NASIM HASAN SHAH, J.---This is a certificated appeal against the judgment dated 1-8-68 passed by a learned Single Judge of this Court dismissing the appellant's second appeal which was directed against the order passed by the Additional District Judge, Rawalpindi, whereby he had dismissed the first appeal of the appellant against the order of the Rent Controller, Rawalpindi, dated 5-7-67, directing the eviction of the appellant from the premises in dispute.
2. The facts which form the background are that the Imperial Cinema, Rawalpindi, was transferred by an order dated 7-1Q-60 passed by the Additional Settlement Commissioner (Industries) to Mr. Ghulam Jilani, the respondent herein. The relevant portion of the order is reproduced below: "It would thus appear that only land and half of the building of the cinema is evacuee property. It is quite obvious that Mr. Ghulam Jilani owns more than 1/3 of the cinema house. Since the cinema house is indivisible and Mr. Ghulam Jilani owns more than its 1/3 share, I find him entitled to the transfer of the cinema house under para. 16-C of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (as amended) read with the order of the Central Government dated 20th October 1959. Mr. Ghulam Jilani will be required to pay the prevailing market value of the cinema house minus the value of half of the building and the machinery etc. Owned by him, as assessed by the competent authority and also the sanctioned investment."
After the above order was passed the respondent made a representation to the Settlement Authorities to the effect that the land on which the cinema theatre existed originally measured 6 kanals 8 marlas 8 sarsahis whereas the area which wastransferred to him was only about 4 kanals and that, therefore, the remaining portion of the land should also be transferred to him along with the building thereon. The matter was duly examined and the following observations, occurring in the order of the Additional Settlement Commissioner dated 10-10-64 may be usefully re--produced hereunder: " . . . . . It transpires that only the land leased out to the evacuee owners was 6 kanals 8 marlas and 8 sarsahis and on some portion cinema was constructed whereas on the remaining part stalls etc. Were erected. After some time it appears a boundary wall was erected separating the cinema building solely from the shops and stalls which are now in occupation of Murree Hills Transport and some other persons. Due to this erection of the wall the District Rehabilitation Authorities came into pictures and took the portion such sliced on their lot and dealt with it throughout . . . . .
From all this discussion I am of the opinion that Mr. Ghulam Jilani is the owner of 50 Y. Building erected on the land in dispute which originally was part and parcel of the Imperial Cinema, Rawalpindi and thus is entitled to its transfer on payment of prevailing market value."
3. Messrs Murree Hills Transport, Rawalpindi, the appellant herein, was a tenant of this portion of the property, described as premises No. A/2, Liaquat Road, Rawalpindi and was paying half the rent of the building to the respondent and the other half to the Rehabilitation/Settlement Authorities.
According to the respondent he became entitled to receive the full rent of the premises A/2 from the appellant on transfer of the evacuee share in his favour by the above-mentioned order of the Additional Settlement Commissioner dated 10-10-1964. It is to be noted that an entitlement certificate dated the 16th of November 1964, was issued to him by the Additional Settlement Commissioner (Industries) in favour of the respondent which contained the statement that by the order dated 10-lU-1964, it was decided "that you are the owner of 50 Y. Building erected on the land in dispute, which originally was part and parcel of Imperial Cinema, Rawalpindi and thus you are entitled to its transfer on payment of prevailing market value which will be communicated to you in due course of time." By Memo. No. 3300/RB/64 dated 19-12-64, the respondent was informed by the Additional Settlement Com--missioner (Industries) that the land and the building in question was evaluated at Rs. 1,06,940 and that he was to pay this amount within 30 days failing which his entitlement would be cancelled. Payment of t$e entire amount of Rs. 1,06,940 was made through an Association-deed entered into within another claimant, Sheikh Ahmad Sadiq, whose compensation book was also tendered. The agreement of association and compensation book were duly received by the department on 30-12-64. On 6-1-65 the Additional Settlement Commissioner (Industries) addressed the following Memo. To the Deputy Settlement Commissioner, Rawalpindi, endorsing a copy to the respondent: "The undersigned vide his orders dated 10th October 1964, has transferred the building and land attached with the Imperial Cinema, Rawalpindi to Agha Ghulam Jilani on the prevailing market value. This portion is in the occupation of Murree Hills Transport Co., Rawalpindi. The occupants may be informed that w. e. f. 1-1-65 they should pay the rent of the premises to the transferee."
