1. NASIM HASAN SHAH, J.--This judgment will dispose of the above-mentioned three appeals, as they are all directed against one and the same judgment passed on 4-2-1981 by a Division Bench of the Lahore High Court.
2. The dispute in this case relates to the transfer of a portion of a Bungalow bearing No.S-77-R/6, Jail Road, Lahore, namely, portion marked "3-B", hereinafter sometimes referred to as the house in.
3. Dispute.
4. This portion was in possession of a local Seth Ghulam Ali Mandviwala even before the Independence and it continued to be in his possession even after the partition of the Sub- continent.
5. Being a local, proceedings for ejectment were initiated against him by the Rehabilitation Department. He, therefore, moved the Deputy Custodian, Evacuee Property, for a declaration that he was an old tenant and succeeded in obtaining a declaration of being an old tenant from him on 14-6-1954. Shortly thereafter, he passed away i.e. Sometimes in 1956 leaving behind a widow as well as sons and daughters but none of them appear to have been residing in the premises regularly, which, in fact, was occupied by his manager, Ejaz Ahmad Siddiqi (now deceased) and represented before us by his legal representatives who are appellants in Civil Appeals Nos.53 of 1983 and 56 of 1983"and will be referred to by his name for the sake of convenience in the sequel.
6. There were other residents to in the house in dispute. One of daughters of Seth Ghulam Ali Mandviwala was married to the son of one Mst. Mahmoodul Nisa. This lady to had come over to live in the premises in 1954 and continued to reside herein until 22-7-1958 when she expired after a protracted illness. In her lifetime she was joined by Afzal Mirza (the appellant in Civil Appeal No.51 of 1983), one of her sons who came over to live with her in the house sometimes in April. 1958, with a view presumably to attend to her during her illness.
7. Although Seth Mandviwala had been able to stave of the threat of ejectment during his lifetime by obtaining a declaration of the old tenancy from the Deputy Custodian, Evacuee Property, this again revived after his death. One Shujaatullah, a refugee from East Punjab, submitted a complaint to the Rehabilitation authorities that the house in dispute was being occupied unauthorisedly by a local and that he was entitled to its allotment as he was a refugee. Pursuant to this complaint, inquiries were initiated in the matter and show-cause notices were issued to the family of Seth Mandviwala and his Manager Ejaz Ahmad Siddiqi. None of the members of the family of Seth Mandviwala responded to these notices except for Ejaz Ahmad Siddiqi, their Manager, who appeared before the Additional District Rehabilitation Officer, Model Town, Lahore, in this connection and on 11-1-1958 made a statement before him. Herein, he attempted to show that some of the members of Seth Mandviwala's family were still living in the premises and that its rent was being paid on their behalf to the department regularly. However, the Additional District Rehabilitation Officer directed Ejaz Ahmad Siddiqi to produce Hameeduddin Mandviwala son of the late Seth Mandviwala before him on 15-1-1958. This, he failed to do.
8. While these proceedings were still pending before the Additional District Rehabilitation Officer Ahmad Saeed Khan the contesting respondent in all the three appeals) also appeared on the scene. On 27-3-1958, he submitted an application to the Deputy Rehabilitation Commissioner, Model Town Circle, Lahore to the effect that he to was a refugee; that his father was holder of a claim of 11 lakh rupees and so far no evacuee house had been given to them, though he himself had been allotted House No.12/F, Model Town, Lahore, its possession had not been obtained so far and that if the house in dispute was allotted to him the allotment of the said house in Model Town may be cancelled.
9. The entire case was ultimately forwarded by the Additional District Rehabilitation Officer to the Deputy Rehabilitation Commissioner, Lahore, with his report dated 20-5-1958. He stated in his report that neither the sons of Seth Mandviwala nor Ejaz Ahmad Siddiqi, who was presently occupying the premises, were eligible for allotment as they were all locals. He, therefore, recommended that the orders of ejectment be passed against Ejaz Ahmad Siddiqi or any other occupant of the bungalow. The case of allotment of the house was then taken up by him and in this connection he expressed the opinion that out of the to applicants for its allotment, namely, Shujaatullah and Ahmad Saeed Khan, the claim of Ahmad Saeed Khan was better. He, therefore, recommended that the house be allotted to him. The Deputy Rehabilitation Commissioner, Lahore (Sh. Nur Muhammad) agreed with both the recommendations contained in the above report and, vide his order dated 7-6-1958, directed that "the local unauthorised occupant shall be ejected and that the house be allotted to Ahmad Saeed Khan".
