' MUHAMMAD AFZAL LONE, J.---This appeal through leave to appeal is directed against the judgment dated 9-12-1980, rendered by a D.B. Of the Lahore High Court, whereby the appellant's L.P.A. Failed and the dismissal of his writ petition by the learned Single Judge was upheld.
2. The dispute between the parties relates to House No,62, situate in Block No,8, Khanewal, which was included in the earmarking list under Settlement Scheme No,V and on 54-1960, by drawing of lots, transferred to Syed Karam Ali Shah, who died during the pendency of this litigation and is now represented by his son Syed Faqir Hussain Shah, respondent No,1 herein. Subsequently, on 19-5- 1960, a Provisional Transfer Order was also issued to the deceased. The reason for disposal of the house under Settlement Scheme No,V was that its transfer price on evaluation basis was more than Rs,10,000; it was in possession of an Assistant Land Reclamation Officer, who was a local and ineligible for its transfer in his favour. The appellant is a claimant displaced person; as an Assistant Land Reclamation Officer he was transferred to Khanewal and according to his showing he occupied the house on 1-4-1960. He submitted an application to the D.S.C. For transfer of the house, but it was turned down on 19-4-1960 on the ground that he did not file any form. The appellant then moved another application and also submitted a C.H. Form along therewith, but it also failed as his possession was not found since before the 20th December, 1958, and the house had already been disposed of. The D.S.C.'s order in this behalf is dated 25-4-1960. The appellant, thereafter, filed a third application and then a 4th one, which were rejected on 21-5-1960 and 22-8-1960, respectively, on the plea that the property had already been transferred through drawing of lots.
3. The appellant preferred an appeal against the order, dated 22-8-1960. The learned Settlement Commissioner maintained that the appellant put in his Form C.H. On 24-4-1960 and the property stood transferred to Syed Karam All Shah on 15-4-1960. Resultantly, he dismissed the appeal by his order, dated 22-2-1961. This dismissal was called in question by the appellant through a revision, which was accepted by the Settlement Commissioner on 8-5-1961. The memorandum of revision indicates that in order to meet the objection that his possession was not since before the 20th December, 1958, the appellant relied Upon the Central Government's order, dated 3-8-1960 (page 165 of the Manual of Settlement Law and Procedure, First Edition), which runs as under: "No, F3(3)/60-SI.---In exercise of the power conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to direct that a claimant, a non-claimant displaced person or a local who has not obtained possession of a house in pursuance of an order referred to in the said clause but is in possession of a house in pursuance of an order passed by a competent authority after the twentieth day of December 1958, but not later than the date of this order shall, for the purpose of the aforesaid Act be deemed to be in possession thereof if such claimant, non- claimant displaced person or local is in undisputed occupation of the house and no other person is otherwise entitled to the transfer of such house in pursuance of a final order passed by a competent authority."
' The tenor of the order, dated 8-5-1961 reflects that the Settlement Commissioner found that property Nos.61-62, Block No,8, Khanewal, was interlinked; house No,61 was in possession of one Hussain Ahmad Khan, but he was aspirant for transfer of property No,62 as well, and on his application house No,62 was deleted from the earmarking list by the Additional Settlement Commissioner on 10-2-1960. It may be observed that the D.S.C. By his order, dated 14-4-1960 had declined to transfer property No,62 to Hussain Ahmad Khan and treated the same as part of the compensation pool. Against this order he preferred an appeal, which was accepted on 5-10-1960 by Mr. S.Muhammad Azhar, the then Additional Settlement Commissioner, Multan, and houses Nos.61 & 62 were transferred to Hussain Ahmad Khan and his wife as one unit. This order also makes mention of deletion of property No,62 from the earmarking list. In view of the deletion order, the Settlement Commissioner held that all subsequent orders as to the disposal of property No,62 were illegal. The operative part of the order dated 8-5-1961 is as under:-- "As already mentioned the petitioner Muwahid Hussain and Hussain Ahmad Khan are in possession of the separate portions of the property, the property is divisible. I, therefore, accept the revision and order that the property should be transferred to Muwahid Hussain and Hussain Ahmad Khan on the basis of their possession."
