A. R. SHEIKH, J.- Theproperty in dispute in this Letter Patent Appeal bears survey No. 265 and is commonly known as No. 82, Montgomery Road, Lahore Cantonment. The superstructure belonged to an evacuee, Sardar Harnam Singh Duggal by name, who held a lease for the land underneath from the Central Government for a period of thirty years ending the 21st of May 1959. By letter No. F.
16(21)/59. P. II dated the 14th of February 1959, the Central Government in the Ministry of Rehabilitation, gave prior approval under section 25(ii)(s) of the Pakistan (Administration of Evacuee Pro--perty) Act (XII of 1957) for acquisition of 42 evacuee bungalows, including the bungalow, in question. An error as to the number of the bungalow, however, crept in the record of the Deputy Rehabilitation Commissioner, who described the house as '62' Instead of 82.
Montgomery Road, Lahore Cantonment, in his communication dated the 9th of April 1959, addressed to the Garrison Engineer, Lahore Cantonment, asking him to assess the amount of compensation for the various evacuee bungalows in his area in pursuance of the said sanction dated the 14th of February 1959, of the Central Government. This error is patent because admittedly there is no property on the Montgomery Road, Lahore Cantonment, bearing Nos. 1 to 72 and the first number allocated to the houses on this road starts with '73'. With the advent of the Settlement operations. Notifica--petition No. U-8-79/3113 under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), was issued by the Provincial Government at the instance of the Central Government, on the 21st of August 1959, for acquisition of evacuee property for transfer in accordance with the provisions of the Act. According to clauses (ii) and (iii) of this Notifica--petition, properties in respect of which sale etc. Had been approved of by she Central Government as also properties in respect of which proceedings under Act XII of 1957 were pending before the Custodian were excluded and as such the property in dispute stood excluded from acquisition and it did not enter the Compensation Pool, in view of the aforesaid letter dated the 14th of February 1959. The mistake as to the number of the property was corrected by the Settlement Department by letter No. DSC/LHR-VI/393 dated the 2nd of March 1960 (Annex. `G' to the writ petition, page 171 of the paper book). The result of this delayed correction was that despite actual exclusion. When the list of Category 'B' houses was published for earmarking purposes under Settlement Scheme No. V in-- November 1959, the property in dispute was included in the said list and it appeared at serial No- 144. Accordingly on the 3rd of December 1959, Mst. Mumtaz Sultana, the contesting respon--dent in the case (hereinafter called the respondent). Applied for this house and a notice of transfer in the appendix form If was issued to her on the 2nd of January 1960, in which the value of the superstructure was assessed at Rs. 31,450.00. It may be mentioned at this stage that the property bad remained under allotment of the husband of Dr. Shireen Gardezi, the appellant. From 1953 to 1956 and although it is claimed by the appellant that even after the transfer of her husband from Lahore, her husband remained in possession of part of the house with permission of the other allottee-officers, the finding of the Settlement authorities is that the appellant's husband has not remained in possession of house from the 4th of April 1956 to the 30th of July 1960. The second regular allotment in favour of the appellant's husband appearing at page 153 of the paper book and dated the 27th of July 1960, supports this finding. The appellant put in her C. H. Form on the 2nd of August 1960 and on the 6th of August 1960 an order of transfer was passed in her favour. On the 19th of August 1960, an order was passed by the Additional Settlement Commissioner cancelling the transfer in favour of the respondent and the Deputy Settlement Commis--sioner communicated that order to the respondent on the 20th of August 1960. The respondent preferred an appeal before the Settlement Commissioner, who by his order dated the 10 of February 1962, remanded the case to the Deputy Settlement Commissioner. The Deputy Settlement Commissioner by his order dated the 31st of August 1962, again gave the property to the appellant against her C. H. Form. The appeal of the respondent was, however, accepted by the Additional Settlement Commissioner on the 22nd of July 1963 on the grounds that no objection had been raised by the appellant against the Inclusion of the house in the 'B' category list is November 1959; that the appellant or her husband had not been in occupation of the house from the 4th of April 1956 to the 30th of July 1960; that the appellant was not in possession on the 20th of December 1958; that the belated C. H. Form had not been validly entertained and delay had not been condoned; that the Additional Settlement Commissioner after having confirmed the transfer by earmarking in favour of the respondent could not review his own order so as to cancel the transfer in her favour and give it to the appellant; that the price of the property had already been deducted from the compensation book of the respondent; that the property had not been acquired by the Central Government and it did not stand excluded from the notification of acquisition under section 3 of Act XXVIII of 1958 and that in any event property No. 82 having been included in the 'B' category list of houses, it could not he considered to have been left out for acquisition purposes by the Central Government and lastly that the property having been delisted by letter dated the 20th of June 1960, of the Ministry of Defence (Annex. 'K' to the writ petition) from the acquisition proceedings initiated by the Central Government, it had become part of the Compensation Pool. The appellant preferred a revision petition before the Settlement Commissioner, who has set aside the appellate order for two-fold reasons. First that condition No. 2 of Form 'B' which provided that "excepting houses of the value of Rs. 25,000.00 or less, the value (price determined on evaluation basis) of the house applied for should not exceed double the amount of applicant's verified claim" has not been complied with in the case because the respondent's claim for Rs. 49,000.00 lay unverified at the time she made the application and,th secondly, that the appellant is a claimant and holds a lease for the site of the building from the Central Government for a period of 69 years with effect from the 22nd of May 1959, and she was, therefore, the most suitable person for transfer of the superstructure. The respondent feeling aggrieved came to this Court in writ jurisdiction (being Writ Petition No. 3007/R of 1963) and the learned Single Judge agreeing with -the various contentions raised before him has issued a writ quashing the order of the Settlement Commissioner.
