P L D 1968 Supreme Court 101 (PLP)

Respondent No. 2 : Ex paste (in Civil Appeal No. 40 of 1967). Dates of hearing: 11th and 15th December 1967. CORNELIUS, C. J‑This judgment will dispose of Civil Appeal No. 115 of 1965 by Muhammad Yusuf, and Civil Appeal No. 116 of 1965 by Muhammad Ismail, each against Haji Ahmed Din, arising out of the same judgment by the High Court delivered in a writ petition in a Settlement matter, as well as Civil Appeal No. 40 of 1967 by Mst. Hamida Khanum against Sufi Fazal Muhammad Khan. In the first two appeals, the property in dispute, was a house which by the last order in . Settlement was transferred to Haji Ahmad Din. Muhammad Yusuf and Muhammd Ismail, who were occupants of parts of the house, had advanced their personal claims to the transfer, but by the last order mentioned above, the house was held to be indivisible and it was transferred to Haji Ahmad Din who was held to have the superior claim. The situation in the third appeal mentioned above is similar. An evacuee house occupied in parts by the principal contestants, Mst. Hamida Khanum and Sufi Fazal Muhammad, has been transferred by the last order in Settlement to Sufi Fazal Muhammad Khan, on a finding that it is indivisible. These appeals are being disposed of by a single judgment for the reason that a common question of law has been raised by Dr. Nasim Hasan Shah, who appeared as counsel for all the three appellants. The point of law involved is as to the interpretation to be placed upon the definition of 'house' contained in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act. 1958. Besides containing a comparatively exhaustive statement of the nature and quality of premises included within the expression "house" for the purposes of the Act, this definition in a proviso gives a power of division of a house into several residential units. The power is given expressly to the Chief Settlement Commis sioner, but by a general provision contained in section 31 of the Act, the Chief Settlement Commissioner was enabled to delegate inter alia this power to any subordinate Settlement authority, namely, a Settlement Commissioner, an Additional Settlement Commissioner, a Deputy Settlement Commissioner or an Assistant Settlement Commissioner, subject to conditions to be specified. By a notification, the Settlement Commissioner has delegated his power derived from the first proviso to section 2 (4) of the Act, to each of the above‑mentioned subordinate Settlement authorities, unconditionally. The difficulty that has arisen in consequence is as to the applicability to orders made in the exercise of the power so delegated of the provisions relating to appeals, revisions and reviews contained in Chapter VI of the Act. Section 2 (4) so far as relevant to this discussion reads as follows:‑ " 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 15 of the Schedule to be a big mansion or hotel or such class of buildings or premises in a rural area as may be declared by the Central Government, by notification in the official Gazette, not to be houses within the meaning of this clause: Provided that where any building or premises not so declared consist of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house." It is common ground between the contesting parties to these appeals and was so conceded in the course of the arguments, that the Departmental authorities, from the time when the proviso in question was introduced into the definition of a 'house' by an amendment of 1959, which was given retrospective effect from the commencement of the Act, have acted in the belief that any order of a Deputy Settlement Commissioner made in exercise of this delegated power was, under section 19 of the Act, appealable to an Additional Settlement Commissioner and an original order by an Additional Settlement Commissioner in exercise of this delegated power was appealable to a Settlement Commissioner. Under section 20, in the shape it had until an amendment in 1962, provisions were made for revision by the Chief Settlement Commissioner of the orders of any subordinate Settlement authority by a Settlement Commissioner, specially empowered by the Chief Settlement Commissioner from orders of Additional Settlement Commissioner, Deputy Settlement Commissioners, and Assistant Settlement Commissioners, and by an Additional Settle ment Commissioner specially empowered by the Chief Settlement Commissioner of any order by a Deputy Settlement Commissioner or any Assistant Settlement Commissioner, in each case "for the purpose of satisfying himself as to the correctness, legality or propriety of such order". Each revising authority was empowered to make "such order as he thinks fit". Such revisions were also held to be competent. Powers of appeal and revision were exercised in both these cases, the dates being as follows. In the case of the house transferred to Haji Ahmad Din, the Deputy Settlement Commis sioner on the 17th December 1959, held that the house was