P L D 1967 Lahore 81 (PLP)

This is a writ petition under Article 98 of the Constitution of the Republic of Pakistan. The petitioner is Miran Bakhsh, son of Haji Mehtab Din, resident of Multan City. The respondents are the Settlement and Rehabilitation Commissioner (Enforce ment), Lahore, and (2) Ali Muhammad, Head Clerk office of the Agriculture Department, Sargodha.

2. The facts, briefly stated, are that the petitioner was transferred shop No. 338, Ward No. 5‑H, Kale Mandi, Multan City, by the Deputy Settlement and Rehabilitation Commissioner (1), Multan City, on the 26th of July 1960. The transfer of the shop in question was cancelled from the name of the petitioner by the Settlement and Rehabilitation Commissioner (Enforcement) on the 1st of December 1962 and it was ordered to be transferred to respondent No. 2 as an informer. The impugned order is challenged on the ground that the petitioner, who is a claimant displaced person, had been in possession of the shop in dispute since 1955 and was entitled to its transfer under paragraph 8 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (hereinafter referred to as the Act), that the order of the Settlement and Rehabilitation Commissioner (Enforcement) was passed in disregard of the evidence on the record without any proper enquiry and that respondent No. 1 had no authority to cancel the shop from the name of the petitioner as the transfer in his favour had become final under section 22 of the Act. The objection to the jurisdiction of respondent No. 1 to pass the impugned order was elaborated in the additional grounds which are reproduced below, for facility of reference: (1) In view of Ordinance II of 1962 the Chief Settlement Commissioner himself became devoid of revisional jurisdiction under section 20 (2) of the Act (XXVIII of 1958) from the 13th of January 1962 onwards. The Chief Settlement Commissioner could not delegate his revisional powers to respondent No. 1 after that date as the proceedings had not started before the 13th of January 1962. (2) From the 13th of January 1962, clause (2) of section 10 of the Act (XXVIII of 1958) was deleted and as such after that date neither any reference could be made by the Enforcement Staff nor any of the Settlement Authorities was left with jurisdiction to decide such a reference in view of the decision of the Supreme Court (Pak.) in the case of Muhammad Siddique v. The Chief Settlement, Commissioner and others P L D 1965 S C 123 and Abdul Karim v. Sh. Muhammad Rafiq and others P L D 1966 Lah. 33. (3) That Sh. Muhammad Rafiq, Settlement Commissioner, (Enforcement), Lahore, was not Settlement Commissioner of Multan District on the 1st of December 1962 and was thus not competent to exercise revisional jurisdiction in the matter of transfer of the shop in dispute to the petitioner. .

3. The contesting respondent maintained in the written state ment filed by him that the order of respondent No. 1 was passed` after due enquiry and since no objection for want of jurisdiction was taken before the Settlement Commissioner, the petitioner was not entitled to equitable relief by way of a writ. It was also submitted that the alleged partnership deeds were secured by Abdul Ghafoor, a local, who was initially allotted the shop in question to grab the property to which he was not otherwise entitled and that the petitioner was a mere benamidar.

4. I now proceed to examine whether the transfer in favour of the petitioner was legal and proper. It is in paragraph 1 of the petition that the. shop in question was originally allotted to one Abdul Ghafoor, who is a local. The petitioner relied on partnership deed (Annexure `A') and photostat copy of another‑ partnership deed (Annexure `B') to prove his possession over the shop. The document (Annexure `A') purports to have been executed on April 18, 1953, whereby the petitioner was taken as a partner by Abdul Ghafoor, who invested Rs. 1,000 while Rs. 2,000 was invested by the present petitioner in the joint venture. The terms and conditions incorporated in the document need not be reproduced here. Suffice it to say that there appears a recital on the margin of this document to the effect that the shop in dispute will remain in joint possession of the partners. The subsequent partnership deed (photostat copy Annexure `B') purports to have been executed on July 1, 1960. In this document there is a reference to the earlier partnership deed executed between the parties. Condition No. 3 in this document is to the following effect:‑ "That partner No. 1 shall perform `Mazdoori Work' at the shop while partner No. 1 (sic) shall perform outward work' of collection of the wages accrued to the firm and also to secure persons‑customers to get their work done by the firm." It is thus clear that actually the local was to remain in physical possession of the shop while the petitioner was entrusted with the out‑door duty of securing customers and collection of wages. Keeping in view the investment made in the business not much work could be expected in so far as collection of wages for the work done was concerned. The main task entrusted to the petitioner was to look for customers.

