P L D 1968 Supreme Court 119 (PLP)

S. A. RAHMAN, J.‑ This order will dispose of two appeals by special leave, the first having been filed on behalf of Mr. A. R. Niazi and others and the second on behalf of Sheikh Abdul Majid and others, from an order passed by the High Court of West Pakistan, under Article 98 of the Constitution. They arise out of two writ petitions preferred to the High Court, which were disposed of by one consolidated order. The appellants in Civil Appeal No. 33 of 1967, Mr. A. R. Niazi and others are practising Advocates who are occupying portions of Bungalows Nos. 17, 17‑A, 17‑B, 19‑A and 19‑B, Fane Road, Lahore, belonging to the Dayal Singh Trust Society. It appears that four of these appellants were tenants under the Dayal Singh Trust Society from before Petition and the others were let into the premises as licencees under them. Some of these appellants are claimants displaced persons and others are locals. Appellants Nos. 1 and 2 are residing in the premises in question but others are merely keeping their offices therein. The appellants ill the Second Appeal No. 34 of 1967, are legal heirs of Sheikh Chiragh Din, deceased Advocate, who had apparently occupied the premises in dispute, belonging to the Dayal Singh Trust society, in 1947, under an order of allotment or requisition, issued in his favour. He had later attorned to the Dayal Single Trust Society, as a tenant. Sheikh Chiragh Din, deceased, was said to be a claimant refugee from India. He died on the 20th of December 1953, leaving the appellants as his heirs. A part of this property, baring No. 19‑B, is in the occupation of Choudhary Nasrullah Khan, a non‑claimant. The writ petitions in the High Court arose in the following circumstances. The properties in dispute, admittedly belonging to the Dayal Singh Trust Society which was founded in the year 1895, under the will of the late Sardar Dayal Singh Majithia. The Society had been enjoined to run inter alia, the Dayal Singh College and the Dayal Singh Library. In 1947, when India was divided into the two dominions of India and Pakistan, all the trustees of this Society migrated to India and the Management of the Trust was assumed by some persons, nominated by those trustees. The Dayal Singh College and the Library therefore, continued to function. On the 14th of February 1948, an order was passed by the Custodian of Evacuee Property, declaring that the Dayal Singh Trust Society, not having wholly or partially ceased to function, was not evacuee and its properties would not be treated as evacuee properties, within the meaning of Ordinance V1I of 1947. This was, apparently, an adminis trative order. The question was however, raised in some suits filed by the Society for rent against some tenants and was referred to the Custodian of Evacuee Property for decision, in accordance with law. By that time, the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, had come into force. The Custodian held, on the reference, that the property of the Trust was evacuee property, vesting in the Custodian for a limited purpose, namely, the carrying on of the purposes of the Trust till such time as a competent Court could appoint new trustees. The Custodian, by the same order, recognised the authority of the attorneys appointed by the Managing Trustee of the Trust, Mr. Anand Kumar, to function on behalf of the Trust Society in Pakistan. It was, therefore, concluded that the property of the Trust should not be treated or described as evacuee property. This order was passed on the 1st of September 1951. In the year 1957, the Advocate‑General of the Province instituted a suit, under section 92 of the Code of Civil Procedure, for removal of the existing Trust of the Society and for appointment of new Trustees as well as the framing of a scheme for the Management of Trust. This suit was transferred to the original side of the High Court at Lahore and was ultimately decreed by a learned Single Judge of that Court, on the 21st of September 1957, the judgment being reported as the Advocate‑General, Punjab, Lahare v. Sheikh Abdul Haque and others (P L D 1957 Lah. 321). In that judgment, the order of the Custodian, passed in 1951, was interpreted to mean that the property of the Trust was evacuee property, though it vested in the Custodian only till such time as proper Trustee were appointed by a competent Court. The learned Judge appointed new Trustees to manage the affairs of the Trust. Some dispute apparently arose later about the title of the Trust to certain plots of land, situate on Nisbet Road, Lahore and the Trust Society applied to the Deputy Custodian "of Evacuee Property, Lahore, under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, against 'certain persons, claiming a declaration that the plots were the property of the Trust and not Evacuee Property. The Deputy Custodian decided against the Society, but on appeal, the Custodian, by order dated the 15th December 1960, held that the plots were, in fact, the property of the Dayal Singh College Trust Society. The Custodian also pointed out, in