' This Constitutional petition is directed against order dated 21-1-1970 of the learned Settlement Commissioner, Lahore whereby he dismissed petitioner's revision petition and maintained the order dated 12-5-1969 of the learned Additional Settlement Commissioner, Lahore accepting respondents' appeal and transferring the property in dispute in favour of the respondent No,1.
2. The dispute in this case relates to a portion of property No, 22/30, Sialkot. The petitioner, a Jammu and Kashmir refugee, came into possession of the same after partition of Sub-continent.
The aforementioned property was also occupied by other persons. The Deputy Settlement Commissioner transferred a portion of the building minus the disputed property in favour of respondent No,1. The petitioner applied for its transfer on KNCH Form No, 227/SLK. Respondent No,1 filed an appeal against the aforesaid order but the same was rejected. However, in revision petition before the Chief Settlement Commissioner the disputed property was transferred in favour of respondent No,1. The petitioner challenged the aforesaid order in Writ Petition No, 735-11/ 62 which was allowed by this Court on 17-6-1963 and the impugned order of the Chief Settlement Commissioner was declared to be of no legal effect. It was observed that so far as the transfer of Room No,6 was concerned the same could not be transferred to any one nor petitioner's possession could be, disturbed. This order was not further challenged by either of the parties and attained finality. Subsequently the petitioner moved an application on the basis of the aforesaid order for issuance of Provisional Transfer Order and the Deputy Settlement Commissioner held him entitled to the transfer of the disputed room notwithstanding the repeal of subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Respondent No,1 challenged the aforesaid order in appeal which was allowed by the learned Additional Settlement Commissioner on 12-5-1969 on the ground that the disputed property was a room. It could not be treated as a house and transferred to the petitioner. That order was maintained in revision before the Settlement Commissioner. Hence this petition.
3. Learned counsel for the petitioner contended that the portion in possession of the petitioner was independent unit containing the amenities of a kitchen, Verandah, Deori and courtyard and house within the meaning of section 2(4) of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958. It was in possession of Jammu and Kashmir refugee since partition and could not be transferred to respondent No,1. It was also contended that deletion of section 30(5) of the aforementioned Act was of no effect because of the existence of section 16-B of the aforesaid Act and paragraph 19 of Settlement Scheme No, IV framed thereunder; which prohibited the transfer of properties in occupation of Jammu and Kashmir refugees to any other person and cited Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37 and Hussain Bakhsh and others v.
Settlement Commissioner and another PLD 1969 Lah. 1039 in support of his contention.
4. Learned counsel for the respondent opposed this petition and contended that by deletion of section 30(5) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 retrospectively the provisions of paragraph 19 of the Scheme No, IV became redundant and obviously could not override the provisions of Statute. It was also stated that the portion in possession of the petitioner is not a house. It being a part of the main building was rightly transferred in favour of the respondent. It was further submitted that the protection, if any, was available to occupants of houses and shops acid not to occupants of portions thereof. It was also argued that the order passed by this Court in the writ petition referred to above lost its efficacy after .Deletion of subsection (5) of section '30' of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
5. I have considered the contentions raised by learned counsel for the parties and have perused the documents on the file. It is not denied that before the repeal of subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 this Court vide order, dated 17- 6-1963 passed in Writ Petition No, 735-R of 1962 held; relevant to the extent is reproduced hereunder:- "I, therefore, accept this petition in part with costs and declare that 'the order of the Settlement and Rehabilitation Commissioner Malik Fateh Khan, respondent No, 3, is without lawful authority, so far as the transfer of Room No, 6, is concerned and that until the petitioner is repatriated, this room cannot be transferred to anyone, nor can the petitioner's possession of it be disturbed."
' This order was not challenged by either of the parties and had attained finality.