10. It appears that the mother of Afzal Mirza (Mst. Mahmoodun Nisa) had also applied in the month of May, 1958 for the allotment to the Commissioner, Lahore Division in his capacity as Rehabilitation Commissioner on the ground that she was also occupying it. In this connection the Commissioner had called for the file of the case which was forwarded by the Deputy Rehabilitation Commissioner (Mr. Nur Muhammad) with his note to him. In this note, the Deputy Rehabilitation Commissioner had, after referring to the report of the Additional D.R.O. Model Town, Lahore and his own order dated 7-6-1958 gone on to observe:- "The dispute relates to the portion of the bungalow which was occupied as an old tenant by late Ghulam Ali. Mr. Ejaz Ahmad a local trespassed into this portion and the orders of his ejectment were passed by me. I have gathered some information regarding the petitioner, Mst. Mahmudul Nisa Begum, who does not hold the allotment of any portion of this bungalow, and she might be living with one of her relatives in this bungalow. If Mst. Mahmudul Nisa Begum is connected with the present unauthorised occupant Mr. Ejaz Ahmad, then she cannot be considered for the allotment of this portion which has already been allotted to Mr. Ahmad Saeed Khan."
11. The file was sent by the Deputy Rehabilitation Commissioner on 5-7-1958 and was returned without any orders but simply with the observation that the appeal in this case was pending with the Additional Rehabilitation Commissioner (Mr. Khand).
12. The appeal before Mr. Khand was the appeal filed against the order of the Deputy Rehabilitation Commissioner, dated 7-6-1958 by the to sons of Seth Ghulam Ali Mandviwala (Yousuf Ali Mandviwala and Hakimuddin Mandviwala), his widow alongwith Ejaz Ahmad Siddiqi. Mr. M. Y.
13. Khand, the learned Additional Rehabilitation Commissioner disposed it of by a well-considered order on 27-10-1958. He observed that neither the sons of Seth Mandviwala (Yousuf Ali Mandviwala and Hakimuddin Mandviwala) nor his wife had ever appeared before the Additional D.R.O. Or before him and that it was only Ejaz Ahmad who had appeared before him and after noting the relevant circumstances expressed the conclusion that no other member of the family of Seth Ghulam Ali Mandviwala was living in the house except Ejaz Ahmad. He further observed that Ejaz Ahmad himself was an unauthorised occupant and, therefore, the D.R.C. Was justified in ordering his ejectment. He, therefore, upheld the order of the Deputy Rehabilitation Commissioner dated 7- 6-1958 and rejected the appeal preferred against it vide his order dated 27-10-1958.
14. Dissatisfied with the above order, the sons and widow of Seth Mandviwala alongwith Ejaz Ahmad Siddiqi filed a revision before the Rehabilitation Commissioner.
15. During the pendency of this revision petition before the Rehabilitation Commissioner, Afzal Mirza also entered into the contest by making an application to be impleaded as a party to the proceedings. He submitted that his mother Mst. Mahmoodun Nisa was living since 1954 in the house in dispute alongwith the family of Seth Ghulam Ali Mandviwala and he had come here in the month of April, 1958 and started living in the house which he continued to despite the death of his mother in July, 1958; that he was occupying five rooms of the house on the ground-floor; that he had also applied in May, 1958 for the allotment of the house in his favour but had received no reply from the Rehabilitation Department.
16. The above application did not find favour with the Rehabilitation Commissioner who dismissed it straightway observing that Afzal Mirza was not a party to the proceedings in the Courts below; that it was not certain whether he was living in the house alongwith the family of Seth Ghulam Ali Mandviwala deceased and that even if this was so his possession was not by virtue of any independent allotment but with the consent and on the sufferance of the deceased. He, therefore, held that Afzal Mirza was liable to be ejected if the heirs of Seth Ghulam Ali Mandviwala were found to be in unlawful occupation.
