P L D 1969 Lahore 1039 (PLP)

ANWARUL HAQ, J.

‑This appeal under the Letters Patent has arisen out of the summary dismissal by our learned brother Mushtaq Hussain, J. of the appellant's petition under Article 98 of the Constitution, concerning the disposal of a residential house under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). The house is described as bearing No. 7/656 situate in Mohallah Tajpura in Sialkot City. The fourteen appellants claim to be displaced persons from the occupied territory of Jammu and Kashmir State.

2. By an order made on the 22nd of December 1959, the learned Deputy Settlement Commissioner transferred the entire house to the respondent Ali Muhammad against his Form C. H. A copy of this order has not been placed on the record by either of the parties, and they have been content merely with accepting the fact that such an order was passed which had the effect of excluding the appellants and favouring the respondent In the absence of the original record of the Settlement Department, which has not cared to put in appearance, it is difficult to see what reasons prevailed with the learned Deputy Settlement Commissioner in coming to such a decision. However, an appeal was filed against this order by the appellants, contending that the respondent was in possession of only a portion of the house, that the appellants had occupied their respective portions or rooms since 1947 when they first came to Pakistan, and that some of the appellants had constructed the rooms at their own expense. The appellants concluded by alleging that the Deputy Settlement Commissioner had proceeded ex pane against the appellants who were refugees from Jammu & Kashmir State and did not possess any other house. This appeal was rejected by the learned Additional Settlement and Rehabilitation Commissioner, Lahore Division, by a brief order dated the 25th of October 1960, observ ing that the appeal was by "a non‑claimant, non‑allottee, non -applicant, in respect of property No. 7/656, Sialkot. I do not see how I can waste time on such an appeal, which is rejected. The appellant does raise allegation regarding the area transferred to the respondent. This should be checked up by the learned Deputy Settlement Commissioner" From the language employed in this order it appears that there was only one appellant before the learned Additional Settlement Commissioner, but in fact it was not so. The Memorandum of Appeal has been placed on the record as Annexure "D" to the petition and it shows that it was on behalf of Noor Din appellant No. 10 and others, and the same heading is repeated in the title of the appellate order. It is clear, therefore, that the learned Additional Settlement Commis sioner did not at all apply his mind to the facts of the dispute before him. "

3. It seems that the first round of litigation between the parties concluded with this appellate order of the Additional Settlement Commissioner. Subsequently, the Deputy Settlement Commissioner disposed of a portion of the house by public auction, thus compelling the transferee Ali Muhammad to go up in appeal. This appeal was accepted by the learned Additional Settlement Commissioner by his order dated the 13th of Octo ber 1962, observing that as a P. T. O. had already been issued to Ali Muhammad respondent, the disposal by auction would amount to a review of the previous order of the Deputy Settlement Commissioner, which was not permissible under the law. Simultaneously another development had taken place, presumably at the instance of the appellants. On the 2nd of May 1962, the Deputy Settlement Commissioner, Sialkot, sent up a report to the Additional Settlement Commissioner stating that the house comprised about fifteen rooms with a spacious courtyard, that only rooms bearing Nos. 1, 2 and 3 were in the possession of respondent Ali Muhammad, a non‑J & K refugee, and the remaining rooms were in possession of J & K refugees. The report stated further that on the 1st of January 1962 the portion in possession of J & K refugees was put to auction under Settle ment Scheme No. IV, that it was actually auctioned on the 7th of April 1962 but the auction had not so far been confirmed, and the J & K refugees were still in possession. The report concluded by saying that the portion in possession of J 8t K refugees had been transferred to Ali Muhammad due to rush of work, and the legal aspect of the case needed examination. The learned Deputy Settlement Commissioner sought guidance in the matter from his superior. This report was dealt with by the learned Additional Settlement Commissioner in his order dated the 12th of May 1962, and he stated that as the house had been transferred in its entirety to Ali Muhammad, and subsequently the case had been decided in appeal by his predecessor, the aggrieved party should, therefore, seek judicial remedy.