4. On 1-2-65 the respondent issued a notice to the appellant calling upon him to pay full rent of the premises A/2 to him but, according to him, the appellant neither paid nor tendered the rent as demanded by him and on the contrary sublet a portion of the aforesaid premises to Pak. Bus Service (Registered), Rawal--pindi, with the result that he was constrained to file an application for the ejectment of the appellant. The said application was accepted by the Rent Controller, Rawalpindi, vide his order dated 5-7-67. Against this order the appellant filed an appeal, before the Additional District Judge without reasons and his second appeal before this Court also failed.
5. In this appeal, under clause 10 of the Letters Patent, the only contention that has been raised on behalf of the appellant is that the notice issued to him is invalid. In this connection it was submitted that the respondent issued a notice on 1-2-65 but on the said date he was not the "transferee" of the property within the meaning of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (herein after called the Act). Hence the notice issued to him was invalid.
According to learned counsel for the appellant a person can be treated as the "transferee" of a property for the purposes of section 30 of the Act if a Permanent Transfer Deed (P. T. D.) or a Provisional Transfer Order (P. T. O.) has been issued to him. It is an admitted position that no P. T. O.
Was ever issued in favour of the respondent and that the P. T. D. That was issued in his favour was issued on 25-11-65. The notice in question, as already stated, was given much earlier, namely, on 1- 2-65.
6. Before the Rent Controller although the question of invalidity of the notice was raised by the appellant he did not specify the infirmity from which it suffered in his written state--ment and in his submissions before him questioned the validity of the notice only on the ground that it did not specify the rent which was required to be paid by the appellant. This plea was rejected by the Rent Controller on the reasoning that the appellant was required to pay the same rent that was being paid to the Rehabilitation Authorities by him. The appellant did not pursue this objection before any higher Court but took objection to the validity of the notice on the ground that it could be issued by the respondent only after the order of permanent transfer was passed in his favour and that, therefore, the notice dated 1-2-65, which was issued much earlier than that was invalid. The learned Additional District Judge repelled this objection as follows: "The right in the property is created by the order of transfer and not the provisional transfer order. In the present case, the order of transfer was passed by the Additional Settlement Commissioner on 10-10-64 as is evident from Exh. P. 6 which was never set aside and continued in force and it was on the basis of this order that subsequently the permanent transfer deed was issued . . . . . In fact, the provisional transfer order shows that originally an order was passed on 12-10-60 and it was the same order which had attained finality. The notice having been served long after the transfer was, therefore, quite valid . . . . . ."
7. The objection raised before the Additional District Judge was reiterated before the learned Single Judge but it did not find favour with him. His conclusion is expressed in the following words: " . . . . . . In the case of Cinema House, under para. 15 of the Schedule, read with Scheme No. II, no P. T.
O. Is issued. At first the entitlement of the claimant is determined, then the amount payable by the claimant is determined, and after such adjustment or payment is made, the order for permanent transfer is passed. It is reasonable to conclude that after the price on evaluation basis is adjusted or paid the proposed transferee is conferred the power to deal with it as a provisional transferee, that is to say, is given the power to lease out the property and recover the rent. If the contrary view be accepted. It would entitle the Rehabilitation Authorities to retain the price and also the usufruct of the property in the form of rent realisable from the occupant. In the instant case, the Additional Settlement Commissioner by order dated 6-1-65, rightly directed that w. e. f. 1-1-65, the rent payable by the tenant be paid, not to the Rehabilitation Authorities, but to the petitioner.
Transferee. On receipt of that intimation, notwithstanding the fact that no order of permanent transfer was made in his favour, the petitioner became entitled to deal with the occupant as a statutory tenant and serve it with a notice under section 30 of the Act."
The learned Single Judge was, however, pleased to certify the case as fit for appeal to the Letters Patent Bench. In his order dated 28-8-68 he has observed that the contention raised by the appellant to the effect that the transfer in this case was made under para. 16-C of the Scheduule to the Act, although the ultimate paragraph of the order passed by the Additional Settlement Com-- missioner dated 10-10-64 showed that the land was treated as part and parcel of the Imperial Cinema, Rawalpindi, and was transferred "on payment of prevailing market value" i.e., in pursuance of paragraph 15(3) of the Schedule Terited further consideration.
