P L D 1961 (W (PLP)

SAJJAD AHMED, J.‑

This order will dispose of seven Writ Petitions Nos. 129, 131, 133, 135, 1.37, 139 and 141 of 1961, filed respectively by Sayed Ehsan Husain, Sayed Wijayat Hussain, K. B Shah, Alam Khan, Mst. Mehmuda Begum, Muhammad Umar Khan, Qazi Sabauddin and Mst. Zahida Begum, which raise identical questions and which seek a common relief against the respondents, (1) The State of Pakistan through the Secretary Ministry of Defence, and (2) The Military Estates Officer, Peshawar, in the form of an appropriate writ for quashing the respondents orders dated the 21st of July 1981, requisitioning the bungalows which are in the respective occupation of the petitioners, situated within the limits of the Peshawar Cantonment. 2. 1t is necessary to give a brief outline of the events leading up to the present petitions. The petitioners are either displaced persons or refugee‑claimants or local occupants, and according to their contention, each of them is a transferee of the bungalows in his possession under the Displaced Persons (Compensation and Rehabilitation) Act of 1958, which will hereinafter be referred to as the Act.

3. In recognition of the same position, provisional transfer orders briefly called as the "P. T. Os." contained in Appendix XII, Settlement Scheme I, were issued by the Settle ment Officer in their favour excepting that of Wijayat Husain (Petitioner in Writ Petition No. 131 of 1961), whose case is pending for decision before the Settlement Commissioner. It is stated in the petitions which all follow a common pattern, that subsequent to the transfers in their favour it was brought to their notice that permission for selling all these bungalows to the Ministry of Defence was obtained by the P. A. F, Head Quarters, Peshawar, for housing their staff "in a questionable manner and on incorrect representations." As a sequal to this, the P. T. Os., issued in favour of the petitioners were re‑called by the Deputy Settlement Commissioner, Peonawar Cantonment, leading to appeals to the Additional Settlement Commissioner by the petitioners which were accepted by his order dated the 5th of May 1960, thus restoring the transfers of the bungalows to them. In some cases the transfers were again withdrawn by the Deputy Settlement Commissioner with an offer of alternative accommodation which was refused by some being unsuitable, but although accepted by others was not implemented it by the relevant authorities. The main attack in the petitions, however, is directed against the action of the respondents in seeking the petitioners' eviction from the bungalows in question by the "requisitioning orders" issued under the provisions of the Cantonment Requisitioning of Immovable Property Ordinance IV of 1948, which will hereinafter be referred to as the Ordi nance. The entire case of the petitioners for this attack revolves on the point that these bungalows were brought into the "Compensation Pool" under the Act, and their disposition has, therefore, to take place under the provisions of that Act, section 36 of which gives it an overriding effect against all the other statutes providing an inconsistent situation. It has been contended on their behalf by very strenuous arguments by the learned counsel that since the properties in question now form part of the "Compensation Pool", having been acquired by the Provincial Government under section 3 of the Act, and their dispensation has taken place in favour of the petitioners under the valid orders of the relevant authorities, viz., the Settlement Commissioners, they are not available for treatment in any other manner, including the impugned transfers, in favour of the Ministry of the Defence. On the same basis it has been argued that the properties are immune from requisition under the Ordi nance whose provisions conflict with the spirit and letter of the Act, and which cannot., under the law; take precedence over it.

4. It is, therefore, necessary to examine the foundation of the petitioners claim to find out whether the properties are invested with the character under the Act, as contended by the petitioners, to make them immune from dispositions except as already done in their favour, and also from requisition under the Ordinance. Section 4 of the Act, Chapter III, entitled "Creation of Compensation rent, rehabilitation pools", gives the various constituents of the "'Compensation ' Pool," and may here be usefully reproduced. "Section

4. Compensation Pool.‑(1) For the purpose of payment of compensation to claimants in respect of immovable property other than agricultural land, a compensation pool consisting of the following shall, subject to the provisions of subsection (2) be constituted namely : ‑ (a) all evacuee property acquired under section 3 ; (b) sale‑proceeds of any immovable evacuee property lying with the Custodian, compensation paid or payable to the Custodian by the Central or Provincial Government on the acquisition of any immovable evacuee property under any law for the time being in force, and consideration of sale of any immovable evacuee property ; (c) public dues of the nature described in sub‑clause (d) of clause (10) of section 2 and recovered under this Act ; (d) Government property allotted for rehabilitation purposes and exchanged with evacuee property with the consent of the Government; and (e) any amount or property forfeited under section 18. (2) Immovable evacuee property attached to any charitable; religious; or educational trust, and such other evacuee property as may be specified in this behalf by the Central Government by notification in the Official Gazette, shall not form part of the compensation pool constituted under subsection (1)." The bungalows which are the subject‑matter of these proceedings, according to the petitioners' contention, fall under the category described at (a) viz. "evacuee property acquired under section 3" and this leads to the examination of the question whether those were in fact acquired under section 3 of the Act. Section 3 aforesaid is as follows : ‑ Section