4. The appellants, however, continued to agitate with the result that the Deputy Settlement Commissioner made another report on similar lines on the 22nd of October 1963, stating that the question regarding the issuance of P. T. D. in favour of a non‑J & K refugee regarding a house in the joint possession of J & K and non‑J & K refugees required clarification. It was also indicated in the report that the belated KCH Form produced by the J & K refugee occupants had also been placed on the file. This report bears an endorsement by the Deputy Settlement Commissioner dated the 21st of November 1963 to the effect that the matter had been discussed by him with the Additional Settlement and Rehabilitation Commissioner, and the P. T. D. should be issued.

5. After having failed to have the matter set right on the administrative side, the appellants once again resorted to judicial remedies. They filed another appeal which came up before the Additional Settlement Commissioner on the 26th of February 1965 and was rejected on the ground that it was barred by time, and a Permanent Transfer Deed had already been issued to the respondent Ali Muhammad. Aggrieved by this appellate order, the appellants then filed a revision petition which was dismissed by the learned Settlement Commissioner, Sialkot on the 31st of January 1966. This officer observed, that, in the first place, there was delay in presenting the appeal, which had rightly not been condoned by the learned Additional Settlement Commis sioner ; and that, in the second place, an earlier appeal filed by the appellants had already been rejected by the Additional Settlement Commissioner on the 25th of October 1960, and that order had remained unchallenged.

6. After having thus exhausted all possible remedies under the provisions of the relevant statute, the appellants invoked the extraordinary jurisdiction of this Court under Article 98 of the Constitution, When their petition came up before our learned brother Mushtaq Hussain, J. on the 17th of March 1966, he summarily dismissed the same by a short order to the effect that "the appeal filed by the petitioners was dismissed as being barred by time. The Settlement Commissioner dismissed the revision petition on that very ground. Surely both these officers had the authority to do so Mumtaz Khan v. Settlement Commissioner (P L D 1966 S C 276). The petition is misconceived and is dismissed as such".

7. On behalf of the appellants it is contended :‑‑ (a) That no question of limitation or finality really arose in this case for the reason that the order of transfer made in favour of the respondent Ali Muhammad was a void order owing to the fact that the property was occupied by refugees from Jammu and Kashmir State and could not be transferred to a non‑J & K refugee in view of the bar contained in Paragraphs 19 and 21 of Settlement Scheme No. IV and (b) that, in any case, the respondent Ali Muhammad had applied in Form CH only for the portion in his possession, and accordingly the Settlement authorities had erred in transferring to him the remaining portions of the property which were in the possession of the appellants.

8. On behalf of the respondent Ali Muhammad it is submitted by Mr. Ismail that this is a case in which the bar of limitation very much stands in the way of the appellants, as at every stage they have been negligent in pursuing their rights and, therefore, the Settlement authorities as well as the learned Judge in Chambers were right in refusing to give them any relief on the merits of the case. The learned counsel points out that in fact the matter stood concluded against the appellants by the appellate order of the Additional Settlement Commissioner dated the 25th of October 1960 and time should be counted against them from that date. It is further contended that it is incorrect to assert that the respondent was not entitled in law to the transfer of this property simply because he does not come from the occupied territory of the Jammu and Kashmir State. It is submitted that in view of the successive changes in the relevant provisions of law, there is no longer any bar in the way of the respondent getting this property by transfer under Settlement Scheme No. I. Finally, it is stated that the respondent Ali Muhammad had applied for the whole of the property and his claim cannot, therefore, be restricted to the rooms in his physical occupation.

9. We consider that the first question calling for determina tion in this case is regarding the true legal position as to the eligibility of the parties for the transfer of this property, and it is only in the light of such determination that the other points of controversy between the parties can be resolved. The admitted position is that the appellants are refugees from the occupied territory of Jammu and Kashmir State, that they are in possession of a large number of rooms in this spacious 1hata, and that the respondent Ali Muhammad, a displaced person from a non‑J & K territory, is in possession of only three rooms and a portion of the courtyard. The question, therefore, is whether a person who does not belong to the occupied territory of Jammu and Kashmir State is eligible for the transfer of that portion of the property which is in the possession of displaced persons from Jammu and Kashmir State.

