P L D 1962 (W (PLP)

(a) his Compensation Book, or (b) if the Compensation Book is yet to be issued an attested copy of his finally verified claim, or (c) if the claim is yet to be verified, a certificate from the Claims Organisation, showing the amount claimed by him under Schedules II, III & VI. (d) In the absence of Compensation Book, an affidavit declar ing that he has or has not availed of the benefit of deferred payment against his verified or unverified claim. In case benefit of deferred payment has been availed of, the amount utilized should be indicated. Provided that where one or more claimants have participated In a joint bid the above mentioned documents will be produced at one time by an authorised agent on behalf of all of them and in such a case the authorised agent will also produce an agree ment signed by all the bidders including non‑claimant displaced persons and locals, if any, indicating the share of each in the property. Provided further that the Chief Settlement Commis sioner, may while issuing the auction programme through an advertisement in important newspapers, require every intending bidder to deposit the above mentioned documents with the Auction Committee before the commencement of auction. (2) If the documents mentioned in sub‑para. (1) are not produced within the prescribed period, the earnest money deposited by the claimant and the claimant and his partners, if any, will be forfeited and the property will be re‑auctioned." As the claim of the petitioner had not yet been verified, he had to produce within 14 days of the auction a certificate from the Claims Organisation showing the amount claimed by him under Schedules I, II, III & VI. Sub‑para. (2) clearly provides that if the documents are not produced, the earnest money deposited by the claimant shall be forfeited. Learned counsel for the petitioner contends that as he had already submitted certificate dated the 21st of July 1959, in connection with the application for the transfer of Ghakhimal Hukam Chand Cotton Factory, as intimated by him in his letter dated the 21st of August 1959, he had satisfied the above condition. In reply, it is contended by Mr. Ishaq Muhammad Khan for respondent No. I that this certificate had been forwarded in connection with the transfer of Ghakhimal Hukam Chand Cotton Factory and not is connection with Shankar Das Building, and that as the petitioner had himself desired that his deferred payment on his unverified claim should be adjusted against Jankidas Kishorimal Cotton Factory and Ghakhimal Hukam Chand Cotton Factory, he did not have any claim left, and he could not be treated as a claimant. He further contends that the petitioner having himself stated in his letter dated the 7th of October 1960 that he intended to pay the auction money of Shankar Das Building amounting to Rs. 4,65,000 by joining other claimants with him and not having intimated their names or put in compensation books or paid the amount, the confiscation of the earnest money was valid and in accordance with the provisions of the Settlement Scheme No. III. I agree with the position taken upon by him, and hold that the confiscation of the earnest money is competent and valid according to the terms and condition of the auction, as laid down in Settlement Scheme No. III. My attention has been drawn to paragraphs 19, 20, 23 and 24 of the Schedule to the Act. As the petitioner cannot be treated as a claimant in respect of the Shankar Das Building, these paragraphs are of no avail to the petitioner. It is established that the petitioner did not comply with the terms and conditions governing the auction upto the 20th of April 1960, when his auction was cancelled. The default was of a period more than three months and it has rightly been pointed out by Mr. Ishaq Muhammad Khan that even the Chief Settlement Commissioner had no power to allow further extension to the petitioner to pay the amount outstanding against him. Paragraph 25 of the Schedule to the Act provides that he may on application made to him in this behalf and for reasons to be recorded in writing allow such a person to pay the amount outstanding against him within such further period not exceeding three months as he may deem fit. The Chief Settlement Commissioner has not decided to extend the time and there has been clear default on his behalf. For all these reasons I hold that the forfeiture of the earnest money deposited by the petitioner is competent and valid.

