P L D 1966 (W (PLP)

SARDAR MUHAMMAD IQBAL, J.‑The Royal Hotel Anarkali, Lahore, bearing No. S‑64‑R‑16, was declared as a big mansion under Paragraph 16 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It was disposed of by a public auction held on the 26th of September 1961. The petitioner Bank was the highest bidder and their bid of Rs. 10,50,000.00 (Rupees ten lacs and fifty thousand) was accepted. The Settlement Commissioner (Industries) issued on the 28th of May 1962, provisional transfer order in their favour. The Bank paid the entire auction price and was entitled to the issue of a permanent transfer deed. In terms of Condition No. 18 of the Terms and Conditions of Auction of Big Mansions issued in pursuance of Paragraph 8 of Settlement Scheme No. III, the petitioner Bank asked the Settlement authorities for the delivery of possession. The Chief Settlement Commissioner, by his order, dated the 17/18th of January 1963, directed the Additional Settlement Commissioner to deliver to the petitioner Bank possession of the Royal Hotel "without ejecting the tenants". The Bank filed this petition alleging that being the purchaser of the big mansion, they were entitled to its vacant possession, that the occupants of a big mansion were not entitled to any protec tion in the sense of any right to continue in occupation of the property and that the Settlement authorities were under a duty to eject its occupant under section 29 of the Act. The Bank, there fore, asked for a direction to them to deliver vacant possession of the property by taking action against the occupants under sec tion 29 of the Act. A prayer was also made for the issue of a permanent transfer deed in their favour. The case came up before J. H. Rizvi, J., for final hearing on the 4th of February 1964. The petitioners in support of their case that section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, was not applicable in the case of the occupants of big mansions and that they could be ejected under section 29 of the Act, relied on Haji Abdul Karim v. The Chief Settlement Commissioner (P L D 1961 Lah. 394) and Subedar Muhammad. Afzal v. Nafees Ahmad and others (P L D 1962 Lah. 45). The respondents relied on the Full Bench case In re: Dr. Cowas C. Mehta v. The Additional Settlement and Rehabilitation Commissioner and others (P L D 1963 Kar. 938). In this case it has been held that section 29 of the Act does not empower the Settlement authorities to eject persons in possession of a house which has been transferred to another except in case of non‑payment of departmental dues in relation to period prior to transfer and by dissenting from Haji Abdul Karim v. The Chief Settlement Commissioner and Subedar Muhammad Afzal v. Nafees Ahmad and others observed:‑ "the occupants of a big mansion were entitled as against transferee by auction to protection against ejectment provided by section 30." It may be noted that in two judgments of the Lahore Bench, one learned Judge was common and Mr. Justice J. H. Rizvi, therefore, made a reference to the Chief Justice stating. "three Judges of this Bench have in the decision, already referred to, taken a contrary view. I consider it fit to refer this case to my lord the Chief Justice for constitution of a larger Bench to decide the question arising in this petition."

2. Subsequently, one Zaheer‑ul‑Aman filed a Writ Petition No. 316‑R of 1964 on the same grounds. He had purchased property No. S. 64‑R‑106, Anarkali Lahore, for Rs. 6,75,000.00 (Rupees six lacs and seventy‑five thousand only), which was auctioned on the 13th of April 1962, as a big mansion. He paid the instalments as and when they fell due and the final instalment was to be paid on the 20th of April 1965. He was not delivered vacant possession and, therefore, filed a writ petition. This was also admitted to a hearing on the 2nd of March 1964 and Mr. Justice Jamil Husain Rizvi directed the same to be heard by the Bench hearing the writ petition of Royal Hotel, Anarkali. Lahore. We have, therefore, heard the learned counsel in both the cases.

3. In both the cases provisional transfer orders have been issued. In the case of Royal Hotel, the entire price has also been paid and the Bank is entitled to a permanent transfer deed in terms of Paragraphs 10 and 11 of Settlement Scheme No. III. The following questions emerge for determination:‑ (i) When and under what circumstances the possession or occupation mentioned in section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is authorized by the provisions of the Act? (ii) Does a person in possession or occupation of a building or premises render himself liable to ejectment under section 29 of the Act after it is declared under Paragraph 16 of the Schedule to the Act, a big mansion or a hotel? (iii) Whether an action for ejectment is competent under section 29 of the Act against a person in possession of a property referred to in section 30 of the Act after it is transferred either by a Provisional Transfer Order or Permanent Transfer Deed? (iv) Is protection under section 30 available to a person who is in possession of a big mansion or a hotel? It was pointed out by the learned counsel for the respondents that assuming that section 29 of the Act was applicable, there was no obligation on the Settlement authorities to eject any person under the said provision. It only gave a discretion to them and since the Settlement authorities refused to exercise the discretion to eject the occupants of the big mansions, the High Court could not interfere in the matter and give them a mandate to do so. On the contrary, the petitioners contended that the respon dents were under an obligation as provided under Paragraph 18 of the terms and conditions of auction to deliver vacant possession and that being so it became imperative for the Settlement authorities to take action under section 29 of the Act. These questions do not arise for adjudication in this reference and, therefore, will be dealt with by the Bench which will hear the writ petitions after the reference is answered by us.

4. The first question which falls for determination is whether section 30 applies to a residential or a commercial building which may be declared by the Chief Settlement Commissioner as a big mansion or a hotel under paragraph 16 of (the Schedule to) the Act. It was argued by the learned counsel for the petitioners that section 30 could not apply to these buildings when they had been excluded from the purview of the section and that the intention of the Legislature as to their exclusion was further manifest by the fact that big mansions and hotels were not included in the definition of a house or a shop. On the other hand, the argument of the learned counsel for the respondents was that the words "house" and "shop" used in section 30 also included within their ambit a big mansion and a hotel; that even if the words "house" and "shop" were understood in accordance with the definition clause, then too they included a big mansion and a hotel; and that; at any rate, it was not necessary to press into service the definition clause in inter preting the words "house" and "shop" used in section

