MUHAMMAD FAZIL vs SETTLEMENT COMMISSIONER AND Other
This matter arises from a petition for leave to appeal against a judgment of the High Court which allowed the respondent's intra-court appeal and set aside the transfer of a disputed shop previously made in favor of the petitioner. The core legal question concerns whether the original allottee, who had let out the shop to a tenant, or the tenant in actual occupation was entitled to the transfer of the property under Settlement Scheme No. VII, and whether letting out the property amounted to abandonment of rights by the original allottee. The Supreme Court granted leave to appeal to examine the competing claims of the original allottee in constructive possession versus the actual occupant tenant under the relevant settlement scheme.
- Whether the original allottee or the tenant in actual occupation of a shop is entitled to the transfer thereof under Settlement Scheme No. VII?
- Does letting out a property by an allottee amount to an abandonment of rights therein for the purposes of transfer under settlement laws?
ORDER
1. ASLAM RIAZ HUSSAIN, J.-The petitioner seeks leave to appeal against judgment of a Division Bench of the High Court, dated 13-2-1980, allowing the respondent's I: C. A.
2. The facts leading to this petition, briefly, are that Muhammad Fazil a displaced person was allotted the shop in question on 12-1-1952 and possession was delivered to him. He, however, let out the shop to Hanif respondent No. 4. On 10-5-1965, the petitioner filed an application for the transfer of the shop under the original Settlement Scheme No. VII. Muhammad Hanif (respondent No. 4) the licensee/tenant also filed an applica--petition under the revised Settlement Scheme No. VII on 3- 5-1967. The Assistant Settlement Commissioner transferred the shop to the petitioner on 25-7-1968.
2. Muhammad Hanif appeal - which was rejected by the Deputy Settlement Commissioner on 30-4- 1970. A revision filed by him was also rejected by the Settlement Commissioner on 18-9-1970. He then filed a writ petition which, too, was dismissed in limine on 14-12-1970. Thereafter, he filed an I.- C. A. And was successful for the first time as the learned Division Bench of the High Court accepted it vide the impugned judgment dated 13-10-1980, on the ground that Muhammad Fazil (petitioner before us) by letting out the shop must be presumed to have abandoned his rights therein. The learned counsel has, however, urged relying on Nazar Din alias Nazar Muhammad v. Mian Ghulam Shabbir and others (PLD 1966 Lab. 716) and Mst. Ambo Jan and 2 others v. Assistant Settlement Commissioner (Lands), Abbottabad and 6 others (P L I) 1975 Posh. 244) that the petitioner was still in constructive possession of the shop.
3. Leave is granted on the question as to whether, in the circumstances of this case the original allottee or the tenant in actual occupation of the shop in question was entitled to the transfer thereof under Settlement Scheme No. VII.
4. Security in the sum of Rs. 2,500.
5. To be heard on the same record with permission to file additional documents.