P L D 1978 Karachi 139 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑This Letters Patent Appeal arises out of the judgment of the learned Single Judge dated 9‑9‑68 whereby the Writ Petition No. 491 of 191:4 filed by respondents Nos. 1 to 22 was allowed and the transfer of the property in dispute under the Settlement Laws in favour of the appellants along with respondent No. 23 was set aside with a direction that the case be remanded to respondent No. 23, the Settlement Commissioner, Karachi for disposal according to the Law.

2. The brief facts forming the background of this case are that respon dents Nos. 1 to 22 who were non‑claimant displaced persons excepting Nos. 21 and 22 who were locals, were in occupation of different tenements in the building known as "Dinbai Villa Compound" situated on Plot No. S. B. 3/69, Karachi for over 10 years. These respondents initially, used to pay rent for their respective tenements to the Custodian of Evacuee Property but subsequently, he stopped accepting the same on the ground that the building in question was not shown, in the Custodian records as an evacuee property. Nevertheless when the Settlement Scheme No. 1 framed under the Displaced Persons (Rehabilitation and Settlement) Act, 1958 came into force, these respondents applied for transfer of the respective tenements in their possession, but the Settlement Authorities declined to accept their applications on the ground that the building in question was non‑evacuee property and therefore did not form part of the compensation pool. In the events that happened, in May 1964, these respondents received notice‑ from the appellants calling upon them to pay rent of their respective tenements as the entire building in question had been transferred to the latter by the Settlement Authorities. On receipt of this notice the respondents made inquiries and learnt that the building in question had been transferred to appellant No. 1 Mir. Iffat Sultan Begum under the orders dated 22‑7‑63 and 23‑7‑63 of respondent No. 24, the Settlement Commissioner, Karachi. In pursuance of the aforesaid transfer orders, a P. T. D. dated 8‑1‑64 in favour of the appellants was issued. The Settlement Authorities do not deny these facts except that the aforesaid respondents had applied for the transfer of various tenements after the Chief Settlement Commissioner's Notification dated 21‑5‑59 inviting applications for transfer under the Scheme. According to the Settlement Authorities the property in question had been transferred to appellant No. 1 as informant. It was further submitted that the said appellant bad moved the Chief Settlement Commissioner for transfer of the property and in consequence enquiries were conducted by the Deputy Superintendent of Police (Enforcement). Karachi, who recommended that the property should be transferred to appellant No. 1 as informant in terms of Government Notification of 2‑9‑

61. Thus the property was ordered to be transferred to appellant No. 1 on evaluation price of Rs. 1,85,040 who associated with the rest of the appellants and respondent No. 23 and the P. T. D. was issued in favour of all the appellants jointly on 14‑1‑

64. It was pursuant to this transfer that notices were given to respondents Nos. 1 to 22 on 18‑5‑64. ?hereupon these respondents, on 10‑8‑64 filed writ Petition No. 491/64 in the High Court of West Pakistan. Karachi Bench, Karachi, challenging the transfer of the property to the transferees. The learned Single Judge was pleased to allow the petition by his impugned judgment on 9‑9‑

68. Aggrieved by this judgment the present Letters Patent Appeal has been brought by the appellants. It would be pertinent to mention that by a press‑note dated 7‑4‑60 the Chief Settlement Commissioner invited members of the public to extend their co‑operation in unearthing the hidden evacuee properties and by way of inducement to such informants, it was decided that if a person gives information about any hidden property, which is not already entered in the Survey Register maintained by the Custodian of Evacue., Property, the Rehabilitation Authorities or Settlement Authorities, the first informant will be given preference for transfer of such property if he is entitled to its transfer under the Displaced Persons (Compensation and Rehabilitation) Act. 1958, (hereinafter referred to as the Act) and the Rules and Schemes made there under. Subsequently. on 2‑9‑61 a regular Order of the Central Government under clause (h) of section 10 of the Act was published through notification approving the manner in which the properties in the compensation pool may be transferred to certain persons, in supersession of all previous orders on the Subject. By this order an informant unearthing the hidden evacuee property was given the right to be transferred the whole or any part of such property. Section 10 was repealed and substituted by the Amending Ordinance II of 1962 with effect from 13‑1‑

62. The transfer in favour of the appellants, as stated above, was made on 16‑3‑62 when the P. T. O. was Issued, admittedly after the repeal of the original section 10 (b) and the P. T. D. was thereafter issued on 14‑1‑

64. Mr. Mushtaq Hussain, the learned counsel appearing for the appellant first contended that the repeal of the original section 10 had no material effect upon the transfer in question in favour of the appellants as the proceedings in this behalf had commenced on the application of appellant No. 1 prior to the aforesaid repeal, on 16‑6‑