10. The legal provisions having a bearing on this question have been undergoing a change from time to time. To start with, a provision was made in subsection (5) of section 30 of the Act to the following effect :‑ "Houses and shops in possession of persons displaced from such part of the State of Jammu and Kashmir as is under the occupation of India and are residing in Pakistan shall not be transferred under the provisions of the Act and the possession of such persons shall not be disturbed till their repatriation to the aforesaid State, provided that such persons do not con travene or have not contravened any of the terms and conditions on which such houses and shops are held by them or such terms and conditions as may be determined by the Chief Settle ment Commissioner from time to time." Simultaneously with this provision of law, there was section 16‑B of the Act which enjoined the Chief Settlement Commissioner to prepare a scheme for the temporary rehabilitation of persons displaced from the occupied territory of the State of Jammu and Kashmir. The opening words of subsection (1) of this section made the preparation of the scheme subject to the provisions of subsection (5) of section 30 of the Act. There was obviously a conflict between the two provisions, and the same was brought out by a Division Bench of this Court in Mst. Zainab Bibi v. The Government of Pakistan and three others (P L D 1962 Pesh. 101). The late M. R. Kayani C. J., delivering the judgment of the Court, held that by section 30, subsection (5), the transfer of a house in possession of a Jammu and Kashmir refugee had been forbidden altogether, and observed that the provisions of Paragraphs 19 and 21 of the Settlement Scheme No. IV framed under sec tion 16‑B could operate only after subsection (5) of section 30 of the Act had been suitably amended. His Lordship concluded by saying that, therefore, the transfer of a house in occupation of a displaced person from Jammu and Kashmir in favour of a person who is not such a displaced person is void not only because the occupant is a Jammu and Kashmir refugee but also because the transferee is not a refugee from that area. The learned counsel for the respondent has not been able to say anything which could throw doubt upon the correctness of the decision in this case, with the result that it has to be held that under the original provision of subsection (5) of section 30 there was a complete bar in the way of the transfer of such property to any category of refugees whatsoever.

11. The law was then amended, presumably in deference to the judgment of this Court mentioned above. By the amending Act X of 1963 the words "subject to the provisions of subsec tion (5) of section 30" were omitted from section 16‑B of the Act, and subsection (5) of section 30 itself was amended by inserting the words "except for the purpose of implementing any scheme prepared under section 16‑B". The combined effect of these two amendments was that Settlement Scheme No. IV prepared under section 16‑I3 was made workable by modifying the rigour of the ban contained in the original provisions of subsection (5) of section 30, but the relaxation was purely in favour of displaced persons from Jammu and Kashmir State, and did not benefit any persons not from this territory. This position was explained by a Division Bench of this Court (of which one of us was a member) in Dr. Hassan Din v. Syed Mahmood Ali Shah and others (P L D 1965 Lah. 188).