8. As regards this aspect of the matter a reference to the last paragraph of the order dated 10-10- 64 will show that the respondent was found entitled to the portion of the premises in question because it was found that it was part and parcel of the Imperial Cinema Rawalpindi. It is, therefore, necessary to refer to the earlier order whereby the respondent was held entitled to the transfer of the Cinema itself, namely, the order dated 7-10-60. The relevant part of this order which has been reproduced in para. 2 above shows that it was expressly stated therein that the respondent was found entitled to the transfer of the second house under para. 16-C of the Schedule to the Act read with the order of the Central Government dated 20th October 1959. No doubt the r9spondent was required to pay the prevailing market value of the cinema house minus the value of half of the building and the machinery etc., owned by him and also the sanctioned investment; but the mere fact that the price was fixed on the basis on which prices are charged for the transfer of an industrial concern or cinema house does not necessarily imply that the transfer was ordered under para. 15(3) of the Schedule. The reason is that the property being a cinema house the formula for evaluation of the price provided in para. 15(3) of the Schedule could be adopted but there was an additional feature of this transaction which feature was that only a part of the property was evacuee and the rest belonged to the transferee himself. The provision which precisely applied to this state of affairs was para. 16-C of the Schedule. That para. Is as follows: "Where a property is indivisible and is owned partly by a displaced person or a local, the Chief Settlement Commissioner may transfer the property to such person if his share in the property exceeds such limit as may be specified by the Central Government."
This is the provision under which orders were actually made. See the order of permanent transfer Exh. P. 18 dated 20-11-1965. A portion of that order is reproduced hereunder: "Subject: Transfer of 100 % land and 50 % building of Imperial Cinema, Rawalpindi.
(1) By the orders described on the following page, you have under para. 16-C of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, been found entitled to the transfer of the evacuee rights and interest in the above--mentioned Cinema House . . . . ."
The facts stated above leave no doubt that the Settlement Authorities have not transferred the property under para. 15(3) of the Schedule.
9. Learned counsel for the appellant has argued before us that the order of transfer raving been made under para. 16-C of the Schedule, Settlement Scheme No. II, which was framed with respect to para. 15(3) is applicable and the findings of the learned Single Judge given on the basis of this Scheme is the result of a misconception. It was further submitted that since no Scheme was framed in connection with the transfers ordered under the provisions of para. 16-C of the Schedule it would be reasonable to apply the provisions of Settlement Scheme No. I in this case because of the nature of constructions existing on the land in dispute, namely, shops and stalls. It was further urged that in this view of the matter Scheme No. I should be deemed to be applicable and that, therefore, the respondent should have obtained a P. T. O. As provided in para, 37 of this Scheme. It was only after that he could be considered to be a "transferee" of the property for purpose of section 30 of the Act. It was next submitted that in case Scheme No. I was held to be not applicable the respondent could only be considered to be the "transferee" of the property after he was granted the P. T. D. It was accordingly argued that as on 1-2-65, the date of the issuance of the notice, the respondent neither held a P. T. O. Nor a P. T. D., the notice in question was invalid.
10. In support of his submissions counsel has invited our attention to Menio. No. S. A. W. 81-P & R-60 dated the 25th June 1960, on the subject of "recovery of rent by transferees from tenants and payment of taxes by transferee; to local bodies etc," printed at page 569 of the Manual of Settlement Law and Procedure (2nd Edition), particularly to instruction (iii) thereof which provides that: "Under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as amended to date, the transferees are entitled to recover rents of the properties trans--feered to them under the provisions of the Act, from their tenants with effect from the date of issue of P. T. O.
Any arrears of rent due from such tenants for the period prior to the date of issue of P. T. O. Will be recovered by the settlement Organisation direct from such persons and the transferees will have nothing to do with such dues."
Reference was also invited to the judgment of a learned Single Judge of this Court in the case of H.
