Common question of law regarding the rights of the displaced persons from Jammu & Kashmir in properties which are in their possession, arises in these two writ petitions, namely, No. 1107-R of 1963 and No. 341-R of 1964, therefore, they are being disposed of together.
2. The facts in Writ Petition No. 1107-R of 1963 are as follows:- Sher Dil petitioner, who claims to be a displaced person from Jammu & Kashmir, is in occupation of residential unit property No. 944, Kanak Mandi, Rawalpindi. The Deputy Settlement Commissioner, by his order dated 28th June 1960, transferred this unit to Mst. Rokia Begum respondent No. 3. One Abdul Haq, the occupant of unit No. 936 which was also transferred by the same order filed a review application on which the Deputy Settlement Commissioner, vide his order dated 14th March 1961, armed the order dated 28th June 1960. Sher Dil petitioner challenged the order dated 14th March 1961 in appeal asserting therein that he was a displaced person from Jammu & Kashmir and that he was residing in unit No. 944 since 1963, therefore, according to Settlement Scheme No. IV this property could not be transferred to any person who was not a Jammu & Kashmir refugee. The Additional Settlement Commissioner, vide his order dated 22nd July 1961 remanded the case to the Deputy Settlement Commissioner on the assumption that a case of a part of the property was still under adjudication by the Deputy Settlement Commissioner. On a review application, filed by Mst.
Rokia Begum and another, before the Additional Settlement Commissioner, he by order dated 12th October 1961 affirmed his order, dated 22nd July 1961, and directed the Deputy Settlement Commissioner to decide various issues involved in the case. On a revision, filed by Mst. Saeeda Begum who was transferee of another unit, the Settlement Commissioner vide his order dated 9th November 1961 held that the house was rightly transferred by the Deputy Settlement Commissioner to Mst. Saeeda Begum and Mst. Rokia Begum. He, therefore, set aside the order of remand, dated 12th October 1961 passed by the Additional Settlement Commissioner and another order dated 7th April 1961 and upheld the order passed by the Deputy Settlement Commissioner on 28th June 1960.
When the matter came up before the Deputy Settlement Commissioner on remand as directed by the Additional Settlement Commissioner, he by his order dated 13th November 1961. Simply noted that the Settlement Commissioner had already in his order dated 9th November 1961 upheld the order of the Deputy Settlement Commissioner dated 28th June 1960, therefore, no further proceedings could be conducted in the matter. The petitioner was not a party before the Settlement Commissioner when the order dated 9th November 1961 was passed, therefore, when he came to know about that order he filed a second revision petition before the Chief Settlement Commissioner. After waiting for some time for disposal of the second revision, the petitioner challenged the orders passed by the Deputy Settlement Commissioner on 28th June 1960 and the one passed by the Settlement Commissioner on 9th November 1961 by means of Writ Petition No. 1107-R of 1963.
3. The facts in Writ Petition No. 341-R of 1964 are as follows:- A residential unit in a composite property No. H/1388, Akbari Mandi, Lahore, is in occupation of Taj Din petitioner who claims to be a displaced person from Jammu & Kashmir. On 3rd January 1960 the Deputy Settlement Commissioner treated the entire property as shops and godowns and transferred the same to some occupants other than the petitioner. The residential unit in possession of the petitioner which is on the first floor was divided into several portions to be treated as parts of the commercial units. The petitioner filed an appeal which was dismissed on 26th April 1961. It was held by the Additional Settlement Commissioner that the petitioner did not hold any allotment order and that the appeal filed by him was time-barred. This order was challenged in revision before the Settlement Commissioner who vide his order dated 17th February 1964 noted the assertion of the petitioner; that he was a displaced person from Jammu & Kashmir and therefore the Deputy Settlement Commissioner had no jurisdiction to pass any order in respect of 1972 be property in dispute: but the revision petition was dismissed on the following two grounds-
(i) that the order of the Additional Settlement Commissioner to appeal treating it as time-barred was fully justified, and
(ii) that the petitioner was allowed on 25th May 1960 to put fn a Form for the transfer of the property in dispute, provided the same had not been disposed of by that time, and because the Deputy Settlement Commissioner had disposed of the property on 3rd January 1960, therefore, the petitioner had no case on merits.
The assertion of the petitioner, that he is a displaced person from Jammu & Kashmir, therefore Settlement Scheme No. IV covered the case, was not gone into by the Settlement Commis--sioner.
Aggrieved by the order of the Settlement Authorities, Taj Din filed Writ Petition No. 341-R of 1964.