2. Lengthy arguments have been addressed at the bar in respect of the alleged invalidity of sanction accorded by the Central Government on the 14th of February 1959, for the acquisition of the house in dispute and the interpretation of section 25(ii)(s) of Act XII of 1957. This Court has held in Muhammad Yaqub and 13 others v. The Municipal Committee, Lyallpur (PLD 1971 Lah. 664) relying on Syed Ehsan Hussain v. The State and another (PLD 1961 Pesh. 156) that the mere fact that initiation of acquisition proceedings has mot emanated from the Custodian and instead the final authority to give approval in the case, namely, the Central Government, has accorded its approval, would not alter or in any manner affect the validity of the order of acquisition and sale. Faced with this situation, learned counsel for the respondent has not pressed the argument further. The resultant effect of this acquisition order is that by virtue of the exception embodied is clauses (ii) and (iii) of the Notification issued on the 21st of August 1959, the house 9n question remained exempted from acquisition and it did not enter the Compensation Pool, with the further result that it was not available for transfer as a part of the Compensation Pool when in November 1959, it was erroneously Included in 'B' category list of houses and even on the 3rd of December 1959, when the respondent applied for its transfer under Settlement Scheme No. V or when a notice of transfer was issued in her favour on the 2nd of January 1960, assessing Rs. 31,450.00, as value of the superstructure.
3. The next question that arises is whether the house in question has remained exempted or was it included in the Compensation Pool at some subsequent stage. Although there is no specific order of the Central Government withdrawing its approval of acquisition, both the parties agree that the acquisition proceedings will be deemed to have been abandoned by the Central Government by letter dated the 20th of June 1960 of the Ministry of Defence (Annex. 'K' to the writ petition). Basing his argument on this inferential release from acquisition, learned counsel for the respondent argued that with the abandonment of acquisition proceedings, the property entered the Compensation Pool automatically. He maintained that the entry of the property would be automatic because with the disappearance of the disqualification attached to its acquisition under section 3 of Act XXVIII of 1958, the property will be considered to be a part of the Compensation Pool. As against this learned counsel for the appellant has contended that it is not a question of ceasing of disqualification attached to some property; rather for a particular property to become part of the Compensation Pool, it is necessary that the same should be acquired by the Provincial Government at the instance of the Central Government under section 3 of Act XXVIII of 1958 by means of a regular notification issued in that regard. Learned counsel for the respondent has not been able to convincingly show that this proposition of law, is in any manner incorrect. On this view of the matter, the property admittedly entered the Compensation Pool only on the 11 of August 1961, when a fresh notification was issued by the Provincial Government to include properties in respect of which proceedings under Act X11 of 1957 were pending prior to that date and which had not been acquired earlier. Now by virtue of this Notification the earliest date when the property in dispute became part of the Compensation Pool was the 11th of August 1961, and, therefore, any order of transfer passed by the Settlement authorities prior to this date will be ineffective and inoperative. Learned counsel for the respondent argues that by virtue of the 'in lieu Notifications' dated the 7th of April 1960, and the 28th of July 1960, appearing at pages 131 and 159, respectively, of the Settlement Manual (old Edition) the respondent has a better claim to transfer ofth the property. The Notification dated the 7th of April 1960 provides that a person who was successful in the drawing of lots in earmarking but could not get the property transferred to him because of acquisition etc. Thereof by the Central Government, will be entitled to get an alternate property, the value of which is fully covered by the amount of compensation available in the Compensation/Rehabilitation Book of such a claimant. Accord--ing to the second Notification dated the 28th of July 1960, a claimant, who was successful in the drawing of lots but was not able to get the house drawn in his favour for no fault of his own, could apply for a house appearing in the subsequent lists of earmarking/auction, provided the value of the house so selected was not more than double the value of his verified claim under Schedules I, 11, 111, to the Registration of Claims (Displaced Persons) Rules, 1955. The cumulative effect of these two notifications, according to learned counsel for the respon--dent, is that as the claim of the respondent has been verified for a sum of Rs. 26,720.00 and the value of the property was Rs. 31,450.00, the property in dispute could have been validly claimed for transfer instead of obliging the respondent to apply for transfer of an alternate property because the same property, which was not earlier available for transfer as a result of acquisition proceedings, bad become part of the Compensation Pool and the learned Single Judge has also, adopting that very line of reasoning, rightly quashed the order of the Settlement Commissioner. Learned counsel for the respondent has referred to the following passage in Rahim Bakhsh v. Ch. Ahmed Bakhsh and others (PLD 1964 SC 189) in support of his contention :- "Even if there could be entertained some doubt as to whether this was the correct position or not, the fact is important that the Custodian eventually found the property to be evacuee property by order dated 8-9-1959. On 25-8-61, another notification was issued by the Provincial Government, to the effect that all properties which were the subject of inquiry before certain dates were eventually held to be evacuee properties by the Custodian, would also be deemed to have been acquired. At least from the date of this notification, the acquisition would be complete, of even those Khasra numbers which were the subject of adjudication by the Custodian, in this case. The transfer order in favour of the contesting respondents had been issued earlier than the date of this decision but Me position would be regularized after this notification and it could not be disputed at the present moment that the respondents had acquired right as transferees in this property."
