' KHALIL-UR-REHMAN KHAN, J.-The facts necessary for the disposal of this constitution petition are that Malik Gul Shah petitioner is a displaced person from Jammu and Kashmir whereas Bashir Hussain respondent is a displaced person from India. Property No, S. W. 104=R-15 commonly known as House No, 15 Street No, 5, Hota Singh Road, Sanat Nagar, Lahore, comprises of several units out of which one unit is in occupation of the petitioner and the respondent. Malik Gul Shah applied on K.N.C.H. Form for the transfer of this portion which is earmarked as "portion 'E' " and the learned Deputy Settlement Commissioner, Lahore, vide order dated 23rd of January, 1960, transferred the same to the petitioner as a self-contained residential unit. A P. T. O. Dated 23rd of November, 1960, was also issued in favour of the petitioner. A demand notice for payment of transfer price amounting to Rs, 19,320 was issued to the petition on 23rd of May, 1962. As the payment was not made, another notice, dated 18th of July, 1964, under Para. 35 of Scheme No, I for deposit of the transfer price within one month was also issued. Thereafter, a notice dated 16th of March, 1965, requiring the petitioner to vacate the portion on account of failure to pay the price was also issued.
It appears that the petitioner filed an appeal against the demand of Rs, 19,320 as transfer price and the same was accepted by the Additional Settlement Commissioner vide order, dated 31st of May, 1965, and the matter was remanded to the Deputy Settlement Commissioner with a direction to issue fresh notice demanding payment of the transfer price. It was observed that default, if any, will result in cancellation of the transfer. Thereafter, demand notice dated 27th of June, 1970, under Para. 24 of the Schedule to the Act was issued demanding deposit of transfer price amount to Rs, 19,320 within thirty days. It is alleged that this notice was not received by the petitioner. The transfer was, however, cancelled on 18th of September, 1970, and order to resume the property was also passed on 21st of September, 1970. It is also the assertion of the petitioner that the order dated 31st of May, 1965, was never communicated to him after reserving the judgment by the learned Additional Settlement Commissioner and that despite submission of an application for supplying a copy of the said order on 18th of November, 1965, the same was not supplied for years till March, 1971. The petitioner then filed Revision No, 190 of 1971 but the same was dismissed vide order, dated 10-3-1971. It may be mentioned that after obtaining the P. T. O. The petitioner filed ejectment petition against Bashir Husain, respondent, in June, 1964, and the respondent was ordered to be ejected by the Rent Controller on 10th of April, 1965. Appeal against the ejectment order was rejected by the District Judge on 18th of October, 1965 and S. A.
0. No, 532 of 1965 also 'met the same fate vide judgment, dated 30th of January, 1974. A suit was also filed by, the respondent but the plaint of the same was rejected on 19th of February, 1975. As in the meanwhile the transfer of the portion in dispute was cancelled from the name of the petitioner and a resumption order was also passed and as his revision petition also remained unsuccessful, the petitioner filed Constitution Petition (W. P. No, 478-R,71) in this Court on 19th of May, 1971. This writ petition was dismissed as withdrawn on 25th of May, 1973. With this dismissal, the claim of the petitioner to the transfer of the portion in dispute came to an end. Bashir Hussain, respondent, then filed a form under Revised Settlement Scheme No, VIII on 5th February, 1974 seeking transfer of the portion in question and the same was transferred by the Deputy Settlement Commissioner in his favour vide order, dated 3rd of February, 1975. Thereafter, the petitioner moved a miscellaneous petition before the Deputy Settlement Commissioner seeking cancellation/withdrawal of the order, dated 3rd of February, 1975. This application was rejected vide order, dated 28th of May, 1975 by then Deputy Settlement Commissioner, Lahore subject to the observation that the protection against ejectment from the house, which is allowed under the law to the petitioner as Jammu and Kashmir refugee will, however, be enjoyed by him. Bashir Husain, respondent, has not challenged this order till date. The petitioner, however, filed a Revision Petition against the said order on 17th of June, 1975 i,e, after the repeal of laws and the same was dismissed by the then Settlement Commissioner vide order, dated 4th of July, 1975. Thereafter, the petitioner filed the present constitution petition to assail the order, dated 28th of May, 1975 and all the previous orders and actions of the Settlement authorities cancelling and resuming the portion in question from his name. It was further prayed that in case the cancellation and resumption of the portion in dispute from the petitioner's name is upheld, then an order or direction be issued for cancellation of the transfer of the portion in dispute from the name of the respondent and for its disposal through restricted public auction amongst the displaced persons from Jammu and Kashmir, including the petitioner. It is important to note that this petition was filed on 15th of September, 1975, i,e, after the repeal of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, by the Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975.