3. Power to acquire evacuee property.‑(1) The Central Government may, for any of the purposes, of this Act, by notification in the Official Gazette acquire any evacuee property within the Federal Capital other than agricultural land. (2) As and when so required by the Central Government, the Government of West Pakistan shall, for any of the purposes of this Act, by notification in the Official Gazette, acquire such evacuee property, other than agricultural land situated in the Province (excluding the Federal Capital, as the Central Govern ment may deem it necessary to acquire). (3) On the publication of a notification under subsection (1) or subsection (2), the fight, title and interest, of any evacuee in the evacuee property specified in the notification, shall, with effect from the date of such publication, be extinguished, and the property shall vest wholly and absolutely in the Central Government free from all encumbrances. (4) The Central Government shall prescribe the extent to which, and the period within which, (a) any charge created by a Custodian or the Chief Settle ment Commissioner on any property acquired under sub section (1) or subsection (2), or (b) (omitted); (c) any tax due to the Central or Provincial Government or a local authority, shall be satisfied, and the manner in which it shall be satisfied. (5) Notification under subsection (1) And subsection (2) may be issued from time to time and may relate to‑ (a) all evacuee property generally ; or (b) any class of evacuee property ; or (c) all evacuee property situated in a specified area ; or (d) any particular evacuee property.

5. The properties in dispute, being situated in the Peshawar Cantonment (West Pakistan), their acquisition for purposes of the "Compensation Pool" is to be done under subsection (2) of section 3, which on a plain reading, gives powers to the Government of West Pakistan to acquire "such evacuee property other than agricultural land situated in the Province (excluding the Federal Capital) as the Central Government may deem it necessary to acquire." The words "such evacuee property as the Central Government may deem it necessary to acquire" under lined by us, leave no room for doubt that the powers of the West Pakistan Government were limited in the matter of these acquisitions to extend to those properties only which the Central Government may does necessary in this behalf. The wishes of the Central Government as to the extent of the properties which were to be acquired by the Government of West Pakistan and the 'limitations to that acquisition placed by the Central Govern ment under its powers as contained in subsection (2) of section 3 of the Act, seems to be very clearly indicated in the Gazette of Pakistan Notification No. U‑8‑79/3113, dated the 21st of August 1959, which was issued by the Government of West Pakistan in this connection, and which reads as follows :‑ "Whereas the Central Government, in pursuance of the powers conferred by subsection (2) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act 1958, (hereinafter referred to as the said Act) have asked the Government of West Pakistan to acquire, for the purposes of the said Act, all immovable evacuee property situated within the Province of West Pakistan, other than‑ (i) agricultural land; (ii) Property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act 1957, or under any law for the time being in force for the administration of evacuee property in Pakistan, has been accorded‑ before the date of this Notification ; (iii) Property with regard to which any proceedings are pending on the date of this Notification under the Pakistan (Administration of Evacuee Property) Act, 1957, before a Custodian ; and (iv) Property situated within the limits of the Murree Municipal Committee and the Murree Cantonment Board. Now, therefore, in exercise of the powers conferred by sub section (2) of section 3 of the said Act, the Government of West Pakistan is, hereby, pleased to acquire, with imme diate effect, all the said evacuee immovable property."