30. To deal with the question, it is necessary to refer to clause (1) of section 30 which reads as:‑ "

30. Protection of certain occupants.‑(1) Where any person is in possession of any evacuee house or shop or has been declared on or before the twentieth day of December 1958, by a Custodian to have tenancy rights from a date prior to the fourteenth day of August 1947, in any industrial concern, cinema house or printing press, which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of a transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer." Thus the section declares that person in possession of an evacuee house or shop and those who have been declared to be old tenants occupying industrial concerns, printing presses and cinemas from a certain date, would be deemed to be tenants of the transferee on the same terms and conditions as to payment of rent or otherwise on which they held it immediately before the transfer. The plain reading of the section does not apply to a big mansion or hotel, and it will, therefore, be not attracted to them unless they fall within the ambit of a "house" or a "shop". A building or premises declared under paragraph 16 of the Schedule to be a "big mansion" or "hotel" was specifically excluded from the definition of a "house" or "shop". In order to understand the scope and purpose of the definitions of a "house" or "shop" in clauses (4) and (12) of section 2 of the Act respectively they are reproduced below: "(4) `house' means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in rural area, together with the garden grounds garages and outhouses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or outhouse is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 16 of the schedule to be a big mansion or hotel ; . . . . "Provided that where any building or premises not so declared consist of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house:" "(12) `Shop' means evacuee business premises of any value in an urban area or of the value of ten thousand rupees or more in a rural area together with godowns or store‑houses, if any, attached or appurtenant to such premises, but does not include any building situated within the premises of an industrial concern, or a building or premises declared under paragraph 16 of the Schedule to be a big mansion or hotel: "Provided that where any building or premises not so declared consist of more than one business unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a shop:"

5. The fact that a "big mansion" or "hotel" is specifically excluded from the definitions of a "house" and a "shop" demonstrates without any ambiguity that but for such a specific provision, a big mansion or hotel would have been covered by the term "house" or "shop". A big mansion or hotel is basically a residential or commercial building. Under paragraph 16 of the Schedule the Chief Settlement Commissioner may declare any building, the monthly rent of which in 1946 was not less than five hundred rupees, as a big mansion or a hotel. The law is not that, every building the rent of which is five hundred rupees and more is a big mansion or a hotel. It remains a house or a shop, so long as the Chief Settlement Commissioner does not declare it to be a "big mansion" or a "hotel". The Chief Settlement Commissioner however, is not under a statutory obligation to do so because there is no mandate in that behalf that he must make such a declaration. If he makes no such declaration, the premises will remain a house or a shop, as defined in clauses (4) or (12) of section 2 and the person in possession thereof will have the protection under section 30 against the transferees. This position is further crystallized by the provisos to clauses (4) and (12) of section 2 where it is provided that if a building or premises consists of more than one residential and commercial unit the whole of the building or premises remains a house or a shop. The Chief Settlement Commissioner can, however, declare such a building or premises to consist of more than one house or a shop, except in the case where the rent of a building in 1946 was not less than five hundred rupees and the Chief Settlement Commissioner acting under Paragraph 16 of the Schedule declares it to be a big mansion or a hotel. The proviso to clause (4) of section 2 was interpreted by Supreme Court in Fateh Muhammad v. Maula Bakhsh (P L D 1963 S C 311) and Mr. Justice S. A. Rahman observed at page 319: "The proviso is expressed in the negative form and can be reasonably interpreted to include within its ambit all properties which, in fact, have not been declared to be big mansions whether they be qualified to be so declared or not." It will thus be clear that even if a residential or a commercial building is capable of being declared as a big mansion or hotel, but it is not so declared, it remains available for division. It also remains available for transfer as a house or a shop. Hence if a building or a premises is declared a big mansion or a hotel, the nature of the property is not changed. It remains the same. The effect of such a declaration is only on the mode of the disposal of the property. Whereas a building or premises may be transferable as a house or shop to the persons in possession in certain circumstances, the same when it is declared as a big mansion or a hotel can be transferred by no other process except by way of public auction. Again a building or premises if it consists of more than one residential or commercial unit, it can be declared by the Chief Settlement Commissioner or his delegate to consist of more than one house or shop as the case may be, but once a declaration is made under para. 16, it cannot be divided into several houses or shops.

6. In the context of section 30 itself also it is clear that the words "house" and "shop" apply also to a big mansion or a hotel. These words are used therein in the general and not in restrictive sense as defined in clauses (4) and (12) of section 2 of the Act. As a rule a definition given in an Act must be substituted for the word defined whenever it occurs in the Act. This principle can apply when the Legislature defines the meaning of the word used. In those cases, it expresses itself more thoroughly its intent in definitions. The principle, however, cannot be strictly applied in those cases where in an interpretation clause it is stated that a certain term includes or does not include so and so. Including is a term of extension. It adds to the subject‑matter already comprised in the definition. The word "excluding" however, is a term of restriction. It takes away. from the subject‑matter already comprised in the definition. An interpretation clause in such a case cannot be taken as strictly defining what the meaning of the word must be in all circumstances. It only declares what things may be compre hended within the term where the circumstances require that they should. In Immigration Board v. Gowind Swami (AIR 1920 P C 114) it was observed at page 116: "It is recognized in England to be a rule with regard to the effect of interpretation clauses of a comprehensive nature such as we have here that they are not to be taken as strictly defining what the meaning of a word must be under all circumstances, but merely as declaring what things may be comprehended within the term where the circumstances required that they should." It was also held in Partab Singh v. Gulzari Lal (A I R 1942 All. 65): "I do not understand to be the law that interpretation clause must necessarily apply wherever the word interpreted is used in the statute and in spite of the fact that there are indications in the statute and in the section where it occurs to control and modify and explain the meaning of the word in a different sense than what is borne out by the interpretation clause." Hence if a term or a word is defined in a statute, it does not necessarily mean that the same word when used in that statute necessarily is to be understood with reference to the definition clause particularly in those cases where the Legislature in defining the meaning of the word used also includes or excludes certain things from the same. The principle is succinctly, explained in Craies on Statute Law, 1952 Ed. at p. 200 as: "Another important rule with regard to the effect of an interpretation clause is, that an interpretation clause is not to be taken as substituting one set of words for another, or as strictly defining what the meaning of a term must be under all circumstances, but rather as declaring what may be compre hended. If, therefore, an interpretation clause gives an extended meaning to a word, it does not follow as a matter of course that, if that word is used more than once in the Act, it is on each occasion used in the extended meaning, and it may be always a matter for arguments whether or not the interpretation clause is to apply to the word as used in the particular clause of the Act, which is under consideration."

