SAIDUZZAMAN SIDDIQUI, J.---The abovementioned to civil appeals with the leave of this Court are filed to call in question the judgment of a learned Judge in Chambers of Lahore High Court passed in Writ Petitions Nos.338-R of 1982 and 339-R of 1982 on 19-10-1992.
2. The relevant facts of the case `are that Property bearing No.B-VI-S--10/283, Sheikhupura consisted of to shops on the ground floor and a residential portion on the first floor. The residential portion was in possession of one Muhammad Manzoor Alam son of Muhammad Ibrahim. The said Manzoor Alam applied for transfer of the entire property , as a residential building while in respect of to shops on the ground floor Muhammad Shafi, predecessor-in-interest of respondents in Civil Appeal No.348 of 1994 and Muhammad Siddique, predecessor'-in-interest of respondent No. l in Civil Appeal No.349 of 1994, applied for transfer on N.C.H. Form. The Deputy Settlement Commissioner concerned by his order dated 29-10-1959 transferred the whole property consisting of to shops on the ground floor and residential portion thereon to Manzoor Alam. Muhammad Shafi challenged the above order of Deputy Settlement Commissioner in appeal which was allowed by the Additional Settlement Commissioner, by order dated 8-2-1960 and the residential portion and the to shops were held to be separate units. The Additional. Settlement Commissioner, accordingly, remanded the case to the Deputy Settlement Commissioner to determine afresh the entitlement for transfer of the property to the three applicants namely; Manzoor Alam, Muhammad Shaft and Muhammad Siddique. After remand of the case by the Additional Settlement Commissioner, the Deputy Settlement Commissioner took up the case of the abovementioned three claimants and by order dated 12-5-1960 rejected the claim of Muhammad Shaft who claimed transfer of shops under Settlement Scheme No.VI. The Deputy Settlement Commissioner also found that the other applicant Muhammad Siddique was not entitled to the transfer of the shop claimed by him as he was not in possession of that shop. The order of Deputy Settlement Commissioner dated 12-5-1960 was challenged in appeal filed by Manzoor Alam. The Additional Settlement Commissioner on the appeal of Manzoor Alam by his order dated 15-6-1960 ordered disposal of to shops on the ground floor by public auction. Against the order of Additional Settlement Commissioner dated 15-6-1960 to revision applications were filed, one by Manzoor Alam and the other by Muhammad Shafi.
However, the other claimant, Muhammad Siddique, did not challenge the above order of Additional Settlement Commissioner The Settlement Commissioner by his order dated 28-2-1961 dismissed both the revision applications. Against the order of Settlement Commissioner, no further proceedings were taken by the parties with the result the to shops on the ground floor were put to auction on 19-12-1967 and were purchased by one Mst. Kulsum. However, it appears that said Mst.
Kulsum did not pay the transfer price of the shops with the result the same were cancelled and re- auction of the shops was ordered While these. Proceedings were going on, on 10-8-1971, Martial Law Regulation No.86 (hereinafter to be referred as the Regulation' only) was promulgated. Paragraph 4 of the Regulation gave right to an unauthorised occupant of evacuee property to apply to the Chief Settlement Commissioner for transfer of the property in his occupation either before the issuance of notice to him under paragraph 3 of the Regulation or within 15 days from the receipt of such notice. It appears that Muhammad Shafi and Muhammad Siddique both applied for transfer of to shops on the ground floor on the basis of their alleged possession, under paragraph 4 of the Regulation. It also appears that Irshad Ahmed and Saeed Ahmed sons of Hassan Muhammad who claimed to be in possession, of one of the to shops also applied for transfer of the shop in their possession as a building site. The Administrator of the Residual Properties by his order dated 15-3- 1972 transferred the to shops on the ground floor to Muhammad Shaft and Muhammad Siddique respectively. The appellants in the above appeals filed to Writ Petitions being Nos.574-R of 1973 and 276-R of 1972 before the Lahore High Court to challenge the order of Administrator, Residual Properties. By judgment dated 1-3-1980 both the writ petitions were allowed and the case was remanded to the Notified Officer by the High Court as follows:-- "The case is remanded to the Notified Officer under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, for deciding the pending applications of the parties in accordance with law and after issuing theta notices and affording reasonable opportunity of being heard."
After remand of the case, the Settlement Commissioner in his capacity its Notified Officer by order dated 12-6-1982 transferred one shop on the ground floor to Israr Ahmed, predecessor-in-interest of appellants in Civil Appeal No.348 of 1994 while the other shop was transferred to the appellants in Civil Appeal No.349 of 1994. The order of Settlement Commissioner was challenged in to writ petitions filed by the legal heirs of Muhammad Shaft and Muhammad Siddique respectively before the Lahore High Court being Writ Petitions 338 and 339-R of 1992. Both these petitions were accepted by a learned Judge in Chambers of Lahore High Court through the impugned judgment dated 19-1U-1992 against which leave was granted by this Court to consider the following contentions:- "2. Two evacuee shops were transferred to Muhammad Shaft and Muhammad Siddique, the predecessors-in-interest of the respondents in Civil Petition 1057-L of 1992 and Civil Petition No.1058-L of 1992, respectively. The transfer was made under Martial Law Regulation No.86 on the basis of their possession. The order of transfer was challenged by Irshad Ahmad, petitioner No.1 in Civil Petition No. 1058-L of 1992, through Writ Petition No.276-R of 1972. The writ petition was accepted and the case was remanded to the Notified Officer for a fresh decision on the question as to whether the petitioners are occupying the shops as licensee. The Settlement Commissioner, Lahore Division, held that as the petitioners were occupying the shops in question, they are entitled to the transfer of the said shops and that the transfer of the shops in favour of the respondents is not valid. This order was challenged in to separate writ petitions by the respondents. The learned Judge in Chamber accepted the writ petitions on the basis that in the previous- proceedings the occupation of the respondents had been accepted as tenants. The learned counsel has referred to the admission made in the earlier writ petition, which is in- the following terms: That the petitioner being poor person accepted the tenancy of aforesaid Muhammad Rafi due to his meagure resources and started regular payment of rent to him and Muhammad Rafi was not issuing any receipt for the rent. The Martial Law Regulation No.86 had been promulgated any property was unearthed and Muhammad Raft in connivance with Additional S.C. Had managed to get the property transferred in favour of Muhammad Siddique.'
'The learned counsel for the petitioners stated that as the petitioner (in Writ Petition No.276-R of 1992) never accepted that he had been inducted as tenant by the respondents, his admission in favour of Muhammad Raft does not extend to the respondents. The learned counsel stated that the respondents were never in possession of the shops in dispute, therefore, these shops could not be transferred to them.