the course of that order, that the only effect of the appointment of the new Trustees, by the Civil Court, under section 92 of the Code of Civil Procedure, was that the Custodian was divested of the property of the Trust, from the date of the appointment of the new Trustees and to that extent, subsection (l) of section 6 of the Administration of Evacuee Property Ordinance XV of 1949, which declared that all evacuee property would vest in the Custodian, became inoperative. The consequence was that the Custodian was no longer charged with the duty of applying the income of the Trust property to the purposes of the Trust and that function was henceforth, to be discharged by the new Trustees. The nature of the property however, it was declared, would continue to be the same as before and it should therefore, be described as evacuee property. The validity of the order, made by the learned Custodian on the 15th December 1960, was challenged on behalf of the Dayal Singh College Trust Society, by a writ petition to the High Court in 1961. In that petition it was contended that the property of the Trust had ceased to be evacuee property with the appointment of new Trustees by the Civil Court. A Division Bench of the High Court dismissed the writ petition, the judgment being reported as Dayal Sing College Trust Society v. The Custodian of Evacuee Property, West Pakistan, Lahore and others (P L D 1962 Lah. 352). The Custodian's declaration that the property continued to be evacuee property, was upheld as one not liable to be interfered with as it was within the exclusive jurisdiction of the Custodian to make such a declaration about the nature of the property. It was further observed that by the mere fact that the property in question no longer vested in the Custodian, it did not change its character, as the relevant law could not sustain such an interpretation. Subsequently, by notification under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 (herein. after referred to as `the Act'): the Central Government purported to acquire all evacuee properties, except agricultural lands, in the Province. By section 4 of the Act, a "Compensation Pool" was set up, consisting of all properties acquired by the notifications under section 3, excluding immovable evacuee property attached to any charitable, religious or educational trust or institution and such other evacuee property as may be specified in this behalf by the Central Government, by notification to the official Gazette. This Compensation Pool was made available for compensation to refugee‑claimants, displaced persons and locals, in accordance with the provisions of the Act and the Schedule annexed to the Act. With regard to Trust properties however, separate provision was made by section 4‑A under which a Trust Pool was set up, of all immovable evacuee properties attached to charitable, religious or educational trusts or institutions, acquired by notifications under section 3. By virtue of section 16‑A of the Act, the Chief Settlement Commissioner was empowered to prepare, subject to the provisions of the Act and the rules framed thereunder, one or more schemes for the administration, maintenance, management and disposal of property included in the Trust Pool, referred to in subsection (2) of section 4 of the Act. Notwithstanding anything to the contrary contained in any law for the time being in force 'or in any trust or other document, such a scheme according to section 16‑A, may provide: (a) for the appointment of new trustees on fresh terms and conditions, if necessary; or (b) for the transfer of such property to any suitable insti tution ; or (c) for the transfer to Government or to any local authority, of such for any charitable, religious or educational purpose. Section 16‑A of the Act was substituted by a new section by the Displaced Persons (Laws Amendment) Ordinance X111 of 1964, on the 24th of December 1964, with retrospective effect. The new section 16‑A empowered the Chief Settlement Commis sioner to prepare one or more Schemes for the administration, maintenance, management and disposal of property included in the Trust Pool and without prejudice to the generality of the powers thereby conferred, the Scheme could inter alia provide. (a) for tile constitution of any authority or authorities for the Management and disposal of the property; or (b) for the appointment of Managers or Management Committee; or (c) for the appointment of new Trustees on such terms and conditions as may be deemed appropriate; or (d) for the grouping of the trusts or institutions, wherever necessary; or (e) for extinguishing a trust or winding up an institution, the original object of which has wholly or partly ceased to exist; or (f) for the transfer to Government, any local authority or suitable institution of any property in the trust pool for any charitable, religious or educational purpose; or (g) for the sale of the property where disposal by sale appears to be the best course under the circumstances. The Scheme under this section had to be executed with the prior