' The dispute in this case pertains to the transfer of property bearing No, SE-16-R-3/A, known as "Goal Palace", situate at Davis Road, Lahore. According to the petitioners, this property was allotted to Syed Hamid Ali Shah, their father, on 4-1-1954. He could not obtain its physical possession as it was occupied initially by unauthorised persons and thereafter by some Government officials.
2. On 17-11-1959, he applied on C. H. Form for its transfer in response to press note dated 4-7-1959 issued for the benefit of those allottees who could not obtain physical possession of the premises allotted to them.
Subsequently Notification No, F 3(3)/60-SI dated 11-8-1960 was issued by the Central Government, which treated allottees out of possession at par with those in possession of the properties, if for their benefit ejectment proceedings were ordered by Court or a Rehabilitation authority and for no fault or negligence of them they remained out of possession. However, the petitioners' father was informed by the D. S. C. Under letter dated 5th June, 1963, that the bungalow had been transferred to Dr. Amir-ud-Din (respondent No, 4) in pursuance of an order passed by the Central Government under section 10(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
3. The order of the Central Government contained in Letter No, 5(9)/60- SI dated the nil February, 1960, was to the following effect :- "I am directed to say that in exercise of the power conferred by clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Central Government is hereby pleased to accord approval to the sale of the property at 3, Davis Road, Lahore, to Dr. Amiruddin, F. R. C. S., Professor of Surgery, King Edward Medical College, Lahore on payment of the prevailing market price to be determined by you on the conditions that- (1)the property in question is not transferable to any person under the provision of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and (2)that the market value for the property determined by you is recovered before the transfer is effected.
' It is requested that action may kindly be taken accordingly in direct consultation with Dr. Amiruddin. This Ministry may kindly be informed in due course of the action taken in the matter."
' The order of transfer was followed by issuance of P. T.
0. And P. T. D. In his favour on 18th October, 1960, and 20th October, 1961, respectively. Dr. Amiruddin transferee, later on, bequeathed the property by creating a Trust, registered in favour of Gulab Devi Hospital, Lahore, respondent No, 5.
4. Syed Hamid Ali assailed the order of transfer in favour of the respondent by means of Writ Petition No, 1799- R of 1963, which was allowed by Mr. Justice Abdul Kadir Sheikh (Judge, West Pakistan High Court, as he then') was by his order dated 30-11-1766, and the case remanded to the D. S. C. With the direction, reproduced hereunder :- 'I, therefore, direct that the C. H. Form filed by the petitioner must be dealt with by Deputy Settlement Commissioner concerned, in accordance with the law, after giving notice to all the parties likely to be effected by the final order that may be passed in the case. It is for the petitioner to show how he is entitled to the transfer of the property and the respondents 4 and 5 can raise any contention that may be available to them. In case it is held that the petitioner is not entitled to the transfer of the property, the transfer in favour of the respondent of No, 4 already made by the Department, in pursuance of the order of the Central Government, may not be effected."
' The D. S. C. In post remand proceedings rejected C. H. Form by order dated 11-7-1967 on the ground that the allotment of the property in favour of Syed Hamid Ali, stood cancelled by subsequent requisition thereof made for certain Government officers and no proceedings of ejectment were pending against the occupants. He considered that these were conditions precedent for entitlement to the transfer of the property, which did not exist in case of the petitioners. The appeal against the aforementioned order was rejected on 16-5-1968 by the Additional Settlement Commissioner and their revision petition also failed before the Settlement Commissioner on 11-4-1970.
5. Learned counsel for the petitioners contended that the statement o Record Keeper (HA) recorded on 19-6- 1967 established that the property w never requisitioned, as such, the allotment of the property subsisted favour of the petitioners' father till it was transferred to respondent No, 4 It was further submitted that it was not necessary that some actual ejectment proceedings would have been pending against the occupants, but an order of ejectment of a Court or Rehabilitation Authority would deemed to be sufficient to entitle a person to the transfer of property. It was argued that the Notification dated 11-8-1960 was issued only for the benefit of allottees who remained out of possession of the property for no fault on their part. It was also submitted that initially the petitioner's father' C. H. Form was kept aside when the property was transferred to respondent No, 4, and thereafter the order passed by the Settlement Authority in relation to its disposal, was erroneous and illegal. It was lastly argued that the Central Government had issued only an approval under section 10 in February, 1960, but the actual transfer of the property had taken pi subsequent to the Notification dated 11-8- 1960, whereby the petitioners' father became entitled to the transfer of property.
6. Sh. Maqbool Ahmad, Advocate, learned counsel for the respondent No, 4, on the other hand, contended that the property in dispute was transferred to the respondent under section 10(b) of the Displaced Persons (Compensation and Rehabilitation) Act, in February, 1960, long before the Notification dated 11-8-1960 creating the alleged entitlement of the petitioner's father to the transfer of the property. It was submitted that the P. T. D.