5. The partnership was never got approved by the relevant authority. According to memorandum No. 5338‑III‑Reh.‑55, dated Lahore, the 19th September 1955, from the Rehabilitation Commissioner and Secretary to Government, Punjab, Rehabili tation Department to all the Deputy Rehabilitation Commissioners in the Punjab (including cantonments) all such cases of partnership were to be sent to the Rehabilitation Commissioner (General), Punjab, for his approval and the allottees were to be proceeded against where they had admitted as partners without the approval of the department. By a subsequent memorandum No. 3433‑AL‑Reh‑56, dated Lahore, the 25th July 1956, such cases were to be referred to the Additional Rehabilitation Commissioner concerned for his approval. The relevant para. from the memorandum referred to above is reproduced below for the sake of convenience:‑ "It may further be noticed that while the intention of the department is to afford necessary help to the deserving allottees in seeking genuine financial partnership, the acceptance of partnership will‑not give any claim of allotment to the new partners and that the allotment of the original allottees will remain unchanged. In case it is noticed that the premises have been passed on to the new partners under the guise of partnership, usual steps should be taken to cancel the allotment."

6. The petitioner, in the instant case, never got the partnership approved. The intention underlying the partnership business was to secure the shop for the local who was not otherwise entitled to it.

7. The registration of the partnership deeds with the income‑tax authorities as submitted in ground No. 5 of the petition is also not established. What the petitioner had done was that he along with the local had filed a voluntary return for the year 1959‑

60. The income was declared as under: Rs. 1956‑57 ... 1,000 1957‑58 ... 2,000 1958‑59 ... 3,000 The order of assessment was passed by the Income‑tax Officer, 2nd Additional A Ward, Multan, on the 31st of May 1960 (see Annexure `C'). Another voluntary return under section 23(1) for the assessment year 1959‑60 was filed separately and the order of assessment was made by the Income‑tax Officer, 2nd Additional A. Ward, Multan on the 31st of May 1960, vide (Annexure C/1). It is interesting to note that no accounts were maintained and the declared income was on estimate basis. This was a clever device resorted to in order to create evidence about the recogni tion of partnership by filing voluntary return in 1960 for three assessment years beginning with 1955‑56, and another return for the assessment year 1959‑60 was filed on the 31st of May 1960 and demand notice was also issued on that date. Miran Bakhsh and Abdul Ghafoor were prompted to do all that to secure the shop for themselves because by that time they must have come to know that Ali Muhammad Respondent No. 2 was out to deprive Abdul Ghafoor, a local of this shop. I am, therefore, of the view that filing of returns of assessment to the Income‑tax Department in no way advanced the case of the petitioner. 8‑A. I have seen the statements of some of the shop‑keepers of the locality filed with the writ petition and I am of the opinion that the same are also not of much assistance to the petitioner, I am clear in my mind that the so‑called partnership was only a paper transaction. This is further confirmed from the circum stance that Abdul Ghafoor in the declaration filed by him under Martial Law Regulation No. 49 never mentioned the possession of the petitioner over the shop in question. There is no mention of the partnership between the petitioner and Abdul Ghafoor in the said declaration. The petitioner in the form CSI filed by him for the transfer of the shop mentioned the date of his possession as December 1957 and not 1955 which points to the conclusion that the deed of partnership executed in 1955 was not a genuine document.

8. I note that the form CS filed by the petitioner bears three different receipt stamps and numbers. The provisional transfer order in favour of the petitioner was issued on the 29th of June 1960, while the formal order of ‑transfer was passed by the Deputy Settlement Commissioner on the 21st of July 1960. The petitioner was in service as Headmaster, M. B. Primary School, Pir Kala, Multan, as is evident from the certificate of the District Inspector of Schools, Multan, appearing at page 159 of the Settlement file and I doubt if the petitioner being in service could, under the rule, enter into partnership without the permission of the department. The omission of the name of the petitioner from column No. 4 of register `A' of the property tax for the year 1958‑59 also lends support to the view that there was no partnership in existence between the petitioner and the local‑Abdul Ghafoor. There is thus over‑whelming evidence on the record to negative the assertion by the petitioner about the existence of partnership between him and Abdul Ghafoor.

9. Irregular transfer' as defined in para. 1 clause (c) of Notification No. S. R. O. 824 (K)/61, dated the 1st of September 1961 means transfer purported to be made under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by a Settlement Authority, which in the opinion of the Chief Settlement Commissioner, was made in accordance with the provisions of the said Act or the Schemes made thereunder or suffers from a patent error defect. I would, therefore, hold that the transfer of the shop to the petitioner was irregular as he was never in possession within the meaning of section 2 (6) of the Act and acted as a mere Benamidar to secure the shop and ultimately pass it on to Abdul Ghafoor, who is a local, and was not otherwise eligible for the transfer of the shop in dispute.

10. Under the Notification all functions of adjudication and decisions have to be performed by the relevant Settlement Authority and the Chief Settlement Commissioner by an order dated the 4th of May 1962 appointed Sh. Muhammad Rafiq to deal with all such cases. The order reads: "Sh. Muhammad Rafiq Settlement Commissioner will deal with all cases under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as amended up to date, which are referred to by the Director (Enforcement), irrespective of the area to which they belong."

