' MUHAMMAD AMIN BUTT, J.-This is an Intra Court Appeal against the judgment dated 5th December, 1975 passed by a learned Single Judge of this Court in Writ Petition No, 1538/R of 1973 by which the order dated 3rd June, 1974 passed by the learned Chief Settlement Commissioner and its implementation by the Deputy Settlement Commissioner through Senior Superintendent of Police, Rawalpindi, was declared to be without lawful authority and of no legal effect.
2. The brief facts of the case are that house No, 309/312, Rafi Road, Lal Kurti, Rawalpindi Cantt. Was occupied by Agha Muhammad Sharif son of Nadir Khan, father in-law of the respondent. Dr. Nek Muhammad the appellant was allotted the house by the D.R.C. Vide his orders dated 21st January, 1956. By the same order the D.R.C. Directed the ejectment of the unauthorised occupant, namely, Agha Muhammad Sharif. On 9th March, 1956 the Additional Settlement Commissioner passed orders for forcible ejectment of Agha Muhammad Sharif, the person in occupation, through police.
By another order passed by the Additional Settlement Commissioner it was directed that a case under section 14 of the Pakistan (Economic Rehabilitation) Ordinance, 1948 he registered against the illegal occupants.
3. The D.S.C. Reviewed his order dated 21st January, 1956 by his orders of 9th July, 1956. However, on appeal the learned Additional Settlement Commissioner vide his orders dated 23rd November, 1957 set aside the orders dated 9th July, 1956 passed by the learned D. S. C. Restoring the original order of ejectment dated 21st January, 1956. Agha Muhammad Sharif thereupon made an application under section 22 of the Pakistan Administration of Evacuee Property Act, 1953 for a declaration that he is an old tenant of the house in dispute and is not liable to be ejected. The petition was dismissed by the Deputy Custodian on 22nd December, 1958. Later the Custodian of Evacuee Property by his orders dated 4th March, 1959 directed Agha Muhammad Sharif to make arrangement for his accommodation elsewhere within one month, failing which the relevant authorities would be at liberty to take such steps for putting Dr. Nek Muhammad, the allottee, in possession of the premises as may be provided by law, It was after this decision by the learned Custodian that Mian Muhammad Sharif respondent made a miscellaneous application before the learned Custodian. Evacuee Property Lahore, which was disposed of by him with the observation that Mian Muhammad Sharif had frankly admitted before him that he had never been in possession of the house in dispute in his own independent right. The house was in possession of his father-in-law, Muhammad Sharif Khan, whose ejectment had been ordered by the Rehabilitation authority and upheld by his learned predecessor. The learned Custodian found it difficult to believe that during the period March 1951 to April 1958 the wife and children of Mian Muhammad Sharif continued to live with her father, but expressed the view that even if it were assumed that she lived with her father during these years, her father's own possession having been held to be unauthorised her residence in the house would not entitle Mian Muhammad Sharif to retain possession of the house after it had been allotted to Dr. Nek Muhammad and the ejectment of his father-in-law ordered.
4. At the commencement of the Settlement proceedings the D.S.C. Transferred the property in favour of Muhammad Sharif by an order dated 24th December, 1959. The order which was passed without notice to the appellant was questioned in appeal before the Additional Settlement Commissioner who by his order dated 25th July, 1960 rejected the appeal. The appellant then filed a revision petition before the learned Settlement Commissioner which was also dismissed by order dated 23rd September, 1960. The orders of the learned Settlement Commissioner were challenged before the High Court in Writ Petition No, 549/R/62, which was also dismissed vide orders dated 7th May, 1962. The appellant thereupon filed L.P.A. No, 231/62 which was accepted. The order of the learned Single Judge and the orders of the Settlement authorities were set aside and the case remanded to the learned Settlement Commissioner for reconsideration of the C. H. Form submitted by the parties. The Petition for Special Leave to Appeal No, 217 of 1968 filed by the respondent was refused on 12th November, 1968.
5. The house was transferred to the appellant by an order dated 10th June, 1969 passed by the D.S.C. An appeal filed before the Additional Settlement Commissioner was dismissed on 3rd November, 1969 and a revision before the learned Settlement Commissioner was dismissed on 4th February, 1970. Writ Petition No, 640/R of 1970 filed by Mian Muhammad Sharif respondent was dismissed with the following observations :- "There is another circumstance against the petitioner. It is admitted that he appeared before the Custodian, Mr. Khurshiduz Zaman who passed an adverse order against his father-in-law by making highly damaging observations against him (the petitioner) as well. It was clearly held by the learned Custodian that the present petitioner was not entitled to retain possession of the house-after it had been allotted to Dr. Nek Muhammad and after the ejectment orders having been passed against his father-in-law. He knew about this order as he personally appeared before the Custodian. In spite of personal knowledge neither he nor his father-in-law challenged this order before this Court. Same is the position the earlier order of the Custodian, dated the 4th of March 1959. These orders have, therefore, attained finality against the petitioner and his father-in-law."
