P L D 1966 (W (PLP)

MUHAMMAD FAZLE GHANI, J.‑The appellant Mrs. Gladys M. Jacob is wife of one Mr. A. G. Jacob who retired as Controller of Accounts, Indian Air Force in the year 1944, and was re‑employed as Deputy Controller of Military Accounts and Pension and posted at Lahore in the same year. On Independence Mr. Jacob opted for Pakistan and continued to stay at Lahore and is a Pakistani National. The appellant was allotted property No. 16‑B, Queens Road, Lahore on the 24th of November, 1954. On the 27th of July 1959, she applied on form N.C.H. for the transfer of this property. Respondent No. 2, Mr. G. M. D. Ghauri, who was an allottee of the portion of this bungalow, also submitted his CH form for the transfer of the entire premises comprising of 16‑A and 16‑B, Queens Road, Lahore. On the 20th of November 1959, the Assistant Settlement Commissioner reported to the Deputy Settlement Commissioner that the whole bungalow was one unit and that the appellant was not a refugee and respondent No. 2 Mr. Ghauri being a claimant displaced person, was the only deserving person, consequently the said bungalow was transferred by the Deputy Settlement Commissioner in favour of respondent No. 2 on the 3rd of November 1959.

2. Against the above order, Mrs. Gladys filed an appeal before the Additional Settlement Commissioner who passed an ex parte order on the l1th of June 1960, and dismissed the same on merits and held that she was a local and that her appeal was also barred by time. In revision before the Settlement Commissioner, the appellant claimed that she was a displaced person and that the property in her possession was a separate distinct residential unit and that Deputy Settlement Commissioner had passed the order against her ex parte. This revision petition came up for hearing before Mr. Farzand Ali Khan on the 22nd of April 1961, where the appellant also filed her written arguments (Annexure R/15). The revision petition was, however, dismissed on the 28th of April 1961, wherein it was held that the appellant was not a displaced person and that the property was not divisible. A second revision petition met with the same fate at the hands of Mr. Muhammad Rafiq, Settlement and Rehabilitation Commissioner with the delegated powers of Chief Settlement Commissioner on the 30th of November 1962.

3. The appellant challenged the orders of the Settlement Authorities before this Court in Writ Petition No. 118‑R of 1963, wherein it was contend ed that the Deputy Settlement Commissioner had acted without lawful authority inasmuch as he had failed to comply with the provisions of paragraph 10 of Settlement Scheme No.

1. It was also urged that the of Independence, was examined by their Lordships of the Supreme Court in Joan Mary Carter v. Albert William Carter (PLD 1961 S C 616), and it was held as follows:‑ "Reverting now to the question of the respondent's domicile of origin, we are constrained to observe that the learned Judges of the Letters Patent Bench have fallen into error in thinking that a person cannot be domiciled in a country unless his domicile can be fixed at some particular place in that country and, therefore, have not taken into account the fact that the Indian domicile which the respondent is said to have acquired on birth was really a British Indian domicile up to the 15th of August 1947. At that point of time persons, who were sui juris, had to choose as to which of the domiciles they would take up, namely, whether the Pakistan domicile or the post -partition Indian domicile. There was no difficulty in the case of persons born in a particular portion of British India who continued to reside in the same portion but could it be said that persons born in territories which now happen to be situated in a separate independent country were automatically to be treated as being domiciled in the territories of their birth, although they continued to reside in the territory of the other country. Clearly, this could not be so. Such a person had to make a choice as to whether he would continue to remain where he was residing or would adopt the domicile of the territory in which he was born. Such choice could have been manifested by a person who was sui juris either by option for service in one or the other country or by some other act clearly indicating an intention to remain permanently where he happened to be residing. In this sense, if a person at that point of time residing in territories which are now in Pakistan also opted for service in Pakistan, we are of the opinion that he thereby sufficiently manifested an intention to remain for an indefinite period in Pakistan. The expression of such an intention coupled with the physical fact of residence in Pakistan, did also sufficiently fulfill the conditions necessary for effecting, a change in the domicile of that person. Residence for purpose of employment, though not by itself conclusive evidence or an intention to settle in the country of employment, may well be prima facie proof of a change of domicile, particularly where the nature of the service requires the employee to make his home there or the employment is chosen in circumstances which indicate a voluntary intention of effecting a change of domicile. In the case under consideration it was the division of the country into two independent States which necessitated that persons, in the service of the undivided country, should choose as to which of the divided States they would serve. The, option in such circumstances was not a mere option to serve but also an option to change one's allegiance, political rights and even nationality. Thus it was clearly an option also to adopt the domicile of the country of service and a voluntary manifestation of an animus manendi in the country of service." The above observations of their Lordships of the Supreme Court apply with equal force to the question of domicile or Mr. Jacob and we hold that his British Indian domicile was changed on the 15th of August 1947, when he chose to opt for service in Pakistan where he was residing at the time of Independence. The fact that he did not acquire any immovable property in Pakistan or a mere oral assertion that he had not abandoned his domicile of origin or the expression of a lurking desire on his part that he wanted to settle permanently in India at a certain indefinite point of time in future will not stop the acquisition of a domicile of choice in this country.