8. Finally, the question whether the property had to be re -auctioned on the cancellation of the bid of Mian Muhammad Rashid may be considered. Paragraph 16 of the Schedule to the Act provides that every building or premises, whether residential or commercial, declared by the Chief Settlement Commissioner or any officer authorised by the Central Government in this behalf to be a big mansion or hotel, shall be disposed of by unrestricted public auction. Paragraph 16‑A of the same Schedule provides that the auction shall be subject to such terms and conditions as may be laid down by the, Chief Settlement Com missioner, and paragraph 4 of the Settlement Scheme further provides that every big mansion or hotel shall be disposed of by unrestricted public auction, and paragraph 9 says that the Chief Settlement Commissioner may order a fresh auction, if he does not accept the highest bid on the submission of the auction proceedings to him. Term and condition No. 3 under the Settlement Scheme further provides that if the Auction Committee considers that the highest bid offered is not reasonable it may either announce another date of auction within 7 days or make a recommendation to the Chief Settlement Commissioner to issue another auction notice. Term and condition No. 9 (2) under Settlement Scheme No. III further provides that if the documents mentioned in its sub‑para. (1) are not produced within the pre scribed period the earnest money will be forfeited and the property will be re‑auctioned. Term and condition No. 10 of Settlement Scheme No. III further provides that the highest bid shall be subject to the approval of the Chief Settlement Commissioner, who may order a fresh auction. In view of these provisions it is contended that the Chief Settlement Commissioner had no option but to order a re‑auction on the non‑acceptance of the bid of Mian Muhammad Rashid and that the property could not be disposed of by negotiations. This contention has apparent plausibility, but is not sound. Mr. Ishaq Muhammad Khan has, on the other hand, contended that the transfer by negotiations is valid In view of the directions given by the Central Government under clause (b) of section 10 of the Act that a big mansion may be transferred by negotiations to any person who offers at least 50 years gross annual rent of such mansion. Mr. Mahmood Ali, learned counsel for Mir Sheikh Inayat Ullah, contends that the Central Government had no such power under the Act and that the direction given by the Central Government is invalid, as it is opposed to the provisions of the Act read with the Schedule. Mr. Ishaq Muhammad Khan has, in support of his contention, relied upon the decision of the Supreme Court of Pakistan in Qazi Asadul Haq v. Miss R. A. Money (Civil Appeal No. 57 of 1960), decided on the 21st of February 1961. In this case Mr. Ishaq Muhammad Khan contended before the learned Judges of the Supreme Court that the Central Govern ment having accorded approval to the transfer of the property authorising the Chief Settlement Commissioner to execute the necessary documents in favour of the vendee Miss R. A. Money, and the property had ceased to be evacuee property. The approval was accorded by the Central Government under clause (b) of section 10 of the Act. The learned Judges of the Supreme Court observed as follows with regard to this approval and transfer of the property: ‑ "We are satisfied that clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act and the sub sequent amendments empower the Central Government to accord approval of transfer of evacuee property and to authorise the Chief Settlement Commissioner to execute the necessary sale deeds." The above observations support the position taken up by Mr. Ishaq Muhammad Khan.

9. In view of the above observations of the learned Judges of the Supreme Court, it is not necessary to deal at length with the question of law raised by Mr. Mahmud All. Since their Lordships of the Supreme Court ‑have not given their reasons on a consideration of the various provisions of the Act and the Schedule, Mr. Mahmud Ali has urged that the above observations have no binding force and are in the nature of obiter dicta. I propose to examine the contentions raised on either side and to give my reasons in support of the position taken up by Mr. Ishaq Muhammad Khan.

10. The contentions raised relate to the interpretation of section 10 of the Act. This provision as originally enacted was as follows: ‑ "Power to transfer property from the compensation pool.‑Subject to the provisions of this Act and the rules made there under, the Settlement Commissioner may transfer or dispose of any property out of the compensation pool‑ (a) on evaluation basis or by sale by means of auction or otherwise in accordance with the provisions of the First Schedule ; (b) In such manner as may be prescribed." It will be observed that the power of the Settlement Commissioner to transfer or dispose of property was confined under subsection (a) to transfer in accordance with the provisions of the Schedule and under subsection (b) to such other manner as may be prescribed. The word prescribed in the Act, under clause (vii) of section 2 of the Act, means "prescribed by rules made under the Act." Thus the other manner of transfer, was such as was prescribed by the rules. It may, however, be mentioned that no rules having so far been framed there was no other manner except as provided by the Schedule. Subsection (b) of section 10 of the Act was then amended by the amending Ordinance LIII of 1959. It now reads manner as may be approved by the Central Government Section 10 of the Act now reads as follows: ‑ "Power to transfer property from the Compensation Pool. ‑Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool‑ (a) on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule ; or (b) in such other manner as may be approved by the Central Government."