6. L.P.A. No, 77 of 1972 filed by Muhammad Sharif respondent was also dismissed on 25th February, 1974 as time barred. After the Letters Patent Appeal filed by Muhammad Sharif respondent was dismissed, the appellant started efforts to get the possession. On an application filed by the appellant the learned Chief Settlement Commissioner by his order dated 3rd June, 1974 directed the ejectment of the unauthorized occupant from the house in dispute under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. On 14th June, 1974 the D.S.C.
Sought the assistance of the Senior Superintendent of Police, Rawalpindi, for ejectment of Muhammad Sharif from the house in dispute under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, Muhammad Sharif respondent filed Writ Petition No, 1538/R of 1974 challenging the two orders of the Settlement authorities and the learned Judge in Chambers relying upon certain observations in the case reported as Bank of Bahawalpur v. Chief Settlement Commissioner (1) held that even a person who is not in authorised possession cannot be ejected. The learned Judge further held that his right to occupy the property after the amendment under Act IV of 1973 also gives him a right to occupy the property and have the protection of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act". In the result the learned Single Judge held the orders dated 3rd June, 1974 passed by the C.S.C. As being without lawful authority and of no legal effect.
7. Before us the learned Counsel for the appellant urged that only persons in unauthorised but undisputed occupations of an evacuee house since before 21st December, 1958 were deemed to be in "possession" and would become tenant of the transferee by operation of law. In this case the respondent could not claim that he was in undisputed occupation of the property before that date and as such could not claim to be a person in possession within the meaning of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and was not entitled to the protection granted by law. To support his proposition the learned Counsel relied upon Muhammad Anwar v. Rehabilitation Authorities (2), Muhammad Sharif v. Mian Abdul Rashid (2) and Chief Administrative Officer v. Habib Ullah (3).
8. The learned counsel next relies on Agha Muhammad v. Maula Dad (5) where it was held that the expression "possession" in section 30 means only possession which is legal and or/is protected under the relevant rent laws. On the facts of the case it was held that a sub-tenant of evacuee property was not entitled to the protection of section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, and can be ejected. The view also finds support from the case reported as Ayub v. Masjid-e-Noman (6) where the Supreme Court expressed the view that possession under section 30 of the Act is possession" within the meaning of section 2(6) of the Act which lays down that "possession" means possession obtained in pursuance of an order passed on or before the 20th day of December, 1958 by Rehabilitation Authority or any other {{TABLE}}
(1) PLD 1976 Lah. 515 (2) PLD 1960 Lah. 201
(3) PLD 1962 Lah. 254 (4) PLD 1960 SC 78
(5) PLD 1971 Quetta 10 (6) 1973 SCMR 604 {{TABLE}} ' officer authorised or permitted by the Central or Provincial Governments Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act."
9. The appellants in that case were unable to establish that they came into possession of the property in dispute in pursuance of an order passed on or before 20th of December, 1958 by any Rehabilitation Authority, etc. Or under any order of the Central Government as required by section 2(6) of the said Act. The Court held that the appellants were not in possession of the premises in dispute within the meaning of section 30 read with section 2(6) of the Act.
10. Before the learned Judge, in Chambers the counsel for the respondent relied upon the case reported as the Bank of Bahawalpur v. Chief Settlement Commissioner and another (1) to contend that no power under section 29 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 could be exercised by the Chief Settlement Commissioner after the property had been provisionally transferred to respondent No,
2. The learned Single Judge, relied upon certain observations of the Full Bench to come to the conclusion that even a person who is not in authorised possession cannot be ejected under section 29 after the property has been transferred to an applicant or P. T.
0. Has been issued.
' In the second place the learned Single Judge, upon consideration of the effect of repeal of clause
(6) of section 2 and the deletion of the reference to possession "on or before 20th December, 1958 appearing in section 30" came to the conclusion that even in case of an unauthorized occupation proceedings could not be taken under section 29 after Provisional Transfer of property.
