' Property No, 10, Montgomery Road, Lahore, is situated in Khasras Nos. M34 and 5437. It is a huge property, comprising a bungalow with open land attached to it. It as owned by Dr. Bat Krishen Kaul, Raja Hari Kisban and Raja Daya Kishen Kaul. In 1945, in a family partition effected through an arbitration award, the said property fell to the share of Lala Hari Kishen Kaul and Raja Daya Kishen Kaul. However, up to the time of Partition the mutation relating to the change of ownership was not entered into, with the result that the said property continued to appear in the name of Dr. Bal Kishen Kaul in the revenue records. Since the property continued to appear in the name of Dr. Bat Kishen, Mst. Maryam, one of the daughters of Dr. Bal Kishen, who had embraced Islam and married a Muslim and continued to reside in Pakistan, claiming to be the owner of the said property, on 7- 4-1956, sold a part of the property in the shape of a plot, measuring 1 canal 2 marlas and 68 sq. Ft., in favour of Shamshad Ali, Managing Director of Burewala Bus Service, by a registered sale deed, and Mutation No, 1336 was sanctioned in favour of the vendee by the Revenue authorities.
2. In 1962 the property held by Burewala Bus Service was shown as "available property" in the Settlement record for auction. The Burewala Bus Service accordingly applied for the deletion of the said property from the list of properties to be auctioned. They also applied to get the status of the property to be declared as non-evacuee. In the protracted litigation that ensued, the Custodian held on 7-2-1964 that the property was evacuee property which view was upheld in the second round of litigation by the order of the Custodian passed in June 1975.
3. During the pendency of the litigation, above referred, Messrs Burewala Bus Service, on 7-5-1963, rented out 1 kanal 91 sq. Ft. Of the land in favour of respondent No, 2 on monthly rent of Rs, 200 by a rent deed. Respondent No, 2, after getting this property on rent, raised permanent construction thereon in the shape of a workshop and four shops, in 1964. One of these shops was rented out to the petitioners, who paid rent for some time, but later on became defaulters. However, no action was taken against them in respect of this default.
4. On the 16th of November 1965, Settlement Scheme No, VIII was promulgated under subsection (3) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, for the cancellation of transfers, resumption and disposed of resumed and other properties. Under this Scheme, houses, shops, building sites etc. Which had not yet been transferred to any persons were to be treated as "available properties" and could be transferred in accordance with the terms of the said Scheme., This Scheme was amended from time to time, and the first important amendment was effected by Notification No, 53-10-Pol/66, published in the Gazette of West Pakistan, Extraordinary, on 12th September 1966, whereby the existing Chapters III and 1V were substituted. Chapter III contained the provisions relating to disposal of available property. Para. 6 dealt with the transfer of houses and shops to persons in possession thereof, and the word "possession" was defined to mean possession within the meaning of the Act, i,e, possession on or before the 20th day of December 1958. Para. 9 dealt with the question of disposal of other available properties through public auction.
5. By Notification No, 1538-Pol/70(1), published in the Gazette of Pakistan, Extraordinary, dated 26th November 1970, Settlement Scheme No, VIII was further amended, whereby, for para. 9 of the existing provision, a new provision was substituted. Clause (d) thereof is relevant for our present purpose, and the partinent part thereof may be reproduced below :- "(d) Building sites, not disposed of under Settlement Scheme No, VI, on which permanent constructions have been made, will be transferred to the occupants on market value prevailing at the time of transfer, in the following manner :-
(i) Applications shall be invited by the Chief Settlement Commissioner through notification in the official Gazette specifying the date up to which the authority to whom and the manner in which such application shall be made. ,(ii) The Chief Settlement Commissioner may condone delay in filing application for good and sufficient cause to be recorded. ,(iii) ....................... ,(iv) ...................... ,(v) ......................
(vi) Where any person having made a permanent construction on an evacuee building site does not apply for the transfer of this site, he shall be ejected from the site and structure raised shall be taken over as part of the building site and shall be disposed of through unrestricted public auction.
A charge for the value of the structure shall, however, be created in favour of the person having raised, that structure and the charge shall be satisfied in full out of the auction proceeds.
' OM Building sites not disposed of as above shall be put to auction twice and, in case the bids offered during these auctions fall short of the reserve price or the auctions go without bids, such building sites shall be disposed of by negotiations ...................