6. It is obvious from the above notification that under its statutory obligations as enjoined by section 3 (2) of the‑Act, the West Pakistan Government has carried out the directions of the Central Government by saving from acquisition and the "Compensation Pool" certain types of properties mentioned in the Notification, and one of these is described in sub‑clause (ii) thereof, viz., "property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Admi nistration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of evacuee property in Pakistan has been accorded before the date of this Notifica tion." It is admitted that the Government of Pakistan, Ministry of Rehabilitation, by their Letters No. F. 16 (61) 59‑P. 11, dated Karachi, the 24th of June 1959, addressed to the Custodian of Evacuee Property, Lahore, in exercise of the powers conferred by section 25 (2) (s) of the Pakistan (Administration of Evacuee Property) Act XII of 1957, accorded permission for the outright sale of the sixteen evacuee bungalows situated in Peshawar Cantonment (i.e. the bungalows in dispute) at the price to be determined by the Custodian "in consultation with the Military Engineering Services authorities, and in accordance with the other instructions issued by the Ministry in this respect." The Custo dian, in turn, conveyed his approval for the transactions by his Letter No. CEP/IX‑F. 1/6584, dated the 18th January 1960, supplemented by a second Letter No. CEP/Sales/Posh. (19), dated the 5th March 1960. The learned counsel for the petitioners contended that the transfer allegedly made in favour of the Ministry of Defence by the Central Government was not legally made, and therefore, the property stood transferred to the "Compensation Pool" under section 3 of, the Act. The basis for this argument is that under section 25 (2) (s) of the Pakistan (Administration of Evacuee Property) Act XII of 1957, it is the Custodian who is to initiate the sale of/an evacuee property, although he cannot transfer it without the previous approval of the Central Government, and that in the present case, the process has been reversed, viz., that the Central Government has effected the sale, to which the Custodian has appended his approval. The learned counsel for the petitioners has stressed this objection characterizing the departure from the manner of transfer enjoined by the language of the statute, as illegal on the principle that when the law requires a thing to be done in a particular manner it should be done in that manner or mot at all. We do not consider that the point carries any substance in the context of the present case. Under the law, as 'envisaged in section 25 (2) (s) and the Proviso attached to it, the Central Government and the Custodian between themselves are the com petent authorities to effect the transfer of any evacuee property. The transfer may be done by the Custodian, but. not without the previous approval of the Central Government. In the present case, the Central Government has accorded its previous permission, the Custodian has approved the price, and it is not known whether the transfer has been completed or not as required by law. The matter is one which has to be considered and pursued by the parties concerned, namely, the Ministry of Defence on the one hand and the Ministry of Rehabilitation A and the Custodian, on the other. It is enough for our purposes, and for purposes of the decision of this case that a Notification has been issued by the Government of West Pakistan acquiring the evacuee property, as deemed necessary by the Central Government, and that Notification clearly saves the bunga lows in dispute from falling into the "Compensation Pool". The West Pakistan Government's Notification in question was issued on the 21st of August 1959 and the sanction of the Central Government for the sale of the disputed bungalows was accorded on the 24th of June 1959, i.e. two months before this Notification, and as such, the properties stand saved from acquisition under sub‑clause (ii) of the Notification itself. The properties therefore clearly do not fall within the "Compensation Pool" under section 4 (a) of the Act not only not having been acquired by the West Pakistan Government tinder section 3 of the Act, but in fact saved from acquisition under clause (ii) of the Notification of the West Pakistan Government issued in this respect.

7. Confronted with this Notification and realizing the weak ness of his stand, the learned counsel, as a last resort, challenged the vires of this Notification on the ground, firstly, that according to the scheme of the Act the intention of the Legislature could not have been to save from acquisition any evacuee property for the purposes of the "Compensation Pool" except that which is expressly exempted and specifically mentioned in subsection (2) of section 4 of the Act, namely, "immovable evacuee property attached to any charitable, religious or educational trust; and such other evacuee property as may be specified in this behalf by the Central Government by notification in the Official Gazette". In our view, this provision (i.e., subsection (2) of section 4 of the Act) places a check on the powers of the Government to acquire the properties specifically described therein, for the "Compensation Pool", with the result that the Government cannot acquire them, even if it wanted to do so. Bearing this express limitation on the powers of the Central Government, section 3 of the Act gives a free hand to the Government to reserve any property that it likes and to exclude it from forming part of the '`Compensation Pool". The impugned Notification issued by the West Pakistan Government does not in any manner appear to be outside its autho rity or the authority of the Central Government, and is, thus, not open to any challenge.

8. It was next contended that the Notification in question does not fit in with subsection (5) of section 3 of the Act which requires issue of notifications in respect of all evacuee property, and any and every class of evacuee property. In our view, the contention of the learned counsel for the petitioners proceeds on a plain misconstruction of the subsection concerned, as it says no more than that the notifications under subsection (1) of section 3 may be issued from time to time and may relate to (a) all evacuee property, generally, or (b) any class of evacuee property, or (c) all evacuee property situated in a specified area, or (d) any particular property. In our view, this subsection clearly gives powers to the Government to notify the acquisitions of evacuee property merely by a. single action or gradual actions in the manner as it may deem fit and we are unable to read any intention in this subsection that the Legislature required that all evacuee pro perty with no reservations must, of necessity, be acquired by the Government for the purposes of the 'Compensation Pool" except that which has been expressly exempted in subsection (2) of section 4 of the Act.