11. The order referred to above not only conferred jurisdiction on Sh. Muhammad Rafiq to deal with all cases of irregular transfer irrespective of the area to which they belong but also further made it clear that Sh. Muhammad Rafiq was not acting as Chief Settlement Commissioner in these matters but exercised powers under section 20 (3) of the Act. 12. "Settlement Authority" as defined in clause (d) of paragraph 1 of the notification by necessary intendment, in view of the other provisions in the notification, empowered the Settlement Commissioner to decide the question of irregular transfer. I would, therefore, hold that Sh. Muhammad Rafiq had the necessary jurisdiction and also the power to decide the question of irregular transfer concerning the shop in dispute. The petitioner, in my opinion, is precluded from raising the objection, for, he did not raise any such objection to jurisdiction before Sh. Muhammad Rafiq, who passed the impugned order. In a somewhat similar situation obtaining in Ghulam Mohy‑ud Din's case (PLD1964SC829) their Lordships observed at page 839 as under: "Against one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lack the jurisdiction it purported to exercise." In the instant case the petitioner cannot claim the issuance of a writ as a matter of right particularly in view of the circumstance that he did not object to the exercise of jurisdiction by Sh. Muhammad Rafiq who set aside the transfer in favour of the petitioner.

13. Learned counsel for the petitioner strenuously argued that after the amendment of section 10 (b) of the Act by Ordinance II of 1962, the notification issued by the Central Government on the 1st of September 1961 ceased to have any legal effect and reference in this connection was made to the judgment of the supreme court in Muhammad Siddique s case ( P L D 1965 S C 123) the relevant portion from judgment reads: "Henceforth, therefore, there was no question of transfer by the Chief Settlement Commissioner, of any evacuee property under this clause, with the approval of the Central Government. In future, only the Central Government could order a transfer in public interest. In view of this change of the law, the order issued on the 2nd of September 1961, under clause (b) of section 10‑A as it then stood, had lost its efficacy."

14. Following the Supreme Court ruling in the case referred to above, I hold that after the amendment of section 10 (b) of the Act by Ordinance II of 1962, the Central Government Notification ceased to have any legal effect. The same view was taken in the case Abdul Karim v. Sh. Muhammad Rafiq (P L D 1966 Lah. 33). The learned Judge who decided the aforesaid case, also referred to rule 7 of the Permanent Transfer (Houses and Shops) Rules, 1961 which was omitted on the 27th of December 1964. The rule was in force when Sh. Muhammad Rafiq passed the impugned order on the 1st of December 1962 in the instant case. The rule empowered the Settlement Authority not below the rank of an Additional Settlement Commissioner, to resume the whole or any part of the property if, at any time, for reasons to be recorded in writing, is satisfied that the transferee or his predecessor‑in‑interest had secured the transfer of the property or had obtained, or obtains compensation in any 'other form by fraud or misrepresentation or in contravention of any provision of the Act. The transfer in favour of the petitioner was brought about in contravention of the provisions of the Act inasmuch as he was never in actual physical possession. of the premises and as such rule 7 applied and Sh. Muhammad Rafiq was competent, in my opinion, to pass the impugned order. It is an other question whether after resuming the property in question he could transfer it in favour of respondent No. 2 or not. The ruling reported as Major J. H. Naqvi v. The Directors, Enforcement Directorate, West Pakistan and others (P L D 1966 S C 512) has no bearing on the facts .of the case before me.

15. The question which remains to be decided is whether in view of section 6 of the General Clauses Act (X of 1897), the proceedings instituted by the informant before the amendment of section 10 (b) of the Act, could be continued. The relevant portions from the section are reproduced below for the sake of convenience: "

6. Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not‑ (a) (b) (c) (d) (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investi gation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as i( the repealing Act or Regulation had not been ,passed." I find that respondent No. 2 made eight applications in all pointing out irregular transfer in favour of the petitioner. The first application was made on the 17th of November 1960, which is at page 163 of the Settlement file and the last application is dated the 28th of October 1961 (at page 105 to 109 of the Settlement file). Action was initiated on the first application. I think in view of section 6 of the General Clauses Act (X of 1897), the proceedings instituted could be continued not with‑ G standing the amendment of section 10 (b) of the Act. In Sugni Chand Dayaram Jatwani v. Pakistan (through the Ministry of Rehabilitation, Karachi and another (P L D 1961 S C 523) their Lordship held that: "by virtue of section 6 of the General Clauses Act, the proceedings in question which had been continued in force, carried their own law with them, i.e. they should be decided under the law as it was at the time when they were instituted, notwithstanding the repeal of these provisions. Therefore, in relation to these proceedings, the expression "law" occurring in Article 4 of the Laws (Continuance in Force) Order, 1958 must be understood in a special sense, namely, as having reference to the special law which these proceedings carry with them for their proper determination." Also see Messrs Nawa‑i‑Waqt Publications Ltd. v. Messrs Lakhshmi Insurance Company (P L D 1959 Lah. 980). The Karachi Bench of the West Pakistan, High Court, laid down in Khushiram Khialdas v. Pakistan and others (P L D 1960 Kar. 875) as under: "Whenever there is a repeal of an enactment, the con sequences laid down in section 6 of the General Clauses Act, 1897 will follow unless, as the section itself says, different intention appears. In the case of a simple repeal there is scarcely any room for a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. Section 6 of the General Clauses Act, 1897 is as applicable where a repealed enactment is re‑enacted with modification as it is where there is a simple repeal."