7. On this principle of interpretation of statutes, the words `a house' or `a shop' used in section 30 are not as a matter of course to be understood in the restricted meaning as given in the definition clause. The definition of the word `house' or `shop' shows that but for the specific provision excluding a building or premises which is declared as a big mansion from the definition of a house or a shop, the property would have been covered by the definition. A big mansion or a hotel is obviously excluded from the definition only for a limited purpose of changing the mode of its disposal, otherwise such a building or a premises, for all other purposes and for that matter under section 30 also, will be a house or a shop.

8. At times there may be something different or repugnant in the context itself and in that case the interpretation clause will, of course, not apply to the words used. Lord Selborne in Meux v. Jacobs (1875 L R 7 H L 481 at p. 493) observed: "The interpretation clause does no more than say that where you find these words in the Act, they shall, unless there be something repugnant in the context or in the sense, include fixtures." The Legislature has embodied this principle in the opening words of section 2 of the Act. This is an interpretation section and its relevant portion reads as "In this Act, unless there is anything repugnant in the subject or context." Section 30 affords a protection to the persons in possession of a house or a shop and to the old tenants of an industrial concern, a printing press or a cinema from ejectment by the transferee. There was no reason to have created an exception in the case of the persons in possession of the big mansion or hotel. In the context of the section, therefore, it is not possible to hold that the word ~f "house" or "shop" has been used to denote residential or commercial buildings other than a "big mansion" or a "hotel". The words "house" and "shop" were not, in my opinion, used in section 30 in any restrictive sense, but were intended to be comprehensive in their application and apply also to case of a big mansion or a hotel. The doubt, if any, is resolves by the use of the word "any" before the word "house." The word "any" according to Webster's Dictionary means indicating a person, thing, event, etc., as not a particular or determinate individual of the given category but whichever one chance may select this, that or the other." According to its plain meaning it will not only be referable to any particular house or shop within the definition clause but all buildings or premises which in the nature of their use can be called a house or a shop. The interpetation of the word "any" has been exhaustively dealt with in Stroud's Judicial Dictionary. In Rowlands 8 Q B D 530, the words `any person' used in section 13 (3), Debtors Act, 1869, was held as not restricted to cases of Bankruptcy and applies to any person whether bankrupt or not. The decisision of Fry L. J. in Duck v. Bates (13 Q B D 843) on appeal against the decision of Country Court, reported in 12 Q B D 79 is aptly applicable to the facts of the present case. The word "any" was interpreted as: "Finally, I must observe that two words in the phraseology of the Act appear to me extremely important; they are the words "any" and `whatsoever.' What is the force of these words? In my judgment, it is to exclude any limitation or qualification of the other words used, and to declare affirmatively that the genus of place described by the Legislature shall be taken in its utmost generality. In my opinion, the words used negative qualification and affirm generality. I have come, therefore, to the conclusion that the place need not be a place habitually devoted to theatrical exhibitions, and on this point I adopt the reason of the Master or the Rolls." The words "any house or shop" are thus purposely used in section 30 to exclude the limitation or qualification which was imported in the definition clause and to denote that these words should be used in their generality. This being the case, the words "any house or shop" used in section 30 will also denote a big mansion or a hotel although it is excluded by the definition clause. In Dr. Cowas Co. v. The Additional Settlement Commis sioner it was observed :‑ "Now in the definition of the term `house' an exclusion had been made in respect of residential premises which might be declared under para. 16 as a big mansion. That limitation of the definition was known to the framers of the Act, and, therefore, when they came to enact section 30, it appears to us that they advisedly used the word `any' before evacuee house. It is true that the generality of the expression of the word may be restricted by the subject‑matter or the context, but in this case it is clear to us that such a restriction was not con templated." I respectfully agree with this finding. In Haji Abdul Karim v. The Chief Settlement Commissioner this question was not discussed. All that was observed therein was, "with regard to big mansions and hotels, however, even section 30 has not made any provision in favour of persons in possession." "The learned Judges appear to have made this observation on the ground that clause (1) of section 30 does not specifically mention a "big mansion" and "hotel." It appears that it was not argued in that case and that is the reason that it has not been noticed that the word a "house" or a "shop" in section 30 was used also to include within its ambit a "big mansion" or a "hotel". I am, therefore, of the opinion that section 30 gives protection to a person in possession of a big mansion or hotel and he becomes a statutory tenant of the transferee and that he cannot be ejected except in compliance with the provisions contained therein.

9. It was also argued on behalf of the petitioners that the big mansions were intentionally excluded from the operation of section 30 so that the vacant possession could be delivered to the auction purchaser, and this was with a view to fetching maximum price for the compensation pool. The industrial concerns, cinemas or printing presses are also disposed of by public auction when the occupants thereof are not entitled to their transfers. If the Legislature had intended to exclude big mansions from the operation of section 30 on this ground, there is no reason why the industrial concerns, cinemas, or printing presses which are in possession of old tenants since before the 14th of August 1947, were also not excluded on the same principle. The reason advanced to make out a case that big mansions were not intended to be covered by section 30 (1) does not hold good.