17. Coming now to the case of the heirs of Seth Ghulam Ali Mandviwala, the Rehabilitation Commissioner found the heirs of Seth Ghulam Ali Mandviwala had not shown any interest for getting the house allotted in their favour and that it was really Ejaz Ahmad Siddiqi only who wanted to continue in possession in their name. The aforesaid Ejaz Ahmad Siddiqi, according to the learned Rehabilitation Commissioner, might have been living in this house as Manager of Seth Ghulam Ali Mandviwala but he could not assert any independent right. Thus, he could continue in the premises only if the heirs of Seth Ghulam All Mandviwala were allowed to do so. But, as they were not interested in living in the house, Ejaz Ahmad Siddique's claim to it also could not be accepted because he had no independent right to the possession of the house. The revision was dismissed by the Rehabilitation Commissioner with these findings vide his order dated 3-2-1960.
18. It may, however, be mentioned that in the course of his order, the learned Rehabilitation Commissioner also observed that Ahmad Saeed Khan though a party in the revision petition was absent in spite of service and further remarked that he was told that the rehabilitation authorities had allotted him another bungalow and he had given up the present allotment of the property. This observation, we may add, was based on incorrect information supplied to him because Ahmad Saeed Khan on the contrary had surrendered the allotment of the other bungalow in order to secure the allotment of the house in dispute.
19. Afzal Mirza feeling aggrieved by the above order of the Rehabilitation Commissioner dated 3-2- 1960 filed a review petition. This, however, was dismissed on 13-5-1960. He then filed a writ petition in the Lahore High Court (W.P.No.280-R/60) which to was dismissed in limine vide order dated 15-6- 1960 passed by a learned Single Judge. A Letters Patent Appeal filed to question this order also failed and was dismissed vide order dated 4-10-1960.
20. In the meanwhile, the settlement operations had commenced and the parties now turned their attention towards obtaining the transfer of the house.
21. In order to obtain the transfer of the house in dispute, applications on Forms C.H. Were submitted by all the three parties who were also contesting for its allotment viz. Ejaz Ahmad Siddiqi, Afzal Mirza and Ahmad Saeed Khan. The case of transfer of the portion in dispute was taken up alongwith the transfer of the other portion of the bungalow and the history of the case was summarised by the Settlement Inspector in his note which he submitted for consideration of the Deputy Settlement Commissioner. He said:- "The actual position of the case is that this portion was in the possession of late Ghulam Ali Mandviwala. He was an old tenant. M/s. Afzal Mirza, Ejaz Ahmad, Hakimuddin were living with him.
22. After the death of Ghulam Ali, Rehabilitation Department started ejectment proceedings against all the above-mentioned occupants. They filed an appeal in the higher Courts but they ultimately I failed. Meanwhile, they submitted C.H. Form as the Settlement Scheme was operated. As a matter of fact all of them would have been ejected and the possession must be delivered to the new allottee. The Rehabilitation Department slept over this and possession was not delivered to the new allottee without his any fault. According to the new policy, Mr. Ahmad Saeed Khan submitted C.H.
23. Form No.1566. He is rightful deserving man to whom half portion should be transferred.
24. (Sd.)
25. Abdul Majid 4-11-1960"
26. The Deputy Settlement Commissioner, Mr. S.H. Jafri agreed and passed the following orders:- "Ejectment orders were passed but the unauthorised persons have not been ejected so far. As discussed above by the Inspector, the deserving person is Mr. Ahmad Saeed.
27. I, therefore, transfer the half (undecided) portion to Mr. Ahmad Saeed.
28. P.T.0 and Appendix "X" may be issued.
29. Sd/-S.H. Jafri 4-11-1960."
30. The new policy, under which Ahmad Saeed Khan was held entitled to the transfer, was contained in the Order issued by the Central Government and published in the Gazette of Pakistan on 11-8-1960, which stated:- "No. F.3 (3)/60. SI.--In exercise of powers conferred by the second proviso to clause (b) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to order that the allottees of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation Authority and who, through no fault or negligence of their own, have so far been unable to obtain physical possession of the house or the shop in question shall be deemed to be in possession thereof for the purpose of the said Act."