approval, in writing, of the Central Government. Any action taken under the provisions was assimilated to action under powers conferred by the new section, by a deeming clause. In the year 1960, a Scheme for the Management of Trust properties was duly promulgated by the Chief Settlement Commissioner, under section 16‑A of the Act, read with section 14 (2) of the Displaced Persons (Land Settlement) Act, 1958. Under clause 3 of this Scheme, the Central Government constituted a Board, for the Province of West Pakistan, to manage and dispose of trust properties and it is hereinafter referred to as the Evacuee Trust Board.. This Board authorised the old Board of Trustees of the Dayal Singh College Trust Society which had been constituted by the order of the High Court, in the suit under section 92 of the C. P. C., to manage the trust properties relating to the Dayal Singh Trust. Henceforth, therefore, this Trust Society functioned under a mandate of the Evacuee Trust Board and was a body subordinate to it. Clause 19 (j) of the Scheme authorised the Evacuee Trust Board "to sell with the previous approval of the Central Government, uneconomic immovable or any other such property in respect of which disposal b y sale appears to be the best course under the circumstances." This provision was obviously referable to clause (g) of section 16‑A as it stood amended by Ordinance X[II of 1964. These provisions had retrospective effect. The income according to the Board was to be utilised, under clause 30 of the Scheme for financing or aiding charitable or educational institutions so that the purposes of the original Trust were safeguarded and carried on. Under clause 29 of the Scheme above referred to, the Evacuee Trust Board is authorised to pool all trust properties and subject to the provisions of the Scheme, to (i) manage the whole or any part thereof through the Divisional or District Committees or by such other special arrangements as it may deem suitable; and (ii) transfer or make endowment of any property, attached to any particular trust for a public purpose or for any purpose as may be specified by the Central Government under such terms and conditions, not inconsistent with the provisions of the scheme, as it may consider suitable. It was the case of the appellants in Appeal No. 33 of 1967, in the High Court, that the first three respondents, namely the Government of Pakistan, the Chief Settlement and Rehabilitation Commissioner and the Chairman of the Evacuee Trust Board, had sold the property in the possession of the appellants to the State Bank of Pakistan, purporting to act under clause 29 of the Scheme. The reference in this context should have been more appropriately made to clause 19 of the Scheme. To give effect to the sale and to enable the State Bark to take over possession of the property sold, the Chief Settlement Commissioner issued letters dated the 1st June 1964, to the appellants appealing to them to vacate the premises in their possession so that its possession could be delivered to the Bank. The appellants represented against this. demand, to the Central Government and the Chief Settlement Commissioner and challenged the transfer of the Trust property to the State Bank, as illegal, They also, in the alternative, asked for suitable accommodation elsewhere. These representations were unsuccessful. On the 19th August 1964, another letter from the Chief Settlement Commissioner was addressed to the appellants, making the same request. The appellants then moved the High Court on the 27th of August 1964, in writ jurisdiction, calling in question the validity of the transfer of the property in dispute, to the State Bank, on the ground that evacuee trust property could not be alienated in favour of the State Bank under the relevant law and that, if at all, such property could be disposed of, it had to be transferred to a similar charitable, religious or educational trust, under section 16‑A (1) (b) of the Act. The State Bank, it as alleged, was not a "suitable institution" within the meaning of that section. The authority of the Chief Settlement Commissioner, to require them to vacate the premises, was also challenged. It was claimed inter alia that the appellants being either claimant‑refugees or displaced persons from India, were entitled to the transfer of the property in question in preference to the State Bank. In any event, it was asserted, they were entitled to retain possession of the, tenements in their possession, for 6 years after the transfer, under section 30 of the Act. In the other writ petition filed by the present appellants in Appeal No. 34 of 1967, while adopting the above position the contention was also raised that all laws, relating to evacuee property in so far as they permitted transfer of Evacuee property to persons other than displaced persons, were ultra vires the Constitution of 1956 and consequently the disposal of the properties to the State Bank was not sanctioned by law. Fundamental Rights 8, 14 and 15 granted by the Constitution of 1956 were also pressed into service to challenge