P L D 1963 (W (PLP)

(3) On the publication of a notification under subsection (1) or subsection (2), the right, 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 not vest wholly and absolutely in the Central Government free from all encumbrances." The Act according to the preamble was passed to provide for the payment of compensation to certain displaced persons and the rehabilitation of others and for matters incidental thereto or connected therewith.

5. The power to eject persons in possession of evacuee property was formerly exercised under the provisions of the Rehabilitation Laws. When this Act was first enacted in 1958, section 29 stood very differently from what it is now. The first clause of that section provided that notwithstanding anything contained in any other law no order of ejectment passed on or after the 27th day of February 1958, 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 have been in possession thereof. This first clause afforded protection to persons who were either under orders of ejectment or who had been ejected in pursuance Of the order passed on or after the aforesaid date. This protection however did not extend to an order passed in pursuance of this Act. The definition of `possession' in the Act, as it stood before amendment, was as follows " `possession', except for the purposes of section 30 does not include possession obtained on or after the 17th 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 1st day of July 1957 shall be deemed to be in possession thereof." Section 30 afforded protection to certain occupants more or less on the same terms as contained in the present section 30 except that the period of protection then was 5 years instead of 3 years as is the case now. The present subsection (5) which gives protection to displaced persons from the State of Jammu and Kashmir was also not there. Then came the two amending Ordinances as a result of which the provisions referred to above stand in their present state.

6. The next provision which is material is section 2 (4) which contains the definition of `house'. This is reproduced except the two provisos which are not material for the present purposes " `House' means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out‑houses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or out‑house 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."

7. The argument of Mr. Mohsin Siddiqui which has been briefly reproduced in para. 2 above was almost entirely based upon the judgment of the Division Bench in the case of Haji Abdul Karim v. The Chief Settlement Commissioner which was followed by another Division Bench decision in the case of Muhammad Afzal v. Syed Nafees Ahmad, the citations of both of which have already been given. We may, therefore, straightway proceed to consider the decision in the case of Haji Abdul Karim. In that case an allottee of a hotel premises situated at Lahore approached the High Court in view of an order passed under section 29 of the ‑Act for his ejectment. These premises had been put to auction and purchased by several persons jointly, at whose instance the order of ejectment was passed. The judgment in this case was written by Shabir Ahmad, J. and his Lordship held that the word `possession' occurring in section 29 is to be understood in its ordinary dictionary meaning and not the meaning given to it by the definition contained in subsection (2) of section 2 of the Act. It was, therefore, held that even if the possession of a person was under an allotment by the Rehabilitation Authorities, as was the case of the petitioner before their Lordships, the Settlement Authorities had still the power to eject him inasmuch as his possession was not "authorised by any of the provisions of this Act." It was further held that in so far as all urban im movable property in West Pakistan had been acquired by a notification dated 21st August 1959 issued under section 3 of the Act, all such property vested wholly and absolutely in the Central Government free from all encumbrances and, therefore, the trans feree of the property under the auction got it without the encumbrance of the tenancy rights in such a property which was extinguished by the acquisition. It was further held that the protection given to the person in possession under section 30 of the Act did not extend in cases of hotels and big mensions in view of the definition of the word `house' in the Act.