Leave is granted in these to petitions."
3. The main thrust of the arguments of the learned counsel for the appellants in the above appeals is that the deceased respondents Muhammad Shafi and Muhammad Siddique not being in possession of the to shops on the ground floor were not entitled to the transfer of the same under paragraph 4 of the Regulation. It is contended by the learned counsel for the appellants that the appellants being in physical occupation of the to shops were entitled to their transfer under paragraph 4 of the Regulation.
4. It is conceded before us that in so far Israr Ahmed, the predecessor-in--interest of appellants in Civil Appeal No.348 of 1994 is concerned, he made no formal application for transfer of the shops under the Regulation. The learned counsel, however, contended that during proceedings of Writ Petition No.276-R of 1972 the original record was summoned from the office .Of the Settlement Commissioner and it was found by the Court that there was an entry in C.S.2 register of the application alleged to have been filed by Israr Ahmed, the predecessor-in-interest of appellants in Civil Appeal No.349 of 1994 at Serial No.544 dated 24-2-1961 for transfer of an open plot. Firstly, no, attempt was made either after the remand proceedings or before the High Court to place on record the copy of the alleged application for transfer of the open plot made by Israr Ahmed and secondly, in any case the to shops on the ground floor were ordered to be disposed of by public auction on 15-6-1960 and this order was upheld by the Settlement Commissioner on 22-8-1961 and the property was in fact put to public auction and purchased by Mst. Kalsum but Israr Ahmed who allegedly had filed application for transfer of the shop as building site did. Not call in question these proceedings. In these circumstances in so far Israr Ahmed is concerned, he could not lay claim for transfer of any of the to shops. In so far the entitlement of Irshad and Saeed Ahmed, appellants in Civil Appeal No349 of 1994 is concerned, they did apply for transfer under paragraph 4 of the Regulation. The learned counsel for the appellants has heavily relied on report of Deputy Settlement Commissioner dated 11-11-1971 wherein 'he examined the entitlement of all the applicants under the Regulation. According to the learned counsel for the appellants this report fully supported the claim of the appellants for transfer of the shops as they were found in physical possession thereof. The report relied by the learned counsel for the appellants, states that Saeed Ahmed and Irshad Ahmed (appellants in civil Appeal No.349 of 1994) are in possession of shops Nos. l-A and 2-A which is in adverse possession of Muhammad Siddique. Since Israr Ahmed never applied for transfer of shop in his occupation under para. 4 of the Regulation, he could not be transferred the said shop. In so far the shop in possession of Irshad Ahmed and Saeed Ahmed was concerned the same could not be transferred to them under paragraph 4 of the Regulation as they were not in possession of the shop in their own right. Similarly, Shop No. l-A which was shown in physical possession of Israr Ahmed was stated to be in adverse possession of Muhammad Shafi. In paragraph 9 of the report relied by the learned counsel for the appellants, the Deputy Settlement Commissioner made recommendation that if the shop is to be transferred on the basis of the adverse possession then it should be transferred to Muhammad Shafi and Muhammad Siddique respectively who had paid arrears of rent of these to shops. It was also suggested that if these shops are to be transferred on the basis of physical possession, the same may be transferred to the actual occupants. In the end, it was recommended that if the property is to be auctioned then all persons will have equal opportunity to compete for the transfer of said shops. The learned counsel for the appellants has not been able to explain the expression of 'adverse possession' used in the above report of Deputy Settlement Commissioner dated 11-11-1971 with reference to Muhammad Siddique and Muhammad Shafi. After going through the above report of Deputy Settlement Commissioner carefully, we are of the view that the expression of "adverse possession" has been used in the above report by the Deputy Settlement Commissioner to indicate that the constructive possession of these to shops was that of Muhammad Shafi and Muhammad Siddique respectively, while Irshad Ahmed and Saeed Ahmed and Israr Ahmed were in actual possession of these shops. The learned Judge in Chambers in the impugned judgment has referred to the admission made by the appellants in the earlier writ petition wherein they stated that being poor persons they accepted the tenancy of the shops under one Muhammad Rafi. There is nothing on record to show that the appellants were tenant of one Muhammad Rafi. On the contrary, the previous litigation in the case and the report of Deputy Settlement Commissioner relied by the learned counsel for the appellants supported the contention of the respondents that appellants were tenants of Muhammad Siddique and Muhammad Shafi in respect of the disputed shops. It is true that under the Regulation an unauthorised occupant has been given right to apply for transfer of the property either before issue of a notice under paragraph 3 of the Regulation or within 15 days of the issuance of such notice. However, the unauthorised occupation referred in paragraph 4 of the Regulation does not include a permissive occupation of a person as tenant, guest or licensee of another person. The unauthorised occupation in paragraph 4 of the Regulation refers to the occupation of a person in his own independent right and not on behalf of another person. The word 'occupation' used in Settlement Scheme No.VIII with reference to the right of an occupant to claim transfer of the property came up for interpretation in the case of Abdul Rehamn v. Deputy Settlement Commissioner (PLD 1977 Lah. 576). Nasim Hasan Shah, J. (as his Lordship then was) while considering the right of a person to claim transfer of property under Settlement Scheme No.VIII on the basis of his occupation observed that such occupation must be in the right of person claiming transfer and not on behalf of another person. The following observations made in paragraph 19 of the report at page 585 of the case may be reproduced here With advantage:-- "It is in such a situation that the question would arise as to which of the to applicants for the site is to be deemed to be its occupant. In such a situation, in my view, the person having the superior right to the use and enjoyment of the property must be 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 (PLD 1075 Pesh. 244) 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. i.e)(i) normally shall be the person in actual physical occupation but in case the landlord of 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 ableto secure its transfer, in preference to his landlord."
I am inclined to agree with the above interpretation of word 'occupant' under Settlement Scheme No.VIII which equally applied to the provisions of the Regulation and accordingly, hold that the appellants in Civil Appeals Nos:348 and 349 of 1994 being in occupation of the shops as tenants of Muhammad Shafi and Muhammad Siddique, they were not entitled to seek transfer of these premises on the basis of their possession under. The Regulation. No case for interference with the judgment of the High Court is made out. The appeals are, accordingly, dismissed but in the circumstances of the case, there will be no order as to costs.
MUKHTAR AHMAD JUNEJO, J.---I have had the benefit of going through the judgment authored by my learned brother Saiduzzaman Siddiqui, J., dismissing these appeals and the dissenting judgment authored by my learned brother Khalil -ur-Rehman Khan, J., accepting these appeals.