10. The next question which requires to be determined is whether a person in possession of a big mansion or a hotel can be ejected under section 29 of the Act. The case of the petitioners is that tenancy rights created by the allotment being an encumbrance on the property were extinguished after the property was acquired under section 3 of the Act as held in Haji Abdul Karim v. The Chief Settlement Commissioner. According to them, the respondents were liable to be ejected under section 29, particularly when it was a condition of auction that possession will be delivered to them. On the other hand, the case of the respondents is that an allotment was not an encumbrance within the meaning of section 3 of the Act and, therefore, did not come to an end after the property was acquired and that they could not be ejected under section

29. Reliance was placed by them on Dr. Cowas C. Mehta v. The Additional Settlement and Rehabilitation Commissioner and others. The basis for reference to Full Bench was also that there was difference of opinion between the decisions of the Lahore and Karachi Benches of this Court. For the purposes of answering the reference and to deal with the questions as have been raised by the parties, it is necessary to refer to those judgments at some length. The facts in Haji Abdul Karim v. The Chief Settlement Commissioner and others were: Abdul Karim was an allottee of Elphinston Hotel. It was declared a big mansion and was to be disposed of by an open auction under paragraph 16 of the Schedule. The petitioner was issued a notice under section 29 of the Act, to vacate the premises. The point before the High Court was whether the petitioner could be ejected in a summary manner. It was held that the powers of the Chief Settlement Commissioner or his delegates under section 29 of the Act to pass orders of ejectment as long as the property did not pass into the hands of a purchaser from Government were unlimited. 10‑A. It was further held that the allottees of the premises had no protection under section 29 and the word "possession" was not used in the said section in terms of the definition of the word in section 2 (6). It was held that when a notification about acquisition is published under subsection (2) of section 3, the property mentioned therein vests wholly and absolutely in the Central Government free from all encumbrances. The word "encumbrance" according to the learned Judges also included the right of a tenant and allottee. An allottee, in view of this judgment, could claim no interest or right in the property except those under section

30. Section 30 was held to be inapplicable to the cases of big mansions or hotels.

11. The view taken in Dr. Cowas C. Mehta v. The Additional Settlement and Rehabilitation Commissioner was different. In this case Dr. Mehta was a tenant of a building which was auctioned as a big mansion. He was threatened to be ejected by the order of Additional Settlement Commissioner under section 29 of the Act. He filed a writ petition challenging this order and it was heard by a Full Bench. The learned judges dissented from the view taken in Abdul Karim v. The Chief Settlement Commissioner and held: "Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act was not available for ejectment of a person in possession of a house which has been transferred to another under a valid provisional transfer order except for non‑payment of dues to the Department in relation to the period prior to transfer."

12. In order to understand the scope of section 29, it is necessary to refer to the history of its legislation. The Displaced Persons (Compensation and Rehabilitation) Act, 1958, came into force on the 28th March 1958. It was amended by Ordinance I of 1959 on the 5th of January 1959 and further amended by Ordinance LIII of 1959. Section 29 suffered amendments on both the occasions. Section 29 as originally enacted reads as:‑ "

29. Ejectments.‑(I) Notwithstanding anything contained in any other law for the time being in force, no order of ejectment passed‑on or after the seventeenth day of February 1958, by any authority in respect of any house or shop shall be given effect to, and where, in pursuance of any such order, any person has been dispossessed of any such house or shop, he shall be deemed to be in possession thereof. (2) Nothing in subsection (1) shall apply to an order of ejectment passed under this Act, or to any person dispossessed in pursuance of any such order, or to any person (other than a claimant) dispossessed in pursuance or as a result of any order passed before the aforesaid date by the Rehabilitation Commissioner or by the Custodian." The section contemplated that there might have been some orders of ejectment passed under any law, on or after the 17th day of February 1958, in respect of any house or shop. It was, therefore, directed that these orders will not be implemented and where the orders had been implemented the persons were to be deemed to be in possession. This section came in for interpretation before the Supreme Court in Chief Administrative Officer v. Habib‑Ullah Butt (P L D 1960 S C 78) and their Lordships observed: "This enactment protects even a person in unauthorised possession of evacuee property against ejectment, provided that no order for that purpose had been passed before the 17th day of February 1958." Section 29 was applicable only to ejectment from houses and shops and the protection afforded therein to persons in possession of the evacuee property appears to be for the reason that they should not be deprived of their rights to the transfer of the property, if they had any under the Displaced Persons (Com pensation and Rehabilitation) Act. Under paragraph I of the Schedule a claimant in possession of a house could claim its transfer. Possession was defined in section 2 clause (5) of the unamended Act as: "Possession" except for the purposes of section 30, does not include possession obtained on or after the seventeenth day of February 1958, but includes possession so obtained in pursuance or as a result of an order passed before that date by the Rehabilitation Commissioner or by the Custodian. "Provided that a claimant dispossessed of any property on or after the first day of July 1957, shall be deemed to be in possession thereof." Under the law, as it stood, a person who was in possession prior to the 17th February 1958', even if he had no allotment order could claim transfer of the property. It was for this reason that a person in possession prior to that date could not be ejected by an order after that date. The provision was made with a view to enabling a person in possession, even if he had no allotment order, to get the property transferred in his favour. It was clearly intended that a person entitled to transfer should not be ejected. The Act was amended on 5th January 1959 by the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance, 1959. Section 29 was also amended and it reads as:‑ "

29. Ejectments.‑(1) The Chief Settlement Commissioner may eject or cause to be ejected any person in possession or occupation of any evacuee property whose possession or occupation is not authorised by any of the provisions of this Act, or who contravenes or may have contravened any of the terms and conditions under which the property is held by him, or who, when called upon, has failed to pay public dues, or has wilfully caused damage to any evacuee property allotted to or occupied by him, and for the purpose of such ejectment use or cause to be used such force as may be considered necessary. "(2) The Chief Settlement Commissioner may delegate the powers under subsection (1) to any Settlement Commissioner or Additional or Deputy Settlement Commissioner." The Chief Settlement Commissioner, who under the original Act had no power, was now empowered under Section 29 to eject "any person in possession or occupation of any property whose possession or occupation is not authorised by any of the provisions of this Act." It may be seen that in section 29 (1) the reference was only, to evacuee property and not to the property acquired under section