4. Syed Karam All Shah filed a second revision, but it could not proceed, as being incompetent. He then invoked the writ jurisdiction of the High Court to question the legality of the transfer of the house to the appellant. In the meanwhile, he applied to the Settlement Department for issue of the copy of the Additional Settlement Commissioner's order dated 10-2-1960, but the application was returned to him with the remarks dated 24-7-1962 that as the original order was not on the file, the copy could not be prepared. On the strength of these remarks, in the High Court, he raised the plea that the Settlement Commissioner proceeded on wrong assumption, for, the deletion order was not in existence. The learned Single Judge sent for a report from the Settlement Department to ascertain as to whether such an order was passed by the Additional Settlement Commissioner, but the report was not submitted. The High Court placed reliance on the Settlement Office's remarks dated 24-7-1962, and maintained that the house was not deleted from the earmarking list. The appellant's reliance on the Central Government's order dated 3-8-1960 was adjudged as misconceived and the Settlement Commissioner's order declared as illegal. Consequently, vide judgment dated 14-3-1966 the writ petition was accepted. The transfer of the house to the respondent thus stood restored.
5. The judgment dated 14-3-1966 was assailed by the appellant through an LPA, which, as stated in the opening part of this judgment, was dismissed. This dismissal is under challenge before us. The LPA judgment, so far as relevant for the purpose of this appeal, is reproduced below: "The learned counsel for the appellant has argued that the property had been deleted by the Additional Settlement Commissioner vide order, dated 10-2-1960, and the learned Single Judge has erred in law in ignoring specific mention of this fact in the order of the Settlement Commissioner dated 8-5-1961. This contention has no force. The appellant had failed to place on record the copy of the order during the writ proceedings nor he had placed the same during the pendency of this appeal. The Settlement Department did not submit any report as regards the existence of the alleged order of the Additional Settlement Commissioner dated 10-2-1960. The learned Single Judge was perfectly justified in relying upon the endorsement of the copy of the application made by Syed Karam All Shah for obtaining a certified copy of the said order. Syed Karam Ali Shah had in the first available opportunity challenged the existence of the order. Once it is found that the house in dispute had not been deleted from the earmarking list the order of transfer made by the Deputy Settlement Commissioner on 15-4-1960 could not be set aside."
6. Leave to appeal was granted inter to examine the appellant's contentions: "...The petitioner was in possession of the house on 1-4-1960 and filed C.H. Form on 2-4-1960 whereas the house in dispute was put to lots on 15-4-1960 in favour of respondent No,1; the petitioner having applied earlier before the actual draw, was entitled to transfer of this house but his CH Form was rejected without any information to him; that the house could not be disposed of under para. 4 of the Scheme as the same was not transferable under any of the preceding paragraphs i.e, paragraphs Nos.1 to 3 of the Schedule; that the petitioner was entitled to the transfer of the said house as a claimant under paragraph 1 of the Schedule; that the disposal of the house under paragraph 4 of the Schedule was in violation of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, that the house had already been deleted from the Earmarking List by order of the Additional Settlement Commissioner which fact was reiterated by the Additional Settlement Commissioner in his order dated 5-10-1960."
7. The fate of this appeal hinges on the decision of two issues. Firstly, whether the house had been deleted from the Earmarking List before its transfer to Syed Karam All Shah under Settlement Scheme No,V and thus it was available for transfer when the appellant submitted Form CH; secondly, whether his case is covered by the definition of the term "possession" given in section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as modified by the Central Government's order, dated 3-8-1960 quoted in the earlier part of this judgment. It will be seen that the learned LPA Bench proceeded on the assumption that the Additional Settlement Commissioner's order dated 5-10-1960 deleting the property in dispute from the earmarking list, was not in existence. Thus on the basis of this assumption, the appellant's CH Form for transfer of the property in his favour was not considered. We find that alongwith the concise statement the appellant has placed on the file a copy of application dated 10-2-1960 submitted to the Additional Settlement Commissioner by Hussain Ahmad Khan praying for deletion of the house from the list, which bears the following order dated 10-2-1960 passed by Mr. S. Muhammad Azhar, the then Additional Settlement Commissioner: "House No,62, Block No,8 KWL is hereby deleted from the category list."
' It has already been observed that this order was also referred to by the same Additional Settlement Commissioner in his order, dated 5-10-1960. From the perusal of the record before us, we are satisfied that House No,62 was duly deleted from the earmarking list. It is lamentable that despite being asked, the Settlement Department did not convey this information to the High Court and also failed in providing a copy of the order in question to the respondent, which resulted in prolongation of litigation between the parties. We are of the view that an order for deletion of the house from the list having been passed by the competent authority, its disposal by drawing of lots was wholly unlawful. But, the argument of the learned counsel for the respondent is that the order, dated 10-2-1960 was acted upon; the house deleted from the list but it was again included therein subsequently. There is, however, nothing on the record to warrant such an inference; rather, the Additional Settlement Commissioner's order, dated 5-10-1960 clearly indicates that the house was not deleted from the list and the D.S.C. Disposed it of in disregard of the order, dated 10-2-1960. It is to be remembered that only those houses had to be disposed of through earmarking, in contemplation of para. 4 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which could not be transferred to the occupants thereof under paras. 1, 2 and 3 of the Schedule.