12. Then came Ordinance XIII of 1964 by which subsec tion (5) of section 30 of the Act was altogether omitted and it was further legislated that "it shall be deemed always to have been so omitted". No amendment was made in section 16‑B of the Act. The contention of the learned counsel for the respondent Ali Mohammad is that the effect of this amendment was to remove the prohibition previously existing in the way of transfer of such properties to non‑J & K refugees, by making Paragraphs 19 and 21 of Settlement Scheme No. IV inoperative and ineffective. In support of this contention Mr. Ismail referred us to Agha Shaukat Ali v. The settlement and Rehabilitation Commissioner, Lahore and another (P L D 1965 Lah. 445). 13. in order to appreciate this argument it becomes neces sary at this stage to refer to the relevant Paragraphs of Settlement Scheme No. IV framed under section 16‑B of the Act. Section 16‑B, as it stands after its amendment by the amending Act X of 1963, is in the following terms :‑ "(1) The Chief Settlement Commissioner shall prepare scheme for the temporary rehabilitation of persons displaced from such part of the State of Jammu and Kashmir as is under the occupation of India and are residing in Pakistan. (2) . Subsection (3) of the same section lays down that "the Central Government may, by order in writing and subject to such conditions as it may deem fit, confer upon the persons aforesaid such rights in respect of the properties transferred to them under the scheme prepared and approved under this section as may be specified in the order''. In pursuance of the directions contained in section 1G‑B, the Chief Settlement Commissioner has prepared Settlement Scheme No. IV which lays down in sub‑para. (1) of paragraph 19 thereof that "houses and shops in the possession of displaced persons from occupied territory shall not be transferred by a Settlement Authority to any person who is not a displaced person from the occupied territory". Paragraph 21 of the Scheme then lays down the manner of disposal of houses and shops, and each clause in that paragraph makes it clear that houses and shops occupied by Jammu and Kashmir refugees have to be transferred to persons from the same territory, and it is only when they cannot be so transferred that they shall be dis posed of in such manner and subject to such terms and conditions as may be prescribed by the Chief Settlement Commissioner.

14. It will be seen that even though subsection (5) of section 30 of the Act, 1958 has been omitted by the amending Ordinance XIII of 1964, the operation of paragraph 19 of Settlement Scheme No. IV A prepared under section 16‑B of the Act has been left intact, and it is difficult to see how this paragraph has become inoperative or ineffective by the omission of subsection (5) mentioned above. It is true that in Agha Shaukat All's case a Division Bench of this Court did express the view that by the omission of subsection (5) of section 30 of the Act the provisions contained in paragraph 19 of Settlement Scheme No. IV also stood repealed by implication, or, at any rate, had ceased to exist because of their inherent inconsistency with the Act as finally amended, yet it is clear that this view of the matter overlooked the provisions of section 16‑B of the Act under which Settlement Scheme No. IV had been framed. This aspect of the matter was pointed out by our learned brother Shameem Hussain Kadri, J. in Muhammad Amin v. The Deputy Settlement Commissioner, Sialkot and others (P L D 1968 Lah. 1356). In adopting this view the learned Judge followed an earlier decision of a Division Bench of this Court in Abdul Aziz Ayub v. Nathu Khan and others (P L D 1968 Lah. 1220) in which the judgment of the Court was delivered by Wahiduddin Ahmad C. J. We are in respectful agreement with the view adopted in both these cases and consider that although initially the protection enjoyed by Jammu and Kashmir refugees and the properties occupied by them had reference to the provisions contained in subsection (5) of section 30 of the Act yet by successive amendments of the law the protection was substantively incorporated in Settlement Scheme No. IV as framed under the provisions of section 16‑B of the Act, without reference to any other provisions of the Act and the Schedule. It e is significant that the opening words in section 16‑B, i.e., "subject to the provisions of this Act . . . . ." were omitted, with the result that the provisions contained in section 16‑B and any scheme prepared thereunder would have effect irrespective of any other provisions of the Act. On the other hand, the provisions of Settlement Scheme No. I framed under section 16 of the Act have been clearly made subject to the provisions of the Act and the Schedule. The respondent before us is claiming under Settlement Scheme No. 1, which cannot prevail as against the provisions of Settlement Scheme No. IV framed under section 16‑B of the Act: As the law stands at present, the disappearance of subsection (5) of section 30 of the Act does not appear to us to have any effect on the validity or effectiveness of paragraph 19 of Settlement Scheme No. 1V which gives protection to the properties occupied by Jammu and Kashmir refugees in the matter of transfer to persons not belonging to such territories. The result, therefore, is that irrespective of successive changes in the law, properties occupied by Jammu and Kashmir refugees have never been avail able for transfer to persons not belonging to the occupied territories of that State. It is only when such properties cannot be transferred to any person from Jammu and Kashmir in accordance with the provisions of Settlement Scheme No. IV that they, become available for transfer to non‑J & K refugees.