7. The term 'domicile' is a fiction of private international law and is not synonymous with the definition of 'displaced persons' as given in the Displaced Persons (Compensation and Rehabilitation) Act, 1958. According to the principles of private international law the domicile of a wife merges into that of the husband during coverture and if by any stretch of argument it can be said that Mr. Jacob was domiciled in India yet Mrs. Jacob had to establisn, irrespective of her domicile that she was a displaced porson within the meaning of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The domicile of her husband in India will not give her the status of a displaced person and she is to prove it independently notwithstanding the domicile of her husband. The appellant came to Lahore in 1944 and had left no C property of her own in India neither she left that part of the territory on account of disturbances or fear of disturbances, therefore, she cannot be treated as a displaced person and the Settlement Authorities have rightly held her to be a local. In order to qualify herself as a displaced person, she must have had a permanent residence or continuous habitation in that part of British India which now forms Bharat at the relevant time as given in section 2(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and since she had come and settled with her husband in Lahore, her residence in India prior to the: year 1944 cannot be said to have been abandoned on account of disturbances or fear of such disturbances in that area on ' on after the 15th of March 1947.

8. Reverting to the facts of the case, learned counsel for the appellant drew our attention to the endorsement on the allotment order issued in her favour at the time when the possession of the house in dispute was given to the appellant by the Rehabilitation Authorities. In this document the words "Category B" have been mentioned at the bottom and from these words the learned counsel attempted to spell out that the appellant was allotted this house as a refugee and should be considered to be a displaced person. However, a close scrutiny of this document will reveal that in an earlier column the word "refugee" was deleted. It was, therefore, clearly indicated that the allotment in her favour was made as a local and not as a refugee. Learned counsel for the appellant argued that this appears to be a clerical error. But we have examined the allotment order with reference to another document, namely, the application made by the appellant, for the allotment of this house, to the Deputy Rehabilitation Commissioner, Lahore. This application was made on form No. 2 which was meant for the use by the locals who intended to apply for the allotment of an evacuee house. Further, the endorsement "Category B" is dated the 24th of November 1954, while the application for allotment of the house as a local was made by the appellant on the 27th of November 1954. The allotment order also bears the date of 27th of November 1954, therefore, no reliance can be placed on the words "Category B" mentioned in the allotment order of the appellant. In these circumstances the argument of the learned counsel that the deletion of the word `refugee' from the allotment order is a mere clerical error loses all its force. At any rate whatever may be the significance of the endorsement "Category B" on the allotment order of the appellant it cannot confer upon her the status of a displaced person.

9. Adverting to the question of affidavit given by Mr. R. A. Jeremy, no doubt this document has not been considered by the learned Single Judge in his judgment under appeal, but that affidavit is of no avail to the appellant because the mere decision of her appeal by the Additional Settlement Commissioner in the absence of the appellant did not prejudice her case in any manner and the learned Settlement Commissioner gave her a full‑fledged hearing and even accepted the written arguments on her behalf. She was also heard by the Chief Settlement Commissioner in her second revision petition, therefore, the order of the learned Single Judge cannot be set aside merely on this ground that an irrelevant piece of evidence was not taken into consideration at the time of disposal of the writ petition especially so when this affidavit was filed for the first time before the High Court and if the appellant wanted to draw some benefit from this affidavit of her counsel it was her duty to produce the same before the Settlement Commissioner for proper adjudication.

