1969 PLP 330 (SCMR)

Sardar Hidayatullah Khan, Settlement Commissioner (Legal) and Advocate Supreme Court instructed by M. Mahboob Ahmad, Attorney for Petitioners. Nemo for Respondents. Date of hearing : 15th April 1969. HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from an order of a Division Bench of the High Court of West Pakistan, accepting a writ petition and directing the Additional Settlement Commissioner (Accounts and Records) to issue a duplicate compensation book with all reasonable despatch in respect of the registered claim of the respondent herein upon his furnishing an indemnity bond to indemnify the department against any loss suffered on account of the issuance of the duplicate. The Additional Settlement Commissioner (Accounts and Records) now seeks to contend that the High Court was wrong in giving the above direction as under the Settlement Laws the Department is not legally bound to issue a duplicate. Learned counsel appearing in support of the petition contends that since there is no provision either in the Registration of Claims (Displaced Persons) Act, 1956 or in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, there can be no such legal duty on the Settlement authorities. This argument is wholly fallacious, because, in the absence of any provision either in the Act or in the rules framed there under, prohibiting the department from issuing a duplicate compensation book where the original is lost, the department cannot deprive a claimant of the verified amount of his claim merely by refusing to issue a duplicate compensation book. No such power can be spelled out from the provisions of the relevant statutes. Indeed the department itself has issued instructions by its Memorandum No. 7223‑Comp‑Reh‑59, dated the 16th November 1959, for the issuance of duplicate Compensation Books in the circum stances therein mentioned. If the department is of the impression that there is no duty cast upon it by these instructions, then it must be pointed out that it is under a grievous misconception. it cannot merely on tote ground of alleged incontinence or difficulty in maintaining proper records absolve itself of this duty. If the applicant for duplicate has satisfied the conditions prescribed in the imtrucions then the Deputy Settlement Commissioner, Settlement Accounts and Record Office is, in our view, bound to make a recommendation to the Chief Accounts Officer fur the issuance of a duplicate compensation book. The word `will' used in paragraph 2 of the instructions has the same force as the word `shall' and is, therefore, mandatory. Even in the unreported decision of the High Court in the case of M. Nishan Khan v. Chief Settlement and Rehabilitation Commis sioner Writ Petition No. 1392/R of 1962 disposed of on the 18th January 1965, relied upon by the Department, there is no different rule laid down although it was conceded that "it is open to the department to lay down the conditions under which it will issue second or successive duplicate compensation books. Where such conditions have been laid clown, as in the instructions issued on the 16th November 1959, the department is equally bound by those instructions and the conditions contained therein are satis fied, there is a duty cast upon it to issue a duplicate. Until those instructions remain unchanged the Additional Settlement Commis sioner (Accounts and Records), cannot lay down a different rule of his own choice. In any event, no rule can be laid down to deprive the claimant totally of his verified claim, because, then the instructions would be repugnant to the provisions of the statute. Within this limit the competent authority can lay down reasonable conditions for the issuance of a duplicate copy and may even prescribe a fee by way of a penalty for such a copy, but it can in no circumstances abrogate to itself the power to convert a claimant into a non‑claimant. This petition is wholly without substance and is, accordingly, dismissed. Leave refused.