9. We feel that this discussion should be enough to dispose of the writ petitions as the petitioners objection to the requisition of this property by respondent No. 2 under the Cantonment Requisitioning of Immovable Property Ordinance IV of 1948 is based on the same contention that as the property has been brought into the "Compensation Pool" it is rendered immune from requi sition under the overriding provisions of the Act. On our finding that the bangalows in question have been specifically saved from acquisition and do not form part of the "Compensation Pool" the consideration of the point is rendered unnecessary. But as a large amount of discussion was devoted to this aspect of the case during the arguments, we would like to observe that we have not been able to find anything in the Displaced Persons (Compensation and Rehabilitation) Act to render nugatory the provi sions of the Requisitioning Ordinance IV of 1948 which empowers the Central Government to requisition "any property" within the Cantonment limits. There is nothing in the, provisions of the Act to suggest that properties which attract the authority of the Central Government for the purposes of requisition under the Ordinance, shall no longer be subject to that authority if brought in the "Compensation Pool" under the Act. Section 16 (2) (b) of Act XII of 1957 had kept alive the powers of the Central Govern ment to acquire or requisition evacuee properties under any law for the time being in force, and if alike power is conferred on the Provincial Government, it could exercise the same in relation to the evacuee property with the previous approval of the Central Government and subject to such directions as the Central Govern ment may deem fit to give. The non‑existence of such a provision in the Displaced Persons Act has been made a ground for the contention by the learned counsel for the petitioners that the Legislature had not intended to keep alive the acquisition and requisition laws pertaining to the properties brought into the "Compensation Pool" under the Displaced Persons Act. We do not find any basis for this view, and we are unable to pronounce directly or by implication the repeal of the laws of the land pertaining to acquisition and requisition in relation to such property on the bare argument that since the property in question is primarily meant for the re‑settlement and rehabili tation of the refugees it should be immune from acquisition and requisition. On the other hand, we feel that the re‑settlement and the rehabilitation of the refugees or displaced persons and the transfer of the evacuee properties to them or to the local occupants is an "act of bounty by the State", and it does not seem to be logical to hold in the absence of any specific provision, that whereas the powers of the State for acquisition and requisi tion exist in respect of properties of the people possessing unchallengeable vested rights of ownership, these powers are not available for the properties which the State has itself given to its subjects as a measure of re‑settlement and rehabilitation 'of refugees and displaced persons. Divested of their evacuee charac ter, these properties are now held by the transferees as owners with all the normal incidents of ownership‑its privileges and its limitations.

10. The powers of acquisition and requisition as given by the subsisting statutes remain intact and controlled by the same statutes. Whether or not they should be exercised over such properties, and to what extent, consistently, with the pro nounced policies under the Rehabilitation Scheme is again a matter which the authorities concerned must decide for themselves, and is not one falling within the sphere of our determination, calling for a judicial adjudication, so long as the authorities con cerned act within their limits, and in due exercise of their powers under the law.

11. One other argument advanced for the invulnerability of the property of the "Compensation Pool" from requisition needs to ~be considered The learned counsel for the petitioners pressed into service section 7 of the Act, which runs as follows :‑ "Section 7.‑Exemption of property in pools from processes.‑No property which forms part of any of the pools constituted under this chapter shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any process of Court or other authority." It is obvious that this provision protects the aforesaid pro perty from being proceeded against for any "claim" in execution of any decree or order or by any other process of the Court. The word "claim" has been defined in the Act itself as having the same meaning as given to it in the Registration of Claim (Displaced Persons) Act III of 1956, which means "the assertion of a right to the ownership of or to any interest in property which has been treated as evacuee property or of which a displaced person has otherwise been deprived under any law for the time being in force in India or in any area occupied by India, except Assam West Bengal, Tripura and Manipur, but excludes the assertion of any such right or interest in any land as defined in sub‑clause(c) of clause (2) and situated within East Punjab. Himachal Pradesh and Delhi, the Patiala and East Punjab States Union, and the States of Alwar. Bharatpur and "Bikaner". In view of this defini tion of the word "claim" for the purposes of the Act and its restricted connotation, the effort of the learned counsel for the petitioners to relate it to all sorts of claims, including that of the relevant‑ authorities to acquire or requisition the property under their statutory powers, is wholly devoid of force.

12. This brings us to the last contention urged on behalf of the petitioners that the relevant authorities on more than one occasion had committed themselves to the offer of alternative accommodation, to the petitioners before their eviction. In this connection, several letters have been cited, which have passed between the Ministries concerned, the Re‑settlement and the Rehabilitation authorities, and the petitioners. In those letters, the acute hardships to which the petitioners would be subjected in the event of their eviction, without providing them with alternative accommodation, seem to have been realised, and in some cases, alternative accommodation was offered. We regret we are unable to enforce these commitments as they do not entail any enforce able legal obligations. We can do no more than to remind the authorities concerned to consider fulfillment of their moral com mitments, as far as they can help it before rendering the petitioners homeless and depriving them of the shelters which they have come to regard as their own by the actions and conduct of the authorities themselves. With these observations we dismiss these petitions, with no order as to costs. A.H. Petition dismissed.