For the reason given in this note/judgment I agree with the conclusion arrived at in the latter judgment and find myself unable to agree with the conclusion and the reasons given in the former judgment.
The property in litigation consists of to shops, which are part of Property No.BVI-X-S-2-83, Sheikhupura, left by evacuee Santa Singh. Entire property including the shops in question, was transferred vide an order dated 29-10-1959 by the Deputy Settlement Commissioner to M. Manzoor Alam, who was already allotted the residential part of it. Said order in respect of the shops, was set aside on 8-2-1960 by the Additional Settlement Commissioner in an appeal filed by Muhammad Shaft, who claimed being in possession of one of the to shops. The matter was remanded to the Deputy Settlement Commissioner with direction to give fresh decision separately in respect of each of the to shops. Under his order dated 12-5-1960 the Deputy Settlement Commissioner rejected C.H.
Form of Muhammad Shafi but left it open for his application to be accepted, under Settlement Scheme No.VI, for transfer of both the shops to him. The Deputy Settlement Commissioner found Muhammad Shafi running his flour "Chakki" in one shop and storing his articles in half of the other shop, where other half was occupied by Mehmood Ahmad a local. Under an order dated 15-6-1960 the Additional Settlement Commissioner directed disposal of the shops in question by auction. Said order dated 15-6-1960 was assailed under to revision applications, one filed by Muhammad Shafi and another filed by M. Manzoor Alam. Under an order dated 22-8-1961 the Settlement Commissioner rejected both the revision applications and directed the shops in question to be disposed of by auction. At one stage the shops were auctioned, but later on such auction was cancelled on 19-12-1967 by the Additional Settlement Commissioner, who ordered re-auction.
Disposal of said shops through reauction was yet to take place, when on 10-8-1971 Martial Law Regulation No.86 came in force. Said Regulation inter alia authorised an unauthorised occupant of any evacuee property, to apply to the Chief Settlement Commissioner for transfer of the property in his unauthorised possession to him, if no notice under section 3 of said Regulation was issued to him. If such notice was issued to him, he could move for transfer within 15 days of receiving such notice. Taking advantage of said Regulation, Muhammad Siddique (predecessor of respondent No. l in Civil Appeal No.349 of 1994 moved on 22-9-1971 for transfer of one of the to shops in question, which he claimed to be in his possession. Muhammad Shaft (predecessor of respondent No. l in Civil Appeal No.348 of 1994) moved similar application on 14-9-1971 for transfer of another shop.
Irshad Ahmad filed similar application on 24-1-1972, while Saeed Ahmad filed similar application on 10-11-1971. Similar application by Talib Hussain was moved on 24-1-1972. In pursuance of the provisions contained m section 3(2) of the Regulation, the. Deputy Settlement Commissioner issued notices to Muhammad Shafi (predecessor of respondent No.1 in Civil Appeal No.348 of 1994) as well as to Muhammad Siddique and Talib Hussain for clearance of the arrears of rent. They moved the Settlement Commissioner for disposal of the said property and their cases were endorsed to the Deputy Settlement Commissioner for enquiry and report. The Deputy Settlement Commissioner after enquiry submitted his report before the Settlement Commissioner to the effect that Talib Hussain and Irshad Ahmad (appellant No.1 in Civil Appeal No.349 of 1994), Israr Ahmad (predecessor of appellants in Civil Appeal No.348 of 1994) and Saeed Ahmad appellant No.2 in Civil Appeal No.349 of 1994) were in occupation of the shops in question, as licensee/permissive occupants and that Talib Hussain and Irshad Ahmad etc. Were paying rent to Muhammad Siddique, while Israr Ahmad was paying rent to Muhammad Shafi. The Deputy Settlement Commissioner took note of the fact that Irshad Ahmad etc. Had not filed any application under the Regulation, while Talib Hussan had neither paid rent nor he was keen for transfer of half of a shop.
Under a short order dated 15-3-1972, the Additional Settlement Commissioner after consultation with the Deputy Settlement Commissioner transferred the disputed shops to Muhammad Siddique and Muhammad Shafi. Said order dated 15-3-1972 was assailed in the Lahore High Court by Irshad Ahmad and Saeed Hassan under Writ Petition No.276-R of 1972 and by Israr Ahmad under Writ Petition No.574-R of 1973. Both the petitions were accepted by the High Court, under a judgment dated 1-3-1980 by which the order dated 15-3-1972 was set aside and the case was remanded to the "Notified Officer" for deciding the pending applications of the parties in accordance with the law, after hearing them. In para. 4 of their Writ Petition No.276-R of, 1972 appellants Irshad Ahmad and Saeed Ahmad and in para. 4 of his Writ Petition No.574-R of 1973 Israr Ahmad took stand that they being poor persons accepted tenancy of Muhammad Rafi due to their meagre resources and started regular payment of rent to Muhammad Raft, who was not issuing any receipt for the rent. At the same the the writ petitioners in the next para. Of their writ petition alleged that on coming into force of M.L.R. No.86 the disputed property was unearthed and then Muhammad Rafi in connivance with the Additional Settlement Commissioner managed transfer of the disputed property in his favour. This point was desired by the High Court to be freshly decided by the Notified Officer, although the order of transfer dated 15-3-1972 was declared to be illegal and of no legal effect.
After remand, the Settlement Commissioner and Administrator (R.P.), who was Notified Officer, passed an order dated 12-6-1982 transferring to Israr Ahmad the shop in his possession and to Saeed Ahmad and Irshad Ahmad the other shop. Said order dated 12-6-1982 was assailed in Lahore High Court by heirs of Muhammad Shaft under Writ Petition No.338-R of 1982 and by heirs of Muhammad Siddique under Writ Petition No.339-R of 1982, which were accepted and the order dated 12-6-1982 was declared illegal and without lawful authority and the orders of allotment were restored. Hence these appeals with leave of this Court.
Leave to appeal was granted to consider whether the appellants were occupying the shops in litigation, when the M.L.R. No.86 came in force, as licnesees or as tenants of the private respondents.
During hearing of the appeals Mr. M. Maqbool Sadiq, Advocate was heard at length on behalf of the appellants in both the appeals, while Mr. S.M. Naseem, Advocate was heard for the respondents in Civil Appeal No.349 of 1994 and Mr. A.R. Shaikh, Advocate was heard for the respondent No.1 in Civil Appeal No.348 of 1994.
