1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of the former High Court of West Pakistan, dismissing the appellant's petition under Article 98 of the Constitution and refusing to interfere-with the order of the Settlement Commissioner cancelling the transfer of the disputed house to the appellant.
2. The appellant, who was born in Lahore, was appointed as Stenographer to the Superintendent of Police on Special Duty, Delhi, on the 23rd of December 1930. He was subsequently appointed to several other posts and on 1-8-1944 he was appointed Head Clerk of the Senior Superintendent of Police and was also promoted as an Inspector. Finally on 7-8-1946 be was ,appointed as Officiating Deputy Superintendent of Police, Delhi. On 22-8-1947, he came to Pakistan having opted for it. At the time he joined Service in Delhi he mentioned Lahore as his home-town. In the course of his service in Delhi he twice married in Lahore.
3. The dispute relates to the transfer of evacuee house No. S. 90-R-40-A, Mohan Lal Road, Lahore. The appellant was in occupation of the house as an allottee in pursuance of an order of the Assistant Rehabilitation Commissioner, Lahore, dated 15-1-1948. At the commencement of the Settlement Operations he filed N. C. H. From for its transfer and in his application dated 23-7-1949, he stated that they had a house in Bhati Gate, Lahore, occupied by his mother and his fifteen years old daughter. Mst. Ghulam Zainab, widow of Daim Khan deceased and mother-in-law of respondent No. 5, Mst. Zubaida Begum, filed, a C. H. Form for the transfer of house No. 40 in her possession as well as house No. 40-A in dispute do the assumption that it was an annexe of the main house, i.e., No. 40, Mohen Lal Road, and having been a claimant displaced person, she had a preferential right to its transfer. The Deputy Settlement Commissioner by his order dated 25-1-1960, transferred the main house to Mst. Ghulam Zainab and having found the appellant to be a local, directed that the disputed house be included in the earmarking list.
4. On 29-1-1960 the appellant applied for review of the said order dated 25-1-1960 on the ground that he had been erroneously held to be a local. Mr. I. H. Jaffari, Assistant Settlement Commissioner, Lahore, invested with the powers of the Deputy Settlement Commissioner, having obtained the requisite permission of the Additional Settlement Commissioner, Lahore, dealt with the review application and by his order dated 13-2-1960, found that the appellant was a displaced person and he set aside the said order dated 25-1-1960 and directed the transfer of the house to the appellant.
5. Notice of this proceeding, however, was not given to respondent No. 5.
6. On 9-3-1960 respondent No. 5 filed an appeal from the order of Mr. I. H. Jaffari on the ground that the house in dispute was an annexe to the house occupied by the former along with her mother- in-law, Mst. Ghulam Zainab, and as she was a claimant displaced person, she had a preferential right to its transfer in comparison with that of the appellant who was a local. The appellant contested the appeal, inter alia on the ground that before Mst. Zubaida Begum filed her belated C.
7. H. Form on 3-3-1960, the disputed house had already been transferred to the appellant, and therefore, she had no locus stand! To maintain the appeal. By his order dated 28-3-1960, the Additional Settlement Commissioner found the cases of both the parties defective. He found respondent No. 5 had no locus standi to maintain the appeal. He also held that the appellant was a local and therefore, not entitled to the transfer of the house which was more than Rs. 10,000 in rental value. Having found that the respondent's only fault was that she had not submitted a proper claim form, the Additional Settlement Commissioner gave an opportunity to her to put in a proper form so that she might obtain transfer of the house if she was otherwise so entitled. In pursuance of this order Mst. Zubaida Begum filed a second C. H. Form which was admitted by the Additional Settlement Commissioner on 23-4-1960. The Deputy Settlement Commissioner permitted Mst. Zubaida Begum to associate her daughter, respondent No. 6, Mst. Shamim Akhtar with her and transferred the house to Mst. Zubaida Begum.
8. The appellant filed a revisional application before the Chief Settlement Commissioner from the said order dated 28-3-1960 and the application was transferred on 17-4-1960 for disposal to Khan Farzand Ali Khan as a Settlement Commissioner. In the meantime the C. H. Form of the respondents, which was pending consideration before the Deputy Settlement Commissioner, was accepted and the house was transferred to them as mentioned already. Mr. Farzand Ali Khan, by his order dated 22-6-1960, came to the conclusion that the appellant was a local and that the transfer made in favour of the respondents was justified. He also found that Mst. Zubaida was a claimant displaced person and she had filed a C. H. Form with prior permission of competent Settlement Authority.
9. The Chief Settlement Commissioner by his order 28-2-1962, found that the appellant was not a displaced person within the meaning of the Displaced Persons (Compensation and Rehabilitation)
10. Act, 1958 and that the respondents were displaced persons and their C. H. Forms had been duly entertained by com--petent officers. The Chief Settlement Commissioner further found that the house was not divisible and the respondents were, therefore, entitled to its transfer as a single indivisible unit.
11. The appellant thereafter approached the High Court under Article 98 of the Constitution with the result mentioned already.
12. The Court granted leave to consider the following two questions:-
(i) Whether the appellant is a displaced person according to the definition of that expression in the Displaced Persons (Compensation and Rehabilitation) Act;
(ii) Whether respondent No. 5, Mst. Zubaida Begum had locus stand! To challenge the transfer of the house in dispute in her appeal to the Additional Settlement Commissioner, when the house had already stood transferred to the appellant.