3. The evacuee property, in fact, was acquired subsequently by two notifications, dated the 8th of August 1959, and the 21st of August 1959. The Chief Settlement Commissioner was, therefore, given power to eject any, person from the "evacuee property" whose possession "was not authorised under the provisions of the Act." The powers to be exercised by the Chief Settlement Commissioner were concurrent with the powers of the Rehabilitation authorities who could also take similar action under section 7 (2) of the Rehabilitation Act, 1956. It may be mentioned at this stage that the same person had been appointed in the past to discharge dual functions as the Chief Settlement Commissioner and also as the Rehabilitation Commissioner. Notwithstanding the fact that the Rehabilitation Commissioner had the power of ejectment under the Rehabilitation Act, still the powers were given to the Chief Settlement Commissioner for ejectment under section 29 of the Act. This was, obviously, done with a view to enabling the Chief Settlement Commissioner to eject persons also in certain cases which were not covered by section 7 of the Rehabilitation Act. In other words, if in a certain case the Rehabilitation authority was not competent to pass the order of ejectment, the Chief Settlement Commissioner could pass such orders under section 29. 1t is in this context that I have to interpret the words used in section 29, viz., "persons whose possession or occupation is not authorised" by the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The word "possession" is defined by the amending Ordinance I of 1959 to mean:‑ "(6) `possession' means possession obtained in pursuance of an order passed on or before the twentieth day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government. Provided that if 'a question arises whether an officer was so authorised or permitted, the decision of the Chief Settlement , Commissioner in that behalf shall be final . . . . ."

13. Possession under the Act is, therefore, one which is obtained in pursuance of an order of a competent authority. If the Legislature had intended to protect against ejectment a person who was in "possession" in terms of the definition in clause (6) of section 2 only, then why did they further condition it in section 29 by saying "not authorised by the provisions of the Act." So what is significant is not that a person should be in possession by an allotment, but that his possession should also be authorised by the Act. The word "possession" is relatable indeed to an allotment and this is obvious by the fact that in this very section along with the word "possession" the word "occupation" is used. Unless there was a difference in these two terms, there was no need for the Legislature to have used both of them in the same provision. In view of the fact, however, that the Chief Settlement Commissioner can pass an order of ejectment only against persons whose "possession" or "occupation" is not authorized by the provisions of the Act, it becomes insignificant whether a person is an allottee or not. What is important is whether the possession or occupation is authorized by the Act. If a person is an allottee but his possession is not authorized under the Act, he can still be ejected. On the other hand, if a person is not an allottee but his occupation is authorized by the Act, he cannot be ejected. A question arises whether "possession" or "occupation" of any person has been authorized by the Legislature under the Act for any of its purposes.

14. It is, therefore, to be seen if there is any provision in Act XXVIII of 1958 or the Schedule thereunder as amended by Ordinance I of 1959, under . . . . . . which the possession or occupation of evacuee property by any person could be authorized. Except clause (5) of section 30, there is none. For protecting possession of persons mentioned in this clause there was no need to afford protection in section 29 because clause (5) itself gave similar, and in fact, absolute protection to them. There was thus no purpose in giving them the protection by a general provision when the same was available to them under the special provision relating to them. The Act is otherwise conspicuous by an absence of any provision whereby the Chief Settlement Commissioner or his delegate could authorize the possession or occupation of any person. In Stroud's Judicial Dictionary (III Edition) Volume 1, page 241, at No. 22, the word "authorise", by relying on Winstone v. Wurlitzer Automatic Phonograph Co. of Aus. Pty. Ltd. (1946 A L R 422) is defined as "should be read in its ordinary sense of sanction, approval or countenance." The words authorized by the provisions of the Act, therefore, are referable to possession or occupation which is recognized by the Act for any of its purposes, namely, the compensation to certain displaced persons and the rehabilitation of others. There could be no other intention because the word "possession" or "occupation" authorized under the Act is not referable to any other situation. Houses, shops, industrial concerns, cinemas and vacant sites can be transferred under the Act and the Schedule if certain conditions are satisfied. In all those cases, the considerations for the transfer are not the same. In certain cases occupation itself, without any allotment order, is considered sufficient for the transfer of the property. In other cases no person is eligible for the transfer unless he was in possession through an allotment order. In the case of a house a claimant, a non‑claimant and a local where the value of the house does not exceed Rs. 10,000, is entitled to its transfer under paras. 1, 2 and 3 of the Schedule. If any of these persons is in possession within the meaning of section 2 (6) he will be deemed to be in possession authorized by the Act, because he can claim its transfer. For example, if a local is an allottee in possession of a house, the value of which is more than Rs. 10,000 he will be in possession within the meaning of section 2 (6) of the Act, but since he cannot be transferred the house, his possession will be one not authorized under the provisions of this Act. In the case of a shop, it can be transferred to a claimant and a non‑claimant only. A local has no right to its transfer, and even if he is an allottee, his possession is not authorized by the provisions of the Act. In the case of building sites, the transfer can be made either to allottees or in certain cases under clause (3) of para. 13 of the Schedule to persons in an unauthorized possession. The word "unauthorized" in clause (3) when read in the context of earlier clauses where reference is made to allotments in favour of claimants and non‑claimants, means a person who is in occupation but has no allotment order in his favour. The word "unathorized" has been used to mean without allotment. In this case a person will be in occupation but since he is entitled to the transfer under clause (3) of para. 13, he will be in occupation which is authorized by the provisions of this Act. In the case of industrial concerns, they can be transferred to the allottees under clauses (1) and (2) of paragraph

15. The same can also be transferred to a displaced person or a local, who is not an allottee but is in possession. His possession being without allotment will be unauthorized under the Rehabilitation Act, but since he can be transferred the industrial concern under para. 13 (3) he will be a person in occupation which is authorized by the provisions of this Act. Thus a person if he is in possession of a property by an order of allotment, or he is in occupation without any such order, and he can claim transfer of the property under the Act, he cannot be ejected under section 29, His possession or occupation is recognized by the Act for it purposes, and it will therefore be an authorized one under the same. On the contrary, if a person is in possession by allotment but he cannot be transferred the property under the Act, his possession or occupation will be one which is not authorized by the provisions of the Act.

15. The upshot of the whole discussion is that if a person by virtue of his possession or occupation of an evacuee property was entitled to its transfer under the Act when the Act came into force, his possession and occupation will be one authorized under the provisions of this Act. This is the only possible interpretation of section 29 which leads to no anomalies.