the validity of the relevant enactments. It was maintained inter alia that the laws in question had made unwarranted discrimination between Evacuee Trust Properties and other properties in respect of their disposal and were therefore, bad laws. They claimed in the end that the property, in their possession should be ordered to be transferred to them as refugees. The petitions were contested in the High Court on behalf of the respondents, on the grounds that the sale in favour of the State Bank was sanctioned by the relevant legal provisions, that there had been actually no order of ejectment passed by the Chief Settlement Commissioner against the petitioners in the High Court but that only letters of request had been issued to them to vacate the land as an act of good‑will and that the petitioners were under a misapprehension as to the actual area of land forming the subject of the sale. It was explained that only the vacant plot abutting on the Mall, which was not in the possession of any of the appellants, had been sold by a registered deed to the State Bank and the portion of the plot in the rear, in the occupation of the appellants, was the subject of an agreement to sell, in favour of the State Bank, which would only be replaced by a deed of sale when vacant possession could be delivered to the Bank. A s the appellants had not accepted the request made in the dersii‑official letters, issued by the Chief Settlement Commissioner, for vacation of the land, he had asked the Additional Settlement Commissioner, who had been delegated the requisite powers in this behalf, to issue notices to the appellants for ejectment on legal grounds under section 29 of the Act, at they were required to show cause against such ejectment. It may be mention that ejectment proceedings are also possible under this section, in respect of evacuee property acquired unheard section 3 of the Act. Further proceedings on those notices en within deference to the proceedings pending in the High Court. It was, therefore, represented that the writ petitions were premature, as the question of the liability of Cho appellants to ejectment had yet to be finally determined by the departmental authorities. It was also pleaded that the impugned laws were intra vires the Constitution and were perfectly valid. The provisions of subsection (2) of section 4 and section 16‑A of the Act and subsection (2) of section 14 of the Displaced Persons (Land Settlement) Act, 1958, were represented to be sufficient authority for the sale. In the High Court, on behalf of the appellants in Civil Appeal No. 33 of 1967, it was sought to be argued that with the appointment of new Trustees, by order of the High Court, in the suit under section 92 of the: C. P. C., the property in question had ceased to be evacuee property and therefore, the Settlement authorities had no business , to take any action for ejectment of the appellants or to threaten them with such action. The plea was repudiated by the High Court, on the ground that the question whether any property was evacuee property or not, was within the exclusive jurisdiction of the Custodian to decide and the latest decision of that officer made it absolutely clear that the property was still regarded as evacuee property. The definition of `Evacuee Property', given in section 2 (3) of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1959, fully covered the property in question and as the Trust Society had become an "evacuee", within the meaning of section 2 (2) of that Ordinance, the mere fact that the property ceased to vest in the Custodian, under section 6 (2) thereof, would not affect the matter. The same contention has been attempted to be maintained before us by Dr. Nasim Hasan Shah on behalf of the appellants. Apart from the technical objection to the raising of this point, to be noticed hereafter, the view that prevailed in the High Court was plainly right, in our opinion. The definition of `evacuee' in section 2 (2) of the sat;: Ordinance, reads as follows: " `evacuee' means any person____ (a) who on account of the setting up of the dominions of Pakistan and India, or on account of the civil disturbances or the fear of such disturbances on or after the 1st day of March 1947, leaves or has left any place in the territories now comprising Pakistan for any place outside those territories; or (b) . (c) . Under this definition, the Trust Society, with the migration of all its Trustees to India at the title of Partition, became an evacuee and therefore, its property was clearly evacuee property and it was so held by the Custodian. That finding obviously rested on a solid legal foundation. The Scheme of the Ordinance does not suggest that if the property ceases to vest in the Custodian under section 6 thereof, it will cease to be evacuee property. The decision of the Custodian rendered in his exclusive jurisdiction therefore, could not be challenged as being unlawful. The learned Judges declined to allow the appellants in appeal No. 33 of 1967, to make a formal amendment of their writ petition, in order to