61. The learned counsel, however, very fairly conceded that in view of the settled position of law in line of decisions by the Supreme Court ending with the case of Whuda Bakhsh v. Khushi Mohammad P L D 1976 S C 208, it was no longer open to the appellants to advance this argument. In that case the order of transfer was passed on 9‑5‑62 and accordingly it was held by their Lordships that the order of the Chief Settlement Commissioner was without jurisdiction as on that day he had ceased to have any power to transfer the shop to the informer. In reaching this conclusion their Lordships followed the view taken by the Supreme Court in the case of Mohammad Siddique v. Chief Settlement Commissioner P L D 1965 S C 123, from which the following passage was reproduced : "Section 10 of the Act was substituted by another section by Ordi nance II of 1962 on 13‑1‑

62. In the new section, instead of the old clause (b), the following was inserted as subsection (2) : ‑ (2) Notwithstanding anything contained in subsection (1) the Central Government may order the transfer in public interest of any property out of the compensation pool in such manner as it may deem proper.' Henceforth, therefore, there was no question of transfer by the Chief Settlement Commissioner, of any evacuee property under this clause, with the approval of the Central Government. In future, only the Central Government could order a transfer in public interest. In view of this change of the law, the order issued on the 2nd of September, 1961, under clause (b) of section 10, as it then stood, had lost its efficacy. The impugned order of the Settlement and "Rehabilitation Commissioner was passed on 12‑3‑62, long after this amendment and indeed, it is contended on behalf of the appellant that the circumstance alone sufficed to invalidate the impugned order of the Settlement and Rehabilitation Commissioner." Their Lordships also repelled the contention that the repeal of section 10 of the Act did not affect the transfer as it was a pending matter on the date of the amendment effected by Ordinance II of 1962. In this behalf the view taken by their Lordships was that a person laying information regarding unauthorised possession of evacuee property, does not acquire a vested A right for transfer of such property and, therefore, all pending cases on such information lapsed with the repeat of clause (b) of section 10 with effect from 13‑1‑

62. We respectfully follow these decisions anti hold that the argument advanced by the learned counsel is not tenable. Faced with this situation the learned counsel for the appellants urged before us an ingenious submission that although the transfer is nut sustainable with reference to section 10 of the Act, its validity can be justified under clause 3(b) of section 15 of the Act. Clause (3) of section 15 may be reproduced as under; (3) Subject to the provisions of this Act and the rules made thereunder, compensations, may be paid in any one of the following forms or partly its one and partly in any of the other forms, namely: "(a) in cash,; (b) by sale or by any other mode of transfer to the claimant of any immovable property out of the compensation pool, setting off the purchase money or the valuation of the property, as the case may be, against the compensation payable to him; (c) . . . . . (Omitted) by Ordinance 53 of 1959. (d) in such other form as may be prescribed." It was argued by the learned counsel that section 15 vests a general power in the authorities under the Act for the purpose of paying compensation to claimants in the form of cash or by sale of any immovable property out of the compensation pool. Thus the submission was that since the appellants were claimants and their compensation books were adjusted against the purchase price of the property, the transfer cars be appropriated to clause (3)(b) of section 15 of the Act. The counsel further submitted that section 15 is not controlled by sections 10 and 11 of the Act. Mr. Saiduzaaman Siddiqui, the learned counsel appearing for respon dents 1 to 22, on the other hand, contended that the opening part of clause (3) of section 15 quite clearly makes out that the payment of compensation by sale or transfer to the claimants of the property in the compensation pool, is 'subject to the provisions of this Act and the rules made thereunder'. In other words counsel contended that sections 10 and 11 which are substantive provisions of the Act vesting powers of transfer of property from the compensation pool iii the Chief Settlement Commissioner and other officers authorised in this behalf by him control the general provisions of section 15 which are procedural in nature and merely lay down the. mode in which are the compensation to claimants can be paid. In the first place section 15, is contained in Chapter V of the Act, which as its heading shows, relates to the payment of compensation from the compensation pool. The marginal heading of the section itself is "scale, form and manner of payment of compensation". Clause (3) of this section lays down the forms in which the compensation may by paid. 'the section does not in any manner name the authority in whom the power to pay the compensation in the specified modes would vest. Clearly, therefore, the provisions are adjective in nature and do not create a substantive Tight to transfer or confer an independent power on any authority to transfer the properties from the compensation pool in addition to or over and above the power vesting in the Chief Settlement Commissioner and his subor dinates under section 10 read with section