4. The petitioners in both the cases have produced on record sufficient material which, prima facie, supports their assertion that they are displaced persons from Jammu & Kashmir. It is also an admitted fact that this position was asserted by the petitioners in both the cases before the settlement authorities. Learned counsel for the respondent in Writ Petition No. 341-R of 1964 relying on the fact, that the petitioner therein submitted an NCH Form, contended that the assertion with regard to his being a displaced person from Jammu & Kashmir is an afterthought. Learned counsel for the petitioner explained that in those days (May 1960) Forms KNCH were not available and applications could be submitted on Forms NCH. Be that as it may, I have noticed from the copy of the Form placed on record that in column No. 3 relating to the particulars the applicant noted that he belonged to "Mauza Tibri", Tehsil Sambah, District Jammu (Kashmir)". It, therefore, cannot be said that the assertion of the petitioner is an afterthought. In any case, this assertion is noted in the order of the Settlement Commissioner, dated 17th February 1964. I, therefore, held that Taj Din petitioner did claim before the settlement authorities and, in any case, before the Settlement Commissioner that lie was a displaced person from Jammu & Kashmir.
5. The main contention of the learned counsel for the petitioners is that by virtue of Paragraphs 19 to 21 of Settlement Scheme No. IV the properties in dispute being in possession of displaced persons from Jammu & Kashmir could not be transferred to any other person who was not a displaced person from Jammu & Kashmir.
6. In Writ Petition No. 439-R of 1968, decided on 270 May 1968, I had considered the question involved and had relying on a judgment of the Supreme Court in Mst. Zainab Khatoon and others v.
The Chief Settlement Commissioner, Wes Pakistan and another (1968 SCMR 179) held that the amendment in the Displaced Persons (Compensation and Rehabilitation) ActOrdinance XIII of 1964 had taken away the prosecution granted by Paragraph 19 of the Settlement Scheme No. IV to the displaced persons from Jammu & Kashmir in respect of properties occupied by them. I had also noticed some other cases cited at the Bar. The same question again came up for determination before a Division Bench of this Court in Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lab, 1039). Their Lordships considered the entire case-law on the point and came to the conclusion that the Amendment, referred to above, had not affected the rights of displaced persons from Jammu & Kashmir under Settlement Scheme No. IV. One of the learned counsel, Raja Afrasiab Khan, who appeared before their Lordships had also appeared before me in Writ Petition No. 439-R of 1968. I cannot assume that Raja Afrasiab Khan would not have brought to the notice of their Lordships of the Division Bench the judgment .Of the Supreme Court in the case of Mst. Zainab Khatoon. Their Lordships of the Division Bench gave the judgment after reviewing the relevant law on the point. I presume that the interpretation of the judgment of the Supreme Court by me in Mst. Zainab Khatoon's case has not been accepted by the Division Bench. Therefore, I respectfully follow the law laid down in the case of Hussain Bakhsh and hold that the protection afforded to the displaced persons from Jammu Kashmir by Settlement Scheme No. IV, particularly in Paragraph 19 thereof, has not been taken away by the amending Ordinance No. XIII of 1964 and they can still avail of it. I have already held that in these two cases the petitioners did raise the question before the Settlement Authorities that they were displaced persons from Jammu & Kashmir. Their assertion in this behalf, as already noticed, is not frivolous. They have some material to support it. Paragraph 19 of Settlement Scheme No. IV provides that houses and shops in possession of displaced persons from occupied territories of Jammu & Kashmir, shall not be transferred by a settlement authority to any person who is not a displaced person from the occupied territory. On the petitioner's having raised this question it was incumbent upon the settlement authorities to have determined whether or not the petitioners were displaced persons from occupied territory. They have failed to do so. Even at the initial stage without there being an application from such a person for the transfer of the property, the Deputy Settlement Commissioner concerned was bound to make inquiries in respect of the status of the occupant of the properties. It was so held in Syed Muhammad Saqlain v. Muhammad Amir and others (PLD 1963 Lab. 157).
7. In the light of the above discussion, it has to be held chat all the orders passed by the Settlement Authorities in these cases which have the effect of transferring the properties to persons other than displaced persons from the occupied territory, without making an inquiry with regard to the claim of the petitioners in this behalf, are illegal, without lawful authority and of no legal effect. They are, therefore, declared void and set aside as such.
8. Consequently, these petitions are accepted. The two cases are remitted to the Deputy Settlement Commissioner concerned who shall enquire into the assertions made by the petitioners with regard to their being displaced persons from occupied territory and shall decide the cases afresh according to law after hearing the parties. There shall be no order as to costs.
9. Before parting with this judgment, it may, in passing be noted that in these writ petitions, the learned counsel for the respondents raised the technical plea of the petitioners either not having filed appeal against a particular order or having filed a time-barred appeal, therefore, they are not entitled to any relief. This very question was considered by their Lordships in the case of Hussain Bakhsh and, in the circumstances similar to those of the present cases, the plea was rejected. I respectfully follow the above cited ruling in this behalf. It may be noticed that the -petitioners raised some more contentions in support of these petitions but it is not necessary to comment an them because, I have accepted their main contention and have allowed these petitions.