16. Subsequently, the Act was amended on the 8th of August 1959 and the 28th of August 1959 by amending Ordinance LIII of 1952. Section 29 was also amended by the words "or any property acquired under section 3" after the words "any property" occurring for the first time in that section and for the words "any such property" were substituted. The amendment brings about no change in the interpretation of the word "possession" or "occupation" authorized by the provisions of this Act. This amendment was made on account of the fact that the property in the meantime had been acquired; the same ceased to be evacuee property and it vested absolutely in the Central Government. Whereas earlier the power of ejectment could be exercised by the Chief Settlement Commissioner in respect of an evacuee property, now after the amendment by Ordinance LIII of 1959 he could also exercise similar power in respect of the property acquired under section 3.

17. A question may arise that on this view of section 29, will a person in possession of a building or premises which is subsequently declared under para. 16 of the Schedule a big mansion or a hotel be not liable to ejectment because he will have no right to its transfer, the same being liable to be sold by public auction only. It is true that under paragraph 16 when a residential or commercial building or premises whose monthly rent was not less than Rs. 500.00 in 1946 is declared a big mansion by the Chief Settlement Commissioner, it is to be transferred by open public auction only. The fact remains that if such a building is not declared a big mansion, no matter what its rental value was in 1946, it remains a house or a shop, and a claimant or a non‑claimant in possession, would be entitled to the transfer of the same. The building or premises may be one house or a shop or it may be composite of a number of houses or shops. A local in possession is also entitled to the transfer of a house in his possession if its value is less than Rs. 10,

000. In all such cases, the possession of these persons will be one authorised by the provisions of the Act. If sub sequently those premises are declared a big mansion or hotel and the persons in possession become ineligible for the transfer, it will not render their possession as one not authorised by the provisions of the Act. If once the possession was authorised under the Act, it cannot become otherwise subsequently unless there is a clear provision to that effect. Under the Pakistan Rehabilitation Act (XLII of 1956), it is provided that a Rehabilitation Commissioner, may eject "any person in possession of any property which after it has been allotted to him as evacuee property has lost the character of being such property either by declaration or by the operation of any other law for the time being in force." Here the power was given to the Rehabilitation Commissioner to eject him in spite of the allotment and he could exercise the power only if by a declaration pr by the operation of any law, the property lost its character of evacuee property. Thus if the Legislature had intended under Act XXVIII of 1958 that the possession of any person over a house or a shop, which was authorised under the Act, will become unauthorised if it was declared by the Chief Settlement Commissioner, to be a big mansion or hotel, it would have made a provision like the one in the Rehabilitation Act referred to above. Notwithstanding the fact that the Chief Settlement Commissioner declared a residential or a commercial building a big mansion or hotel, if any person is in possession, his possession, will be one authorised by the Act and, therefore, proceedings under section 29 against him will not be competent.

18. It was argued by the learned counsel for the petitioners that all allotments made under the Rehabilitation Act came to an end after the property was acquired under section 3 of Displaced Persons (Compensation and Rehabilitation) Act, 1958. Relying on Haji Abdul Karim v. The Chief Settlement Commis sioner and Subedar Muhammad Afzal v. Nafees Ahmad it was argued that the tenancy rights were encumbrances and they stood extinguished under clause (2) of section

3. Allotment according to the learned counsel was like the tenancy in the property. I could see no basis for equating the allotment with the tenancy‑rights. It was held in Hameed Ullah v. Rai Khursheed Ahmad (P L D 1958 S C 516): "the express allottee is not a term of art or law and for its proper construction reliance may properly be placed upon the practice of the Rehabilitation Department to which the operation of a relevant law has been entrusted." Allotment made in favour of a person is only for the purpose of rehabilitation. It was a concession given to a person to live in an evacuee property under certain conditions prescribed by the Rehabilitation Law. It created no right in such a person over the property nor the same was in any way an encumbrance on it even if the encumbrance were interpreted to include the tenancy rights. The allotment would not fall within the term of encumbrance. It was held in E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 536 at p. 549): "that mere allottees did not by the allotment alone acquire any right in the property." It was again held in Punjab Co‑operative Bank Ltd v. Republic of Pakistan (P L D 1964 S C 616 at p. 623): "The mere allotment of displaced persons did not alter their character or give to such persons vested rights in them."

19. It may, however, be noted that under clause (3) of section 3 of the Act, the right or interest of an evacuee is extinguished with effect from the date of the notification acquiring such property under clause (1) or clause (2). This property vests in the Central Government free from encumbrances. It could not be the intention of the Legislature to deprive arbitrarily the persons of their rights which they had by virtue of encum brances. It was provided in clause (4) that the Central Government was to prescribe the extent to which and the period within which any charge, created by Custodian or the Chief Settlement Commissioner acquired under subsection (1) of section 3 or any tax due to the Central Government or Provincial Government or local authority was to be satisfied. Since the property was to vest in the Central Government free from all encumbrances, it was enjoined upon the Government to make provision for satisfying the claim of the encumbrancers. The claims are mentioned in clause (4) and the encumbrance mentioned in clause (3) will, therefore, obviously, be referable to matters specified in clause (4). The tenancies are not one of the matters specified therein. Mortgage is under the ordinary law an encum brance. Interpreting clause (3) of section 3, one could say that if a property was subject to a mortgage, the same was to vest in the Central Government without such a mortgage. Since, however, there is no provision made for its redemption on payment of mortgage money in clause (4), it has been held by the Supreme Court in Muhammad Khan v. The Settlement Commissioner (P L D 1962 S C 284) as: "The position that emerges, therefore, is the right, title and interest of the appellants have not been acquired by the notification issued under section 4 of the Act and unless the appellants' mortgage is redeemed either by the Government or by the allottees, the appellants are entitled to retain possession of the lands under mortgage." The same view was taken in Dr. Cowas C. Mehta v. The Additional Settlement and Rehabilitation Commissioner. I am, therefore, of the opinion that the allotments by the Rehabilitation authorities were not in any way affected by the acquisition of the property as a result of the notification issued under section 3 of the Act.