11. This section of the Act requires interpretation. It Is this section which the learned counsel have tried to interpret in their respective favour. In its plain interpretation, it means that the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool either on evaluation basis or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule ; or In such manner as may be approved by the Central Government, subject to the provisions of the Act and the rules made thereunder. No rules have been framed and the restriction on transfer is subject to the provisions of the Act. According to Mr. Mahmud All, `subject to the provisions of the Act' means the Act read with the Schedule, while according to Mr. Ishaq Muhammad Khan, it means subject to the provisions of the Act itself. He further points out that if the intention was that the transfer should only be made In accordance with the provisions of the Schedule, subsection (b) of section 10 is wholly redundant. He contends that amendment of subsection (b) was Introduced purely for the purpose of giving power to the Central Government to authorise a manner of disposal other than that of the provisions of the Schedule. It is urged that the manner of disposal according to the rules was deliberately changed to disposal according to such other manner as may be approved by the Central Government, Irrespective of the provisions in the Schedule. To this, Mr. Mahmud Ali replies that the amendment of subsection (b) relating to disposal of industrial concerns and cinema houses in accordance with the order of the Central Government was introduced to give effect to the power given to the Central Government by the amended paragraph 15‑A of Schedule, by the amending Ordinance No. 1 of 1959. He argues that if it was intended to give power to the Central Government to order disposal of big mansions also in a similar manner as In the cases of industrial concerns and cinema houses, a similar amendment should have been made in para graphs 16 or 16‑A of the Schedule which deals with big mansions and hotels. The answer to the question whether the Central Government could authorise disposal of the property as approved by it otherwise than in the manner provided for by the Schedule depends upon whether this power is subject to the provisions of the Schedule. Mr. Mahmud Ali contends that this power is subject to the provisions of the Schedule as it is a part of the Act and the Act recognizes no other manner of disposal except in accordance with it. Mr. Ishaq Muhammad Khan, on the other hand, points out that `subject to the provisions of the Act' means the restriction placed , on the manner of disposal by certain provisions of the Act Itself and not the Schedule. He refers to subsection (5) of section 30 of the Act which places a restriction on the Chief Settlement Commissioner to transfer houses and shops in possession of persons displaced from such part of the State of Jammu and Kashmir as is under the occupation of India and prohibits the disturbance of such possession till their repatriation to the aforesaid State. Subsection (2) of section 4 of the Act further provides that immovable evacuee property attached to the charitable, religious or educational trusts and such other 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). It follows that such property could not be disposed of by the Chief Settlement Commissioner. Section 16‑A deals with the manner of dealing with the evacuee property attached to charit able, religious or educational trusts or institutions, referred to in subsection (2) of section

4. This is another restriction on the power of the Chief Settlement Commissioner which controls the power of the Chief Settlement Commissioner as well as the Central Govern ment. Other provisions of the Act have also been pointed out by him, but they need not be referred to, It is enough to say that subject to the provisions of the Act' means, in my view, these provision and not the provisions under the Schedule. If It was intended that the disposal of the property was to be strictly in accordance with the provisions of the Schedule, then `or' at the end of sub section (a) of section 10 and subsection (b) of the Act are wholly p redundant and have no meaning. It is not permissible to place an interpretation upon a provision of the Act as would make a part of the provision nugatory. Thus, in my view, subsection (b) of section 10 of the Act was intended to give power to the Central Government to authorise the Chief Settlement Commissioner to transfer or dispose of any property out of the compensation pool in such manner as may be approved by the Central Govern ment, not necessarily according to the Schedule. Since the power has been specifically conferred, it was not necessary to amend paragraph 16 or 16‑A of the Schedule to give power to the Central Government to authorise disposal of big mansions by negotia tions. The power of disposal of industrial concerns and cinema houses otherwise than in accordance with the provision of para graph 15 of the Schedule was conferred by paragraph 15‑A by the President of Pakistan and I see no reason that it should be inferred that by enacting subsection (b) of section 10 of the Act it was not intended to give the power in respect of big mansions also. It appears to me that clause (b) was specifically intended to give power to the Central Government to authorise disposal of the property out of the compensation pool in such manner as may be approved by the Central Government though not strictly in accordance with the provisions of the Schedule, or Settlement Scheme No. III.

12. It may be stated that under subsection (b) of section 10 of the Act the Central Government decided as follows In letter No. 151‑Secy/R.W/60, dated the 30th of May 1960, from the Secretary to the Government of Pakistan, Ministry of Rehabilita tion to the Chief Settlement Commissioner, Pakistan : "I am directed to say that the Central Government has been pleased to decide under clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, that a big mansion may be transferred by negotiation to any person who offers at least fifty years gross annual rent of such mansion for 1946." The acceptance of the bid of Shabir Muhammad was subsequent to the above approved manner of disposal.

