' This writ petition calls in question the order dated 28-1-1981 of the Administrator (Residual Properties), Rawalpindi.
2. The dispute in this case relates to a portion of evacuee property No, T/190, Rawalpindi. Earlier, the Deputy Settlement Commissioner, Rawalpindi City, by order dated 19-7-1962 (Annexure B) transferred the property, in question, in favour of Muhammad Rafi, the predecessor-in interest of the petitioners excluding the portion occupied by Feroze Din, respondent No, 5, Abdul Ghani respondent No, 6 and Messrs Khawaja Kamal, Abdul Ahad and Abdul Sattar who are not parties to this writ petition. The operative part of the order reads thus:- "1 have heard the parties at length and gone through the relevant record very thoroughly and have come to the conclusion that Messrs Khawaja Kamal, Abdul Ahad, Feroze Din and Abdul Sattar and Abdul Ghani are J & K displaced persons and deserve protection under section 30(5) of the Compensation and Rehabilitation Act, 1958. Muhammad Akbar who was not present despite service had not produced any proof of his possession before 20-12-1958 and as such he is not given protection referred to above. Rest of the building excluding the portion for which protection has been given to the individuals mentioned above is transferred to Mr. Rafi Ahmad Siddiqi. As for the portion for which protection has been given to J & K displaced persons, they will also revert to Mr. Rafi Ahmad after the repatriation of the occupants to J & K. Necessary amendment be made in the appendix X and P. T.
0. Issued to Rafi Ahmad Siddiqi."
' This order was maintained in appeal by the learned Additional Settlement Commissioner, Rawalpindi, vide his order dated 19-9-1962 (Annexure C). Messrs Abdul Ahad, Feroze Din respondent No, 5, Abdul Ghani respondent No, 6, Abdul Sattar Butt and Khawaja Kamal filed Revision Petition No, 1461/62 against the order dated 19-7-1962 of the Additional Settlement Commissioner praying therein for transferring the rooms which were in their occupation and were kept reserved under section 30(5) of the Displaced Persons Act (No, XXVIII) of 1958. The revision petition was dismissed by the learned Settlement Commissioner by order dated 4-7-1963 on the ground that they never challenged the original transfer order passed by the Deputy .Settlement Commissioner on 19-7- 1962 and instead directly invoked the revisional jurisdiction. Subsequently, by Ordinance XIII of 1964, section 30(5) of Act XXVIII of 1958 was deleted. Notwithstanding deletion of the aforesaid provision, by virtue of para. 19 of the Settlement Scheme No, 1V which was similar to section 30 (5) ibid, the bar for the transfer of the houses and shops occupied by refugees from Jammu and Kashmir stood continued. Refer All Muhammad v. Hussain Bakhsh (1). A further development which took place was that on 28-1-1975, Evacuee Properties and Displaced Persons Laws (Repeal) Act, XIV of 1975 was promulgated and came into force with effect from 1-7-1974 which repealed seven laws including Act XXVIII of 1958. In terms of subsections (10 and (iii) of section 2 of Act XIV of 1975, all the proceedings which were pending on the date of repeal were continued to be disposed of in accordance with the provisions of the Act repealed to which the proceedings related. In terms of section 3 of Act XIV of 1975, all available property stood transferred to the Provincial Government under a Scheme to be prepared by it in this behalf. The scheme for the management and disposal of available urban properties was framed in 1977. In consequence, respondents Nos. 1 to 8 applied to the Deputy {{FOOT NOTE}}
(1) PLD 1976 SC 37 {{FOOT NOTE}} ' Administrator (Residual Properties), Rawalpindi, for the transfer of the rooms in their respective occupation. The learned Deputy Administrator (R. P.) after hearing both the parties and perusing the record of the case and spot inspection vide order dated 2-10-1980 gave a finding of fact that all the respondents were in physical possession of the property before 1-1-1976 and, therefore, were found entitled to the transfer of their respective portion under the Residual Property Scheme.