' It is to be noted that the term "occupant" has been used for the first time, instead of the word possession, in Settlement Scheme No, VIII.
6. Under para. 9(d)(i), reproduced above, applications were to be invited for transfer, on market value prevailing at the time of transfer of evacuee building site or portion thereof, not yet disposed of under Settlement Scheme No, VI, or otherwise under the law from the occupants, who may have raised permanent construction thereon. The last date of receipt of applications in "Form BS Scheme VIII" by the Deputy Settlement Commissioner under the Notification was to be 15th January 1971.
Respondent No, 2 applied for the transfer of the site in dispute on 12-1-1971, whereas the petitioner No, 1 (Abdur Rehman) submitted their form on 11-2-1971. Shamshad Ali (of the Burewala Bus Service) also appears to have submitted a form on 16-1-1971. The Deputy Settlement Commissioner, Centre- I, Mr. Iqbal Ahmad Bokhari however, considered the case of Haji Muhammad Saleem and that of Sbamshad Ali and was of the view that Haji Muhammad Saleem was found to be in physical occupation of this building site. He was entitled to the transfer of Khasra No, 5437, vide his order dated 12-7-1971.
7. Abdur Rehman, petitioner No, 1, filed an appeal against the said order, complaining that he was not heard before the order dated 12-7-1971 was passed. His appeal was heard along with the appeals filed by some other applicants for other portions of the same Khasra number, and accepted by the Additional Settlement Commissioner, vide order dated 22-6-1972 and the case remanded for fresh decision, in accordance with law.
8. On remand, the case was taken up Mr. Muhammad Nawaz Hashmi,. Deputy Settlement Commissioner-II and Plots, Lahore, and so far as the case of the petitioners is concerned, came to the conclusion that the: construction over the site had been raised by Haji Muhammad Saleem,.
Respondent No, 2, and that even though both the petitioners were in physical possession of one of the shops and the said possession was in their capacity of licences of respondent No, 2, Haji Muhammad Saleem, in so far as the shop bad already been constructed by him when they occupied it. According to him as the construction over the plot was made by Haji Muhammad Saleem, respondent, and he was to be deemed to be in possession thereof, he was the only person entitled to the transfer of the plot, whereupon he had raised the construction. Accordingly, vide his order dated 7-4.1976 the BS form of the petitioner Abdur Rehman was rejected. This writ petition is directed against the aforementioned order.
9. Mr. R. S. Sidhwa, Advocate, for the petitioners has argued that by the time the case was decided by the learned Deputy Settlement Commissioner, viz. 7-4-1976, the law had undergone a drastic change. By the Evacuee Property and Displaced Persons Law (Amendment) Act, 1973 (Act LV of 1973). Clause (6) of section 2 of the Act, winch defines the word "possession" to mean possession obtained on or before the 20th day of December 1958, was omitted. Thereafter, Settlement Scheme No, VIII was entirely reconstituted, vide Notification No, 1100-Po1/73, published in the Gazette of Punjab Extraordinary, dated 13th August 1973, whereby building sites were to be disposed of and the following provisions thereof are relevant "7. A house or a shop not transferred under para. 5 and all other available property will be disposed of in the following manner (OW building sites not disposed of under Settlement Scheme No, VI, on which permanent construction has been raised at any time, shall be transferred to occupants on prevailing market price;
(ii) where any person having made permanent construction on an evacuee building site, does not apply for transfer of this site, he shall be ejected forcibly from the site and the structure raised thereon shall be taken over as part of the building site without any compensation for the said structure ;
(f) building sites not disposed of under para. (e) and all other building sites shall be left to the Provincial Government to decide whether these should be transferred to the existing occupants or should be taken over and ultimately disposed of by that Government."
' The contention of the learned counsel for the petitioners is that in view of the change in the law, the concept of "possession" as defined in the Act, is to be totally disregarded and in accordance with the provisions of clause (e)(i) of para. 7 of Settlement Scheme No, VIII, as finally reconstituted, the portion In actual physical occupation of the petitioners is liable to be transferred in their favour as they are its occupants and it cannot be transferred to Haji Muhammad Saleem, respondent, notwithstanding the fact that the permanent construction raised thereon was raised by him.