Having been issued in favour of respondent No, 4 and there being no allegation of fraud or misrepresentation on the part of the respondent, the Settlement Department had become functus officio and the matter of transfer cannot be reopened regarding the property permanently settled on respondent No,
4. It was also submitted that the property was bequeathed by respondent No, 4 in favour of respondent No, 5 on 2-2-1962 over a year before the petitioners' father filed writ petition assailing the order of transfer in favour of respondent No,
4. It was contended that there was no valid order of allotment in favour of Syed Hamid All Shah and even if the existence of such an order is assumed, no ejectment proceedings were ordered by Court or Rehabilitation authority against the occupants for his benefit. It was submitted that his case was not covered by the terms of the concession embodied in Press Note issued by the Central Government on 11-8-1960 under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and published in Gazette of Pakistan Extraordinary dated 9-9-1960. He relied on Zaibun Nisa v. C. S. C. (1), for the proposition.
7. The consideration of the arguments advanced by the learn counsel for the parties with reference to documents on the file, established 13 that the property in dispute was transferred under section 10(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 in favour {{FOOT NOTE}}
(1) PLD 1962 Pesh. 186 {{FOOT NOTE}} ' of respondent No,
4. It is, therefore, necessary to examine the relevant provisions of section 10(b) of the aforementioned Act, which reads :- "10. Power to transfer property from compensation pool.-Subject to the provisions of this Act and the rules made thereunder, the Settlement Commissioner may transfer or dispose of any property out of the compensation pool,-
(a) on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the First Schedule,
(b) in such manner as may be prescribed.
' Subsequently by Ordinance LIII of 1959 section 10 of the aforementioned Act was further amended on 28-9- 1959 and reconstituted as under :- "10. Power to transfer property from compensation pool.-Subject to the provisions of this Act and the rules made thereunder, the Settlement Commissioner may transfer or dispose of any property out of the compensation pool,-
(a) or
(b) in such manner as approved by the Central Government.
' In the instant case, the Central Government approved the transfer of the property in favour of respondent No, 4 in February, 1960, as envisaged under the amended section 10(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The issuance of P. T.
0. And P. T. D. Were incidental matters consequent to the approval of transfer accorded by the Central Government in favour of respondent No,
4. The question whether the Central Government was empowered to approve transfer of evacuee property to a person other than one entitled under the Schedule to the Act was considered in Chief Settlement Commissioner and others v. Jamaluddin and others (1), wherein the facts were somewhat identical to the present case, specially as much as that the person in whose favour transfer was approved by the Central Government under section 10(b) of the Act was contended to be not qualified to secure transfer of the property under the Schedule to the Act, the Supreme Court observed at page 701: ' The distinction drawn by the learned Judges of the High Court between mode of transfer strict senso and the choice of the person to whom the property could be transferred, is not justified by the words of common import used by the Legislature in clause (b) of section 10 of the Act. The relevant words of this clause clearly comprehend not merely the mode of transfer simpliciter but the selection of the person to whom the property is to be transferred, irrespective of the provisions of the Schedule to the Act. The absence of any reference to the Schedule to the Act, which occur in clause (a), from clause (b) is significant in this connection. It must be held, therefore, that the letter by which the Central Government approved of the transfer in favour of the third respondent, even though the latter may not have been entitled to the transfer under the Schedule to the Act, was not ultra vires the provisions of clause (b) of section 10 of the Act. The position, was, apparently, misconceived in this respect in the High Court. Any other view would make clause (b) of section 10 redundant.- {{FOOT NOTE}}
(1) 1968 SCMR 697 {{FOOT NOTE}} The above-referred dictum in fact reaffirmed the view pronounced in Major J. H. Naqvi v. The Director, Enforcement Directorate, West Pakistan etc. (1). It is, therefore, clear that even if it is assumed that the petitioners' father was better qualified for the transfer of the property in dispute than respondent No, 4, the order of transfer passed by the Central Government in favour of the respondent cannot be interfered with.
8. Furthermore, P. T. D. Regarding the property in dispute had been issued in favour of respondent No, 4 in 1960, the property had gone out of the compensation pool and subsequently given away by the transferee in charity by creating trust in favour of a Hospital for the last twenty years. This factor also weighs against the petitioners to reopen the matter and exercise discretionary constitutional jurisdiction for interference in the concurrent findings of the Settlement Authorities having jurisdiction to adjudicate upon the matter.
9. The Settlement Authorities in the post remand proceedings provided adequate opportunity of hearing to the petitioners' predecessor-in-interest, rejected his form and concurrently held that he was not entitled to the transfer of the property in dispute and maintained the disposal of the property by the Central Government under section 10(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The petitioners have neither pleaded lack of jurisdiction in the Settlement Authorities, nor misreading of evidence on the record, as such, their findings cannot successfully be assailed in Constitutional jurisdiction of this Court.
10. The upshot of the above discussion is that this petition has no merit and is dismissed. There shall be no order as to costs. {{FOOT NOTE}}
(1) P D 1966 SC 512 {{FOOT NOTE}}