8. It remains to be considered whether or not the appellant can take advantage of Notification No,F.3(3)/60-SI issued under the Central Government's order, dated 3-8-1960, and be treated in possession of the house, for the purposes of the Act. But, before adverting to this notification, whereby the definition of the term "possession" incorporated in section 2(6) of the Act was amended, it appears appropriate to refer here to Chief Settlement Commissioner's memorandum No,1600-Com-Reh./59, dated 1st August, 1959, which dealt with the transfer of evacuee houses placed at the disposal of various Government departments, to the Government servants in possession thereof. II laid down that: ' The chief Settlement Commissioner has decided that a house duly allotted to a Government servant by a Department of the Central or Provincial Government may be transferred to him under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, provided he was in possession of such house in pursuance of an order issued by a competent authority on or before the 20th December, 1958 "
' The notification dated 3-8-1960 fell for adjudication before this Court in the case of Asghar Hussain and another v. Dr. A.H. Hamid Musa and another 1968 SCM R 475 and after referring to the Chief Settlement Commissioner's memorandum aforesaid, at page 482 of the report it was observed: "This was amended by an order issued by the Central Government on the 3rd August, 1960, to the effect that a claimant who did not satisfy the condition of having obtained possession of the property by an order passed by a competent authority before the 20th December, 1958, but was in possession of a house in pursuance of such an order passed after the 20th December 1958, but before the 3rd August 1960, should for the purposes of the Act, be deemed to be in possession provided that his occupation was undisputed and "no other person is otherwise entitled to the transfer of such house in pursuance of a final order passed by competent authority." As a result of the later instruction, the date 20th December, 1958, no longer remained a final or terminal date in respect of officers occupying houses allotted to Government Departments and occupied by them under the authority of the allottee Department, but was extended to possession so obtained under orders made on or before the 3rd August 1960."
It is obvious that according to the instructions of the Chief Settlement Commissioner the allotment made to a Government servant by his department, at whose disposal the evacuee house had been placed, was to be deemed to be allotment by a competent authority, to qualify for transfer under the Act. In the paper-book before us there is an order, dated 27-1-1951 passed by Mr. I.U.
Khan, the then Commissioner, Multan Division, which amply demonstrates that the house in dispute was on the pool of the Land Reclamation Department and allotted by them to the Assistant Land Reclamation Officer, for the time being, posted at Khanewal. At page 83 of the paper-book we notice a certificate issued by the Land Reclamation Officer to the effect that the house in dispute throughout remained reserved for Assistant Land Reclamation Officer, Khanewal; it was allotted to the appellant and was in his possession since 1-4-1960. The appellant's claim that the house was allotted to him by his department and he occupied the same on 1-4-1960 has remained uncontroverted before us. It appears from D.O. Letter dated 5-4-1960 (at page 84 of the paper book) by the appellant to the A.S.C. That he sent his CH Form to the D.S.C.'s Office on 2-4-1960 but it was not entertained, as he was required to attend the Settlement office personally. The appellant was then on tour and due to exigencies of service expressed his inability to appear before the D.S.C.
In person, and requested that the form be registered in his absence. From these premises, it can well be inferred that the appellant submitted his C.H. Form on 2-4-1960, and again upon the communication of the D.O. Letter to the D.S.C. He is a claimant displaced person and submitted C.H.
Form and thus, was eligible for transfer of the property in his name. From the record before us it has not been established that rejection of his Form C.H. By the Deputy Settlement Commissioner was conveyed to him. In any case, upon the analysis of the case by us, the reasons which weighed with the authorities below for rejection of his form are hardly tenable in law. The High Court fell in error in interfering with the Settlement Commissioner's order, dated 8-5-1961.
' For the foregoing reasons, this appeal is accepted, the judgment of the High Court is set aside and the Settlement Commissioner's order, dated 8-5-1961, in so far as it relates to the transfer of the house in dispute to the appellant, is restored. The parties are left to bear their own costs.