Learned counsel for the petitioners has argued that the provisions of sub-clause (i) of clause (e) aro intended to benefit the actual occupants of the site irrespective of whether or not they raised the permanent construction in which they are residing, and in this connection emphasised the words "on which permanent construction has been raised at any time, shall be transferred to occupants
10. The learned counsel for respondent No, 2 argued that in the Scheme whereunder both the parties applied, which was notified on 26-11-1970, under para. 9(d)(0, as amended by Notification dated 26-11-1970, applications were invited for transfer of evacuee building sites or portions thereof to the occupants who may have made construction thereon, and, therefore, a person who had not raised permanent construction could not at all be considered for transfer. Hence the 13. S. Form of Abdur Rehman petitioner was liable to rejection on this short ground. Moreover, ho had submitted his form after 15-1-1971, therefore, it was also barred by time.
11. These contentions cannot be accepted. The law is that in the interpretation of instruments, like the Displaced Persons (Compensation and Rehabilitation) Act, and the Schemes made thereunder, it is the scheme or the statutory instructions which are in force at the time of the final decision of the matter that has to be given effect to rather than the terms of the scheme or instructions in force at the time when the application for transfer of the evacuee property is submitted. (See in this connection Rafi-ud-Din v. Chief Settlement and Rehabilitation Commissioner (1). The contention advanced was that the appellants in that case had acquired an indefeasible vested right to the transfer of the cinema house in dispute on the day they filed their application for transfer on the 29th of August, 1959, under the provisions of sub-paragraph (2) of paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as they stood on that date and since this became a right vested in the appellants in consequence of their assertion of their right, namely, the making of the application for the transfer, it could not be taken away by a subsequent notification issued in exercise of powers granted by a subsequent amendment of the Schedule." Mr. Justice Hamoodur Rahman, C. J. (as he then was), answered the question as follows :- "The question that now arises is as to whether, as suggested by the learned counsel for the appellant, such a right is perfected and becomes accrued or vested merely by its assertion, i,e, upon the unilateral expression of the will of the claimant ? I think not. To accept that a right becomes complete and accrued as soon as one elects to assert that right would, in my view, be accepting a startling proposition. I have not been able to discover any principle or precedent which would support such a proposition ' The conclusion was expressed as follows...
"A review of the decisions of this Court thus confirms me in the view that this Court has never accepted that a claimant acquires a vested right to the transfer of a specific evacuee property from the moment he makes an application for such transfer and that it has consistently been held that under the powers reserved to the Central Government by paragraph 10(b) of the Act of 1958 itself it is open to the Central Government to lay down a different mode of disposal either generally with reference to a class of property or specially with regard to a specific property even after a claimant has so asserted his right, at any rate, until the property has not been finally transferred to any one.
(Underlining* is mine)
12. So far as the contention that Abiur Rehman's B.S. Form was time-barred, suffice it to say that this objection was not taken before the Deputy Settlement Commissioner. Even otherwise, it cannot be accepted in view of the dictum of the Supreme Court in the case of Altaf Hussain v. Chief Settlement Commissioner (2).
13. The main question for decision in this matter, therefore, is as to the true interpretation of the word "occupant" used in clause (e)(1) of para. 7 of the reconstituted Scheme, 1973. Mr. Sidhwa drew my attention to the case-law relevant to the meaning of the word "possession" as defined in section 2(6) of the Act, as well as the notifications issued thereunder. He first referred to the definition of the word ''possession" given in section 2(6), viz. Possession obtained in pursuance of an allotment order passed on or before 20th December 1958. Since it was discovered that a large number of refugees were occupying properties without any allotment orders, a notification was issued on 13-10-1959 under section 2(6), whereby a person in undisputed occupation, before 21-12- 1958, was also deemed to be in
(1) PLD 1971 SC 252 (2) PLD 1965 SC 68 *[Here in italics] possession, even though he had no allotment order in his favour passed on or before 20th December 1958. Thus persons in "undisputed occupation" namely enjoying occupation free from legal dispute were to be deemed to be in possession of the property so as to be entitled to obtain transfer of it. He admits that the word "possession" was held in various judgments to include 'constructive possession". Thus in Fatehyab Khan v. Amite Hafeez (1) it was observed that "The definition of "possession" does not at all say that the claimant must be in physical possession of the property. A constructive possession also will be a "valid possession." In this case a man who was an allottee and bad possession of the flat through his wife and children was not transferred the flat on the ground that he had no physical possession of it. The High Court held that the possession of the wife and children was the possession of the husband allottee and transfer could be made to him.
