The dispute in this petition pertains to transfer of portion of house bearing No.4/1-C Mohallah Shahab, Sialkot City between Rafique Alam herein petitioner and Amanat Ali herein respondent.
Rafique Alam along with his family is in occupation of a portion of the house bearing municipal No. 16/509 while Amanat Ali is in possession of portion bearing No. 16/510.
2. The case has chequered history. This is a second round of litigation in this Court. It is needless to recapitulate the facts except few facts, for the disposal of this petition are; that the house was jointly allotted to Din Muhammad, the father of the petitioner and Fazal Karim, the father of Amanat Ali vide order dated 21-7-1952. Din Muhammad and Fazal Karim were jointly allotted the house as both of them were in possession of two separate portions of the house.
3. Rafique Alam filed K.N.C.H. Form No. 195 on 7-10-1966 for the transfer of portion of house allotted to his father and in his possession. It was claimed that the father of the petitioner was weak, ailing person and had authorised him to file the form. After filing the form Rafique Alam went to East Pakistan, took part in the war with India and was taken as prisoner-of-war and returned to Pakistan in 1973.
4. That Amanant Ali also filed K.N.C.H. Form on 20-5-1971 for the transfer of portion of house in his possession. The Deputy Settlement Commissioner vide order dated 26-5-1971 transferred the whole house in favour of Amanat Ali without taking into consideration the form submitted by Rafique Alam. The family of the petitioner, in the absence of Rafique Alam, continued making representation to Settlement authorities for transfer of disputed portion on form submitted by Rafique Alam. Rafque Alam also continued reminding the Settlement authorities about the pendency of his form from East Pakistan. The Army authorities also reminded the Settlement authorities through so many memos.
5. The order of the Deputy Settlement Commissioner was set aside by the Addl. Settlement Commissioner, who remanded the case to the Deputy Settlement Commissioner for decision afresh on merits. The Deputy Settlement Commissioner again vide order dated 24-7-1975 made the same decision in favour of Amanat Ali.
6. Having exhausted his remedies under the provisions of Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, Rafique Alam filed Constitution petition bearing No. 934-R/1975 in High Court. His Lordship Mr. Justice M.E. Rana vide order dated 4-11-1976 accepted the petition and remanded the case to the relevant authority for the disposal of the form of Rafique Alam. In order of remand the Settlement authorities were directed to determine the entitlement of Rafique Alam in the context of word possession contained in sub-clause (6) of section 2 of Act XXVIII of 1958. The relevant finding embodied in the order of remand will be examined at a later stage.
7. Persuant to the order of remand, the Deputy Settlement Commissioner, Sialkot vide order dated 16-5-1977 dismissed the form of Rafique Alain by coming to the conclusion that the father of Rafique Alam had abandoned his possession in the disputed portion and shifted to a plot of evacuee trust. It was further held that Rafique Alam joined Army in year 1963 and his date of birth was 10-12-1943. So according to him Rafique Alam was not in possession of the property in dispute before the crucial date. Rafique Alam has challenged the order of the Deputy Settlement Commissioner in this Constitution petition.
8. Learned counsel for the petitioner in support of this petition raised the following points: It was urged that Amanat Ali had filed form for the transfer of portion of house in his possession.
This portion carried No.4/1-C 16/510. The Deputy Settlement Commissioner had no authority to transfer him more than his entitlement embodied in the form. On the premises it was contended that the impugned order was in excess of authority. Strength was sought from Muhammad Tufail v.
Chief Settlement and Rehabilitation Commissioner and another (PLD 1971 Lahore 257).
(2)It was next contended that both Rafique Alam as well as Amanat Ali submitted an application under Scheme No. VIII. It was urged that under para 7 sub-para (3) of the Scheme, both Refque Alam and Amanat Ali had to be transferred their respective portions. The reliance was placed on Syed Aziz-ur-Rehman's v. Mst. Habib Bano and 5 others (PLD 1972 SC 52), Abbul Rashid and 3 others v. Muhammad Nazir (1970 SCMR330).