8. Section 29 gives power to the Chief Settlement Commis sioner and his delegatees to eject any person in possession or occupation of any evacuee property or any property acquired under section 3 in the following cases (i) Whose possession or occupation is not authorised by any of the provisions of this Act ; (ii) who contravenes or may have contravened any of the terms and conditions under which the property is held by him; and (iii) who, when called upon, has failed to pay public dues or has willfully caused damage to any such property allotted to or occupied by him. It must be noticed that the power of the Settlement Authorities to eject under section 29 is not an unfettered one. It can only be exercised upon the fulfillment of the conditions laid down therein. Now, with regard to the first condition, i.e., about the possession or occupation being not authorised by any of the provisions of this Act, it was argued upon the authority of the case referred to above that once a property was acquired under section 3 of the Act then the Settlement Authorities got power to eject a person in possession even though he may have been in possession under a valid order of allotment upon the ground that his possession cannot be said to be authorised by any provision of this Act. With great respect to the learned Judges who decided that case we are unable to agree. The object of this Act is the payment of compensation to certain displaced persons and the rehabilitation of others. The history of section 29 would show that when it was enacted, the purpose of its first clause was to give protection against ejectment to persons who were under orders of ejectment passed by the Rehabilitation Authorities, and even if they had been ejected in pursuance of such orders they were deemed to be in possession of such house or shop. The idea clearly was to give effect to the scheme of the Act, whereby properties were to be transferred to persons in possession. That purpose has never been deviated from. In fact, by the later amendments the length of possession as well as the age of an order of allotment was further reduced. The definition of `possession' was amended to include possession obtained in pursuance of an order on or before the 20th day of December 1958 by any competent authority and by a notification under the second proviso persons (a claimant, non‑claimant persons or a local) who had not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the 20th day of December 1958 were for the purpose3 of the Act to be deemed in possession thereof if they had been in undisputed occupation since before the 21st day of December 1959. How then did the possession of such persons become unauthorised after the property was acquired by the Central Government? Had the "purposes of the Act" changed after the acquisition ? On the contrary, acquisition itself was made for the carrying out of the purposes of the Act. Are we to interpret the words "whose possession or occupation is not authorised by any of the provisions of this Act" to mean that it was intended to render the possession of persons who were covered by the definition as authorised unless a fresh authorisation took place? We have looked in vain for any provision in the Act whereby such fresh authorisation is contemplated. There is no provision for making allotments or confirming the existing allotments or validating possession. In fact, having regard to the whole scheme of the Act we are clear that nothing of the kind was contemplated. The Departmental Representative who appeared before their Lordships at Lahore in the case of Abdul Karim referred to subsection (5) of section 30 which provides that houses and shops in possession of displaced persons from the State of Jammu and Kashmir shall not be transferred under the provisions of this Act and the possession of such persons shall not be disturbed till their repatriation to the aforesaid State. This was pointed out to be an example where possession was said to be authorised by the provisions of this Act as mentioned in section

29. This example of authorising of possession was accepted by their Lordships. But with great respect, this provision, we must point out, merely relates to the postponement of transfer of such property until the repartition of such displaced persons and the protection of their possession until that time. We do not think that the framers of the law had intended that this was to be the only instance in which the possession was to be treated as having been authorised by the provisions of this Act and all other persons who were in posses sion of evacuee property which was acquired by the Govern ment should be treated as unathorised even though they held valid orders of allotment as was provided by section 2 (6). We cannot impute this intention to the Legislature that though the possession of a person was to be considered to be good enough for the purpose of transfer of the property of which he was in possession he should be liable to ejectment unless his possession was authorised by some further provisions of this Act. As we have said, we have not found any such provision in the Act. It was argued by Mr. Khalid Ishaq, the learned A.A.‑G., that according to the extended definition of the word `possession' even such a person was deemed to be in possession for the purposes of the Act who was not in actual possession but who had a valid order of allotment from a competent authority and who had not been able to obtain actual possession for no fault of his. This argument does not take into account the history of section 29 and subsection (6) of section 2, whereby possession was defined. We have earlier referred to section 29 and sub section (6) of section 2 as they stood under the Act XXVIII of 1958 when it was enacted. The first amendment came by Ordinance I of 1959. By that amendment subsection (6) of the original act was substituted by the following definition " `possession' means possession obtained in pursuance of an order passed on or before the 20th day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or the Provincial Government." By the same amending Ordinance, section 29 was also substituted by a new section, subsection (1) of which reads as follows:‑ "

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 willfully 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. It may be noted that this Ordinance came into force on 5th January 1959, and was to take effect retrospectively as from the 26th day of March 1958, when the original Act was enacted. It may further be noted that until this time the acquisition of evacuee property had not taken place. This was done by two notifications under section 3 of the Act, one dated 21st August 1959, which related to all immovable property in West Pakistan to which the Act was applicable and the other by a notification dated 8th August 1959, which related to the evacuee property within the Federal Capital other than the agricultural land etc. It would thus be clear that when old section 29 was substituted by a new section bearing the same number which provided for powers of ejectment in relation to evacuee property, the definition of `possession' according to the new subsection (6) was expressed to be such possession which was obtained in pursuance of an order passed on or before the 20th day of December 1958, by a Rehabilitation Authority or a Custodian etc. Therefore, when this new section 29 spoke of possession or occupation as was authorised by the provisions of this Act it was clearly intended to mean possession as defined by the new subsection. This section 29 gave power to the Settlement Authorities to eject persons whose possession might have been in pursuance of an order of the Rehabilitation Authorities or the Custodian, but which order was of a date later a than the one mentioned in the new subsection (6) of section