The points at issue in these matters would be:
(i) Whether the shop in possession of the appellants in Civil Appeal No.348 of 1994 was occupied by them or by their predecessor Israr Ahmad as tenants or as licensees of Muhammad Shafi? And
(ii) Whether the shop in possession of appellants in Civil Appeal No.349 of 1994 was occupied by them as tenants or as licensees of Muhammad Siddique?
For deciding the points at issue, the High Court has relied upon the averments made by Israr Ahmad in para. 4 of his Writ Petition No.574-R of 1973 and by Irshad Ahmad and Saeed Hassan in para.4 of their Writ Petition No.276-R of 1972 mentioned above, about the circumstances in which they accepted the tenancy of Muhammad Rafi due to being poor with meagre resources. These averments were termed in the impugned judgment to be "admissions" by the petitioners in said Writ Petitions No.276-R of 1972 and No.574-R of 1973 to the effect that their possession/occupation of the shops in question was as tenants/licensees. Learned Judge in Chamber appears to have overlooked the contents of para. 5 of each of the writ petitions. In para. 5 of their Writ Petition No.276-R of 1972, petitioners Irshad Ahmad and Saeed Hassan alleged that the property in dispute was unearthed in consequence of MLR No.86 and that Muhammad Rafi in connivance with the Additional Settlement Commissioner managed, transfer of the disputed property in his favour vide an order dated 5-1-1972. In para. 5 of his Writ Petition No.574-R of 1973 Israr Ahmad alleged that the disputed property was unearthed in consequence of M.L.R. No.86 and that Muhammad Rafi in connivance with. Muhammad Siddique managed to get the disputed property transferred in his favour under an order dated 15-3-1972 passed by the Additional Settlement Commissioner. Paras.
4 and 5 of said writ petitions read together, do not amount to an unqualified admission by Israr Ahmad, Irshad Ahmad and Saeed Hassan that their possession over the disputed shops was permissive or as licensees or as tenants. Learned Judge in Chamber has taken erroneous view that Israr Ahmad, Irshad Ahmad and Saeed Hassan cannot claim possession over the disputed premises in a different capacity. Had Israr Ahmad or Irshad Ahmad or Saeed Hassan been inducted in the disputed premises by Muhammad Shafi or Muhammad Siddique as tenants or as licensees, then each of them would have been estopped from challenging title of Muhammad Shafi or Muhammad Siddique (as the case may be) in the disputed property, as per Article 115 of the Qanun-e-Shahadat. In that situation alone, Israr Ahmad or Irshad Ahmad or Saeed Hassan could not have claimed possession over the disputed premises, in a different capacity. Even if contents of para. 4 of each of the Writ Petitions No.276-R of 1972 and No.574-R of 1973 are stretched to amount to admission by the writ petitioners, such admissions were in respect of "Muhammad Rafi and not "Muhammad Shafi" or "Muhammad Siddique". These so-called admissions would not disqualify either Israr Ahmad or Irshad Ahmad and Saeed Ahmad from claiming being in possession of their respective shops, in terms of section 4 of M.L.R. No.86.
Under his order dated 12-6-1982 the Settlement Commissioner and Administrator (D.P.) and Notified Officer gave findings of fact to the effect, that Muhammad Siddique and Muhammad Shafi were not owners of the disputed shops which were owned by Hindus who migrated after partition of the country, that Muhammad Siddique and Muhammad Shafi were neither in physical possession of the shops nor their allottees, that they were never permitted to sublet the shops to Israr Ahmad or Irshad Ahmad or Saeed Ahmad, and that possession of Muhammad Siddique and Muhammad Shafi was not covered by the Regulation. Without unsettling these findings of fact, which could not be interfered with in exercise of constitutional jurisdiction, the High Court could not have held that the appellants were not in possession/occupation of the shops in question in their own right, which could entitle them to the transfer thereof.
For the foregoing reasons it is difficult for me to agree with my learned brother Saiduzzaman Siddiqui, J. That the appellants were in occupation of the shops as tenants of Muhammad Shafi and Muhammad Siddique and hence they had no entitlement to seek transfer of those shops on the basis of their possession under Martial Law Regulation No.86.
As against this, my learned brother Khalil-ur-Rehman Khan, J. In his well-reasoned note/judgment has given cogent reasons for the view that Muhammad Shafi or Muhammad Siddique were not in possession of the disputed premises in terms of Martial Law Regulation No.86. It is not disputed that Muhammad Shafi and Muhammad Siddique had not inducted the appellants in the shops in question, of which the former were not allottees even. As regards the so-called admissions made in Writ Petitions No.276-R of 1972 and No.574-R of 1973 my learned brother Khalil-ur-Rehman Khan, J. Has rightly taken the view that due to their meagre resources the appellants accepted tenancy of Muhammad Rafi knowing that the property was unearthed after promulgation of M.L.R. No.86 and that Muhammad Rafi managed to get the property transferred to Muhammad Shafi and Muhammad Siddique on account of his influence and position. I agree with my learned brother that payment of rent, m ignorance of real status of parties, amounted to unauthorised charge being received from poor citizens illegally on account of influence wielded by Muhammad Rafi who was Chairman of Municipality. I also agree that no benefit can be derived from the said admission, by Muhammad Siddique or Muhammad Shafi, who cannot claim any right in the to shops on the basis of charging of rent illegally and unauthorisedly by Muhammad Rafi. The facts that neither Muhammad Shafi nor Muhammad Siddique was allottee of any of the to shops, and claim of Muhammad Shafi about having got constructed the shops in question, was rejected by the Settlement Authorities and such rejection was not challenged in any Constitution petition, are relevant to the present controversy.
Consequently, I agree with my learned brother Khalil-ur-Rehman Khan, J. That these appeals be accepted and the impugned judgment be set aside and the order dated 12-6-1982 passed by the respondent No.2 be restored.
KHALIL-UR-REHMAN KHAN, J. ---I have gone through the judgment proposed to be delivered by my learned brother Saiduzzaman Siddiqui, J. And regret that I am unable to persuade myself to agree with the conclusions arrived at by my learned brother. I am recording hereunder my own conclusions therefor.