indivisible and gave the whole of it to Ahmad Din because he was a claimant and was in possession of a major portion of the house. The Deputy Settlement Commissioner rejected Muhammad Ismail's claim also on the ground that he had not filed any form seeking transfer of the house. There were appeals to the Additional Settlement Commissioner and he on the 19th January 1960, found, firstly, that the house was divisible and secondly, that Muhammad Ismail had no right to transfer because he had never filed a CH form, and "every thing about Muhammad Ismail is of doubtful nature". Accordingly, the Additional Settlement Commissioner ordered the transfer to Haji Ahmad Din of the property in his possession and the transfer of the rest of the house to Muhammad Yusuf, who had filed a CH form. Muhammad Yusuf's possession, which commenced on the 1st March 1960, was not supported by an allotment order, but was recognised presumably on the basis that it had never been disturbed. Muhammad Ismail and Ahmed Din both filed revisions to the Settlement Commissioner against this order. That of Ahmed Din was dismissed on the 29ch February 1960, the grounds being that neither Ahmad Din nor his counsel hart appeared on the fixed date, and that he had originally applied only for the portion in his possession. Ismail's revision petition was dismissed in default on the 31st August 1960, but in the meantime, on the 23rd May 1960, a development had taken place in his favour. In pursuance of a further revision filed before the Chief Settlement Commissioner, the latter officer inspected the house and held it to be indivisible. He immediately decided to auction the building among the three occupants. Ahmed Din and Muhammad Yusuf offered no bid, but Muhammad Ismail offered Rs. 50,000, which was accepted and he was asked to pay the entire amount within a month. Against this order however, a writ was moved in the High Court with success, and it was directed that the transfer by auction should be set aside and the property should be transferred according to law. It was probably on account of his successful bid at the auction of the 23rd May 194, that Muhammad Ismail allowed his revision petition before the Settlement Commissioner to be dismissed in default, but after that order had been set aside by the High Court, he did not take any further interest in the proceedings before the Chief Settlement Commissioner on remand by the High Court. The consequence was that the case proceeded as between Haji Ahmad Din and Muhammad Yusuf alone, and on the 12th April 1961, the Chief Settlement Commissioner having. heard the parties, came to the conclusion that the house was indivisible and since Haji Ahmad Din had the better right, as between himself and Muhammad Yusuf, the Chief Settlement Commissioner directed that the whole house should be transferred to Haji Ahmad Din. In this order, it was noted that Muhammad Ismail had not gone up in revision before the Chief Settlement Commissioner, and the proceedings which ended with the order for an auction on the 23rd May 1960, were as between Ahmad Din and Muhammad Yusuf only. Against this order of the 12th April 1961, writ petitions were moved by Muhammad Ismail as well as Muhammad Yusuf in the High Court out of which the present appeals arise. A learned Single Judge in the High Court dismissed both writ petitions and his orders were upheld in Letters Patent Appeal by a Division Bench by two separate judgments delivered on the same day, viz., the 7th of May 1964. Leave to appeal against the latter orders was granted to both Muhammad Yusuf and Muhammad Ismail on the following points, inter alia, namely, firstly that the Chief Settlement Commissioner had acted illegally in deciding the claim of Haji Ahmad Din without giving notice to Muhammad Ismail, and secondly, that as Haji Ahmad Din had asked for transfer of that portion of the house which was in his possession, he was not entitled to the transfer of the whole house. Among the other questions raised in Muhammad Yusuf's petition, one which contains the point of law raised in the arguments is expressed as follows: "that the learned Judges of the Division Bench have not considered all the points raised before them and seemed to have been mainly influenced by the decision of the Full Bench, which, it is respectfully submitted, does not lay down good law." The reference was to the decision of the Full Bench of the High Court in the case of Abdul Ghani v. The Chief Settlement Commissioner (P L D 1964 Lah. 240), where it was held that orders made by authorities subordinate to the Chief Settlement Commissioner in the exercise of power delegated to them under the first proviso to section 2 (4) of the Act were subject to appeal and revision under Chapter VI of the Act. This judgment came up for consideration before the Supreme Court in the case of Mal Din v. The Chief Settlement Commis sioner, etc. (P L D 1965 S C 261). The learned Judges of the Full Bench had agreed that "as a general rule, if delegation of powers were not subjected to any condition, the exercise of those powers by the delegatee cannot be interfered with by the competent authority" but had come to the conclusion that the provisions of Chapter VI were rendered applicable to orders of delegatees by the effect of the words "subject to the provisions of the Act and the rules made thereunder" These were the opening words of subsection (2) of section 31, by which the power of delegation is conferred upon the Chief Settlement Commissioner, and the Supreme Court came to the conclusion that these words of restraint were needed "to give effect to the intention that the Chief Settlement Commissioner could not delegate his power in cases where it was not permitted by the Act or the rules". Reference was made to section 29 of the Act, where in subsection (2) a specific power of delegation is given to the Chief Settlement Commissioner, out only in respect of Settlement Commissioners, Additional or Deputy Settlement Commissioners, that is not including Assistant Settlement Commissioners to whom also under section 31 (2) such powers could be delegated. It was further held that the words "subject to the provisions of this Act and the rules made thereunder" could not be made the basis of any further inference, i.e., they could not be interpreted to create a right of appeal or revision, which otherwise did not exist. It was observed that the ordinary rule was that the exercise of delegated power remains subject to the same control as it would be if exercised by the delegator, and that by the mere use of the words of the restraining clause which were clearly applicable in relation to the power conferred, viz., the power of delegation given to the Chief Settlement Commissioner, the intention could not be inferred that the exercise of a delegated power would be subject to appeal and revision like the ordinary orders of the delegatees. This judgment was delivered on the 2nd November 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void, of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act. The argument raised by Dr. Nasim Hasan Shah calling in question the correctness of the view in the case of Abdul Ghani thus finds support from the decision of this Court in Jalal Din's case. As has been said already, the latter decision was based on an interpretation contrary to that on which a great number of orders had been passed earlier by the Settlement authorities, and by the High Court in matters coming before it. It was probably with a view to avoiding the great disturbance which would have resulted if the earlier orders were brought before the Courts to be decided in the light of the interpretation given in Mal Din's case that in August 1965, by Ordinance 18, the President amended section 31 (2) of the Act by adding a third subsection reading as follows:‑ "Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) shall be, and be deemed always to have been, subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Commissioner, Additional, Deputy or Assistant Settlement Commissioner, as the case may be, is so subject." This amendment was, by section 3 of the Ordinance, supported by a validating clause reading as follows :‑ "Anything done, action taken, order passed, rule made or notification issued, or purporting to have been done, taken, passed, made or issued, under any of the aforesaid Acts, before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued under such Act as amended by this Ordnance, and shall have and shall be deemed always to have had effect accordingly." The effect of this validation clause was clearly to oblige all Court before which any order of the relevant kind was brought up for examination to assume for the purposes of its decision that the order at the time when it was made was one that was subject to P the provisions of Chapter VI. That obligation applies to the Supreme Court, notwithstanding the contrary view expressed in Mal Din's case, on pure construction of the relevant provision. The precise effect of this Ordinance may be set out as follows. The first proviso to section 2 (4) had the effect that a house notwithstanding that it was occupied in parts by several persons, was nevertheless to be treated for Settlement purposes as a single residential unit unless the Chief Settlement Commissioner made an order to the effect that it was divisible. The power of the Chief Settlement Commissioner which he delegated to the subordinate Settlement authorities was therefore a power of declaring a single house occupied in parts to be composed of more than one residential units. Any order by an authority subordinate to the Chief Settlement Commissioner which had the effect of treating such a house as a single unit would therefore not be an order made in the exercise of the special power conferred upon the Chief Settlement Commissioner by the first proviso to section 2 (4) and that would be equally true of any such order