31. Appeals against the above-mentioned order of the Deputy Settlement Commissioner were filed by the unsuccessful applicants, namely, Ejaz Ahmad Siddiqi and Afzal Mirza before the Additional Settlement Commissioner. Both the said appeals were, however, dismissed by him vide his order dated 17-11-1962. The appeal of Afzal Mirza was dismissed on the grounds that he was not an allottee of the disputed portion and his possession being unauthorised he could not, be given preference over Ahmad Saeed Khan who was a claimant and held a valid allotment order.
32. So far as the case of Ejaz Ahmad Siddiqi is concerned, the learned Additional Settlement Commissioner observed that though he was living in this portion he did not hold any allotment order and was ordered to be ejected from this portion on 7-6-1958; that he challenged the order of ejectment before the higher authorities but he could not succeed. Hence he to was an unauthorised occupant of the disputed portion and an unauthorised claimant in possession could not be given preference over a claimant holding a valid allotment order, his appeal must also fail.
33. Dissatisfied with the order of the Additional Settlement Commissioner dated 17-11-1962, both Ejaz Ahmad Siddiqi and Afzal Mirza filed revision petitions before the Settlement Commissioner against it. These were disposed of by a common order passed by the learned Settlement Commissioner.
34. The revision petition of Ejaz Ahmad Siddiqi was dismissed with the observation that his possession was not undisputed and that he had somehow or the other "wangled to retain possession of a part of the portion of the bungalow and had defeated the law for a long the." Consequently he was neither entitled nor eligible to the transfer of any part of the bungalow. However, he was pleased to accept the revision petition of Afzal Mira. 1n this connection, the learned Settlement Commissioner noted that Ahmad Saeed Khan had not appeared before him and had merely sent a telegram requesting for adjournment and that also to a third person and not directly to him. Notice was also taken of his absence before the Rehabilitation Commissioner during the allotment proceedings and the learned Settlement Commissioner went on to observe "As a matter of fact he has never been in possession and it is not understood how and why the allotment order was given to him for the portion in dispute". On this view of the matter, the learned Settlement Commissioner held that "he is not eligible".
35. As regards Afzal Mirza, he observed that his possession was not disputed. He was a claimant and had put in a regular C.H. Form. His entitlement and eligibility are established and as compared with those of Ahmad Saeed Khan and Ejaz Ahmad Siddiqi are far more superior. Accordingly, disagreeing with the findings contained in the orders of the Deputy Settlement Commissioner and the Additional Settlement Commissioner, the learned Settlement Commissioner found that the house in dispute was liable to be transferred to Afzal Mirza. His revision petition was accepted and the house transferred to him vide order dated 9-4-1963.
36. The order of the learned Settlement Commissioner was assailed before the High Court through to writ petitions; one by Ejaz Ahmad Siddiqi (W.P.No.1850-R/63) and the other by Ahmad Saeed Khan (W.P.No.2482-R/1963). Both the petitions were heard and disposed of by a learned Single Judge of the West Pakistan High Court (Mr. Justice S.A. Haq--as he then was).
37. As regards Ejaz Ahmad Siddiqi, the learned Judge found that he was residing in the disputed property as a licensee of the deceased Seth Ghulam Ali Mandviwala and, accordingly, he had no right or interest of his own in this property during the latter's lifetime. However, after the death of Seth Ghulam Ali Mandviwala on 15-6-1956 his occupation of the disputed property was on his own account though, so far as the rehabilitation and settlement authorities were concerned, his possession in the house was "unauthorised".
38. On the question of Afzal Mirza's possession it was observed that his entry into the property in April, 1958 was on account of the fact that his mother was already living in some part of it during the lifetime of Seth Ghulam Ali Mandviwala. Although he was not a licensee since Seth Ghulam Ali Mandviwala had died before he came in occupation but he to was an unauthorised occupant as found by the rehabilitation authorities.