2. If this meaning was not given to this new section 29 it would have led to absurd results.

9. We then come to the further amendment brought about on 28th September 1959, by Ordinance LIII of 1959 by which section 29 (1) was amended by adding the words "or any property acquired under section 3" after the words "any evacuee property" occurring for the first time in that section and for the words "any evacuee property" occurring for the second time the words "any such property" were substituted. This brought section 29 in the state in which it is now. By the same amending Act sub section (6) of section 2 was also amended by the addition of a further proviso viz., "provided further that the Central Govern ment may, by order in writing, direct that a class of such persons as have not obtained possession as aforesaid shall, subject to such condition as may be specified in the order, be deemed to be in possession for the purposes of this Act". It was in pursuance of this proviso that by two notifications dated 7th October 1959 and 9th September 1960, the Central Govern ment recognized the undisputed possession since before 21st December 1958, and also the notional possession to which the learned Additional Advocate‑General has referred. The further amendment to section 29 had become necessary in view of the fact that the two notifications referred to above in respect of the acquisition had, in the meantime, been issued. It would thus be seen that when a new section 29 was enacted by the first amendment which gave power of ejectment to Settlement Authorities if possession was not authorised by any of the provisions of the Act, the definition of possession did not include the recognition of such possession as was notified under the second proviso introduced by the second amendment to sub section (6) of section

2. That these amendments were made retrospective makes no difference for the purposes of under standing the meaning of the expression "whose possession or occupation is not authorised by any of the provisions of this Act"‑as was intended by the framers of the Act. The meaning of this expression in section 29 did not change by the addition of a second proviso to subsection (6) of section 2 by the second amending Act.

10. We now come to the next point and that is whether by the acquisition of property in consequence of the notification issued under section 3 of the Act, the tenancies created by the Rehabilitation Authorities or recognized by the Custodian came to an end. It was held in the case of Abdul Karim v. The Chief Settlement Commissioner that upon a plain reading of sub section (3) of section 3 of the Act, the property mentioned in the notification vested wholly and absolutely in the Central Govern ment free from all encumbrances and it became clear that whatever right any person had in the property which was evacuee, be that person an evacuee or anybody else, ceased to exist. This view was followed in the case of Muhammad Afzal v. Nafees Ahmed and was sought to be strengthened by reference to section 16 of the Land Acquisition Act which was held to be comparable in content and substance to section 3 of the Displaced Persons Act. With great respect we must point out that there are plainly difficulties in the way of accepting this view. Sub section (3) of section 3 reads as follows :‑‑ "(3) On the publication of a notification under sub section (1) or subsection (2), the right, 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." It appears to us that the right, title and interest which was sought to be extinguished by this acquisition was that of the evacuee and the expression "free from all encumbrances" must be read with reference to subsection (4) of that section whereby the Central Government was to prescribe for the satisfaction of any charge created by a Custodian or the Chief Settlement Commis sioner or any tax due to the Central or Provincial Government or a local authority. Any reference to the Land Acquisition Act cannot be helpful in interpreting the provisions of this Act because of the vast difference in the scheme and purposes of the two Acts. Under the Land Acquisition Act there are elaborate provisions for an inquiry into objections and claims before the Land Acquisition Officer. The acquisition under that Act is made for public purposes and provides for compensation. Such is not the case here. It would be of interest to see that after the acquisition had taken place and the property had vested in the Central Government what was it that came to be transferred to the claimants etc. by virtue of the provisional transfer order. The form of this appears in Appendix XII of the Settlement Scheme No. I and the relevant portion of it may be usefully reproduced "Whereas by notification of the Government of Pakistan/ West Pakistan No. , dated issued under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the said Act) the Government of Pakistan/West Pakistan has acquired the evacuee property described in the schedule of property given overleaf (hereinafter referred to as the said property) for the purpose of the said Act and the said property has thereby vested in the Central Government : And whereas under the provisions of the said Act the said property is transferable to . . . . . and others fully described in the Schedule of Transferee given overleaf. Now therefore I provisionally transfer hereby the right and interest of the evacuee acquired by the Central Government in the said property to the said . . . . and others, subject to the following terms and conditions." It is clear that the Central Government did not transfer anything else than "the right and interest of the evacuee acquired by the Central Government in the said property". Surely the Central Government did not intend to save for itself any other right in that property after it had transferred it in settlement of a claim or otherwise. The tenancy rights of the kind mentioned above, in a property belonging to the evacuee, therefore, were not extinguished by the mere fact of acquisition. When the property so acquired got transferred under the provisions of this Act then the persons holding such rights would be governed by the provisions of section