2. Learned counsel for the petitioner argued (0 that as the petitioner was not conveyed the order, dated 31st of May, 1965 of the learned Additional Settlement Commissioner after reserving the judgment by him, and as the demand notice, dated 26th of June, 1970. Was not served on him, the cancellation order, dated 18th of September, 1970 and resumption order, dated 21st of September, 1970, were without jurisdiction and ineffective in law ; (ii) that under section 16-B read with section 30(5) and Settlement Scheme No, IV (Scheme for the Rehabilitation of Persons Displaced Persons from Jammu and Kashmir), the property in possession of displaced persons from Jammu and Kashmir cannot be transferred to displaced persons from India and, as such, the transfer made in favour of Bashir Husain, respondent, was null and void and hence ineffective in law, (iii) that the ban on transfer of such properties as were in occupation of displaced persons from Jammu and Kashmir continues despite repeal of laws and that at best the property is to be transferred to another displaced person from Jammu and Kashmir on submission of application or on the basis of the highest bid given in a public auction restricted to the displaced persons from Jammu and Kashmir, and (iv) that despite repeal of section 30(5) of the Act, protection from ejectment remains available to the petitioner and the said protection has been afforded under the impugned order, dated 28th of May, 1975.
3. Learned counsel for the respondent, in reply, argued that the orders regarding cancellation and resumption of the property cannot be challenged in view of the fact that the earlier constitution petition filed by the petitioner was dismissed as withdrawn, and after resumption of the property the same was an available property and was rightly transferred to the respondent under Settlement Scheme No, VIII. It was further argued that the protection from ejectment is no longer available to the displaced persons from Jammu and Kashmir after deletion of subsection (5) of section 30 by Act XIII of 1964 and the condition imposed vide order, dated 28th of May, 1975 was illegal and hence ineffective in law. It was also submitted that to an available property, provisions of section 16-B and Scheme IV do not apply and, in any case, on repeal of Displaced Persons (Compensation & Rehabilitation) Act, 1958, w,e,f, 1st of July, 1974, no such protection, as is being claimed, remains available to the petitioner or to the displaced persons from Jammu and Kashmir.
4. I have considered the respective submissions of the parties. The argument of the learned counsel for the petitioner that as the demand notice issued under Para. 24 of the Schedule was not served on the petitioner, the orders passed regarding cancellation and resumption of the property from the name of the petitioner are without jurisdiction and illegal, has no merit. It will be seen that the revision filed by the petitioner against the order, dated 31st of May, 1965 and against the cancellation of the transfer of the property from the name of the petitioner was challenged by filing W. P. No, 478-R of 1971. This writ petition was dismissed as withdrawn on 25th of May, 1973. The dismissal of this writ petition sealed the fate of the petitioner as regards the claim of transfer of the portion in dispute and cancellation and resumption ordered by the competent Settlement Authority. This matter, as such, cannot be re-agitated in the present constitution petition.
5. Now the question that requires determination is whether the transfer made under Settlement Scheme No, VIII on the basis of Form R. S. S. 8, dated 5th of February, 1974 was valid and effective in law. For answering this question, it is pertinent to note that the form was filed at a time when the Displaced Persons (Compensation & Rehabilitation) Act, 1958, was in force, though, the transfer order was passed on 3rd of February, 1975, after repeal of the said Act by Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975 (Act XV of 1975). The form filed by the petitioner, as such, was pending at the time of repeal of the law and the same was to be disposed of in accordance with the provisions of the Act as if the same had not been repealed. Section 2, subsections (2) and
(3) of Act XV of 1975 have saved the pending proceedings so as to continue them under the repealed law. See Nawab Din v. Member Board of Revenue and others (1). The form R. S. S. 8, dated 5th of February, 1974, filed by the respondent, was thus to be disposed of under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as were then in force. Section 16-B read with Paras. 2, 3, 4, 5, 6, 18 and 19 place a ban on the transfer of property to any person who is not a displaced person from the occupied territory. These provisions also provide that where a house in occupation of a displaced person from the occupied territory is not transferred to him, such a house shall be transferred through earmarking to a Jammu and Kashmir claimant and failing that such a house is to be transferred to the highest bidder in a restricted public auction in which only Jammu and Kashmir displaced persons shall be allowed to bid. This ban on transfer continued to subsist despite repeal of subsection (5) of section 30. See Ali Muhammad v. Husain Bakhsh (2) and Abdul Habii, v. Raza Ali (3). It is, therefore. Obvious that the transfer made in favour of the respondent was without jurisdiction and illegal.