2. The facts necessary for appreciating the question of entitlement to transfer of the commercial units of Property bearing No.B-VI-S-10/283 Sheikhupura, a single-storeyed house on an area of 7- 1/2 Marlas and consisting of to shops opening on Lahore-Sargodha Road and a residential portion in possession of one Muhammad Manzoor Alam, a claimant displaced person, are that on application of Manzoor Alam,.The then Deputy Settlement Commissioner vide order dated 29-10- 1959 transferred the entire property to Manzoor Alam as he was a claimant allottee and in possession of major portion. It was, however, noted that one shop was in possession of one Muhammad Ahmad while other shop was in possession of one Muhammad Rafi or his brother Muhammad Shafi, the predecessor-in-interest of respondents in Civil Appeal No.348 of 1994 and the latter had self-applied for transfer of shop, On appeal of Muhammad Shafi, the learned Additional Settlement Commissioner by order dated 8-2-1960, holding that residential portion and shops are separate units, set aside the order of Deputy Settlement commissioner to the extent of the shops and remanded the matter to determine the entitlement of the applicants afresh. On remand, the Deputy Settlement Commissioner, by his order dated 12-5-1960 directed that case of shops, as desired by Muhammad Shafi, be taken up separately under Settlement Scheme No.VI as Muhammad Shafi had claimed to have built these shops which were allegedly burnt during the Disturbances of 1947. The C.H. Form filed by Muhammad Shafi was rejected accordingly. Manzoor Alam filed appeal against this order before Additional Settlement Commissioner, who vide order dated 15-6-1960 placed the shops in auction pool for disposal through auction. Two revisions filed respectively by Manzoor Alam and Muhammad Shafi were dismissed by the Settlement Commissioner on 22-8-1961 and consequently, in auction held on 19-12-1967, the shops were purchased by one Mst. Kalsum but as she failed to pay the price, her bid was cancelled and the shops were ordered to be re-auctioned.
3. The shops were not auctioned for years and then on 10th of August, 1971 M.L.R. No.86 was promulgated and enforced whereunder unauthorised occupants were entitled to seek transfer of undisposed or hidden evacuee property. At this stage Muhammad Siddique, the predecessor-in- interest of respondent No.1 Civil Appeal No.349 of 1994 entered the arena by making an application on 22-9-1971 seeking transfer of one of the shops under M.L.R. No.86. Similarly, Muhammad Shafi made an application on 14-9-1971 alongwith a form. Irshad Ahmad on 24th January, 1972 and Saeed Ahmad on 10-11-1971, submitted their respective applications for transfer of the shop in their occupation. The Deputy Settlement Commissioner submitted a report regarding disposal of applications under M.L.R. No.86 and in the proceedings so held, Israr Ahmad, appellant also appeared and his statement was statedly recorded wherein he claimed to be in occupation .Of the shop for the last eight/nine years. On the basis of this report, the Settlement Commissioner, by his order, dated 15th March, 1972, transferred the to shops to Muhammad Shafi and Muhammad Siddique respectively. The appellants filed to Petitions being Nos.574-R of 1973 and 276-R of 1972 before the Lahore High Court challenging the order of the Settlement Commissioner and vide judgment dated 1-3-1.980 both the petitions were allowed and the case was remanded to the Notified Officer by the High Court as follows:-- "The case is remanded to the Notified officer under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, for deciding the pending applications of the parties in accordance with law and after issuing them notices and affording reasonable opportunity of being heard."
The learned Judge in this judgment noted that Israr Ahmad had filed a Plot Form at Serial No.544 for the transfer of the property. In para. 5 of the judgment it was observed that the writ petitioners, that is, the present appellants, had made applications for the transfer of the property in dispute under Martial Law Regulation No.86 and these applications were submitted definitely before the impugned order, dated 15th March, 1972 was passed and that they claimed to be in physical possession of the disputed property. On the basis of these findings, it was held that as the writ petitioners/the present appellants were aggrieved persons for the purpose of Article, 199 of the Constitution, they were entitled to maintain the Constitution petitions. Despite the above findings, learned Judge observed that the point that Israr Ahmed had filed no form or application, is a matter relevant for consideration of the competent Authority alongwith the question of entitlement to seek transfer on the basis of the claim of occupation. After remand of the case, the Settlement Commissioner in the capacity of Notified 'Officer vide order dated 12-6-1982 transferred one shop to Israr Ahmd, predecessor-in-interest of the appellants in Civil Appeal No.348 of 1994 while the other shop was transferred to the appellants in Civil Appeal No.349 of 1994. The order of the Settlement Commissioner was then challenged in the writ petitions (W.Ps. Nos.338-R/92 and 339- R/92) filed by the legal heirs of' Muhammad Shafi and Muhammad Siddique respectively before the High Court. Both these petitions were accepted vide impugned judgment dated 19-10-1992 against which leave to appeal was granted by this Court to consider the contentions, that as the petitioner in Writ Petition No.276-R of 1992 never accepted that he had been inducted as tenant by the respondents, his admission does not extend to the respondents and that the respondents were never in possession of the shops in dispute, therefore, these shops could not be transferred to them.
4. The precise contention of the learned counsel for the appellants in support of the appeals is that deceased respondent (Muhammad Shafi) and respondent Muhammad Siddique not being in possession of shops were not entitled to the transfer of the shops under para. 4 of the Regulation while the appellants being in physical occupation, were entitled under the same para. To obtain transfer of the shops in dispute. Learned counsel for the appellants in Civil Appeal No.349 of 1994 referred to the report of the Deputy Settlement Commissioner dated 11th November, 1971 wherein he had noted the factual position obtaining at the site and had made suggestions as to disposal of the property.
5. This report states that the facts about the to shops, which have been partitioned into four, are:-- 'shop No.1/A.--Physical possession is that of one Mr. Israr Ahmed son of Tufail Ahmed. Adverse possession is that of Ch. Muhammad Shafi, one of the applicants. The name of the shop is Adil Cycle Works.
Shop No. l/B.--Physical possession is that of one Mr. Talib Hussain son of Khushi Muhammad. The name of the shop is Sufi Battery Service. The adverse possession is that of Ch. Muhammad Shafi.
The actual occupant has applied for the transfer of the shop also. In this shop Ch. Muhammad Shafi and Mr. Talib Hussain are only contestants.
Shop No.2/A.--Physical possession of this shop is that of Saeed Ahmed. The adverse possession of the sh9p is that of Mr. Muhammad Siddique, one of the applicants. Mr Saeed Ahmed, actual co- occupant has also applied for the transfer of this shop. In this shop occupants and Mr. Muhammad Siddique are contestants. The name of the shop is Pak Electric Works.
Shop No.2/B.--Physical possession of this shop is that of Irshad Ahmed son of Hassan Muhammad.
The adverse possession of this shop is that of Mr. Muhammad Siddique."