20. Reliance was placed on condition No. 18 in Terms and Conditions to Settlement Scheme No. III to contend that the Settlement authorities were under an obligation to deliver vacant possession to the auction purchaser. It was argued by Mr. S. M. Zafar that under section 16, the Central Government can, by order in writing, require the Chief Settlement Commissioner to prepare scheme for the transfer of immovable property and the Chief Settlement Commissioner is further empowered under clause (2) to section 16 to prepare and "excute" such schemes. His argument was that the "execution" of a scheme carries with it the necessary incident of the delivery of possession, and it was for this purpose that condition No. 18 had been put in. He also relied on paragraph 16 (A) of the Schedule which runs as: 16‑A. Notwithstanding anything contained in this schedule, whenever any property is sold by public auction‑ (1) the auction shall be subject to such terms and conditions as may be laid down by the Chief Settlement Commissioner." The learned counsel, however, lost sight of the fact that the powers to be exercised under clause (2) have to be "consistent with provisions of the Act." If under the Act, a person in possession Cannot be ejected the Chief Settlement Commissioner can mace no scheme providing for the ejectment of such a person to enable him to deliver possession to the transferee. Any such provision being it consistent will be ultra vires of the provisions of the Act. Similar argument was advanced in Abdul Karim v. Chief Settlement Commissioner and it was repelled by observing: "The impugned order of ejectment was sought to be defended on two grounds, one of them being that it could be passed because the Chief Settlement Commissioner who could under the Act fix the conditions of sale, had said in the notice of auction that possession will be delivered to the auction purchaser after thirty days of the issue of the P. T. O. and the second that section 29 of the Act authorized the issue of the order of ejectment. It appears to me that the first ground is entirely misconceived, because if an order of ejectment could not be issued under the Act, the power to issue it could not vest in the Settlement authorities, by reason of the fact that the Chief Settlement Commissioner could, under the Act, lay down conditions with regard to the sale of any property transferred under the provisions of the Act. If inserting of a condition like the one in this case, could confer on the Settlement authorities the power to direct ejectment, the Chief Settlement Commissioner will have to be held to have been given the power to amend the law, which power, it may safely be presumed no one had intended to confer on him. I am clear in my mind that the conditions of sale, which the Chief Settlement Commissioner can lay down under the Act, cannot bind any person, who is not connected with the transaction, however binding those conditions might be on the purchaser and the Settlement authorities."

21. Another thing to be noted is that under Para. 18, the possession of the property is to be given to the purchaser. It is not stated therein that the actual possession is to be delivered. Possession can be either actual or constructive and it depends on the circumstances of each case. In the execution of a decree for possession of immovable property, the decree‑holder may be given the actual possession by dispossessing physically the judgment‑debtor; but if the property is in possession of a lessee or a tenant, the decree can be executed only by the delivery of a symbolic possession under rule 36 of Order XXI of the C. P. C. Likewise, the auction‑purchaser of a property in the execution of a decree may be delivered under Order XXI, rule 95 or 96, C. P. C. actual or symbolic possession of the property as the case may be. In compliance with Condition No. 18, the auction‑purchaser of a property under the Act, may also be given an actual possession where the property is in possession of only the Department or where it is with a person whose possession is not authorized by the provisions of this Act. In other cases, where actual possession is not possible, the possession con templated in Condition No. 18 has to be constructive or symbolic.

22. There is yet another aspect of the matter. The provisional transfer orders (P. T. Os.) have been issued in both the cases. Since the property has been transferred, no action can be taken under section 29 of the Act against the persons in possession. Section 29, clearly contemplates two stages, firstly, before the Central Government acquires any property under section 3 and, secondly, after the property has been so acquired. The acquisition under section 3 is for any of the purposes of the Act; the purpose of the Act being to pay com pensation to Displaced Persons. To satisfy the same purpose, provision is made for the transfer of such properties. The property remains an acquired property as long as it is not transferred. The action, therefore, can be taken under section 29 only when the property is evacuee property or it has been acquired under section 3 and has not been transferred. This was the view taken in Haji Abdul Karim v. The Chief Settlement Commissioner and at p. 403 it was observed: "The plain meaning of sections 29 and 30 of the Act is that, while in the circumstances mentioned in section 29, the Chief Settlement Commissioner, can, till such time as it has passed into the ownership of a transferee, issue an order of ejectment with regard to any property dealt with by the Act, the person in possession of the property under a valid order mentioned, in section 30 of the Act, cannot be ejected there from for three years after the sale of tine property under the Act at the instance of the person to whom the property has been transferred under the provisions of the Act, unless the conditions mentioned in that section exist. The same view was taken in Subedar Muhammad Afzal v. Nafees Ahmad and the observations of Anwar‑ul-Haq, J., were: "There is no doubt that the power of ejectment of the Chief Settlement Commissioner by section 29 of the Act is exercisable in respect of evacuee property or property acquired under section 3 of the Act and does not extend to a property which has passed into the ownership of the transferee." The provisional transfer orders have been issued in both the cases. In case of Bahawalpur Bank the entire amount has been paid. Issuance of a permanent deed is to follow as a matter of course. In Condition No. 19 of the Conditions, issued under Settlement Scheme No. III, it is provided, "where the purchase money has been paid in full, the property will be permanently transferred to the purchaser." Again in Condition No. 20 it is said where a property is transferred permanently, the transferee will acquire full proprietary rights in it." These conditions are in conformity with Paragraph 10 of Settlement Scheme No. III which says:‑ "