Malik Electric Co. Etc. v. Ata-ul-Haq etc. (S. A. 0.236 of 1968), decided on 31-3-69 wherein the provisions of Memo. No. 3808-Comp-Reh-59 dated 19th September 1959, were noticed which provide that P. T. Os. May be utilised in all cases where any property is transferred to a claimant and the view appears to have been taken that P. T. Os. Should be issued in the case of transfer of big mansions.
11. Mr. S. M. Zafar, learned counsel for the respondent, has raised three-fold contentions in reply. In the first place he argued that a person becomes a transferee of an evacuee property not by the issuance of a P. T. O. Or a P. T. D. But as soon as an order of transfer is made in his favour by a competent Settlement Authority. He also contended that in any event, if the entire transfer price of the property is paid by the person in whose favour the order of, transfer is made the property stands trans--feered to him, without the issuance of a P. T. O. Or P. T. D. In this behalf attention was invited by him to paragraph 26 of the Schedule to the Act and rule 3 of the permanent Transfer Rules. It was also pointed out that even under para. 38 of Scheme No. 1, before it was amended in 1962, orders could be passed for transferring the property permanently after its full price was paid.
He argued thirdly that the property was transferred as a cinema house under paragraph 15(4) read with para. 16-C of the Schedule to the Act and, therefore, Scheme No. I was not applicable; with the result that no P. T. O. Was to be issued in this case. He argued that since issuance of a P. T.
O., which is contemplated by Scheme No. I. Was not necessary, any order whereby the entitlement was determined and the payable amount was fixed can be treated on the same footing as a P. T.
O. On this basis it was submitted that Memo. No. 3300/RB/64 dated 19-12-64 whereby the price of the land and building was fixed and direction was given that payment be made within 30 days was to be treated as a P.T.O.
12. In support of his first submission that the word "trans--feree" in section 30 of the Act includes a person in whose favour an order of transfer had been made, Mr. Zafar has drawn our attention to certain observations in the case of Muhammad Umar Khan v. Chief Settlement Commissioner, Pakistan (PLD 1963 Pesh. 85); particularly the following passage, appearing at page 92 of the report, "for the purposes of paragraph 4 (of the Schedule), the word "transfer" has to be understood not in the sense of a final and complete transaction of alienation of property but in the sense of transfer to a claimant subject to several provisions of the Act. If on house has been transferred to a claimant and even though the Permanent Transfer Deed has not been issued in his favour it can still be said that the house stands transferred to him and he cannot claim another house by contending that transfer has not been completed and finalised by the issuance of a Permanent Transfer Deed".
13. A perusal of the facts of this case reveals that the house which was in the possession of the appellant could not be transferred to him, therefore another house was offered to him in lieu of the house which was in his possession, and an order transferring the said alternative house in his favour was passed by Deputy Settlement Commissioner. The occupants of that house, however, challenged the said order of transfer by filing appeals and revisions. In view of the challenge made to the order of transfer the petitioner applied for the transfer of another bungalow, notwithstanding the fact that the order of transfer passed in his favour by the Deputy Settlement Commissioner continued to hold the field. The property applied for by him was, however, ordered to be disposed of by auction. The petitioner challenged this action of the Settlement Authorities by a writ petition and one of the questions that arose therein was whether he had any locus standi to challenge the auction proceedings in so far as not more than one house can be transferred to any one claimant and an order of the Deputy Settlement Commissioner had already been passed transferring a house in his favour. The observations quoted above were made in this context and it is clarified in the judgment that the word "transfer", in the precedent case, was being construed only with reference to paragraph 4 of the Schedule to the Act. The question which is relevant here, namely, whether the person in whose favour the order of transfer was made could have applied for ejectment of the persons in occupation of the house ordered to be transferred in his favour was not considered therein. On the other hand the decision referred to in that judgment namely Mst. Bakho v. Mst. Sairan etc. (PLD 1963 Lah. 72), which was held to be applicable in the context, appears to be more relevant to the present case. In that case one of the questions that arose for consideration was whether a party could apply for the transfer of a house after an order of transfer had already been passed in favour of another occupant thereof. It was contended that by the order of transfer which had already been made the property no longer remained in the compensation pool and that therefore no application could be entertained for its transfer. The reason being that only such property as in the com--pensation pool is liable to be transferred under section 10 of the Act. This contention was repelled with the following observations: "I have only to refer to paragraphs 16, 23 and 29 of the Settlement - theme No. I. These clearly show that the transfer of the property is not effected by the mere fact that an order is passed in this behalf by a Settlement Authority. Other necessary formalities have also to be observed, e.g., the price of the property has to be ascertained by the Deputy Settlement Commissioner who sends a notice of the transfer conveying his decision in form as specified in Appendix IX or Appendix X and directing the transferee to comply with the directions contained in such notice within a period of fifteen days. If the entire price is not paid, the amount of each instalment for the liquidation of the debt and the dates on which these are to be paid have to be determined by the Deputy Settlement Com--missioner, who then delivers to the transferee an instalment order in the form of Appendix XI.
