ATTA MUHAMMAD vs TAJ MOHAMMAD AND Another

ORDER

1. ANWARUL HAQ, J.-This petition for special leave to appeal is directed against an order made by a learned Single Judge of the Lahore High Court on 21-11-'J2, whereby a constitution petition filed by Atta Mohammad relating to the transfer of an evacuee shop situate in Mianwali District was dismissed in limine.

2. It is admitted that the petitioner is a local, whereas the respondent, Tai Mohammad, is a claimant displaced person. The shop in dispute was transferred to the respondent against his C. S. Form by the Deputy Settlement Commissioner on 27-9-1959. The petitioner did not file any appeal or revision against this order, but instead made a miscellaneous application to the Deputy Settlement Commissioner on 19-5-1960 for the transfer of the shop on the ground that he had converted the same into a hotel. The Deputy Settlement Commissioner submitted the case to the Additional Settlement Commissioner asking for permission to review the previous order of transfer in favour of the respondent. However, the matter was directly dealt with by the learned Settlement Commissioner who found the petitioner entitled to the transfer of the property on the ground of its conversion into a hotel.

3. Aggrieved by this order of the Settlement Commissioner, the respon--dent Taj Mohammad invoked the writ jurisdiction of the High Court, which remanded the case to the Settlement Commissioner for a fresh decision. On remand, the learned Settlement Commissioner, by his order dated 17th July 1972, restored the first order of the Deputy Settlement Commissioner dated the 27th of September 1959, with the result that the shop once again stood transferred to the respondent.

4. It was now the turn of the petitioner to approach the High Court, but he failed on the ground that he could not be deemed to be in possession of the shop within the meaning of the law. The High Court upheld the view taken by the learned Settlement Commissioner that the petitioner's possession, as a business partner of the respondent, who was the allottee of the shop, was not in his own independent right, and did not, therefore, confer on him any entitlement to the transfer of the shop.

5. The learned counsel appearing in support of this petition has simply reiterated the contention which was repelled by the High Court. He has submitted that the physical occupation being that of the petitioner, the latter was entitled to the transfer of the shop in preference to the respondent.

6. There is obviously no merit in this submission. Possession, which creates entitlement for the transfer of evacuee property, has been defined in subsection (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as meaning possession obtained in pursuance of an allotment order issued by a competent authority, and would also include the subsequent categories of persons brought within the definition by certain notifications issued by the Central Government. The petitioner's' case does not fall in any of these categories. The respondent was the allottee of the shop and the petitioner was in occupation as a licensee under the respondent. No entitlement to the transfer of the property therefore accrue in favour of the petitioner as against the respondent.

7. For the foregoing reasons, no justification is made out for interference with the orders made by the High Court. The petition is, accordingly, dismissed.