13. As regards the first question, it has been contended that the appellant had taken permanent residence in Delhi and lived there since 3-12-1930 to the end of August 1947 and held a Government post there which for all practical purposes was not transferable. In support of this the appellant produced a certificate dated 27-1-1960 from Mr. R.M. Wall, Deputy Inspector-General of Police that although the appellant was transferable from Delhi to the former Punjab Province there was likelihood of his staying in Delhi in normal circumstances, if there had been no Partition. The appellant also relied on a letter dated 23-12-1946 of the Secretary, Punjab and N. W. F. P. Joint Public Service Commission that the Commission gave consent to the appointment of the appellant as Deputy Superintendent of Police of the office of the special Superintendent of Police, Delhi but the approval was not to be construed to mean that he was suitable for holding the post of a Deputy Superintendent of Police in the general cadre.
14. 'Displaced Person' has been defined thus in section 2(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act No. XXVIII of 1958):- "'Displaced Person' means any person who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such distur--bances in any area now forming part of or occupied by India, has, on or after the first day of March 1947, left or been displaced from his place of residence in such area and has subsequently become a citizen of Pakistan, or is residing therein, and includes any person who, being a resident of any territory outside India, is for that reason unable to manage supervise or control any property belonging to him in India or in any area occupied by India, and also includes the successors-in-interest of any such person."
15. In the case of Walayat Shah v. Muzafar Khan (PLD 197 SC 184) this Court approved of the interpretation of the expression 'Displaced Person' as given by a Full Bench of the Lahore High Court in the case of Haider Shah v. Mukhtar Hussain Shah (PLD 1963 Lah. 548). The Full Bench had held:- " . . . . . That a person in order to qualify himself as a displaced person must have had a permanent residence or such continuous habitation in that part of British India which now forms India with no immediate intention of leaving the same but for the reasons given in the definition of the term displaced person. There is no difficulty in the case of those who had their residence only in that part of British India which now forms India but difficulty arises in the case of persons who have their permanent residence in that part of British India which now forms part of Pakistan. In their case it would be a question of fact to be decides in the circumstances and light of each case whether the residence of these persons in that part of British India which now forms part of India was of such a character and nature that they would not have abandoned the same but for the civil disturbances or the fear of such disturbances in that area."
16. It is evident from the facts and circumstances mentioned abov6 that not only the appellant had a house in Lahore where his mother and a 7 years old daughter resided but that he also married twice in Lahore, while he was in service in Delhi. He was originally an employee of the former Provincial Government of Punjab and his services were placed under the disposal of the Chief Commissioner, Delhi, vide Punjab Gazette, Part I-Home Police, dated 8-4-1946 (at page 63 of the Paper-Book). At each material stage the consent or recommendation of the authorities in the former Province of the Punjab was secured or given as to the appellant's services. He always remained liable to transfer to his former Province although for all practical purposes there was only a remote chance of such transfer. Having regard to the fact that he was born in Lahore where his mother and daughter continued to live in his house, and the relatives of both of his wives presumably resided, it seems to us idle to suppose that had he at any time been transferred back to his Province, he would have refused to go there or that he had intended to settle down in Delhi permanently. There is no substance in his contention that there was no corresponding post in the Province which he could have joined on transfer. His substantive post in Delhi was that of an Inspector and this post was available in the said Province. The appellant has said that he opted for Pakistan but has not disclosed the date on which he made the option. Thus he has failed to supply evidence on the basis of which alone it could be held that he came to Pakistan on account of civil disturbances or the fear of such disturbances in Delhi as mentioned in section 2(3) of the Displaced Persons (Compensation and Rehabilitation) Act 1958.
17. As regards the second question it appears that respondent Mst. Zubaida Begum was a claimant displaced person. She was in possession of the disputed house. This is evident from the N. C. H.
18. Form of appellant himself, an extract of which appears at page 305 of the Paper-Book. K.B.
19. Waliullah was her husband, and the extract shows that the appellant by mutual arrangement gave two rooms to K.B. Waliullah in exchange for a garage and a car shed in his occupation. She had filed a C. H. Form in pursuance of the order of Additional Settlement Commissioner dated 28-3- 1960, and the form was admitted by the Additional Settlement Commissioner on 23-4-1960. She filed this form when the matter concerning the disposal of the house had not been finalised. ' The Deputy Settlement Commissioner, on the basis of this form, transferred to her the disputed house.
20. The Chief Settlement Commissioner alone being competent to finally decide such matters, held that the C. H. Form of respondent No. 5, Mst. Zubaida Begum, was duly entertained and the house was legally transferred to her. We are,, accordingly, of the opinion that Mst. Zubaida had the reqsite locus standi to prefer the aforesaid appeal before the Additional Settlement Commissioner.
21. On behalf of the appellant it was sought to be contended that respondent No. 5 had obtained the transfer of the disputed house fraudulently. As leave was not granted on this point, we refused him permission to argue it. This question does not appear to have been raised at any stage previously.
22. We find no reason to interfere with the finding that the appellant is not a displaced person within the meaning of section 2(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to enable him to maintain any claim for the allotment of an evacuee property. We also find that respondent Mst. Zubaida Begum filed the requisite C. H. Form, and it was duly accepted by competent Settlement Authorities and that the disputed house had been transferred to her legally before the matter of transfer of the said house was finally disposed of.
23. The appeal is, accordingly, dismissed but having regard to the facts and circumstances of this case, we make no order as to costs.
24. HAMOODUR REHMAN, C. J.-I agree.
25. SAJJAD AHMAD, J.-I agree.
26. WAHEEDUDDIN AHMAD, J.-I agree.