It is, therefore, that the provisional transfer order is issued in the form of Appendix XII. The matter does not end here. The property still remains vested in the Central Government and it is only after a permanent transfer has been made under para. 38 of the Scheme and a title-deed given as required under para. 41 of the same that the property vests in the transferee and the Government is divested of its ownership. The Government has, in exercise of the powers conferred on it by section 35 made rules for permanent transfer of property under section 10 of the Act. Under rule 3 of these rules, it is only after the provisional transferee has paid the transfer price, the settlement dues and all public dues in full that a record of the permanent transfer of the property in the name of such transferee is to be made by the Deputy Settlement Commissioner in a register kept for this purpose and, thereupon, the property vests in the transferee free from all encumbrances. A reference to section 16 would show that the schemes made thereunder are subject to the rules framed under the Act. The rules for permanent transfer notified on the 13th of May 1961, to the extent of repugnancy, therefore, prevail over the provisions of the Scheme. This is mentioned only to show that under the present law instead of he title-deed contemplated in paragraph 41 of the Scheme, the entry in the register mentioned in rule 3 of the rules will confer the permanent proprietary rights on the transferees. Therefore, the simple fact that the Deputy Settlement Commis--sioner had, passed an order of transfer on the 30th of December 1959, will not, by itself take this property out of the compen--sation pool as contemplated in section 10 of the Act."
14. The word "transfer" conveys different meanings in different contexts. In a broad sense it means "dispose of" or "sell". In the law of property, it means passing of proprietary rights from one person to another. Under the Permanent Transfer Rules a transferee in whose favour a record of permanent transfer has been made shall be entitled to hold and enjoy the property and all the rights, title and interests appurte--nant thereto transferred to him and the right to transfer or alienate the same in accordance with the normal law, (virJe rule 4). It is true that under the provisions of Settlement Scheme No. I a property can also be deemed to have been transferred for certain purposes after the issuance of a P. T. O. Under para--graph 37 of the Scheme, namely, for purposes of leasing out the property or for mortgaging it. This concept has been explained by the Supreme Court in Rahim Bakhsh v. Ch. Ahmad Bakhsh etc. (PLD 1964 SC 189) and the following observations in this connection are relevant. "Paragraph 37 of Settlement Scheme No. I, framed under section 16(1)(b) and (c) of the Act gives express right to lease out and mortgage the property to a transferee". Thus although the title in the property passes to the transferee only after the P. T. D. Is granted and the property in question cannG4 be considered to have been transferred until then, a P. T. O. Holder may be considered to be the transferee for certain limited purposes including the right to deal with the occupant of a premises as a statutory tenant. No such rights have been conferred by any provision whatsoever on the person in whose favour an order of transfer of a property has only been passed. Such an order is in fact only an adjudication of disputes as to the entitlement. Several further steps remain necessary before the title passes.
15. But it is contended that the Memo. No. 3300/RB/64 dated 19-12-64 (Annexure `C', filed before the learned Single Judge) fixing the price of the land and the building and directing the payment to be made within 30 days read with the Memo. Issued by the Additional Settlement Commissioner (Industries) on 6-1-65 to the Deputy Settlement Commissioner, Rawalpindi , which, according to counsel, was issued after the price was paid, and recited that the premises in question had been transferred in favour of the respondent by the order dated 10-10-64 and also directed the appellant, who was in occupation of the premises, that he should pay rent to the respondent with effect from 1-1-65 (Annexure `E') was virtually a P. T. O. It was submitted that in these circumstances it was reasonable to hold that from 1-1-65 the appellant had become a statutory tenant of the respon--dent.