10. When the Chief Settlement Commissioner has accepted the bid and the amounts payable by the auction‑purchaser have been paid in accordance with the terms and conditions of auction, the Chief Settlement Commissioner will pass an order transferring the auctioned property to the purchaser." The property anyhow is transferred by the issuance of Provincial Transfer Order. Under Paragraph 20 (b) of the Terms and Conditions issued under Settlement Scheme No. III a big mansion or a hotel can be transferred provisionally. The transferee has a right to lease it out or mortgage the same. He can also make additions and alterations in it. Although a person cannot dispose of the property transferred under this Act until the full price of the property has been paid by him, there is no doubt as to the fact that on the issuance of a provisional transfer order, the property is transferred to the purchaser. I may with advantage quote the observation of S. A. Rahman, J. as to the incidents of provisional transfer order in the case Rahim Bakhsh v. Ahmad Bakhsh (PLD1964SC189): "Undoubtedly, certain rights have been conferred by and under the Act on the P. T. O. holder. Section 30 of the Act declares that persons in possession of any evacuee property and those who have been declared to be tenants occupying such property, from a certain date, would be deemed to be tenants of the transferees on the same terms and conditions as to payment of rent or otherwise, on which they held it immediately before the transfer. Moreover, Paragraph 37 of the Settlement Scheme No. 1 framed under section 16 (1) (b) and (c) of the Act, gives express rights to lease out and mortgage the property to a transferee. No doubt he is not allowed to alienate the property otherwise, and may even forfeit his right of possession if he fails to pay all the sums due to the Department. That, however, does not detract from the right that he sustains so long as he observes the conditions of the transfer. It is not, therefore, correct to say that all rights in the property still vests in the Central Govern ment." His Lordship further observed:‑ "The upshot of the whole discussion is that the P. T. O. issued in favour of the respondent must have its full force and the appellant has become a statutory tenant under the respondents who are the P. T. O. holders." In this case a P. T. O. holder filed a petition for ejectment against a person in possession of the property under the West Pakistan Urban Rent Restriction Ordinance. An objection was taken by the respondents that the property having been acquired by the Central Government under section 3 of the Act, the provisions of the Rent Restriction Ordinance were excluded from application to the case by virtue of a notification issued under section 3 of the Ordinance to the effect that the provisions of Ordinance would not apply to buildings and rented lands vested in the Central or Provincial Governments. It was held that after the issuance of the P. T. O., all the rights in the property do not remain vested in the Central Government. It may as well be stated that in section 30, the word used is "transferee" and not the "provisional transferee". According to the view taken by the Supreme Court a person in whose favour a P. T. O., is issued, is a transferee of the property. This question can be looked at from another angle section 29 gives an authority to the Chief Settlement Commissioner to eject certain persons. Under section 30 of the Act, a statutory relationship is created between a transferee and a person in possession of the properties mentioned therein. I have already held that section 30 applied also to a big mansion or a hotel. A person in possession of such a property is given protection under proviso (b) of clause (1) of section 30 against ejectment for a period of six years from the date of transfer, and he can be ejected earlier only if the transferee can bring his case within clause (3) of section 30 and show that the tenant has not within three months from the date of receipt of a notice of demand, sent to him by registered post, paid or tendered the amount of rent due for any period after the transfer; or that the tenant has after the transfer, sublet or otherwise parted with the possession of the property or has committed acts which are destructive of or injurious to the property. As decided by the Supreme Court in Rahim Bakhsh v. Ahmad Bakhsh section 30 applies also in cases where only a provisional transfer order is issued and the person in possession becomes a statutory tenant under a holder of a P. T. O. It is, therefore, to be seen whether person who has a statutory protection under proviso (b) to clause (1) of section 30 against ejectment for a period of six years, can still be ejected in a summary manner under section 29 of the Act. Such an interpretation is bound to lead at times to anoma lous situations. This question was exhaustively dealt with in Cowas C. Mehta v. Additional Settlement and Rehabilitation Commis sioner. I respectfully adopt their lordships' observations which are: "Was it intended that in respect of the same tenant and in relation to the same acts such as default or waste, the Civil Court as well as the Settlement Authorities would simul taneously exercise jurisdiction for the same relief against the tenant? The numerous complications and conflicts which might arise in such a duality are easy to contemplate. Supposing a landlord sought the ejectment of a tenant in a Civil Court upon the ground of non‑payment of rent or waste upon the property and the tenant denied both the allegations and the Civil Court found in favour of the tenant but the landlord obtains an order of ejectment from the Settlement Authorities on the same ground, then which of the two decisions would prevail? Let us take another example. A tenant obtains an injunction against his landlord restraining interference with his quiet enjoyment of the property and then the landlord goes to the Settlement Authorities and invokes their power under section 29 of the Act and they issue an order in his favour. How will the conflict between the two orders be resolved? Would the bailiff of the Court protect the tenant against the peons of the Settlement Authorities who may have proceeded for execution of the order? Such examples can be multiplied, and we are clear that such an absurd result was not intended by the Legislature. The purpose of enacting section 30 was to confer exclusive jurisdiction upon the Civil Courts to deal with matters arising between the tenant and the transferee in respect of the property transferred to the latter." Section 30 aims at affording protection to persons in possession and they can be ejected only in specified limited circumstances. The protection so afforded can be real and substantial only if to such persons section 29 is not applicable. I have no doubt that the Legislature did intend that way, because the presumption is that it could not intend to take away indirectly what it conferred by a clear and unmistakable provision. It seems difficult for me to avoid the conclusion that the Legislature clearly intended that in a case covered by section 30, a proceeding for ejectment can be taken under that section only and not under section 29 of the Act. That being so, where a P. T. O., has been issued the Chief Settlement Commissioner or his delegates cannot take action under section 29 of the Act against a person in possession of a big mansion or a hotel.

24. In view of my findings, the answer to the reference is:‑ 1. (i) Possession or occupation of a person is authorized within the meaning of section 29 only when he is eligible to the transfer of a property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and, therefore, a person whether he is an allottee or unauthorized occupant renders himself liable to ejectment under section 29 of the Act if he is not eligible for its transfer; (ii) The possession or occupation of a big mansion or hotel by a person will be an authorized one by the provisions of the Act, if he, but for such a declaration, would have been eligible for transfer of the same as a house or a shop; (iii) Section 29 of the Act is not available for ejectment of a person in possession of a house or shop including a big mansion or a hotel which has been transferred to another by a Provisional Transfer Order or Permanent Transfer Deed; and

2. That section 30 is applicable also in cases where a building or premises is declared a big mansion or hotel and is transferred by auction under paragraph 16 of the Schedule. A statutory tenancy will come into being between such transferee and the persons in possession of such buildings or premises, and their relationship will be governed and regulated by the provisions of section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958. A. H. Reference answered.