raise the above point, which had really no merit in it. The amendment sought was clearly contradictory of the basic position adopted in the writ petition that the property in dispute was evacuee property and could not have been allowed. The next contention advanced in the High Court and here, on behalf of the appellants, was that the sale of the property in dispute to the State Bank was repugnant to the provisions of section 16‑A of the Act, as the Bank was not a "suitable institution" within the meaning of that section. There is no definition of this term in the Act, which must therefore, receive its ordinary dictionary connotation. The State Bank is a public institution which performs a very essential function for the State in this country and it is difficult to say why, if the departmental authorities and the Central Government were agreed that it is a "suitable institution" to which the evacuee trust property should be transferred, such a transfer should be open to exception. Even if it be conceded for the sake of argument that the "institution" referred to in the section had to be a charitable or educational institution to qualify for transfer under the section, the position seems to have been placed beyond the possibility of challenge by a change in the law. Section 16‑A of the Act, as retrospectively amended in 1964, empowered the relevant authority, under a Scheme to be prepared, to sell the property in question, where disposal by sale appears to be the best course under the circumstances. Sub‑clause (j ) of clause 19 of the Scheme, framed thereunder, enabled the Evacuee Trust Board to sell, with the previous approval of the Central Government, uneconomic immovable or any other property in respect of which disposal by sale appears to be the best course under the circumstances. The property sold is said to have been yielding very little income to the Trust in its present condition and the Trust was not in a position, for lack of the necessary finances, to exploit its building possibilities to obtain higher income. In these circumstances, it cannot be said that the powers conferred by section 16‑A and the Scheme framed thereunder, have been, in any manner, exceeded. It also appears that subsequently, the property, after acquisition by the Central Government by notification under section 3 of the Act, had vested in it for all purposes and all evacuee interests in it had been extinguished, by operation of law, with effect from the date of that notification. Henceforth, the property was available to be disposed of, according to the legislative provisions made by the Central Government in that behalf and it does seem that the Central Government is aware of the nature of the property in so far as it has only sold what was considered to be uneconomic property of the Trust. The proceeds of the sale would go to the Trust for carrying out its original purposes. There is thus no diversion of the purposes of the original Trust involved in the sale. A serious infirmity appears in the appellants' case in the face of the explicit statement made on behalf of the respondents in the High Court. As has been clarified above, the position of the respondents was that the property in the occupation of the appellants in the two appeals, has not yet been sold at all. It is only subject to an agreement to sell. The appellants have obviously no locus standi to object to the sale of the property not in their possession. With regard to the portion of the property of which they are in occupation, legal proceedings have been instituted against them, which may or may not result in their eventual ejectment. The appellants have all been called upon to show cause against their ejectment and they can raise all the defences open to them before the departmental authorities, to protect their rights of tenancy or whatever other rights they possess. The notices are clearly intra vires section 29 of the Act. The protection of section 30 of the Act invoked by the appellants, for a six years' period after the transfer seems to be irrelevant at this stage. The semi‑official letters issued by the Chief Settlement Commissioner were, in no sense, orders to vacate and no penalty followed non‑compliance with them. The only legal process issued is, in the shape of notices to show cause against ejectment by the Additional Settlement Commis sioner, under section 29 of the Act, by virtue of powers delegated to him by the Chief Settlement Commissioner. In this aspect of the matter, therefore, the writ petitions were clearly premature. The plea of the appellants, in the High Court and here that they were entitled to the transfer of the properties in question, under the provisions of the Schedule to the Act, in preference to the State Bank, is misconceived, as has been pointed out by the High Court. The Schedule to the Act only applies to the "Compensation Pool" and trust property has been expressly excluded from that pool and constituted into separate "Trust Pool", under section 4 of the Act. The very fact that none of the appellants or their predecessors‑in‑interest ever applied for the transfer of these properties to them, under the Schedule of the Act, is significant in this context. They were apparently quite conscious of the fact that the property Was not available for transfer under the provisions of section 10 of the Act or its Schedule have In Appeal No. 34 of 1967, some Constitutional points been attempted to be raised. It is contended by Mr. Abdul Majid, the appellant who argued his own case that it was not open to the Central Legislature to enact any law which provided for transfer of evacuee properties to any one except refugees. 