16. The intention of the Legislature is abundantly clear from the use of the words "subject to the provisions of this fact and the rules made thereunder". In Anwar Jehan v. Chief Settlement Commissioner P L D 1961 Kar. 694 the aforesaid words came up for interpreta tion. In trots behalf it was observed by the Division Bench that the object of the Legislature underlying section 10 appears to be to expeditiously dispose of the claims and, therefore, there is no reason to give a restricted inter pretation to the aforementioned words. The intention. of the Legislature could not be to give the power to the Chief Settlement Commissioner so as to override the provisions of the Act or the Rules. In Rafiuddin v. Chief Settlement and Rehabilitation Commissioner P L D 1971 S C 252, their Lordships examined and analysed the nature and scope of rights conferred by the Act. With reference to the Evacuee Laws it was observed that such legislations are legislations of an extremely special character which are from the very nature of Acts to be construed not so much on considera tions that would weigh with the Courts of law but also on considerations of policy. Such legislation is designed for meeting the extraordinary situation of complex and confusing nature created by the influx of large number of refugees who had to be settled and were intended to be so adaptable as to meet the changes in the situation that developed from time to tune. They could not, therefore, be construed upon strict legal principles and certainly not in such a manner as to defeat the very object for which such special legislation was designed. Keeping this general perspective of the Evacuee Legislation in view, their Lordships proceeded to examine the provisions of the Act and observed that under section 3 of this Act all evacuee property vested wholly and absolutely free from all incumbrances in the Central Government on the publication of the Notification of acquisition, then sections 4, 5 and 6 provide for setting up of compensation, rent and rehabilitation bills, and into the compensation pool were put all evacuee properties acquired under section 3 of the Act, the sale proceeds or compensation in respect of any immovable property taken by the Central or provincial Governments, public dues et.:. The Chief Settlement Commis sioner was, by section 10, then authorised to transfer or dispose of any property out of the compensation pool on an evaluation basis or by sale, suction or otherwise in accordance with the provisions of the Schedule but subject, not only, to the provision, of the Act but also to the rules made thereunder. The Central Government, however, reserved to itself the right to transfer or dispose of any property out of such pool in such other manner as it may choose to prescribe. Section 11 gave power to the Chief Settlement Commissioner to invite applications by notification in .the form prescribed by him and these had to be submitted within the period prescribed and in the manner laid down. After receipt of the applications the authority concerned was required by section 12 to hold an inquiry again in a prescribed manner. Then section 15, on which ‑reliance has been placed by the appellant, laid down the scale, form and manner of payment of compensation. It gave a right to "receive payment out of the compensation pool", either in the form of cash or by sale of by transfer in any other mode of immovable evacuee property but again subject to the provisions of the Act and the rules made thereunder. Section 16 of the Act gave power to make provision for the payment of interim compensations but these too bad to be made subject to the provisions of the Act and the rules made thereunder. Then followed the provisions fort appeals. revisions and review in sections 19, 21 and 22 giving finality to orders of ultimate Settlement Authorities. The Act bad a Schedule but it prescribed the qualifications under which and the mode in which immovable evacuee properties of various kinds may be disposed of or transferred to Displaced Persons and even locals. Then came. the Schemes prescribing the procedure for disposal and transfer. Under these there had first to be an inquiry for the ascertainment of the entitlement of the applicants and then a determination of the amount payable to the person so found to be entitled. It was after this that an intimation of transfer was issued in the prescribed form requiring the transferee to comply with the directions contained therein. After referring to these provisions and the scheme of the Act their Lordships made the following observations : "It will be observed that even though mandatory words have been used in some places in the Schedule and the Schemes with regard to the transfer of property, vet the transfer is in implementation of the entitlement under section 15 of the Act and this entitlement Is basically to receive payment out of the compensation and rent pools in the manner prescribed by the Schedule, the Schemes and the rules, which only give a preferential position to the claimant." From the over all scheme of the Act, therefore, it is quite clear that section 15 basically relates to the right to receive payment out of the compensation pool and the manner in which this compensation is to be paid is provided for in detail by the Schedule, the Schemes and the rules. It, therefore, follows that the power to transfer a particular property from the compensation pool is not conferred by section 15 but is to be found in other provisions of the Act, which is the clear intention of the Legislature in using the words "subject to the provisions of this Act arid the rules made thereunder". Looked at in this context the provisions of section 1,0 clearly make out that the pourer to transfer property from the compensation pool vests is the Chief Settlement Commissioner or any other officer under his authority in terms of the Schemes prepared by the him under clause (3) thereof read with the Schedule to the Act and the rules framed thereunder. The Chief Settlement Commissioner or his subordinates, therefore, do not possess untrammelled powers to transfer the properties in a mode other than those prescribed by the Schedule, the Schemes and the rules. It has always been held in a long line of authorities that the power to dispose of the property in a manner other than that prescribed by the Schedule and the Schemes only vests in the Government. In that view of the matter, therefore, there is no substance in the conten tion that if the impugned transfer fails under clause (b) to section 10 of C the Act, it can be appropriated to clause (3) of section 15. 1 agree with the submission that section 15 is not a substantive provision regarding the transfer of properties and that it is subject to the provisions of sections 10 and 16 of the Act, which In fact lay down the mode of transfer of properties by the Chief Settlement Commissioner and his subordinates. No other argument was advanced on behalf of the learned counsel for the appellants. For the foregoing reasons we find no merit in this appeal which is therefore, dismissed with costs. I. MAHMUD. J.‑I agree. S. Q. Appeal dismissed..