39. The learned Judge thereupon considered the question whether the above-mentioned to unauthorised occupants could take benefit of the notification issued by the Central Government on 13-10-1959, enlarging the category of persons who were to be deemed to be in possession under clause (6) of section 2 of the Act. This notification stated:- "The Central Government is pleased to direct that a claimant, a non-claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the 20th day of December, 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof if he has been in undisputed occupation of the house or the shop since before the 21st day of December, 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before the date."
40. By this notification, the undisputed and unauthorised occupation of a person could be converted into possession for the purpose of entitlement to the transfer of the property if no other person was entitled to the transfer of the property in pursuance of the final order before 21-12-1958.
41. The question was, therefore, discussed as to whether Ejaz Ahmad Siddiqi and Afzal Mirza could be treated to be undisputed occupants of the house and it - was observed that undisputed occupation meant not only that there was no controversy regarding the physical presence of the person concerned on the property in question but that there was also no controversy regarding the right of such person to remain and to continue in such occupation. The learned Judge found that in the present case the unauthorised occupation of Ejaz Ahmad Siddiqi and Afzal Mirza could not be described as undisputed because ejectment orders had been issued against them on the 7th of June, 1958 and these were maintained on appeal and revision. Hence neither of them fulfilled an essential condition prescribed by the notification of the 13th October, 1959 and accordingly could not take benefit of it.
42. The learned Single Judge then considered the question whether Ahmad Saeed Khan was entitled to the transfer of the property under the order of the Central Government dated 11-8-1960.
43. According to the said Order the allottee could take advantage of its terms if the following three conditions were fulfilled:- (i)Ejectment proceedings had been ordered for his benefit by a Court or a Rehabilitation Authority; (ii)He was unable to obtain physical possession of the house or shop in question; and (ii)Such failure was not due to any fault or failure on his part.
44. Dealing with the submission that only the second condition mentioned above was satisfied by Ahmad Saeed Khan and not the other to conditions, the learned Judge observed that the orders passed by the rehabilitation authorities showed that the ejectment of Ejaz Ahmad Siddiqi and Afzal Mirza was being undertaken for the benefit of the allottee. Hence the conditions mentioned in the Order of the Central Government dated 11-8-1960 were, indeed, fulfilled by the allottee without possession, namely, Ahmad Saeed Khan. The learned Judge, therefore, came to the conclusion that the Deputy Settlement Commissioner as well as the Additional Settlement Commissioner had acted rightly in transferring the property in dispute to Ahmad Saeed Khan on the basis of his being a claimant, who was to be deemed to be in possession and held that the learned Settlement Commissioner was not justified in cancelling the order of transfer made in his favour simply because he had failed to attend the revisional proceedings before him. It was further held that it was incumbent upon the learned Settlement Commissioner to have examined the case of Afzal Mirza on merits before ordering the transfer of the house in his favour which apparently had not been done. In the words of the learned Judge "the Settlement Commissioner was clearly in error in observing that the possession of Afzal Mirza was not disputed because the orders made on the rehabilitation side as well as the contentions raised before the Deputy Settlement Commissioner; and the Additional Settlement Commissioner showed that Afzal Mirza's possession was being disputed at every step by the other contestants in the field". Consequently, the revisional order passed by the Settlement Commissioner on 9th April, 1963, was found to have been passed without lawful authority and to be of no legal effect, with the result that the only operative order which remained in the field was the order of transfer made by the Deputy Settlement Commissioner in favour of Ahmad Saeed Khan on 4-11-1960 and upheld in appeal by the Additional Settlement Commissioner on the 17th November, 1962.
45. The overall effect of the order of the learned Single Judge was that Ahmad Saeed Khan's writ petition (W.P.No.2482/R of 1963) was accepted, whereas that of Ejaz Ahmad Siddiqi bearing No.1850/R of 1963 was dismissed. This order was passed on 30-11-1966.
46. Aggrieved by the order dated 30-11-1966 passed by the learned Single Judge, both Ejaz Ahmad Siddiqi and Afzal Mirza filed separate appeals to challenge it, namely, Letters Patent Appeals Nos.16 of 1967, 17 of 1967 and 1396 of 1966. These were disposed of by a common judgment passed by a Division Bench of the High Court consisting of Gul Muhammad Khan and Khursheed Ahmad, JJ.