30. It may also be noted that section 30 itself provides that the protection given under this provision to the person in possession is without prejudice to any other right which he might have in that house, shop etc. If the property had vested in the Central Government free from all kinds of encumbrances it is difficult to reconcile that position with the saving of `any other right' which is expressly provided by section 30 as stated above. We are fortified in the view that we have taken by the pronouncement of their Lordships of the Supreme Court in the case of Muhammad Khan v. The Settlement Commissioner (PLD 1962 SC 284). This was a case under the Displaced Persons (Land Settlement) Act of 1958, section 4 of which is in pari materia with section 3 of the Act with which we are concerned. It had been contended by the Department that the right of the Muslim mortgagees in any evacuee property had been extinguished as a result of the notification under section 4 of that Act and the property had vested in the Central Government free from the encumbrance of such a mortgage. Their Lordships repelled this contention and the conclusion that they reached was this :‑ "The position that emerges, therefore, is that the right, title and interest of the appellants has 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 their mortgage."

11. Therefore, if a person in possession of a house did not become liable to ejectment on any of the two grounds with which we have dealt, and in our opinion he did not, the question which next falls for consideration is as to what is his position after the property had been transferred by the Department to someone else under the provisions of the Act and the Scheme framed thereunder. This brings us directly to the determination of the first of the two questions which we are required to answer and which has been stated in para. 3 above.

12. A person in possession of any house which is transferred to another under the provisions of this Act is under section 30 of the Act deemed to be a tenant of the transferee on the terms and conditions stated in that section. That section provides that such a person shall without prejudice to any other right which he may have in that house be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer. Then there are two provisos and the first enables the transferee to charge the rent on the basis of the latest assessment and the second prevents the transferee from ejecting such person for a period of 3 years from the date of transfer. This period is calculated from the date of notice given by the transferee regarding transfer of the house to him. This pro tection does not apply to a tenant who has not within 3 months from the date of receipt of notice of demand, paid or tendered the amount of rent due for any period after the transfer or who after the transfer has sublet or otherwise parted with the possession of the house or has committed acts which are destruc tive or injurious to the property. Sub‑clause (4) then lays down that on the expiry of the period of 3 years or on the contravention of any of the provisions of subsection (3) (which deals with non payment of rent and letting and acts injurious to the property) whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating, to such relationship. It will have been seen that after the transfer a tenant is to be dealt with under the ordinary law when he commits default in payment of rent or when he parts with possession of the house or commits any act of waste in relation to it. Therefore, when any of these things happens the transferee has to approach the Civil Courts for redress and one of the forms of redress would be ejectment of the tenant. The purpose of section 30 is quite clear. It confers tenancy upon a person in possession of a house etc. and gives him protection as against ejectment for a period of 3 years so long the tenant does not come, within the mischief of subsection (3), but when he does come within such mischief he is to be proceeded against in a Civil Court. It was contended both by Mr. Mohsin Siddiqui and Mr. Khalid Ishaq, the learned A. A.‑G., that in so far as the ownership of the property does not pass to the transferee, notwithstanding the provisional transfer in his favour, until he has paid the full price and has obtained a final transfer order, the Department must of necessity retain control of the property and amongst other things must be entitled to use the power of ejectment under section 29 against the tenant. If that was the intention we are unable to understand the wisdom of enacting section 30 whereby the machinery of the Civil Court under the ordinary laws is provided for action against a tenant. 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 simultaneously 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. Their only interest thereafter was the recovery of the balance of the price, if any. It was urged that in so far as the property had not been permanently transferred the Department should have the power to deal with cases of waste of the property by the tenant. To that the answer is that section 30 provides that even such an action against the tenant is to be taken to the Civil Court. Of course, if the transferee himself starts destroying the property, section 30 would not apply and the Department would be entitled to take action under section

29. That is because section 30 does not provide a machinery for such a situation. That would be a matter between the transferee and the Depart ment and in the nature of things the Department must have power to deal with such a situation in the same manner as it could take against the transferee in occupation of the property who had failed to pay the price.

