to consider this applica tion, much less to treat the petitioner as having any statutory right for the transfer of the house in question.

14. We also find that even if we assume that the application of the petitioner has been properly made in pursuance of the relevant scheme and an invitation issued by the Chief Settlement Commissioner, the petitioner does not fulfil some of the qualifica tions laid down in paragraph 4. In the first place, this paragraph is intended for transfer of houses to claimants. According to the averments made by the petitioner himself in paragraph 4 of his petition, and also his statement made before us at the Bar, the petitioner is a claimant displaced person having a verified claim for more than Rs. 5 500. That being so, the compensa tion value of his claim, which is being allowed at present, is not more than about Rs. 30,000. It was stated by Major Ishaque Muhammad Khan, and admitted by the petitioner, that he had secured the transfer of four shops valued at Rs. 46,000 in Peshawar vide P. T. O. dated the 10th of October 1961. According to instructions appearing at page 102 of the Manual of Settlement Law and Procedure, the petitioner had to firs exhaust the entire compensation value of his claim for the payment of the price of those shops, before associating any other claimant with him, what the petitioner did was that he associated a lady Mst. Shah Jahan with him and thereby saved Rs. 9,000 in his compensation book, while obtaining the P. T. O. of the shops in his own name. Major Ishaque Muhammad Khaa has rightly pointed out that this is not permitted by the instructions issued by the Chief Settlement Commissioner, to which reference hash just been made. These instructions make it clear that "the claimants will not be given the choice to utilize the amount of compensation in whatever property they obtain from time to time. The amount of compensation will be utilised in the order in which they approach the Settlement Authorities concerned for adjustment of the price of the property against the claim." The clear effect of these instructions appears to us to be that when the petitioner acquired the transfer of the four shops in question, he had to utilize his entire compensation value in that behalf, and as the value of the shops is Rs. 46,000, the entire compensa tion value of his claim i.e., about Rs. 30,000, would be used thereby, and nothing would be left in his compensation book, for being utilised towards the transfer of a house under paragraph 4 of the Schedule to the Act. Such being the case, the petitioner could not be treated as a claimant for the purpose of the transfer of a house under paragraph 4, and as this paragraph is intended for transfer of houses to claimants alone, the petitioner would stand disqualified from benefiting under this paragraph.

15. Again, the intention of the Act is clearly to the effect that only one house shall be transferred to a claimant or a non- claimant or a local, under the provisions of the Act. In the present case, as already stated by us, house No. 2, Residency Road, does stand transferred in the name of the petitioner although other persons are litigating against him. The position therefore, is that if another house is transferred to the petitioner under paragraph 4, two houses would stand transferred in his name, which is not the intention of the Act. It was contended by the petitioner that the transfer of a property is not complete unless the transferee is put into possession, and after going through all the formalities, he has obtained a Permanent Transfer Deed. In support of this contention, he placed reliance on a recent judgment of our learned brother Sardar Muhammad Iqbal, J., in Mst. Bakho v. Mst. Sairan and others (P L D 1963 Lah. 72). It is clear to us that the decision relied upon by the petitioner has no appli cation in the present context. For the purposes of paragraph 4, the word "transfer" has to be understood not in the sense of a final and completed transaction of alienation of property, but in the sense of transfer to a claimant subject to the several pro visions of the Act. If one house has been transferred to a C claimant, and even though the Permanent Transfer Deed has not been issued in his favour, it can still be said that the house stands transferred to him, and he cannot claim another house by contending that the first transfer has not yet been completed and finalised by the issuance of a Permanent Transfer Deed. Understood in this sense, it is clear that one house already stands transferred to the petitioner. Although we agree that the matter has not been finalised because of the claims preferred by certain other persons in respect of the same house, namely, No. 2, Residency Road, Peshawar Cantonment. On this account as well the petitioner would seem to be excluded from the purview of paragraph 4 of the Schedule to the Act.

16. For the reasons given above, we are of the view that the petitioner has not succeeded in showing that he has a legal right to the transfer of the house in question, even if we assume that the property now in dispute is a house and not a part a big mansion. This is the most favourable position which cot be assumed for the petitioner, and even then he has no lei entitlement. Such being the case, it is not necessary for us examine the further question whether the house desired by t petitioner is or is not a part of a big mansion. On the above finding, the petition is bound to fail, and is hereby dismissed. In view, however, of the legal questions involved, we would lea the parties to bear their own costs.

17. Before concluding, we would, however, like to express the hope that the Settlement Authorities will finalize, without further delay, the question of the transfer of No. 2, Resides Road, Peshawar Cantonment.

K. B. A. Petition dismissed.

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