(3)Thirdly it was stressed that the definition of possession under clause 2 sub-clause (6) of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958 was changed by Central Government from time to time. It was contended that it was apparent from the record that Din Muhammad had been in possession of the disputed premises along with all members of his family; that the mother of the petitioner died in the disputed portion; that the petitioner had given his address of the disputed portion when he went to East Pakistan; that his possession was affirmed by the order of the Deputy Settlement Commissioner dated 23-2-1977 wherein it was found in a positive manner that the petitioner was in possession of disputed portion. It was urged that the petitioner's father had been in possession of the disputed portion since 1950 and his family had continued the possession upto this date. According to the learned counsel for the petitioner, the petitioner was entitled to transfer of disputed portion on the basis of admitted uninterrupted possession under Scheme No.VIII.
9. On the other hand, the learned counsel for respondents supported the impugned decision.
According to him the circumstance of continuous possession was not only the ground making Rafique Alam eligible for the transfer of the disputed portion. It was urged that the benefit to Rafique Alam in lieu of possession of Din Muhammad could be only given if he showed that he had cleared the arrears of rent before making application.
10. It was next contended that finding of the Deputy Settlement Commissioner in support of possession was a finding of fact and could not be interfered with in the constitutional jurisdiction.
11.Learned counsel for respondent No.1 also did not support the order of the Deputy Settlement Commissioner. It was suggested by him that the claim of possession of Rafique Alam was not in dispute. According to him this Court in this constitutional jurisdiction should transfer the disputed portion in favour of petitioner in order to do the complete justice between the parties. It was urged that the payment of arrears of rent was not a condition precedent. The reliance was placed on Abdul Majid Shaida v. Mst. Noor Jehan (PLD 1967 SC 221), Ch. Altaf Hussain v. Chief Settlement Commissioner (PLD 1965 SC 68), Mst. Noor Jehan Begum v. Settlement and Rehabilitation Commissioner Karachi and others (PLD 1963 (W.P.) Karachi 709).
12.Have heard the arguments of both the parties and have perused the record, 13,the questions emerging for determination are: (i)Whether Amanat Ali is entitled to transfer of disputed portion notwithstanding the fact that he did not lay the claim for its transfer under Scheme No. VIII?
(ii)Whether Rafique Alam is entitled to take the benefit of possession of his father for transfer of disputed portion of house in his favour?
(i.e)Whether the order of the Deputy Settlement Commissioner impugned in this petition is in contravention of order of remand passed by the High Court dated 4-11-1976?
(iv)Whether Rafique Alam is not entitled to seek the benefit of extended definition of possession in view of non-clearance of rent?
14. Before I proceed to examine the afore-enoted questions, I feel it appropriate to reproduce the relevant portion of his Lordship Mr. Justice M.E. Rana's judgment dated 4-11-1976, which is as follows:-- "According to Para. 5 SchemeNo. VIII under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the house should be such which was available to the applicant and was in his possession. To my mind, possession does not mean a continuous possession indefinitely.
Possession is defined in section 2 (6) of the Act, as, possession obtained in pursuance of 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. By a clarification made under the second proviso to the definition, possession would also include possession of a person who had been in undisputed occupation of the house since before 21-12-1958. It would mean that the petitioner was only bound to show that he was in possession upto 20-12-1958 and not afterwards.
The possession of the petitioner upto the year 1954 is admitted by the respondent No. 2 but there is no clear finding made by the Deputy Settlement Commissioner whether or not petitioner continued in possession till 20th day of December, 1958. His simple observation that the petitioner was never in possession does not appear to be complete. The net result is that before the Form of the petitioner could be rejected, the Deputy Settlement Commissioner was bound to ascertain in clear terms that the petitioner was not in possession on or before the 20th day of December, 1958."
15. From the perusal of the afore-enoted finding it is clear that the Deputy Settlement Commissioner was directed to ascertain in clear terms as to whether the petitioner was in possession of disputed portion on or before 20th December, 1958. Instead of following this instruction the Deputy Settlement Commissioner undertook a roving enquiry with respect to abandonment of possession on the part of the father of the petitioner. I am clear in my mind that the Deputy Settlement Commissioner went beyond the mandate of the order of this Court. On this very ground, the order of the Deputy Settlement Commissioner is manifestly without jurisdiction and is liable to be struck down.
16. Having determined that the order of the Deputy Settlement Commissioner is in excess of authority, I herein proceed to determine the questions noted above on the basis of facts which are not in dispute.