In Muhammad Murder Shah v. Akbar Jan (2) it was observed "The possession contemplated by the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act XXVIII of 1950 is no doubt physical possession, but I am clear in my mind that a landlord who has let out property to a tenant has to be deemed to be in possession" In this case the contest was between a mortgagee and his tenant. In an earlier case of Chiragh Din-Ghulam Mohammad v. Ramzan etc. (3) allottees of shares of income in industrial concern were held to be in constructive possession, on the basis of the instructions of the Chief Settlement Commissioner, issued under the directions of the Central Government. In Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore (4) the owner in possession through licensee was held to be constructively in possession. These cases, according to the learned counsel, have become irrelevant owing to the omission of the word "possession" in the definition clause of the Act. In Imam Din v. Hameed Hussain (5) the word "possession" was held to be wide enough to include "constructive possession" or "possession in law" and no reason was found to limit its scope only to "physical possession". In this case it was further observed that "physical possession" is sometimes described by the word "occupation" and if the Legislature intended to restrict the word "possession" to "occupation" then it would have used, that word instead of the word "possession". This judgment has been strongly relied upon by the learned counsel for the petitioners to bring out the difference between the word 'possession" as employed heretofore and the word "occupation" used in the present scheme.
14. To appreciate the significance of the fresh terminology employed in the Scheme, the learned counsel has argued that section 10(3) of the Act enabled the Chief Settlement Commissioner, with the prior approval of the Central Government, to frame a scheme for the transfer of any property in the compensation pool, notwithstanding anything contained in subsection (1) of section 10. The previous concept that a transfer of a building site could be made only if the applicant fulfilled the conditions of para. 13 of the Schedule to the Act is no longer valid. On the other hand, now any scheme even inconsistent with the provisions of the Schedule of the Act will be quite valid as it is framed under section 10(3), which lays down that
(1) PLD 1963 Kar. 953 (2) PLD 1963 Lab. 59
(3) PLD 1962 Lah. 714 (4) PLD 1965 Lah. 445
(5) PLD 1967 Lab. 419 ' the said schemes can be framed notwithstanding anything contained in subsection (1) of section 10, which lays down :- "10. Power to transfer property from compensation pool.-(1) Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner, or any other officer authorised in writing in this behalf by him, may transfer or dispose of any property out of the compensation pool on evaluation basis, or by sale, by means of auction or otherwise, in accordance with the provisions of the Schedule."
(Underlining* is mine)
' While para. 13 of the Schedule to the Act which deals with the transfer of building sites and provided in sub-para. (3) thereof that an evacuee building site which has been- "(3) in unauthorized possession of any person and that person has constructed a permanent building on it, then that site shall be transferred to that person on payment of the prevailing market value plus fifty per cent. Of such market value." ' is no longer the governing rule, Scheme No, VI which was framed to carry out the purposes of paras. 13 and 14 of the Schedule is no longer relevant. The said Scheme, moreover, was framed under the provisions of section 16 of the Act, which gave power to the Chief Settlement Commissioner to frame it, subject to the provisions of the Act and the Rules made thereunder. In short, para. 7(e)(i) of the Scheme No, VIII as finally reconstituted is to be interpreted strictly in accordance with its tenor, unhampered by any concept based on the interpretation placed on the word "possession" from time to time with reference to the provisions of section 2(6) of the Act, which now stands omitted.
15. The word "occupant", according to the learned counsel, means one who occupies or takes possession, one who has actually used or possessed or is in possession of a thing. In this connection the Webster's New International Dictionary has been referred to. According to this Dictionary the word "occupation" is different from the word "occupant". "Occupation" means the act or process of occupying or taking actual possession and control and status of being occupied ; tenure ; used Thus it is argued that whereas the word "occupation" might touch the status of the process of occupation, or tenure, the word "occupant" much more strongly emphasises the connection of the actual or physical possession of the person to the thing occupied. The learned counsel further argued that the object of the Scheme was that all available properties had to be disposed of and all technicalities and hindrances in the way to achieving this object had been surmounted by the new formula, and the properties made transferable to all persons who were in actual physical possession thereof. It did not matter how the occupants had entered into possession. If the occupant was in factual possession at the time of the corning into force of the Scheme, he was entitled to its transfer, whether or not the construction on the site was or was not raised by him. Reliance was also placed on Yousaf Baig v. Settlement and Rehabilitation Commissioner (1). However, the perusal of the said judgment does not advance the case of the petitioners.