However, the argument for the appellant is that because the property had not entered the Compensation Pool till the 11th of August 1961, earlier orders of transfer in favour of the respondent would not enure for her benefit and by the time it entered the Compensation Pool, the appellant's husband having become the allottee, she was entitled under para. 1 of the Schedule attached to Act XXVIII of 1958 to apply for the same in preference to the respondent, a candidate in the Earmarking Scheme, because the Earmarking Scheme ranks fourth in the order of preference for transfer detailed by the Schedule of the Act Itself. He further argues that the case of Rahim Bakhsh v. Ch. Ahmad Bakhsh and others relied on by learned counsel for the respondent is clearly distinguishable firstly because the observation has been made while dealing with the question of subsistence of relationship of landlord and tenant between the parties in that case and secondly because the preferential right to claim transfer of no other person, as in the instant case. Had intervened before acquisition of the property. We find that the provisions of section 43 of the Transfer of Property Act and section 18(a) of the Specific Relief Act are fn terms not applicable to the facts of the case before us and as learned counsel for the respondent has not pressed this aspect of the case, it need not be dilated upon. The case of Rahim Bakhsh also deals with a different situation and is not an authority for the view (and we say so with the greatest respect) that the rights of a preferential claimant can be ignored for the benefit of a person who had obtained an order of transfer in the Earmarking Scheme about property which was not a part of the Compensation Pool at that particular point of time.
4. The other argument addressed on behalf of the respon--dent is that two legal fictions cannot be availed of by the appellant, as has been held in Begun B. H. Syed v. Mst. Afzal Jahan Begum and another (PLD 1970 SC 29). We, however, find that this authority is also not applicable to the facts of the case before us. By virtue of the order of the Central Government dated the 3rd of August 1960, appearing at page 165 of the Settlement Manual (old Edition) persons not in possession on the 20th of December 1958, were held to be deemed to be in possession under the extended meaning of the word 'possession' as used in section 2(6) of the Act and if the appellant is availing of para. 1 of the Schedule, she is not tagging on some legal fiction to the extended meaning of the word 'possession'. She is just exercising the right given to her under the Schedule to the Act and, therefore, the question of adding two legal fictions to lay claim to the property does not arise.
5. Learned counsel for the appellant has also argued that the 'in lien notification' of the two dates namely, the 7th of April 1960 and the 28th of July 1960, are not available to the respondent because she had not applied for an alternate house, although the learned Additional Settlement Commissioner while cancelling the allotment in her favour because of non --inclusion of the property in dispute in the Compensation Pool, bad offered her an alternate house. He mentioned that the respondent did not avail of this offer and even till today she has not moved an application for deriving benefit of the 'in lieu notifications'. We find force in the arguments of learned counsel for the appellant and hold that because the property entered the Compensation Pool on the 11th of August 1961, and not earlier and since by that time the appellant bad become entitled to its transfer by virtue of the extended definition of the word 'possession' as per Order of the 3rd of August 1960, and para. 1 of the Schedule to the Act, she has a preferential right to its transfer against her C. H. Form, as compared with the respondent, the rival contestant under the Earmarking Scheme, for the added reason that the appellant has been successful in getting a lease of the, land underneath for a further period of 69 years. In the circumstances, although we are not inclined to fully agree with the reasons given by the Settlement Commissioner for transfer of the house in favour of the appellant, we find that his order calls for no interference. We accordingly accept the appeal and recall the writ issued by the learned Single Judge. However, the parties are left to bear their own costs.
S. Q.