17. It is apparent from the record that the father of the petitioner and father of respondent Amanat Ali were in possession of two portions. These two portions were given separate numbers by the Municipal Committee; that in 1952 the both were jointly allotted the portions of house in their possession. Rafique Alam lived alongwith his father in the disputed portion. I am clear in my mind that Rafique Alain was in possession of the disputed portion before crucial dated i.e. 20th December, 1958 with his father.
18. Having come to afore-enoted conclusion the next point to be noticed is whether Rafique Alam is entitled to its transfer under Scheme No. VIII. To begin with it is noted that both Rafique Alam and Amanat Ali are non-claimants Displaced Persons from Azad Jammu and Kashmir. Under Scheme No. VIII the non-claimants refugees are entitled to transfer under paras Nos. 6 and 7 of Settlement Scheme No.VIII. Under the amplified definition of possession Rafique Alam is entitled to seek advantage of possession of his father who obtained possession of disputed portion under the order of allotment by the competent authority.
19. In Mst. Noor Jehan Begum v. Settlement and Rahabilitation Commissioner, Karachi and others (PLD 1963 (W.P.) Karachi 709) it was held that a non-claimant car, seek the benefit of possession of his parent provided there is no other applicant. In view of the ratio laid down I am clear in my mind that the arguments of learned counsel for respondents are entirely misconceived and are, therefore, totally untenable. Rafique Alam was entitled to take the benefit of possession of his father.
20. As regards the third contention that Rafique Alam cannot be transferred disputed portion on account of the circumstance of the non-payment of rent, it is C to be noticed that no such objection was taken before the Settlement Authorities. Therefore, I am clear in my mind that this point cannot be taken in the constitutional jurisdiction.
21. This point is to be looked at from another angle. The clearance of rent by a non-claimant does not disentitle him to seek the benefit of extended definition of possession. The point came up in consideration in unreported case Law Notes 1967 (NUC) Karachi 1. In this case the relevant portion of judgment is as follows: "A" was declined the transfer of a shop by the Settlement Commissioner as he being a non- claimant had not cleared arrears of rent within the specified period, the property was, therefore, brought in the compensation pool for the purpose of auction. "A" in the writ petition had annexed a rent clearance certificate issued on 6th December 1963, showing that `A' had cleared the arrears of rent upto 9th December, 1959. It was contended on behalf of the Settlement Department that under the amplified definition of possession, a person cannot be deemed to be in possession of any house or shop unless and until he clears the arrears of rent upto 30th September, 1959, before the target date. The learned counsel for the department relied upon the amplified definition and on a judgment by Jusitce S. Muhammad Iqbal PLD 1964 Lahore 185.
The amplified definition is divided into two portions. The part dealing with the question of deeming a person to be in possession is contained in the main body and only in possession is further required to clear the owner's rent. His Lordship while referring to the observations made by Justice S. Muhammad lqbal in the above-referred case opined that His Lordship Justice Jqbal has not laid down the proposition that if the rent is not cleared before the target date, the local or non-claimant displaced person would not be "deemed" in possession. Justice S.M. Iqbal has only observed that such person will not be eligible for the transfer of the property as long as he does not clear the arrears of rent."
20. I am in complete agreement with the afore-enoted enunciation of law. The authorities cited by the learned counsel for the petitioner and respondents proceed on distinguishable facts and there is no need to comment on them.
21. In the light of foregone analysis, I am clear in my mind that the order of the Deputy Settlement Commissioner is illegal and has been passed without any. Lawful authority. The transfer of disputed portion in favour of Amanat Ali being p in -excess of his claim is to be held without jurisdiction and without any Lawful authority. Accordingly I accept this petition, the impugned order is set aside.
22. Having already determined the entitlement of Rafique Alam, I do not feel the necessity to remand the case on the question of entitlement of RaGque Alam. It will amount to putting the parties to vortex of litigation again and will hamper the process of justice. Rafique Alam had already suffered enormously.
23. The paramount consideration in exercise of constitutional jurisdiction is to foster justice and right a wrong. Reference be made to Syed Ali Shah. v. Abdul f Saghir Khan Sherwani and others (PLD 1990 SC 504).1 accordingly remand the case to Notified Officer who shall issue necessary transfer documents in favour of Rafiqua Alain. There shall be no order as to costs.