15. In view of the position outlined above, it is clear that the learned Deputy Settlement Commissioner who transferred the entire house to respondent Ali Muhammad acted without jurisdiction in so far as his order related to those portions of the property which were admittedly in the possession of the appellants who are refugees from Jammu and Kashmir State. The question now is whether an order which is void and without jurisdiction can be allowed to operate simply on account of the fact that the appellants did not agitate against it in time by way of appeal and revision. It is true that in the case of Mumtaz Khan their Lordships did lay down the rule that if an appeal tiled by the aggrieved party was barred by time and the appellate authority had refused to condone delay, then such an order was within the competence of that authority to make, and it could not be challenged successfully in writ jurisdiction on the merits of the case. It was submitted by Mr. Ismail, the learned counsel for the respondent, that the order, which was the subject‑matter of litigation in that case, was also without jurisdic tion inasmuch as it had sought to transfer to a person property in contravention of the bar contained in subsection (5) of section 30 of the Act and yet their Lordships did not permit the order to be examined on merits on account of the appeal being barred by time. We find that the question whether the bar of limitation would operate in respect of an order which is void on account of being without jurisdiction has not been discussed in this case by their Lordships of the Supreme Court. On the other hand this question has been specifically considered by them in Yousaf Ali v. Muhammad Aslam Zia and others (P L D 1958 S C (Pak.) 104), Ch. Altaf Hussain and others v. The Chief Settlement Commissioner and others (P L D 1965 S C 68) and Syed Ali Abbas and others v. Vishan Singh and others (P L D 1967 S C 294). In the first‑mentioned case their Lordships laid down that "where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, its the eye of the law such order being void, and non existent". In the second case it was observed that an order with out jurisdiction would be a nullity in law and it did not require to be set aside formally. Finally, in the case of Syed Ali Abbas and others their Lordships have observed that where an authority has passed an order in excess of jurisdiction, the petitioner cannot be refused relief and penalized for not throwing himself again, by way of revision or review, on the mercy of authorities who were responsible for such excess. It will be seen that in all these cases the principle has been clearly laid down that if an order is without jurisdiction and void, then it need not be formally set aside, and no question would, therefore, arise of holding that the matter cannot be considered on merits on account of any bar of limitation.

16. The position, therefore, which emerges is that the learned Deputy Settlement Commissioner acted in excess of jurisdiction when he proceeded to transfer to the respondent Ali Muhammad those portions of the property which were admittedly in the possession of the appellants who are refugees from the occupied territory of Jammu and Kashmir State. These properties could not be transferred to any person who did not belong to such territories, and had to be disposed of in terms of Settlement Scheme No. IV prepared under section 16‑B of the Act. This position would obtain irrespective of the fact whether the respondent Ali Muhammad had applied for the entire property or only for the portion in his possession, as merely the fact of his applying for these portions would not entitle him to their transfer in view of the bar contained in paragraph 19 of Settle ment Scheme No. IV. Even otherwise, a perusal of the CH Form submitted by the respondent Ali Muhammad clearly shows that he applied for the transfer of only the portion in his possession, as in columns 5, 10 and 11 of his application he did not indicate that the property applied for was in the possession of any other person. In fact against column No. 11 he was specifically required to state whether any refugee from Jammu and Kashmir State was in occupation of any portion of the property, and his reply was "Nil". From these circumstances, it is clear that Ali Muhammad had in fact applied only for his own portion and for that reason as well he could not obtain the transfer of the portions in the occupation of the appellants.

17. As a result, the appeal is accepted, the order of transfer in favour of the respondent is declared to be without lawful authority in so far as it relates to the portions of the property in the possession of the appellants, and it is directed that the learned Settlement Commissioner should decide the question of the transfer of these portions to the appellants in accordance with the provisions of Settlement Scheme No. IV. The parties are left to bear their own costs. A. E. Appeal accepted.