In para. 9 of the report, Deputy Settlement Commissioner made four alternate suggestions, including the suggestion that if the shop is to be transferred on the basis of adverse possession, then it should be transferred to Muhammad Shafi and Muhammad Siddique respectively, and if these are to be transferred on the basis of actual possession, the shops Nos. l-B and 2-A be transferred to actual occupants and the remaining to to Muhammad Shafi and Muhammad Siddique. This was also reported that Israr Ahmed in Shop No. l-A, Talib Hussain in Shop No. 1-B, Saeed Ahmed in Shop No. 2-A and Irshad Ahmed in Shop No. 2-B were factually the actual occupants. No basis was disclosed or reason given for considering Muhammad Shafi and Muhammad Siddique as in adverse possession.
6. This report was put up before the Settlement Commissioner who, without applying his mind on the question of entitlement vide his order dated 15-3-1972, ordered that property be transferred to applicants according to their applications under the Martial Law Regulation. He directed that Irshad Ahmed be informed that he could not be helped. This order was set aside by the High Court in the writ petitions and on remand Settlement Commissioner ordered transfer of the to shops respectively to Israr Ahmed and Irshad Ahmed. The finding recorded in the order dated 12-6-1982 of the Settlement Commissioner reads as under:-- "The admitted position of the case is that Muhammad Siddique and Muhammad Shafi are not in possession of either of the to shops. Their case is that Syed Israr Ahmed is in possession of one shop, while Irshad Ahmed and Saeed Ahmed jointly in possession of the other shops as their licensee. It is also their case that a licensee occupies either on behalf of the owner or an allottee.
According to the record they are admittedly not the owners of the property as the property prior to Independence was owned by Hindus and after migration it is an evacuee property. The power to allot an evacuee property vested in the Custodian of Evacuee Property and on his behalf in a Rehabilitation authority. An allottee could under special circumstances keep a licensee but only with the permission of the Rehabilitation Authority. Muhammad Siddique and Muhammad Shafi are admittedly not an allottee of any of the to shops. The Rehabilitation Authority never granted them permission to keep Syed Israr Ahmed in one shop and Irshad Ahmad and Saeed Ahmed jointly in the other shop as licensee. Therefore, Muhammad Siddique and Muhammad Shafi are not in possession' as defined in the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The petitioner, Syed Israr Ahmed is admittedly in possession of one of the to shops while the possession of the other shop is jointly with Irshad Ahmed and Saeed Ahmed. Actual physical possession is in the requirement of law for obtaining a transfer order under Settlement Scheme No.1, Settlement Scheme No.VI, Settlement Scheme No.VIII and Martial Law Regulation No.86. Their possession is not disputed by the Settlement Department. The shop in possession of Syed Israr Ahmed is available for disposal. There is no other occupant-applicant for the transfer of this shop. Similarly there is no other occupant-applicant for the transfer of the shop in joint possession of Irshad Ahmed and Saeed Ahmed."
These findings were set aside by the learned Judge of the High Court in the impugned judgment and restored order dated 15-3-1972, wrongly stated as order dated 15-3- 1977 of the Settlement Commissioner transferring shops to Muhammad Shafi and Muhammad Siddique by recording the following reasons: -- "I hold that the respondents were not in possession/occupation of the shops in question in their own right which could entitle them to the transfer thereof, hence they could not claim the transfer on the basis thereof. ---------------.---Besides this fact in this case it is not at all a matter in issue, proceedings in this case have been taken under the provisions of M.L.R. No.86 which was an overriding law according to which, the petitioners who are in constructive possession shall be deemed to be in possession of the property in question and hence entitled to its transfer and the respondents who are tenants/licensees has no lawful right to get transfer of the shops in question."
8. The aforesaid conclusions were based on the finding that the appellants had admitted before the High Court in the earlier round of litigation that their possession/occupation of the shops in question is as a tenant/licensee. The question whether Israr Ahmed had submitted a form under M.L.R. No.86 was not determined. The question that Israr Ahmed had made no formal application for transfer of shop under the Regulation cannot be given much importance as Israr Ahmed did appear before the Deputy Settlement Commissioner on 8-11-1971 pursuant to the notice, participated in the proceedings, got his statement recorded and all this was apparently done to express his willingness to have the shop transferred in his occupation, and when the order, passed in respect of the disposal of the property, went against him, he challenged the same by filing a Constitution Petition (Writ Petition No.574-R of 1973). It will be seen that no form was prescribed under M.L.R. No.86 for seeking transfer of property and what was required to be shown was that a person was in actual occupation, though unauthorised, of the shop desired to be transferred.
Obviously that much was shown and established by participating in the proceedings and making a statement. This could be taken as an oral application for transfer of the shop. In the circumstances, it will be to harsh and unjust to knock out the claim of Israr Ahmed and refused him to transfer the shop if he is otherwise entitled, by observing that he had not put in a formal application, when no formal application has been prescribed by the Regulation and he has been before the Settlement Authorities as well as before the High Court and now in the Apex Court for almost to decades since 1971 making all out effort to seek transfer of the shop. Even if any formal application was required to be submitted, the formality should have been got complied with by the Deputy Settlement Commissioner when he appeared before him and pursued the matter of transfer of shop. The public authorities are created to serve the citizens and necessary relief cannot and should not be refused merely because a non-essential formality was not complied with. In fact, the public functionaries should guide and help citizens in complying with the formalities if any.
In the case of Israr Ahmad the N.C. H. Form earlier filed by him which was not disposed of by the Settlement Authorities and for the disposal of which he was agitating, could in any case be treated as an application for transfer and his entitlement for transfer under the Regulation could be examined. The other aspect is that the learned Judge of the High Court did not non-suit Israr Ahmed for not filing a formal application under the Regulation and as such it will not be proper for us to non-- suit him on this score. Irshad Ahmed and Saeed Ahmed had admittedly filed a formal application. The request of transfer of shops made by Israr Ahmed, Mrs. Irshad Ahmed and Saeed Ahmed, therefore, requires to be examined on merits.
9. As regards the question of entitlement to transfer of shops, learned counsel for the parties relied on paragraph 4 of M.L.R. No.86 which is reproduced for ready reference:-- "4.--(1) The unauthorised occupant of any evacuee property may, at any the before the issue of a notice to him under paragraph 3, or within fifteen days from the date of receipt of such notice apply to the Chief Settlement Commissioner for the transfer of the property in his unauthorised possession or occupation to him: Provided that, in the case of a person who has made an application under sub-paragraph (2) or paragraph 3, this sub-paragraph shall have effect as if it enabled such person to make an application thereunder within fifteen days from the date of the order of the Chief Settlement Commissioner under sub-paragraph (3) of paragraph 3."
