Syed GHULAM HUSSAIN SHAH vs Syed SADIQ HUSSAIN SHAH and others
This matter concerns a dispute over the transfer of a shop located in Mauza Gheela Khurd, Tehsil and District Rawalpindi, between a petitioner in actual physical occupation and a respondent who is the allottee. Both parties sought the transfer of the property under Settlement Scheme No. VII, framed pursuant to the Displaced Persons (Compensation & Rehabilitation) Act, 1958. The Settlement Department initially ruled in favor of the petitioner based on his undisputed physical occupation. However, the High Court overturned this decision, determining that the petitioner's possession was merely permissive and thus inferior to the rights of the allottee. The Supreme Court granted leave to appeal to determine whether a person in actual physical occupation possesses a superior entitlement to the transfer of rural property compared to an allottee, specifically interpreting the provisions of paragraph 3 of Settlement Scheme No. VII regarding the disposal of rural properties in minor villages. The Court ordered the continuation of an existing interim order pending the final adjudication of this legal question.
- Does a person in actual physical occupation of a rural property have a superior entitlement to its transfer over an allottee under Settlement Scheme No. VII?
- How should paragraph 3 of Settlement Scheme No. VII be interpreted regarding the transfer of rural properties in minor villages?
- Displaced Persons (Compensation & Rehabilitation) Act, 1958
- Settlement Scheme No. VII
ORDER
1. ' NASIM HASAN SHAH, J.-- The petitioner is in actual physical occupation of a shop situated in Mauza Gheela Khurd, Tehsil and District Rawalpindi while respondent No,1 is its allottee. Both applied for its transfer under the provisions of Settlement Scheme No,VII (framed under the Displaced Persons (Compensation & Rehabilitation) Act, 1958.
2. ' Whereas the Settlement Department found that the petitioner was entitled to its transfer on account of his undisputed physical occupation of the shop, the High Court in writ jurisdiction set aside the order holding that the possession of the petitioner could only be deemed as permissive, and he could not be preferred over the allottee.
3. The question whether a person in actual physical occupation has a superior entitlement to transfer over its allottee in view of terms of para. 3 of Settlement Scheme No,VII which provides that:- "All rural properties situated in minor villages other than Pacca houses and shops of the value of Rs,10,000 and above, will be transferred to the occupants free of charge but other provisions for the transfer of properties in the preceding sub-paragraphs regarding disposal of rural properties in major village, shall mutatis mutandis apply to the disposal of unoccupied rural properties in minor villages." (underlining is ours) requires further consideration.
4. ' Leave is granted.
5. ' Security Rs,2,500.
6. ' Interim order dated 15-5-1980 to continue meanwhile.