6. On 17-11-1968 the petitioner, applied to the Deputy Settlement Commissioner for issuance of the Provisional Transfer Order in respect of portion of the property transferred to him and on report made by the Settlement Inspector the property in dispute was transferred to him on 7-12-1968, under Settlement Scheme No, IV by the Deputy Settlement Commissioner. This order, however, was set aside by the learned Additional Settlement Commissioner on 12-5-1969 holding that the Settlement Scheme No, IV would apply to houses and shops in possession of Jammu and Kashmir refugees and by no stretch of imagination a room of a big building could be treated a house without amenities of life and that order was maintained in revision by the Settlement Commissioner. It was held that the room was not a house as defined in the Displaced Persons (Compensation and Rehabilitation) Act. 1958 and the same was available for transfer like any other property subsequent to the deletion of subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
' The perusal of the impugned orders clearly establish that the learned Settlement Authorities were harboring under an impression that after the deletion of subsection (5) of section 30 of the Act XXVIII of 1958 the protection available to the Jammu and Kashmir refugees regarding the properties in their possession had vanished, and such properties were available for transfer to others, No doubt subsection (5) of section 30 of the Act was deleted vide Ordinance XII! Of 1964 retrospectively nevertheless; section 16-B of the aforementioned Act read with paragraph 19 of the Settlement Scheme No, IV provided same protection to the Jammu and Kashmir refugees as was available to them under subsection (5) of section 30 of the aforesaid Act. In Ali Muhammad's case cited above Hussain Bakhsh and 13 other Jammu and Kashmir refugees were in possession of 12 rooms in Haveli Dewan Ram Chand Malkhi Ram situated in the city of Sialkot whereas 3 rooms of that Haveli were in possession of Ali Muhammad, a claimant displaced person. A question arose as to whether after the repeal of subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the evacuee properties in possession of Jammu and Kashmir refugees became available for transfer; the Supreme Court examined the same and held; relevant portion of the judgment is as follows:-- "Our own examination of the provisions of section 16-B, section 30(5) and Settlement Scheme No, IV inclines us to the view adopted by the learned Judges of the High Court. The deletion of subsection
(5) of section 30 did not, in any way, detract from the provisions of section 16-B and the Settlement Scheme framed under it. If the two are read together the intention of the Legislature becomes manifest that houses and shops in possession of refugees from Jammu and Kashmir State were excluded from the compensation pool out of which evacuee properties were transferred to displaced persons from other parts of India. These houses and shops were reserved for transfer to their occupants on temporary basis till their repatriation. We further find that subsection (5) of section 30 was an inapt provision of the Act. The section deals with protection of certain rights in properties transferred under the Act. By subsection (1), occupants of the transferred properties become statutory tenants under the transferees etc. Etc. Subsections (2), (3) and (4) deal with the same subject. Thus, there was no nexus between subsection (5) and other provisions of section 30.
Its deletion was, therefore, quite proper."
' It was further held:- "In the light of the above discussion, it follows that portions of the property in possession of the respondents were not available for transfer to the appellant. The transfer of the entire Haveli in his favour by the Deputy Settlement Commissioner was, therefore, in violation of the provisions of subsection (5) of section 30 which was in force when the order of transfer was made also in violation of the provisions of section 16-B and Settlement Scheme No,IV framed thereunder. The order of transfer, dated 22nd December, 1959, was thus void and rightly set aside by the High Court."
It is, therefore, clear that notwithstanding the repeal of subsection (5) of section 30 of the aforesaid Act the provisions of section 16-B of the Settlement Scheme No,IV were available to exclude from the compensation pool the houses and shops in possession of refugees from Jammu and Kashmir State for transfer to the displaced persons from other parts of India. The portions of the property in possession of the Jammu and Kashmir refugees were considered not available for transfer to All Muhammad and the order of the Deputy Settlement Commissioner transferring him the entire Haveli was set aside.
As regard the alternative contention of the learned counsel for the respondent that the Settlement authorities had held that Room No,6 was not self-contained independent unit and not immune from transfer to the respondents; it is significant to observe that the petitioner had claimed that the room in dispute had a kitchen, Verandah, Deori and courtyard attached therewith. The finding of the learned Additional Settlement Commissioner is efface neither based on inspection of site nor report made to that effect by the Deputy Settlement Commissioner or the Settlement Inspector. I would have remanded the case for ascertaining as to whether the room in dispute had a Verandah etc. attached with it, but for the reasons mentioned hereunder I did not consider it necessary in the circumstances of this case. I find on the file a certified copy of the order of the learned Rent Controller dated 23-2-1967 (Annexure 'F') (not controverted by the respondents as they opted not to file a written statement to this petition) containing his observation to the effect that the respondent No,1 while appearing before him stated that the petitioner did not pay him rent for the disputed room and Deori in his possession. It means that the petitioner was not only in possession of a room but he was in possession of a Deori as well. This inference further finds support from the fact that the petitioner is admittedly residing in the disputed portion of the property since after partition. His long stay in the disputed premises for over a period of three decades in the absence of amenities would not have been possible. The findings of the Settlement authorities to the contrary appear to be conjectural and without any base.
7. Furthermore, the property in dispute could not have been transferred to the respondents after the order dated 17-6-1963 passed by this Court in W.P. No,735-R of 1962. That order had attained finality and was otherwise valid under section 16-B of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and paragraph 19 of the Settlement Scheme No,IV framed thereunder.
8. In the result the order passed by the learned Additional Settlement Commissioner on 12-5-1969 together with order dated 21-1-1970 of the Settlement Commissioner transferring the property in dispute to the respondents are declared to be of no legal effect.
9. This petition is allowed with costs.