' In Bank of Bahawalpur v. Chief Settlement Commissioner and another the Full Bench upon a review of the case law on the subject expressed the view that possession or occupation of a person is authorised within the meaning of section 29 only when he is eligible to the transfer of a property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and, therefore, a person whether he is an allottee or unauthorized occupant renders himself liable to ejectment under section 29 of the Act if he is not eligible for its transfer. It was further held that section 29 of the Act is not available for ejectment of a person in possession of a house or shop including a big mansion or a hotel which has been transferred to another by a Provisional Transfer Order or Permanent Transfer Deed.
11. The learned Single Judge appears to have proceeded on the assumption that the respondent was a person in "possession" for the purposes of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and for that matter had a right to occupy the property after the amendment introduced by Evacuee Property and Displaced Persons Laws (Amendment) Act (LV of 1973), came into (1) PLD 1966 Lah, 515 force whereby clause (6) of section 2 defining "possession" was deleted and the word "on or before the 20th of December, 1958" were simultaneously omitted from section 30. The amendment, in the opinion, of the learned Judge in Chambers made it clear that "the possession or occupation of even an unauthorized occupant at whatever time could not be taken away under section 29 of the Displaced Persons Act, 1958.
12. In view of the judgment of the Supreme Court in Ayub v. Masjid-e-Noman (I) it is difficult to imagine how the respondent who was consistently held as being in unauthorized occupation of the property in dispute, could be held to be a person in "possession" within the meaning of section 30.
We have no doubt that the observations made by the Full Bench protect only persons who are in possession within the meaning of section 30 read with section 2(6) and cannot be invoked by the respondent who was not in "possession" of the house. The learned Judge, in Chambers appears to have been influenced by the observations made by the Full Bench that even where a P. T.
0. Has been issued, the provision of section 29 cannot be invoked. This aspect of the Full Bench judgment appears to have been modified by the Supreme Court on appeal.
' According to the majority view of the Supreme Court in Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner (I) the Chief Settlement Commissioner continues to enjoy the power to eject or cause any person to be ejected from any property available for disposal under the Displaced Persons and Rehabilitation Act, 1958 before a Permanent Transfer Deed is issued.
Admittedly no Permanent Transfer Deed has been issued in this case. The Chief Settlement Commissioner had, therefore, the jurisdiction to have the respondent ejec13. We are unable to agree with the learned Judge in chambers that the amendment introduced by the Evacuee Property & Displaced Persons Laws (Amendment) Act (LV of 1973) conferred any right on the respondent who has all along been in unauthorised occupation of the property. In Sadiq Ali v. M. D.
Arif (2) a Division Bench of this Court held that the amendments had not been given retrospective effect. It was observed that the legislature intended the definition of possession to be omitted only with effect from the date the Act (LV of 1973) was promulgated. Therefore, prior to the enactment of t hat Act, the expression "possession" used in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, had to be understood in the manner it was specifically defined in section 2(6) of the Act.
14. The learned counsel for the appellant contended that the respondent was a mere licensee of an unauthorised person who stepped in only when his licensor had been finally defeated in his claim.
He relies upon Masood Hussain v. Muhammad Saeed Khan (3), Shaukat All v, Settlement & Rehabilitation Commissioner, Lahore (4) and Zafar Niazi v. Shujat Ullah (5) to contend that even relatives residing with allottee
(1) PLD 1977 SC 164 (2) PLD 1975 Lah. 284
(3) PLD 1965 Lah. 11 (4) PLD 1965 Lah. 415
(5) PLD 1965 Kar. 52ted. ' as licensee are not persons in possession within the meaning of section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and are not entitled to any protection.
15. In the end it was claimed that the right of the parties had been finally determined by the order dated 4-2-1970 in W. P. No, 640/R of 1970 whereby the earlier writ petition was dismissed with the observation that the respondent had been held to be not in possession by the Custodian and that order passed against him had attained finality.
16. Before we close it may be mentioned that the learned counsel for the respondent kept content with challenging the jurisdiction of the settlement authorities under section 29 and placed reliance on the Bank of Bhawalpur Ltd. v. Chief Settlement and Rehabilitation Commissioner (t) later followed in Muhammad Amin v. Jarnshed Ali (2) and Sind Employees' Social Security Institution v.
Dawood Cotton Mills Ltd. (3) discussed above and nothing was submitted in reply to the other arguments advanced by the learned counsel for the appellant.
' In the result we set aside the judgment and order of the learned Single Judge declaring the order dated 6-4-1974 passed by the learned Chief Settlement Commissioner as being without lawful authority.
17. The appeal is accordingly allowed with costs.
(1) PLD 1966 Lah. 515
(2) PLD 1967 Lah. 856
(3) PLD 1977 SC 177