10. Learned counsel for the appellants contended that the appellants being admittedly in actual physical possession are the only persons entitled to obtain transfer of their respective shop, and that the so-called admission that they were constrained to pay rent to Muhammad Rafi, cannot be made basis for drawing the conclusion that Muhammad Shafi or Muhammad Siddique was their landlord or in adverse possession as against them and as such entitled to seek transfer in preference to them. As against above, learned counsel for the respondents contended that in the presence of the admission of being tenants made in the earlier proceedings the appellant cannot be transferred the respective shops as they are not in occupation of the shop in their own right.
Learned counsel, therefore, supported the impugned judgment.
11. The admission referred to in Civil Appeal No.349 of 1994 reads as under: "That the petitioner being poor person accepted the tenancy of aforesaid Muhammad Rafi due to his meagre resources and started regular payment of rent to him and Muhammad Rafi was not issuing any receipt for the rent. That Martial Law Regulation No.86 had been promulgated any property was unearthed and Muhammad Rafi in connivance with Additional Settlement Commissioner had managed to get the property transferred in favour of Muhammad Siddique. "
The admission referred to in Civil Appeal No.348 'of 1994 statedly made by Israr Ahmed reads:-- "That the petitioner being poor person accepted tenancy of the aforesaid Muhammad Rafi due to his meagre resources and started regular payment of rent to him. Muhammad Rafi was not issuing any receipt for the rent."
It will be noted that in the impugned judgment, while reproducing the admission, Muhammad Shafi has been typed instead of Muhammad Raft originally appearing in para. 4 of the Writ Petition No.574-R of 1973 (Paras. 3, 4 and 5 of the petition at page 75 of the Paper Book may be referred).
12. The features to be noted are that due to meagre resources the appellants accepted tenancy of Muhammad Rafi, the property was unearthed after promulgation of M.L.R. No.86 and that Muhammad Raft managed to get the property transferred to Muhammad Shaft and Muhammad Siddique. From this admission it cannot be called out that Muhammad Rafi had inducted Irshad Ahmed or Israr Ahmed into the shops. What follows is that they were in possession of the shops for which Muhammad Rafi on account of his position and influence made them, due to their meagre resources, to pay him the rent and they being not aware that the shops were evacuee were paying him the rent. This is apparent from the assertion that the property was unearthed on promulgation of M.L.R. No.86. The payment of rent in ignorance of real status of property amounted to unauthorised charge, illegally being received from poor citizens on account of influence wielded by Muhammad Rafi who as per learned counsel for the appellant was Chairman of Municipality. Be that as it may, no benefit can be derived from this admission by Muhammad Siddique or Muhammad Shafi as they obviously cannot claim any right on the basis of charging of rent illegally and unauthorisedly by Muhammad Rafi. Muhammad Siddique, it will be recalled, entered the arena by filing application on 22-9-1971 under M.L.R. No.86. Irshad Ahmed was already in possession of the shop. It is nowhere the case of Muhammad Shafi or Muhammad Siddique that they had inducted Irshad Ahmed or Israr Ahmed in the slops. They as such cannot claim that they are the landlords of Irshad Ahmed, etc. Or Israr Ahmed qua the shops in question.
13. So, the effect of such an illegal extraction of money as rent and 44 payment of the same in ignorance of the true status of property by resource less citizens is to be determined in the context of the right to seek transfer under para. 4 of M.L.R. No.86. The other relevant facts to be kept in view are that neither Muhammad Shafi nor Muhammad Siddique is the allottee of any of the shops nor the unauthorised charging of rent for the evacuee shops by Muhammad Shafi or Muhammad Rafi is permitted by any of the evacuee laws existing on the Statute Book nor such illegal extraction of money in the name of rent confers any right for claiming transfer of the evacuee shop. It may pertinently be recalled that Muhammad Shafi earlier claimed transfer of shop by filing a form under Settlement Scheme No.VI with the assertion that he had constructed these shops as they were burnt in the disturbances of 1947. The C.H. Form then filed by him was got rejected. The form filed under Scheme No.VI was also rejected and the shop was ordered to be disposed of through auction vide order of Additional Settlement Commissioner dated 15-6-1960. Muhammad Shafi assailed this order in revision which was rejected and thereafter, Muhammad Shafi did not agitate the matter further and thus abandoned his claim over the shop. Muhammad Shafi again entered the arena by making application under M.L.R. No.86. It is pertinent to note at this stage that throughout the proceedings in the earlier round of litigation terminating with the order to auction the shops, and again in the proceedings held under M.L.R. No.86, Muhammad Shafi and Muhammad Siddique did not' even claim that they had inducted Israr Ahmed and 0Irshad Ahmed in the shops what to say of giving date or year of such induction. They are admittedly not the allottees of the shop and as such no question arises of obtaining any permission for inducting a tenant or licensee in the shops from Rehabilitation Authorities. Learned Settlement Commissioner in his order dated 12-6-1982 whereby shops were ordered to be transferred to appellants, commented on the a forenoted aspects as under:-- "Record of the case has been thoroughly examined. The admitted position of the case is that Muhammad Siddique and Muhammad Shafi are not in possession of either of the to shops. Their case is that Syed Israr Ahmed is in possession of one shop, while Irshad Ahmed and Saeed Ahmed jointly. A possession of the other shop as their licnesee. It is also their case that a licnesee occupies either on behalf of the owner or an allottee. According to the record they are admittedly not the owners of the property as the property prior to Independence was owned by Hindus and after migration it is an evacuee property. The power to allot an evacuee property vested in the Custodian of Evacuee Property and on his behalf in a Rehabilitation Authority An allottee could under special circumstances keep a licensee but only with the permission of the Rehabilitation Authority. Muhammad Siddique and Muhammad Shafi are admittedly not an allottee of any of the to shops. The Rehabilitation Authority never granted them permission to keep Syed Israr Ahmed in one shop and Irshad Ahmed and Saeed Ahmed jointly to the other shop as licensee. Therefore, Muhammad Siddique and Muhammad Shafi are not in possession' as defined in the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The petitioner, Syed Israr Ahmed is admittedly in possession of one of the to shops while the possession of the other shop is jointly with Irshad Ahmed and Saeed Ahmed. Actual physical possession is the requirement of law for obtaining a transfer order under Settlement Scheme No.I, Settlement Scheme No.VI, Settlement Scheme No.VIII and Martial Law Regulation No.86. Their possession is not disputed by the Settlement Department. The shop in possession of Syed Israr Ahmed is available for disposal. There is no other occupant-applicant for the transfer of this shop. Similarly there is no other occupant applicant for the transfer of the shop in joint possession of the Irshad Ahmed and Saeed Ahmed. "
The conclusion recorded by the learned Settlement Commissioner is well-based as Muhammad Shafi having abandoned his claim of constructing the shops and with the rejection of his form under Scheme No.VI as well as Form C.H. Under Scheme No.: cannot enter the arena by claiming adverse o: constructive possession on the basis of admission that Muhammad Rafi was able to extract money in the name of rent from the actual occupant of the shop. The extraction of money from the occupant of evacuee shop was not only unauthorised but also amounted to penal offence. No premium can be allowed to such an illegal extraction of money and in my view, a person extracting and receiving rent from the occupant of evacuee property cannot be considered to be in "occupation" of undisposed of or hidden evacuee property within the meaning of paragraph 4 of M.L.R. No.86. Moreover, payment of rent to a person who is neither an allottee, nor has any authority of law to receive the money on account of occupation of evacuee shop does show the helplessness of the occupant but it cannot be inferred that the occupant is not occupying the shop and running the business in his own right. The case would be different where the person who has invested the money in the business which is being conducted in the shop is different than the person actually managing the business for or on behalf of the investor. In such a case the person managing it, cannot be considered to be in "occupation" in his own right. Similar would be the position of person who has constructed a shop on the evacuee site and in the shop so constructed has inducted a tenant. If both apply for transfer, the tenant who is in actual physical occupation is rightly treated as not in occupation in his own right as the person who has inducted the tenant is in constructive possession being the landlord. Scheme No.VI conferred right to seek transfer of the evacuee site on the person ; who has raised the construction. In the case of Abdul Rahman discussed in one of the paras. Below, keeping in view the intent of the Scheme No.VI and the equities involved the person who had raised the construction was preferred.