1V4r. Abdul Majid suggested that the mandate for legislation in this behalf, was provided by Article 106 of the 1956 Constitution, read with item 8 of Part II of the Concurrent List, appended to that Constitution. This item reads as follows: "Relief and rehabilitation of refugees; custody, management and disposal of evacuee property." The argument was that the words "relief and rehabilitation of refugees" controlled the subsequent words "custody, management and disposal of evacuee property" and all laws therefore, to be enacted by the Central Legislature, under this item, had to conform to the requirement that they should provide for relief and rehabilitation of refugees. Mr. Abdul Majid suggested that this was the only interpretation of this item consistent with the context. But we are unable to accede to this contention as correct. The words of the Constitution must receive a liberal construction. The generality of the words "custody, management and disposal of evacuee property" occurring in item No. 8 of Part II of the Concurrent List cannot be cut down on the unwarranted assumption that the preceding words control their scope. In practice, of course, a good deal of the legislation Is directed towards the end of relief and rehabilitation of refugees by providing them with compensation out of the evacuee property and its income. This however, does not mean that the powers of the legislative authority are fettered by that consideration. Mr. Abdul Majid cited before us innumerable quotations from books on interpretation of statutes and from precedent law to lend force to his point that all the words in item No. 8 had to be construed together so that their connotation could be inter‑linked. We consider it needless to refer to those quotations as they do not lend any assistance to his argument. He conceded that a constitutional instrument should normally receive as wide an interpretation as possible, consistently with the context. We are unable to share his predilection for the narrow construction contended for by him and are of the opinion that the words after the semi‑colon in item No. 8 are not subject to any overriding consideration that the objective of the laws to be enacted must have reference to refugees, necessarily. Mr. Abdul Majid then advanced the suggestion that this item No. 8 of Part II of the Concurrent List of the 1956 Constitution, contained no sanction for legislation with respect to evacuee trust property at all, as the word 'trust' did not figure in this item. This contention too is clearly untenable, as evacuee trust property is only a species of evacuee property 1 and must be held to be comprehended by the phrase 'evacuee property'. It may be of interest to note that under the Constitution of 1962 also, it is open to the Central Legislature to enact laws with regard to "relief and rehabilitation of refugees: evacuee property", as mentioned in item 42 of the Third Schedule, read with Article 131 of the Constitution. Mr. Abdul Majid appears to have raised an argument in the High Court, based on Fundamental Rights Nos. 8, 14 and 15, J ranted by the Constitution as invalidating the impugned) legislation. In the first place, during the emergency that is still current, these fundamental rights cannot be pressed into service. But prima facie the High Court appears to be right in holding that there was no ground for thinking that the rule of equality before the law and equal protection of the law, embodied in Fundamental Right No. 15, had been placed in jeopardy by the legislation relating to evacuee trust property. Evacuee trust property is a separate class of property and this classification would itself justify its differential treatment as' compared with other evacuee properties. Fundamental Right's No. 8 and 14 were, on the face of them, not at all pertinent to the case. The appellants are not being prevented from carrying on their business or profession, by the impugned sale, nor has there been any attempt to deprive them of any property rights in the shape of tenancy‑rights or other rights, except by due process of law. It does not therefore, appear necessary to postpone final orders on these appeals to await the end of the emergency, for the points to be canvassed, as the position is not debatable. In view of the above discussion, the judgment of the High Court was plainly right. Both the appeals fail and are hereby dismissed. In the circumstances, we make no order as t0 costs. A. H. Appeals dismissed.