16. The above plea is not sound. As already observed the word "transfer" means transfer of proprietary rights in the property. It is true that a P. T. O. Holder can be regarded as a "transferee" for purposes of section 30 because he is expressly given by the terms of the P. T. O. The right to lease the property in respect of which the P. T. O. Was issued and also because this right is specifically conferred on the P. T. O. Holder under the Act by virtue of paragraph 37 of the Settlement Scheme No. 1 which is framed under section 16(1)(b) and (c) of the Act. A person in whose favour the transfer has not yet become final would not ordinarily be able to deal with the person in occupation of the evacuee property as his statutory tenant unless his claim could be sustained on the basis of some express provision of the law. No provision of the Act or of any Scheme made thereunder or of any rule having the force of law has been brought to our notice which empowers the Additional Settlement Commissioner (Industries) to make an order whereby he may direct the occupant of a property to pay rent to a person in whose favour an order is made in terms of para. 16-C of the Schedule. Nor is it possible to equate the Memos. Dated 19-12-64 and 6-1-65 with a Provisional Transfer Order on the basis of a rough analogy. Unless a provision of the Act or a provision of Scheme framed thereunder or a rule having the force of law permits the person in whose favour an order of transfer has been made to lease out the property, which has yet to be finally transferred to him, the occupant of such a property cannot be deemed to be statutory tenant under him.
17. In support of his second contention Mr. S. M. War has argued that as soon as the person in whose favour an order of transfer has been passed makes payment of the transfer price he becomes the full transferee of the property by operation of law. In this connection counsel pointed out that even in those cases where a P. T. O. Is contemplated the transferee may skip over the stage of the issuance of a Provisional Transfer Order by paying the full price of the property and thus becoming its full owner without a P. T. O. He explained that a P. T. O. Could be issued even without the payment of full price of the property concerned but where the proposed transferee pays the price in full an order for transferring the property permanently can be made in his favour straightaway. Reference in this connection was made to the provisions of para. 38(1) of Scheme No. I, as they existed before their deletion in 1962 after the promulgation of the Permanent Transfer Rules. The same position, it was submitted, obtained under these latter rules as well. Under rule 3(1)
(b) the "proposed" or "provisional transferee" is entitled to obtain a permanent transfer of the property on payment in full of (i) the transfer price of the property (ii) settlement fees and (iii) all public dues without the condition that a P. T. O. Was issued as a pre-requisite.
18. We may note here that in the definition clause (rule 2) "proposed transferee" means a person who is entitled to the transfer of the property under the Act, and "provisional transferee" means a person to whom property has been transferred provisionally. These definitions go to show that a person who is found entitled to the transfer of a property by the order of transfer, is no more than a "proposed transferee".
19. Learned counsel argued on the basis of the provisions of para. 26 of the Schedule, which are to the effect that "any property transferred under this Act shall be subject to the condition that the transferee shall not dispose of the property until the full price of the property and all public dues in respect thereof and payable by him have been duty paid", that the word " ransferee", as used in this para. Of the Schedule, indicates : t a person may be a "transferee" without paying the price; theerefore, anybody who has paid the price is in a better position an the holder of a P. T. O. Because the payer of full price becomes entitled to dispose of the property which right is not given to a P. T.
O. Holder. He submitted that even if the respondent was treated as "proposed transferee" he was entitled under rule 3 of the Permanent Transfer Rules to have the property transferred to himself permanently on making full payment. Thus a "proposed transferee" who has paid full price stands on a better footing than a P. T. O. Holder who has not paid the price, because such a P. T. O. Holder cannot dispose of the property and cannot become the full transferee unless he makes the payment, whereas a "proposed transferee" who has paid the price becomes a permanent transferee straightway. It was, therefore, argued that by payment of full price the respondent was entitled to be treated as a permanent transferee. Counsel argued that though the P. T. D. Was issued later, the right to be treated as a permanent transferee had become vested in him on his making the payment and the issuance of P. T. D. Which was only a ministerial act and did not affect his status in law.