13. It, however, appears to us that the Department would have power to proceed against the tenant in respect of its dues relating to the period prior to transfer. Section 30 does not cover such a case and, therefore, in this instance the power of the Department is saved. With this exception all matters affecting the tenant must be dealt‑with as provided by section 30.

14. We now come to the second question regarding the protection, if any, of section 30 to persons in possession of a building which has been declared as a "big mansion". The contention of Mr. Mohsin Siddiqui was based upon the last part of the definition of "house" as given in subsection (4) of section 2 of the Act which reads "but does not include a building or premises declared under para. 16 of the Schedule to be a big mansion or hotel." It was urged that section 30 gives protection to a person in possession of a house and in so far as big mansion is excluded from the definition of "house" the pro tection of section 30 cannot be extended to a person or persons in possession thereof. The learned A. A.‑G. appearing for the Department argued against the contention of Mr. Mohsin Siddiqui and maintained that the protection of section 30 extended to person or persons in possession of a big mansion. 15. "House" as defined by subsection (4) of section 2 means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area etc. We may now refer to para. 16 of the Schedule under which a residential premises may be declared as a big mansion, "Every building or premises whether residential or com mercial declared by the Chief Settlement Commissioner or an Officer authorised by the Central Government in this behalf to be a big mansion or a hotel shall be disposed of by unrestricted public auction Provided that no building, the monthly rent of which in 1946 was less than Rs. 500 shall be declared to be a big mansion or a hotel." The argument on behalf of the petitioner was that their exclusion of a property declared as a big mansion from the definition of `house' was only for the purposes of transfer and for no other. This argument finds support from para. 16 itself, which provides that a building or premises so declared shall be disposed of by unrestricted public auction, which means that the normal method of transfer of houses and shops on the basis of possession or occupation is not to be followed in the case of a big mansion or a hotel. It may also be noted that with regard to the transfer of such premises there is a separate Scheme being Scheme No.

3. The contention the petitioner that the word "house" in section 30 was not used in terms of its definition is supported by the language of section 30 itself. The words used there are‑ "in possession of any evacuee house." 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 was held by L. J. Fry in the case of Duck v. Bates (12 QBD 79) that the word "any" excludes limitation or qualification. 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 contemplated. If we were to exclude the protection of section 30 to the persons in possession of a part or whole of a big mansion some strange result would follow. For example, the rent of a building in 1946 may have been Rs. 499 and such a building could not under para. 16 of the Scheme be declared as a big mansion' but another building whose rent was Rs. 500 could be so declared. Such a building might be occupied by a single tenant or several of them, and if there are fiats the number might be very large. If we were to accept the interpretation suggested by Mr. Mohsin Siddiqui the result would be that whereas persons in occupation of the building whose rent was Rs. 499 would be entitled to the protection of section 30 but those in occupation of the other building whose rent was Rs. 500 would not be so entitled. Let us take another example. A building or premises does not under the Act come to have the status of a big mansion unless it is so declared by the Chief Settlement Commissioner under para. 16 of the Scheme, regardless of howsoever high the rent of it may have been. So a building, the rent of which in 1946 was Rs. 2,000 would not be a big mansion unless so declared and the occupants of it would be entitled to the protection of section

30. On the other hand, a building of very much less rent, that is anything beyond Rs. 500, could become a big mansion if it was so declared depriving its occupants of the protection of section

30. Such results could not have been contemplated having regard to the object and the scheme of the Act. We agree that the declaration of a building or premises as a big mansion was intended only for the purposes of applying the mode of transfer as provided by the Act. The object seems to be that persons in possession g of big mansions on a declaration being made under para. 16 were not to be given the advantage of claiming transfer on the basis of such possession. But from this it does not follow that they were also intended to be deprived of the protection of section 30.

16. In view of our conclusions our answer to the first question is that section 29 of the Displaced Persons (Compen sation and Rehabilitation) Act is 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. To the second question our answer is that the protection of section 30 of the Act is available to a person in possession of a building which has been declared as "big mansion" under para. 16 of the Schedule. A. H. Reference answered.