Accordingly, the respondents were transferred the rooms in their respective possession. The petitioners challenged this order by way of revision petition before the Administrator whereupon the case was remanded by order dated 28-1-1981 (Annexure G) to the Deputy Administrator (R. P.) with the direction that "he shall strictly confine his order of transfer to the accommodation made available in the order dated 19-7-1962 of the learned Deputy Settlement Commissioner after hearing the parties".
3. Learned counsel for the petitioners contends that the property, in dispute, was not an "available property" as contemplated by section 3 of the repealing Act, 1975, in that, the Deputy Settlement Commissioner by his order dated 19-7-1962 transferred the entire property in favour of the petitioners' predecessor-in-interest and only a transitory protection was granted to some of the respondents which automatically lapsed after the repeal of Evacuee Laws. Learned counsel for the petitioners further contended that the protection contemplated under section 30 (5) of the Displaced Persons Act, 1958, was of temporary character and was not intended to create any permanent rights on the refugees from Jammu and Kashmir. In support of his contention, reliance is placed on Muhammad Ramzan v. Ch. Bashir Ahmad (1) wherein it was held that an occupant of an evacuee property was not entitled to any notice or protection under section 30 of Act XXVIII of 1958 after its repeal. On the same analogy, the learned counsel for the petitioners contends that the protection contemplated under section 30 (5) of the said Act is no longer available to the Jammu and Kashmir displaced persons in occupation of evacuee properties after the repeal of Act XXVII of 1958. It is next contended that the learned Settlement Commissioner in the exercise of his revisional jurisdiction has already rejected the claim of some of the respondents for the transfer of the property, in dispute, by order dated 4-7-1963 (Annexure D). This being so, the claim of the respondents is barred by principle of res judicata and in any case, their entitlement is hit by the doctrine of past and closed transaction. The precise submission of the learned counsel for the petitioners is that the entire property stood already transferred in favor of the predecessor-in interest of the petitioners and, therefore, the same was not available for transfer within the meaning of section 3 of Act XIV of 1975 and that, in any case, assuming but not conceding that the property was an "available property" then the same could be claimed only by the respondents Nos.
5 and 6, inasmuch as, they alone were the parties in the first round of litigation before the repeal of the Act.
4. I am not inclined to agree with the submissions of the learned counsel for the petitioners. It is an admitted fact that the disputed portion of the property, in question, was in possession of persons displaced from the State of Jammu & Kashmir and, therefore, in terms of subsection (5) of section 30 of Act XXVIII of 1958, the same was not transferable to any {{FOOT NOTE}}
(1) P D 1981 SC 340 {{FOOT NOTE}} ' person under the provisions of the said Act. This being so, the portion of the order, in question, of the learned Deputy Settlement Commissioner to the effect that after the repatriation of the Jammu & Kashmir refugees, the portion in their occupation shall stand reverted to the petitioners' predecessor-in-interest was void ab initio and, therefore, did not exist in the eye of law. A bare reading of the order dated 19-7-1962 of the Deputy Settlement Commissioner when read in its entirety would show that only the portion excluding the portion in occupation of the Jammu & Kashmir displaced persons was specifically transferred to the petitioners' predecessorin-Interest and a condition was imposed that the remaining portion of the property in occupation of the aforesaid persons shall be reverted to the etitioners' predecessor-in-interest after repatriation. This condition however, disappeared by operation of law, therefore, it cannot be successfully maintained that notwithstanding the deletion of section 30 (5) of Act XXVIII of 1958, and repeal of the Evacuee Laws, the entire property stood transferred to the petitioners in terms of the aforesaid order. It is, therefore, difficult to hold that the entire property automatically stood transferred to the petitioners merely on the strength of the said observation made in the order of the Deputy Settlement Commissioner which observation was even otherwise void ab initio, being in patent violation of the law then in force i. e. Section 30 (5) of Act XXVIII of 1958. The order of the Deputy Settlement Commissioner consisted of two distinct and independent parts. By one part, the property in occupation of the predecessor-in-interest of the petitioners was transferred to him as a claimant displaced person and by the other part, the property in occupation of Jammu & Kashmir refugees was ordered to be reverted to the predecessor-in-interest of the petitioners after the repatriation of the former. This being so, applying the doctrine of sever-ability, the order, in question, transferring the property in favour of the predecessor-in-interest of the petitioners on the repatriation of the occupants of Jammu & Kashmir, was void within the meaning of section 30 (5) of Act XXVIII of 1958.