47. The learned Judges of the Division Bench found that both Ejaz Ahmad Siddiqi and Afzal Mirza were mere licensees and, therefore, had no right to ask for the transfer of the property.
48. On the other question whether Ahmad Saeed Khan was entitled to the benefit of the Order of the Central Government dated 11-8-1960 they held that he was entitled to its benefit because he fulfilled the conditions laid down there in.
49. However, before the learned Judges of the Division Bench, a further plea was raised which had not earlier been raised before the learned Single Judge--and need not have. Been attended to by them namely, that the order of the Central Government dated 11-8-1960 which was issued under second proviso of clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, was itself ultra vires as it allowed benefit to persons who were not in actual possession of the property for whose transfer they were applicants. But the learned Judges found no force in this submission and rejected it.
50. In the result, all the Letters Patent Appeals were dismissed vide judgment dated 4-2-1981 and the order of the learned Single Judge upheld. Hence these appeals before us, with the leave of the Court.
51. Mr.Bashir Ahmad Ansari, learned counsel for Afzal Mirza, in support of the appeal preferred by him, submitted before us that Afzal 6lirza was in "undisputed occupation" of the house on 20-12-1958 and as neither any ejectment order was issued against him nor any ejectment proceedings were initiated against him for the benefit of Ahmad Saeed Khan allottee, hence the latter could not take advantage of the order of the Central Government dated 11-8-1960, whereas he himself was entitled to the transfer of the house in dispute under the notification of the Central Government dated 13-10-1959. The learned counsel contended further that in any event the Order of the Central Government dated 11-8-1960 was ultra vires of the second proviso to clause (6) of section 2 of the Displaced Persons Act and, therefore, it could not be availed of by Ahmad Saeed Khan.
52. Mr. Muhammad Naazar Khan, learned counsel for Ejaz Ahmad Siddiqi adopted the last-mentioned submission of Mr. Bashir Ahmad Ansari and further submitted that as Ejaz Ahmad Siddiqi was admittedly in occupation of the house on 20-12-1958 and this fact was not disputed, his case was covered by the notification of 13th October, 1959. Moreover, the ejectment order passed against Ejaz Ahmad Siddiqi could not disentitle him, because it was passed without complying with the prescribed procedure. He further submitted that Ahmad Saeed Khan could not take benefit of the Order of the Central Government dated 11-8-1960 because the right of Ejaz Ahmad Siddiqi to the transfer of the house had accrued earlier, under the notification of 13-10-1959 and the said right could not be defeated by the Order of the Central Government issued subsequently on 11-8-1960.
53. In reply, Mr. S. M. Zafar, learned counsel for respondent Ahmad Saeed Khan submitted that the learned Judges of the Letters Patent Bench had found that the appellants were merely licensees who derived their title from Seth Ghulam Ali Mandviwala and hence they could not be considered to be in occupation of the property in their own -independent right. In any case, after the issuance of the ejectment order against Ejaz Ahmad Siddiqi, which was maintained on appeal and revision; which order was also extended to Afzal Mirza when he tried to become A party during the revisional proceedings before the Rehabilitation Commissioner, neither Ejaz Ahmad Siddiqi nor Afzal Mirza could be regarded as in undisputed occupation within the meaning of the notification, dated 13-10- 1959.
54. With regard to the submission that the ejectment proceedings were not properly initiated and in any case were not being taken for the benefit of the allottee Ahmad Saeed Khan he referred to the order of the Deputy Rehabilitation Commissioner dated 7-6-1958 which clearly stated that the local unauthorised occupant shall be ejected (which was a reference to Ejaz Ahmad Siddiqui who was being considered as a local unauthorised occupant by the Rehabilitation authorities) and the house allotted to Ahmad Saeed Khan. As this order was maintained on appeal and revision the plea that the ejectment proceedings were not being taken rightly or were not for the benefit of Ahmad Saeed Khan was not tenable. As for the contention that the Order of the Central Government dated 11-8-1960 was ultra vires learned counsel firstly submitted that this plea had not been taken up before the learned Single Judge and hence it could not have been raised in appeal before the Letters Patent Bench for the first the and, secondly, that the said plea was, in any case, not well-founded. In this connection, he referred to the decision of this Court in the case of Khawaja Shaiq Hassan v. R.I Ahmad Noor and another 1983 SCMR 677 wherein it was treated as valid and given effect to.