'[Here in Italics)
(1) 1974 SCMR 276
16. In reply, the learned counsel for the respondents has relied upon Ambo Jan v. Assistant Settlement Commissioner (1) where a question similar to the one being canvassed before me arose for determination. A person in actual occupation of the property was claiming transfer of the evacuee property as against his landlord and it was held that the landlord rather than the tenant was to be treated as in occupation for the purpose of transfer. In that case, interpretation of the word "occupation" in para. 3 of Settlement Scheme No, VII was involved and it was held "their (tenants) occupation was evidently not in their own right but on account of the rights that Mst.
Ambo Ian had. For the reasons we will hold that where a person in actual occupation of the property is not in occupation in his own right but as a tenant of another person, the latter and not the former shall be treated to be in occupation for the purposes of transfer of evacuee property under Settlement Scheme No, VII.
17. Mr. Sidhwa tried to minimise the impact of this judgment on the plea that the learned Judges deciding the above case had referred to various other cases wherein the words "occupation" and "occupant" accruing in different enactments were interpreted, but those were not relevant as they dealt with entirely different situations and the judgment in Ambo Jan's case was not helpful in the present case. Hence the said judgment should not be followed. He also argued that in para. 5 of the reconstituted Scheme dealing with the transfer of houses and shops, the word "possession" has been used whereas under para. 7(e) of the Scheme the word used is "occupant". The use of the words "possession" and "occupant" separately entitled these words to have separate meanings.
The word "occupation" can only mean one under actual physical possession.
18. I agree with Mr. Sidhwa that the word "occupation" has been introduced in Scheme No, VIII to do away the technical meaning of the word "possession", namely, of coming into possession under an allotment order or otherwise, on or before 20th December 1958, and undoubtedly enables all persons who are in actual physical possession of a building site to obtain transfer of the said building site. The only qualification is that a permanent structure should have been raised on it.
Thus, if on a building site a permanent construction has been raised at any time, it is liable to be transferred to the occupant. The provision of para. 7(e)(ii) does not relate to qualification for transfer. It only refers to the fact that if a person who is not eligible to be transferred property under para. 7(e)(i) does not apply for transfer, what consequences will follow. Under para. (OM , the conditions for eligibility to transfer are that (1) there must be a permanent construction on the site and (2) the site must be transferred to the occupant thereof, There does not appear to be any limitation to the effect that the permanent construction should have been raised by the occupant himself.
19.
No problem exists if there is no competition for transfer between the person who raised the construction and the person in actual physical possession of it. The difficulty, however, arises in those cases where the person who has raised the construction has let out the property to a person or allowed some person its use and both the landlord and the tenant, or the licensee, are applying for its transfer. It is in such a situation that the question would arise as to which of the two applicants for the site is to
(1) PLD 1975 Pesh. 244 ' be deemed to be its occupant. In such a situation, in my view, the person baving the superior right to the use and enjoyment of the property must considered in law to be the occupant of the property in question. A tenant holds the property on behalf of his landlord and is in occupation only under him. As observed in Ambo Jan v. Assistant Settlement Commissioner (1) a tenant cannot be allowed to deny the title of his landlord. The reason is obvious because otherwise trespassers, guests, licensees and every other type of person who has managed to obtain occupation of a property shall be claiming preference for its transfer over the person who had constructed it and was either illegally ousted from it or had allowed its use and occupation to another on certain terms. To avoid such undesirable consequences, although the word "occupant" used in para. 7(e)
(i) normally' shall be the person in actual physical occupation but in case the landlord o such occupant himself claims transfer, the latter will be deemed to be the occupant for the purposes of transfer. Thus, it is only where the occupant does not come into competition with the person who had inducted him into the property, which the latter had himself constructed, will the actual physical occupant be able to secure its transfer, in preference to his landlord.
20. The conclusion is that the petitioners cannot be deemed to be the occupants of the site and respondent No, 2 was to be deemed to be its "occupant". Hence there is no ground for interference with the impugned order. The writ petition fails, but in view of the delicate point of law involved, there will be no order as to costs.
(1) PLD 1975 Pesh. 244