As regards the question whether protection from ejectment remains available despite repeal of subsection (5) of section 30 of the Act to displaced persons from occupied territory, it will be seen that this protection was available because of the insertion of subsection (5) to section 30 by Ordinance I of 1959. This subsection so added was omitted by Ordinance 13 of 1964. Such a protection from ejectment has not been provided either by section 16-B or under Settlement Scheme No, VI. Now even Displaced Persons (Compensation and Rehabilitation) Act, 1958 itself
(1) PLD 1979 SC 846 (2) PLD 1976 SC 37
(3) 1976 SCM R 166 stands repealed by Act XV of 1975, and no such protection from ejectment] as is claimed has been continued or saved by the Repealing Act. They question of effect of repeal of Displaced Persons Act with reference to the provisions of section 30 of the Act was considered by the Supreme Court in the case of Muhammad Ramzan v. Ch. Bashir Ahmad (1) and it was held that rights, obligations etc., covered by various clauses of section 6 of Act X of 1897 are not applicable to the provisions of section 30 of Act XXVIII of 1958 after its repeal. Again in Mst. Jaleesa Begum v. Lqbal Ahmad Quresni (2), it was observed that "when a repeal takes place, the situation, but for the provisions like section 6 of the General Clauses Act, is as if the repealed law never existed. The saving is with regard to the proceedings pending and in the context of this case the rights accrued or the obligations incurred".
The exact meaning and scope of concepts like rights accrued or the obligations incurred, was considered by giving the example of the case of Abbot v. Minister of Lands (3) and learned Judges of the Supreme Court recorded the conclusion that with the repeal of the Repealed Act, the protection itself disappeared. Learned Judges affirmed the decision given in the case of Muhammad Ramzan (supra). Following, with respect, the aforesaid view, I hold that protection from] ejectment cannot be claimed by displaced persons from occupied territory. E The situation which emerges is that the transfer in favour of the respondent was void and, as such, was ineffective in law and thus the order dated 3rd of February, 1975 passed by the Deputy Settlement Commissioner, transferring the portion in dispute to the respondent was without jurisdiction. The order, dated 28th of May, 1975 placing a condition regarding protection from ejectment was equally without jurisdiction and illegal. The portion in dispute, as such, is available property and has to be transferred in accordance with the Scheme for the Management and Disposal of Available Urban Properties framed under section 3(1) read with section 1 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. It may be pointed out here that unlike available agricultural land, no ban on transfer in respect of available properties in possession of displaced persons from occupied territory has been visualized in the Scheme, or under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Under section 3(2) agricultural land temporarily allotted under any of the repealed Acts, Regulations to a displaced person from Jammu and Kashmir State has to be offered for sale to such allottee unless an order of cancellation of allotment has been passed against him. This again has been subjected to the provisions contained in the three provisos. This saving has been specifically provided in the case of agricultural land but such a saving in the case of urban available properties is conspicuously missing. Such a protection to displaced persons from Jammu and Kashmir State has not been provided in the Scheme framed for the management and disposal of available urban properties.
The change in the policy of law is deliberate and clearly gives out the intention of the law-maker that in the case of urban properties no such ban against transfer, as was contemplated in Scheme No, IV framed under section 16-B of the Repealed Law, is to continue. The respondent, as such, can compete for the transfer of the house in question with the petitioner under the Scheme in force. The parties, if so adyised, may approach the Deputy
(1) PLD 1981 SC 340 (2).PLD 1982 SC 396
(3) 1894 A C 425 ' Administrator Residual Properties for transfer of the available property and the applications for transfer, if filed, shall be disposed of on merits in accordance with law.
' This petition is, accordingly, disposed of with no order as to costs.