55. We have carefully perused the record and also fully considered the submissions made before us, by all the learned counsel appearing in these appeals. We are inclined to agree with the view taken by the learned Judges of the Letters Patent Bench that Ejaz Ahmad Siddiqi and Afzal Mirza were merely licensees since they had entered the premises either as an employee of Seth Ghulam Ali Mandviwala or as a member of his family and neither had any independent status of his own and that mere licensees cannot be considered to be in "possession" as the said V, term is defined in clause (6) of section 2 of the Displaced Persons Act or under the extended definition of that term given in the notification dated 13-10-1959. It is true, as pointed out by Mr. Bashir Ahmad Ansari that the decisions of this Court referred to by the learned Judges viz. Mirza Bashiruddin Mahmud Ahmad v. Settlement Authority 1977 SCMR 123 and Muhammad Sadiq v. Mir Ajam Khan etc, 1978 SCM R 214 were cases in which the licensee was in competition with his licensor and, therefore, these cases might be distinguishable from the present case in which the licensor was not challenging the status of his licensee and seeking the transfer as against him. But here to, according to the learned counsel for the respondents, the heirs of Seth Ghulam Ali Mandviwala did submit an L.H. Form for the transfer of the property, which was later on withdrawn, which indicated that they to had asserted their own independent right in the matter of transfer.
56. Be that as it may, even 'if the appellants are considered not to be licensees but as persons in unauthorised possession, as held by the learned Single Judge, their occupation could still not be treated as "undisputed occupation" within the contemplation of the notification of 13-10-1959, because "undisputed occupation" referred to in the notification means not only that there is no controversy regarding the physical presence of the person desiring the transfer of a property but further that there is also no controversy regarding the right of such person to remain and to continue in such occupation. In this case neither Ejaz Ahmad Siddiqi nor Afzal Mirza could, therefore, be described to be in undisputed occupation because both of them were found liable to be ejected. Hence, neither of them was eligible to take the benefit of notification of 13-10-1959, as none of them was in "undisputed occupation". Furthermore, the ejectment of the unauthorised occupants was being carried out for the benefit of the allottee, Ahmad Saeed Khan and he was, unable for no fault of his own, to secure possession of the house allotted to him. Hence, he clearly became eligible to the transfer of the house under the Order of the Central Government dated 11- 8-1960.
57. This brings us to the contention that the Order of the Central Government dated 11-8-1960 was ultra vires the second proviso to clause (6) of section 2 of the Displaced Persons Act.
58. Apart from the fact that this plea was not raised before the learned Single Judge we find that it also does not intrinsically have any merit.
59. Mr. S . M . Zafar drew our attention to the fact that the case of persons, who had been issued allotment orders of properties before 20-12-1958 but could not obtain their physical possession, had occupied the attention of the Central Government ever since the commencement of the Settlement operations and various press notes were issued dealing with his question. The first press note on this subject was issued as early as on 4-7-1959 and stated: In some cases, houses, shops and other evacuee properties were allotted to certain persons before the 20th December, 1958, but they have not been able to obtain physical possession of such properties so far through no fault of their own. The Chief Settlement Commissioner has decided that such allottees may be permitted to submit applications in the appropriate forms for transfer of them and the applications will be decided by the Settlement authorities on merits."
60. This Press note was followed by Memo. No.7780-Comp-Reh/59, dated 5th December, 1959, which was in the following terms:- "By Press note dated the 4th July, 1959, the persons to whom houses, shops and other properties were allotted before 20th December, 1958, but had not been able to obtain physical possession of such properties through no fault of their own were permitted to apply for the transfer of such properties in appropriate forms. No orders have so far been issued about the disposal of such applications.