10. The last point of the learned counsel was that the mandatory provisions of paragraph 10 of Settlement Scheme No. 1, made under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, were violated, therefore, the order of the Deputy Settlement Commissioner was against the principles of natural justice as it was passed in the absence of the appellant and all other subsequent orders passed by the Settlement Authorities were vitiated. In this connection reliance was placed on Sirajuddin v. The Chief Settlement Commissioner, Lahore, etc. (P L D 1964 Kar. 90) but the circumstances of that case were quite different. In that case one Ghulam Hussain who had filed the appeal had died in 1952 and the first point urged t the other side was that the appeal was incompetent as it was filed against a dead person and the Court had no jurisdiction to deal with the matter. But the Settlement Commissioner did not deal with the matter and in those circumstances it was held that whether Ghulam Hussain was dead at the time of the appeal or not was a question of fact and the case was remanded for the determination of this point by the Settlement Authorities. In the present case we do not find that any such question has remained undetermined by the Settlement Courts and, therefore, the above decision is of no help to the appellant.

11. The judgment of the Supreme Court in Yusuf Ali v. Muhammad Aslam Zia, was considered by this Court in Mst. Bakho v. Mst. Sairan (P L D 1963 Lah, 72) and we fully endorse the reasoning of the learned Single Judge that the principle laid down by their Lordships of the Supreme Court applies only when subsequent orders are passed on the strength of an earlier order which is void. Although we do not hold that in the present case the initial order passed by the Deputy Settlement Commissioner was void, nevertheless, the orders passed by the Settlement Commissioner and the Chief Settlement Commissioner have been passed on the merits of the case without, in any way, taking into consideration the order of the Deputy Settlement Commissioner dated the 3rd of November 1959. The decision of the Supreme Court is, therefore, of no assistance to the appellant in the circumstances of the present case.

12. To determine whether the orders of the Settlement Authorities should be set aside as void on the ground that the first order of the Deputy Settlement Commissioner was passed without an opportunity to the appellant to show cause, although she was heard by the Settlement Commissioner and the Chief Settlement Commissioner at length, it will be useful to reproduce the provisions of paragraph 10 of the Settlement Scheme No. I of the Displaced Persons (Compensation and Rehabilitation) Act, 1958:‑ "

10. Inquiry whether entitlement is not clear‑ (1) If the applicant does not appear to be entitled to retain the house or shop, either wholly or in part, the Deputy Settlement Commissioner shall issue a notice of fifteen days in the form as specified in Appendix VIII to the applicant stating the points requiring clarification. The notice shall state the place and date for the appearance of the applicant and shall warn him that if he does not appear on the appointed date Isis case shall be decided ex parte. The notice shall also direct the applicant to produce all documents in his possession or power upon which he relies in support of his case. (2) On receipt of the notice th‑‑ applicant shall appear in person or through a counsel or an agent appointed in writing by him in this behalf who is acquainted with the facts of the case." Settlement Scheme No. 1 was prepared by the Chief Settlement Commissioner under the directions of the Central Government for the purpose of transfer of immovable properties on evaluation basis to claimants etc., under section 161,1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner has been authorised to execute this Scheme by virtue of section 16(2) of the Act. Since it is argued that the provisions of paragraph 10 of the Scheme were violated by the Deputy Settlement Commissioner and his order was against the principles of natural justice, therefore, it will be necessary to review the various authorities on this question for the purposes of disposal of this appeal.