5. As regards the contention that the claim of some of the respondents was earlier rejected by the Settlement Commissioner in revision and, therefore, they were estopped to reagitate the same issue, is also devoid of any force, inasmuch as, the respondents were admittedly in occupation of the property, in dispute, prior to the target date i. e. 1-1-1976 and, therefore, the mere fact that some of them were unsuccessful in seeking transfer in their favour under the repealed Act XXVIII of 1958 and the schemes made thereunder, would not stand in their way. The respondents have got a vested right for the transfer of the property in their occupation on the fulfilment of the conditions laid down under the aforesaid provisions. Mr. Samad Mahmood has strongly relied on Ghulam Rasul v. The Settlement and Rehabilitation Commissioner (1), wherein it was held that where the property already stood transferred to certain parties before the Settlement Scheme No, VIII came into the field, it did not fall within the definition of "available property" and that no outsider's claim could be introduced at the remand stage. The aforesaid authority is distinguishable and not applicable to the facts and circumstances of the present case, in that, the impugned order has not been passed in pursuance of any remand order but on account of the fact that the property, in dispute, was an "available property" as the same was not transferable under Act XXVIII of 1958. {{FOOT NOTE}}
(1) 1980 SCM R 921 {{FOOT NOTE}}
6. It is finally contended by Mr. Samad Mahmood that the predecessorin-interest of the petitioners was admittedly a claimant and applied on CH Form for the transfer of the entire house. The Deputy Settlement Commissioner held the house indivisible vide his order dated 19-7-1962 and if in terms of section 30 (5) of Act XXVIII, 1958, either the whole or a part of the property was not transferable, then with repeal of the aforesaid Act, the disposal of the CH Form filed by the predecessor-in- interest of the petitioners for the transfer of the entire indivisible property shall be deemed to be pending within the meaning of subsection (ii) of section 2 of Act XIV of 1975. The argument is untenable, in that, in terms of section 30 (5) of Act XXVIII, 1958, no question arose for entertaining the CH Form of the petitioners in respect of the property which was in occupation of the displaced persons from Jammu & Kashmir. Furthermore, neither the petitioners nor the respondents have challenged the validity of the transfer of portion of the property, in question, in favour of the predecessor-in-interest of the petitioners by order dated 19-7-1962 of the Deputy Settlement Commissioner. It has therefore, attained finality in terms of section 22 of Act XXVIII of 1958. It is, therefore, difficult to hold that there were any pending proceedings within the meaning of section 2
(ii) of Act XIV of 1975. Further the learned Deputy Administrator (R. P.) passed the impugned order after hearing both the parties. This objection was not taken before him. The petitioners never raised this point either in the grounds of revision petition or before the Administrator and, therefore, they are precluded to raise this question for the first time in writ jurisdiction, which even otherwise is not tenable. The case of Nawab Din v. Member, Board of Revenue (Settlement and Rehabilitation)
Punjab, Lahore and others (1), cited by the learned counsel for the petitioners is distinguishable and not applicable to the facts of the present case. There were no pending proceedings as discussed above.
7. The impugned order passed by respondent No, 8 was within his lawful authority and did not suffer from any legal infirmity warranting invocation or exercise of writ jurisdiction.
' For the reasons stated above, I find no force in the writ petition which is hereby dismissed with no order as to costs. {{FOOT NOTE}}
(1) PLD 1979 SC 846 {{FOOT NOTE}}