Makhdoom Syed NAZAR HUSSAIN vs THE SETTLEMENT COMMISSIONER, SARGODHA DIVISION AND 7 OTHERS
This matter arises from a petition for leave to appeal against the dismissal of writ petitions and a Letters Patent Appeal by the High Court, concerning the partition and transfer of properties bearing No. P-173 and P-175 Ward No. 6 in Lyallpur, which are partly owned by the petitioner and partly evacuee. The core legal question is whether a co-owner out of possession is entitled to the transfer of the evacuee portion of an indivisible property under paragraph 16(c) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act. The Supreme Court held that under the Schedule to the Act, houses and shops were to be transferred only to persons in possession thereof or whose spouse, son, or daughter was in possession, and therefore the petitioner's claim was rightly rejected. The court laid down the principle that eligibility for transfer under paragraph 16(c) requires compliance with possession requirements and submission of proper forms as mandated by the statute, while dismissing the leave petition with observations regarding the manner of partition.
- Whether a co-owner out of possession is entitled to the transfer of an indivisible property under paragraph 16(c) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act?
- Is possession a mandatory prerequisite for submitting forms and claiming transfer of houses or shops under the Displaced Persons (Compensation and Rehabilitation) Act?
- Paragraph 16(c), Schedule to the Displaced Persons (Compensation and Rehabilitation) Act
- Paragraph 2, Schedule to the Displaced Persons (Compensation and Rehabilitation) Act
ORDER
1. ' MUHAMMAD YAQUB Au, J.-The petitioner owns 1/3rd share in the properties bearing No, P-173 and P-175 Ward No, 6, in the City of Lyalipur. The remaining 2/3rd share in both the properties is admittedly evacuee and is in occupation of displaced persons. The Settlement Commissioner has directed that the petitioner's 1/3rd share be separated by partition. The petitioner felt aggrieved and filed two writ petitions in the High Court for quashment of vie orders of the Settlement Commissioner on the ground that he was entitled to the transfer of both the buildings under para. 16(c) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act. The paragraph is to the effect :- "Where a property is indivisible and is owned partly by a displaced person or a local the Chief Settlement Commissioner may transfer the property to such person if his share in the property exceeds such limit as may be specified by the Central Government."
2. ' By the notification issued on the 3rd November 1959 it was prescribed that the share of a displaced person or local shall not be less than 1/3rd to entitle him to the transfer of the property under paragraph 16(c).
3. Both the petitions were dismissed by a learned single Judge In limine. In the Letters Patent Appeal filed by the petitioner arising from one of the writ petitions a Division Bench of the High Court rejected the claim of the petitioner on the short ground that under paragraph 16(c) a property which was partly evacuee and partly non-evacuee could be transferred under paragraph 16(c) only to such persons who were in possession. Reference was made to paragraph 2 of the Schedule which makes it clear that it is only the persons in possession of houses or shops who were made eligible to submit Forms CH, CS and NCH etc., for their transfer. As the petitioner was not in possession of either of the two buildings nor had he submitted any such Form his claim under paragraph 16(c) was not tenable.
4. ' The petitioner seeks leave to appeal reiterating the same ground which did not find favour with the High Court. His learned counsel was however unable to meet the reasons given by the learned Judges rejecting the writ petitions that the petitioner had neither applied for transfer of the two buildings nor was he in possession of either of them, and as such he was not entitled to the transfer of the evacuee portion of the two buildings to him.
5. ' We agree with the learned Judges that under the Schedule of the Displaced Persons (Compensation and Rehabilitation) Act houses and shops were to be transferred only to those persons who were in possession thereof or whose spouse, son or daughter was in possession. There is thus little substance in both the petitions except to observe that in effecting partition of the two buildings, the claim of the petitioner to receive 1/3rd share in the frontage may be kept in view. In case he is not given any share in the frontage of the two buildings he may be compensated by allocation of a larger share in the back portion. The manner in which the partition will be affected nevertheless will be the exclusive discretion of the Settlement authorities.
6. ' With the observations made above the petitions are dismissed. Leave refused.