14. Same would be the case of the evacuee property which is duly allotted to a person who then inducts a tenant into the allotted property on payment of rent with permission of Rehabilitation Authority or the case of an allottee of share in the evacuee industrial concern, as every shareholder/allottee is taken as in symbolic possession of the industrial concern. In all such cases the tenant or licensee is treated as not in possession in his own right. (See Imam Din v. Mir Hameed Hussain, Deputy Settlement Commissioner, Montgomery (PLD 1967 Lahore 419). The law recognizes and accepts status of the person in whom the possession vests in law and gives preference to him as against the person who is inducted into the property and in such a situation law recognizes right to receive the rent from such occupant and on his failure or refusal to pay, right of recovery of the amount thus falling due is enforced. Would same be the position in the case of Muhammad Shafi or Muhammad Siddique? Can they in law seek recovery of the amount of rent which Israr Ahmed or Irshad Ahmed was made to pay? How can, on mere extraction of money, assuming that they had inducted them in the property, confer them the status of landlord who is known in law as a person entitled to receive rent for use and occupation of a property. In my view recognizing them as landlords or in constructive possession would amount to encouraging unauthorised occupation of other's property by force or through illegal means. The illegalities and evils already rampant in the society need to be curbed with heavy hand and, therefore, interpretation which promotes justice, curbs evil and discourages illegal conduct is preferably adopted.
Reliance of the learned counsel for the respondents on the case of Abdul Rahman v. Deputy Settlement Commissioner-II (PLD 1977 Lahore 576), is misplaced. In that case the competition was between an applicant, who had constructed the shop, and the person who was inducted into the shop as a tenant by the former. It was observed:-- "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 to applicants for the site is to be deemed to be its occupant. In such a situation the person having the superior right to the use and enjoyment of the property must be 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. 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 teas managed to obtain occupation of a property shall be claiming preference of 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. i.e)(i) normally shall be the person in actual physical occupation but in case the landlord of 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."
15. It will be seen that right of the person who had constructed the property was protected in consideration of right recognized by Scheme No.VI itself. In the instant case neither of the appellants were shown to have been inducted into the shops by Muhammad Shafi or Muhammad Siddique. Assuming that the appellants were inducted into the shops, still Muhammad Shafi and Muhammad Siddique being admittedly not the allottees, have no right in law or in equity to claim transfer of the shops in question. The at of these respondents of illegally inducting the appellants stands neither recognized under Rehabilitation laws nor under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 nor under the Scheme framed under this Act. Such persons are not deemed to be in "possession" the term as defined under the aforesaid Act or under any of the' notified orders or instructions issued under section 2(6) of the Act. Paragraph 4 of M.L.R.
No.86 introduced a total change in the concept of "possession" as defined in the Act as persons in physical occupation of undisposed property though unauthorised were made entitled to seek transfer of the property. So, to achieve the intent of the Regulation, persons who in law and equity are in actual possession were treated in occupation and, thus, entitled to seek transfer. This does not imply that, persons who were able to extract money illegally from unauthorised occupant were sought to be given the right to seek transfer. Muhammad Shafi and Muhammad Siddique even do not fall in this category as according to the admission of the appellants, it was Muhammad Rafi who was receiving rent from them and not the aforesaid respondent.
16. Analysed in the a forenoted context, it will be seen that the cases of Ambo Jan v. Assistant Settlement Commissioner (PLD 1975 Peshawar 244), Atta Muhammad v. Taj Muhammad (1974 SCMR 346) and Muhammad Fazil v. Settlement Commissioner (1986 SCMR 1990) do not apply as in these cases the competition was between the allottees and the person inducted by such allottee.
The distinction was that the allottee who had inducted the other person (tenant/licensee) was considered a person in possession within the contemplation of the Act. Muhammad Shafi or Muhammad Siddique for that matter cannot be taken to be in possession within the contemplation of Displaced Persons (Compensation and Rehabilitation) Act. In fact by abandoning the proceedings on passing of the order to dispose of the shop through auction, Muhammad Shafi was left with no right to claim transfer of the shop. Similarly, Muhammad Siddique, under no circumstances, can compete as he entered the litigation in 1971 and was never in occupation and is in no position to challenge occupation of Irshad Ahmed etc. On account of rent payment to Muhammad Rafi as he has no concern with him or with the shop. The learned Judge of the High Court was, therefore, not right in holding that Israr Ahmed, the predecessor-in--interest of the appellants in Civil Appeal No.348 of 1994 and Irshad Ahmed and Saeed Ahmed appellants in Civil Appeal No.349 of 1994 were not in occupation of their respective shops in their own right. The impugned judgment is, therefore, set aside and writ issued is recalled with the result that the order dated 12-6-1982 passed by the Administrator (Residual Property), Lahore Division, Lahore transferring the shops respectively to the appellants stands restored.
For the above reasons, I accept both the appeals with cost.
ORDER OF THE COURT By majority opinion, Civil Appeals Nos.348 and 349 of 1994 are accepted with costs, the impugned judgment is set aside and the order dated 12-6-1982 passed by the respondent No.2 is restored.