20. We have given our anxious consideration to these submissions and have come to the conclusion that they cannot be accepted. It is correct that the requirements of a P. T. O. Can be obviated by the "proposed transferee" by paying up the full transfer price; but that is not the only requirement to be fulfilled before a P. T. D. Can be issued. According to rule 3 of the permanent transfer rules the property can be permanently transferred when (u) the order of transfer is a final order; which means an order in respect of the entitlement of the proposed or provisional transferee passed by a competent authority against which no appeal, revision etc., is pending or the period of limitation for instituting such proceedings has expired; and (b) the proposed or provisional transferee has paid in full-(i) the transfer price of the property (ii) settlement fee, and (iii) all public dues. A persual of the Permanent Transfer Deed (Exh. P. 18) shows that the order of the Additional Settlement Commissioner (Ind.) dated 10-10-64 was challenged by way of an appeal, which was ultimately dismissed on 10-8-65 by the Settlement Commissioner (Ind.). We also notice that in the Memorandum dated 6-1-65 (Annexure `E') there is no mention of payment of price and the reference is made only to the order of transfer dated 10-10-64 which was not then a final order. It is by leading evidence adiunde about the factum of payment, namely, by production of the document Annexure `D' in this Court (before the learned Single Judge) that the plea of full payment of price had been advanced.
21. It is no doubt true that in view of the provisions of para. 26 of the Schedule a person can be considered as the transferee of a property before the full price of such property is paid. But this provision does not help us in solving the problem which is whether such a "transferee" can be considered to be the statutory landlord for the purposes of section 30 of the Act, As already observed we consider that a person can be regarded as al "transferee" if he is entitled to hold and enjoy the property and, all the rights, title and interests appurtenant thereto are transferred to him or some specific rights and interests area express transferred to him by some provision of the Act or of a' Scheme made thereunder or of any rule. Para. 26 of the Schedule appears to be a general provision which is intended to provide that no Scheme or rule is to be made which may contain a condition that a transferee, "proposed" or "provisional" has the power to dispose of the property until the full price of the property has been paid.
22. The third contention raised by Mr. S. M. Zafar that the property is question was transferred as a Cinema House under paragraph 15(4) read with para 16-C of the Schedule and, therefore it is Scheme No. II and not Scheme No. I which would be applicable in this case, has already been examined by us while considering his first contention and has been found to be without force. We may observe that the provisions of paragraph 21(a) and paragraph 22(a) of the Terms and Conditions of Auction of Evacuee Industrial Concerns and Unregistered Factories under Settlement Scheme No. II which lay down that where the purchase money has been paid in full the property will be permanently transferred to the purchaser (para. 21(a)), and that where a property is transferred permanently the transferee will acquire full proprietary rights in it (para. 22 (a)) are nor applicable to this case at all because neither the cinema house nor the appurtenant land was transferred by auction. Moreover as has already been discussed above, the orders of transfer were made under paragraph 16-C of the Schedule alone and are not referable to para. 15(3) of para. 15(4) thereof.
23. We agree with Mr. S. M. Zafar that neither the instructions contained in Memo, No. 3808/Comp/Reh. 59 dated 19th September 195`3, nor those of Memo. D. A. W. 81/P & R/60 dated 25th June 1960, are relevant in the present case. The first mentioned Memorandum deals with issuance of P. T. Os. To transferees of property under Scheme No. I and refers to transfer of properties to claimants, and is not, therefore, relevant. As for the provisions of instruction No. (iii) of the Memo. Of 25th June 1960, it refers to section 30 of the Act, as amended to date and attempts to give an interpretation on its provisions, which interpre--tation does not appear to be correct. In any case it deals with the question as to the rights exercisable by the 1'. T. O. Holder and does not deal with a situation where P. T. O. Is not to be issued.
24. The upshot of the above discussion is that the objection to the validity of the notice issued on 1- 2-65 on the ground that G the respondent could not be regarded on that date to be the transferee of the property within the meaning of section 30, of the Act, is well-founded. The result is that this appeal should be accepted. The judgment of the learned Single Judge dated 1-8-68, that of the learned Additional District Judge dated 21-3-68 and that of the Rent Controller dated 5-7-67 are accordingly set aside. In view of the difficult questions of law involved in the matter, the parties will be left to bear their own costs.