16. In case of Messrs Kohinoor Mercantile Corporation v. Hazera Khatun and another (P L D1963 Dacca 238) the learned Judge who decided that case after referring to a quotation from Crawford's Statutory Construction, 1940 Edition and also to certain case law on the point summed up the conclusion in para. 18 at page 245 of the judgment as under: "From the foregoing, it is quite clear that one of the important purposes of the said section 6 is to protect rights and liabilities already accrued or incurred under the repealed enactment. That being so, section 6 does not admit of any strictly technical interpretation which may frustrate its very purpose. It is true, the preambular part of section 6 speaks of repeal alone and does not expressly render the section applicable also in the case of simultaneous repeal and re‑enactment. But a new law re‑enacting the provisions of an earlier enactment, with or without modifications, nonetheless repeals that enactment, either expressly or by implication. Moreover, an enactment purporting to be an amendment has the same qualitative effect as a repeal. Therefore, a new law which repeals and re‑enacts an earlier enactment necessarily attracts the operation of section

6. In view of the pattern of legislative drafting followed in this country a large number of legislations here are in the form of amendments which include substitution of an existing legal provision by another.. Most amendments, in effect, repeal earlier legal provisions and introduce new provisions in their place. Therefore, any view not favouring in the applicability of section 6 except in the case of repeal simpliciter will render the purpose of that section frustrated in most cases of amending legislations, which, however, must, not have been intended by the Legislature. We are, therefore, of the view that section 6 of the General Clauses Act, 1897 comes into play even where a previous enactment is repealed either expressly or by implication and re‑enacted simultaneously by a new law, with or without modifications." This question was also considered in the case Muhammad Bachal v. Deputy Rehabilitation Commissioner, Hyderabad and others (P L D 1962 Kar. 889). The relevant portion from the judgment runs thus .‑ "It will be noticed that sub‑Article (2) of Article 225 repeals the Laws (Continuance in Force) Order, 1958. What is the effect of the repeal is provided in Article 250 of the Constitution, which provides in substance that where a law is repealed by this Constitution, the repeal shall not affect any right or liability or privilege acquired or accrued, or affect any legal proceedings or remedy in respect of such right or privilege and such legal remedy or proceeding may be continued or enforced as if the law had not been repealed. Article 250 is similar to section 6 of the General Clauses Act, which is also a provision relating to the effect of repeal of a statute, but it will be noticed that the words of limitation: "unless a different intention appears" which find place in section 6, have been omitted in Article 250 of the Constitution. Thus Article 250 of the Constitution expressly provides for continuance of legal proceedings already Bakhsh instituted under the Laws (Continuance in Force) Order, despite the repeal, and the writ petition filed under its provisions shall continue to be decided under it. In view of the express provision in Article 250 of the Constitution that pending legal proceedings or remedies in respect of any right or privilege may be continued or enforced as if the law had not been repealed, it is not necessary to discuss the question any further. It may, however, be stated that the general principle is that where a statute affects existing rights, its provisions are not to be held as retrospective in operation, unless a clear intention to the contrary is manifest. This principle is laid down by the Privy Council in The Colonial Sugar Refining Co. Ltd. v. Irving. The learned Judges of the Supreme Court of India in Garikapati Veeraya v. N. Subbiah Chaudhry and others held that in construing the Articles of the Constitution, Courts must bear in mind a cardinal rule of construction that statutes should be interpreted, if possible, so as to respect vested rights. The golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed."

17. Similar view was expressed by the Full Bench in the case Nasir Mahmud v. The State (P L D 1961 Lah. 285). I am, therefore, of the view that the proceedings instituted as a result of application made by respondent No. 2 must be deemed to be proceedings under the notification of the 1st of September 1961, which could be continued notwithstanding the amendment of section 10 (b) of the Act. In this view of the matter, the impugned order passed by Sh. Muhammad Rafiq did not suffer from any legal error or defect. I would, therefore, dismiss the writ petition butt without any order as to costs. K. M. A. Petition dismissed.