13. In Zahir‑ud‑Din v. The Rehabilitation Commissioner and others (P L D 1956 Lah. 1090), in a case under section 8(2)(b) of Pakistan Rehabilita tion Ordinance (XIX of 1948), read with Rule 6, Pakistan Rehabilitation Rules, 1951, where a notice was not served upon the allottee to vacate a surplus room in his occupation, but he had since pursued his remedies in proceedings before a number of Rehabilitation Authorities it was held that the allottee had had thereby sufficient notice of what was intended to be done to him. The Rehabilitation Rules of 1951 were also intended to put into execution, the provision of Pakistan Rehabilitation Act, 1948, in the same way as the Scheme No. 1 framed under section 16(1) (B) & (C) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the above decision will apply with equal force to the case of a person who complains of the violation of paragraph 1, (1) of the Scheme in case he had an opportunity of vindicating his cause before the appellate and revisional Courts.

14. In a Full Bench case Muhammad Ishaq v. Dr. Saiduddin Swaleh (P L D 1959 Kar. 669) it was held, "that it will have to be determined in each case whether the principle of natural justice has been sufficiently complied with on account of an opportunity of hearing before an appellate or revisional authority. The fact that the original order was passed without notice did not necessarily mean that the order was to be set aside". Their Lordships further held that, "It was not possible to lay down any general rule. One will have to consider the proceedings as a whole. The question to be decided would be whether any prejudice had been caused by the fact that the party was not heard by the authority that passed the original order. Prejudice to the petitioner would be there if party could show a reasonable possibility of the order having been different had he been allowed to raise a plea before the first officer." Qadeer‑ud‑Din Ahmad, J., who expressed a different opinion, also held that "if the party to whom notice was not given by the first tribunal was able, taking the original appellate and revisional E proceedings together and as a whole, to present his case substantially as he wanted and was entitled to present it, then the decision of the last tribunal is not bad merely on the ground that notice was not given by the first tribunal. This authority, in our view is a complete answer to the case presented before us by Sh. Muhammad Shafi, learned counsel for the appellant. It was vehemently urged by him that appellant has not been heard by the Deputy Settlement Commissioner, but he was not able to satisfy us that the decision of the Settlement Authorities would have been different had he been heard in the first instance by the Deputy Settlement Commissioner. No doubt the provisions of, paragraph 10 of Settlement Scheme No. I require that a notice should be served upon the applicant but in this case the title of the parties was clear, the appellant was a local and the property was indivisible. Even if it can be held to be divisible then the portion under the occupation of the appellant was of the value of more than Rs. 10,000,00 for which she was not entitled under the law for transfer being a local. Therefore, the mere non compliance with the directory provisions of the notice under the Settlement Scheme No. 1 has caused no prejudice to the case of the appellant and nothing was shown to prove to the, contrary.

15. In Muhammad Ishaq and another v. Dr. Saiduddin Swalleh and another it was held that where opportunity of a hearing afforded to a party in appeal and revision was adequate, there could be no grievance on the part of such party that he was not fully heard in the first Court which ordered the ejectment from the evacuee property without serving the party with a notice and no violation of any principle of natural justice was made.

16. In this case it was conceded by the learned counsel for the appellant that the Assistant Settlement Commissioner, who was deputed by the Deputy Settlement Commissioner to make an inquiry for the ascertainment of the entitlement of the parties about the transfer of the property in dispute, was fully competent to do so under para. 8 of the Scheme. A perusal of the report of the Assistant Settlement Commissioner (Annexure B with the writ petition) shows that the Assistant Settlement Commissioner obtained the statement of the appellant and he mentioned in his report that Mrs. Gladys M. Jacob had stated that she had left India in 1944. The Assistant Settlement Commissioner reported that in these circumstances she cannot file any NCH form because she does not come in the definition of a "refugee" meaning thereby a `Displaced Person'. Nothing was shown to us to prove that Mrs. Gladys M. Jacob was a displaced person nor any effort was made to show that she was prevented from producing any material or evidence before the Settlement Commissioner and the Chief Settlement Commissioner where she had had full opportunity to present her case to establish her status as a displaced person. Therefore, the mere oral assertion that the appellant had been prejudiced as she was not heard by the Deputy Settlement Commissioner at the initial stage has to be ignored.

17. In view of the above discussion we dismiss this appeal but in the circumstances of the case we do not propose to burden the appellant with costs. K. B. A. Appeal dismissed.