61. Under the law only a person who has got physical possession of a house or a shop is entitled to its transfer in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the Schemes made thereunder. Persons who hold allotment orders issued before 20th December, 1958, but have not been able to secure physical possession are, therefore, not entitled to the transfer of the properties allotted to them under the law. Applications received from such persons in response to the announcement made in July, 1959, should be kept pending and no action should be taken to transfer the properties in question to them until further orders...
62. The policy regarding the disposal of property for which allotment orders were issued but physical possession has not been delivered is being considered in consultation with the Central Government and necessary instructions will. Be issued as soon as possible. In the meanwhile, such properties should not be disposed of under any circumstances ...."
63. Thereafter another Memo. No.2038-PI-Reh/60, dated 18th February, 1960, was issued which was to the following effect:- "In this office Memo. No.7780-Com. Reh/59, dated the 5th December, 1959, it was desired that no action should be taken till further orders on the application for transfer of properties of such persons to whom houses, shops and other properties were allotted before 20th December, 1958, but they had not been able to obtain physical possession there of.
(2) Some misunderstanding appears to have arisen with regard to disposal of the cases wherein allottees have secured physical possession of the properties. It is, therefore, clarified that the cases of the persons to whom houses, shops and other properties were allotted before the 20th December, 1958 and they have obtained physical possession of the properties are not hit by the instructions under reference and their applications are not to be kept pending." This was followed by the Order issued by the Central Government on 11-8-1960 to the effect "that the allottees of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation Authority and who, through no fault or negligence of their own, have so far been unable to obtain physical possession of the house or the shop in question shall be deemed to be in possession thereof for the purpose of the said Act." Thus, the Order of the Central Government dated 11-8-1960 is the final decision on the matter in issue and on the basis of this decision thousands of cases have been finalised and to question its validity at this stage can only result in reopening these cases and causing unnecessary confusion and uncertainty.
64. Even otherwise the plea that the Order of the Central Government dated 11-8-1960 is ultra vires the second proviso of clause (6) of section 2 of the Displaced Persons Act is not well-founded. The provisions of section 2(6) of the Act lay down:- "2(6) 'POSSESSION' 'possession' means possession obtained in pursuance o an order passed on or before the 20th day of December, 1958, by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Government; Provided ...........
65. Provided further that the CentralGovernment may, by order is 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."
66. Mr.Bashir Ahmad Ansari has relied on the words "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 be deemed to be in possession for the purpose of this Act" and contended that the words as aforesaid refer to obtaining possession on or before 20-12-1958 under an order passed by aRehabilitation Authority or a Custodian or any other officer authorized or permitted by the Central or Provincial Government, in view of the provisions of the main clause of section 2 of the Act. A close reading of the said clause shows that it defines "possession" as possession obtained in pursuance of an order passed on or before 20-12-1958 by a competent authority but it does not lay down that possession itselfmust also have been obtained before 20- 12-1958. This might have been obtained subsequently provided the order of the competent authority was passed before the 20th day of December, 1958. Fixity is given only to the order of the competent authority having been obtained before 20-12-1958 but not obtaining possession before the said date. The Department also seems to have placed the same interpretation on this clause.
67. See Memo. No.2038-PI.Reh/60, dated 18-2-1960 wherein it was observed:- "2. Some misunderstanding appears to have arisen with regard to disposal of the cases wherein allottees have secured physical possession of the properties. It is, therefore, clarified that the cases of the persons to whom houses shops and other properties were allotted before the 20th December, 1958 and they have obtained physical possession of the properties are not hit by the instructions under reference and their applications are not to be kept pending."
68. Thus, the argument that in so far as the main clause of section 2(6) contemplates obtaining possession of a property before 20-12-1958 in pursuance of the order of the competent authority, which is passed before 20-12-1958, cannot be accepted. Accordingly, the further argument that the Order of the Central Government dated 11-8-1960. Which makes persons obtaining possession after 20-12-1958 if the allotment order in their favour was passed before that date to be deemed in possession is ultra vires of section 2(6), has no force and must be rejected.
69. The overall result is that there is no merit in any of these appeals. These must, therefore, fail and are accordingly dismissed herewith, with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.