13. It has been explained by Mr. Ishaq Muhammad Khan that it became necessary to make this provision and to give a direc tion for the disposal of big mansions by negotiations instead of by auction, because such mansions when put to auction did not fetch adequate price, by reason of pools, formed by intending bidders with a view to keep down the auction price. It is stated that as a result of auctions in Karachi, big mansions did not even fetch forty years gross annual rent of such mansions for 1946, so that it was considered advantageous to provide for transfer by negotiation and this transfer was provided for at no less than fifty years gross annual rent for 1946. It seems to me that the power conferred on the Chief Settlement Commissioner to transfer by negotiation instead of auction is not an arbitrary and uncontrolled power and though not authorised by the Schedule to the Act, as contended by Mr. Mahmud Ali, is in accordance with the provisions of clause (b) of section 10 of the Act, and the Central Government had the power to authorise the disposal of big mansions by nego tiation, instead of by auction, as provided in the Schedule and the Scheme No. III framed by the Chief Settlement Commissioner. T, therefore, hold that there is no force in this contention raised by Mr. Mahmud Ali on behalf of Sheikh Inayat Ullah and by Mr. Gul Muhammad on behalf of Mian Muhammad Rashid.

14. Mr. Mahmud Ali has stated with a view to assure the Chief Settlement Commissioner that the transfer of the property by re‑auction would not cause a loss to the compensation pool, that Mir Inayat Ullah Khan was willing to offer the first bid of rupees four lacs and sixty five thousand for the building. It may be stated that his highest bid at the auction was for rupees three lacs and thirty thousand. Since the bid of Mian Muhammad Rashid was not accepted and since the offer of Shabir Muhammad, respondent No. 2, was accepted by the Chief Settlement Commis sioner, on 6th June 1960 rights have been created In his favour and it does not appear to me to be open to the Chief Settlement Commissioner to order re‑auction of the property. Shabir Muhammad is stated to have paid the full price of the building in December 1960. The order of transfer of the property has been made, and delivery of possession only remains and it was stayed because of a stay order from this Court. The offer of Mir Inayat Ullah for a bid of Rs. 4,65,OOJ as the initial bid at a re‑auction is of no use at this stage.

15. In the case of writ by Mian Muhammad Rashid, It Is contended on behalf of the respondents that there can be no interference in writ jurisdiction, as the order of the Chief Settlement Commissioner, dated the 4th of October 1960, has not been challenged on any recognised ground of interference and does not suffer from lack of jurisdiction or error on the face of the record, It is further contended that the order of the Settlement Com missioner dated the 20th of April 1960, refusing to accept the bid of Mian Muhammad Rashid and the order dated the 6th of June 1960, accepting the offer of Shabir Muhammad cannot be inter fered with in writ jurisdiction because the orders are neither judicial nor quasi‑judicial in character. There appears to be force in the contention that the latter order is neither judicial nor quasi‑judicial, though it could be interfered with if it gas opposed to the provisions of the Act, but I have held that it is not illegal or unauthorised and having been validly made is not liable to be set aside. The order dated the 20th of April 1960 is not in my view invalid and incompetent.

16. In the case of writ petition filed by Mir Inayat Ullah, it is contended on behalf of the respondents that he has no locus standi to challenge the order of the Settlement Commissioner dated the 6th of June 1960 or the order of the Chief Settlement Commissioner, dated the 4th of October 1960, for the reason that he was not a party to the orders and secondly that he had not made any demand of justice to give him relief, which was neces sary before he could base a claim for issue of a writ of mandamus. Several authorities have been cited on either side, but it is not necessary to notice them, as the broad principles governing the writs of certiorari and mandamus are well known and have been stated authoritatively in the pronouncements of the learned Judges of our Supreme Court in the Tariq Transport Co. Ltd., Lahore v. The Sargodha Bhera Bus Service Sargodha and others (P L D 1958 S C (Pak.) 437). I am of the view that Mr. Inayat Ullah has no locus standi to challenge the order of the Chief Settlement Commissioner, dated the 4th of October 1960. The order dated the 6th of June 1960, is neither judicial nor quasi‑judicial and not being opposed to the provisions of the Act, is not amenable to writ of certiorari, at his instance. He" did not make any demand of justice and is not, therefore, entitled to file a writ of mandamus. In any case, I have held that the' Chief Settlement Commissioner had power in view of the direction given by the Central Government under clause (b) of section 10 of the Act to authorise disposal of the property by negotiation. The transfer price of the building to Shabir Muhammad works out to about seventy years gross annual rent of the building for 1946 and is thus in accordance with the directions of tire Central Government.

17. For the reasons given above, I dismiss both the writ petitions, and since the question of law involved was of some difficulty, I order that the parties shall bear their own costs. K. B. A. Petition dismissed.