made by a subordinate Settlement authority to whom the aforesaid power had been delegated. Exercise of the delegated power would appear only where a delegatee purported to hold that a single house occupied in parts consisted of more than one residential units. As a result of the supreme court judgment in Jalal Din's case, such exercise of power by subordinate Settlement authorities was required to be interpreted as a final order, not subject to appeal and revision under Chapter VI, if it came before an executive or quasi judicial authority or a Court subordinate to the Supreme Court, after the 2nd November 1964. The Ordinance, however, had the effect that in such a case the executive or quasi judicial authority or Court in question, and equally, the Supreme Court, would be bound to act, in respect of the order under examination, as if, at the time when it was made, it was subject to appeal and revision. The argument presented by Dr. Nasim Hasan Shah is that the Ordinance is devoid of effect in relation to all orders made before the promulgation of the Ordinance, by the effect of Article 2 of the Constitution, which reads as follows:‑ "(1) To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular‑ (a) no action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from, or be hindered in, doing that which is not prohibited by law ; and (c) no person shall be compelled to do that which the law does not require him to do." The contention is that by the effect of this Article, no person can be treated in respect, inter alia, of property, otherwise than in accordance with the law in force at the time of such treatment, in other words, in accordance with contemporaneous law. In support of this contention, Dr. Nasim Hasan Shah has cited a judgment of the Dacca High Court in the case of Ghulam Zamin v. A. B. Khan (P L D 1965 Dacca 156) which was followed in another Dacca case that of Ghulam Sabir v. Pan Allotment Committee (P L D 1967 Dacca 607). To give the fullest effect to this argument would operate as a prohibition against the making of laws with retrospective effect in respect of all matters that are specified in Article

2. We do not conceive that the Article was intended to produce so wide an effect in relation to the well‑established practise of retrospective or retroactive legislation. It is difficult to construe Article 2 as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interests. Reference may here be made to the Fourth Fundamental Right which gives protection against retrospective punishment and the argument was raised on the basis of this Fundamental Right that the express protection against retrospective effect being provided in one particular case, is to be construed as having the effect of maintaining the ordinary power of Legislatures to legislate with retrospective effect in cases not specified. These considerations have' weight, and will require to be examined at length when the judgment of the Dacca High Court, against which leave to appeal has been granted, in the case of Ghulam Zamin comes up in appeal. Our attention was also invited to the observations made in two judgments by Kaikaus, J., which are relevant to the question. These observations are to be found in the reports of Qaseem‑ud‑Din v. Province of West Pak., (P L D 1959Lah. 76) and Mir Ahmad Nawaz Bughti v. Superintendent, District Jail, Lyallpur (P L D 1966 S C 357). In the present case, however, it is not necessary to examine the argument of Dr. Nasim Hasan Shah at full length, for here the question is one of differential interpretation of a statute, and it seems clear enough that the action of which Dr. Nasim Hasan Shah complains was entirely in accordance with the departmental interpretation, as well as the judicial interpretation by the High Court, of the relevant provisions, as in force at the relevant time. For, in 1961, when the final settlement order was made in the case of Haji Ahmad Din, the uniform interpretation by the Settlement authorities as well as by the High Court was in favour of the Chief Settlement Commissioner having power to revise orders of divisibility made by subordinate Settlement authorities, and to make such orders thereon as he thought fit. That was the contemporaneous law. The judgment of the Supreme Court in Jalal Din's case did not itself have the effect of avoiding any earlier action taken on the basis of that interpretation, though it was binding on the Courts, when matters came before them, on a date subsequent to the delivery of judgment in Jalal Din's case, to act on the basis that the Chief Settlement Commissioner lacked power to make that order. The present cases passed through the High Court on the 7th May 1964, in Letters Patent Appeal, that being a date prior to the judgment of the Supreme Court in Jalal Din's case. Today, when the matter comes up for decision before the Supreme Court, the duty of this Court is to apply the law as laid down in the Ordinance of 1965. The result is that on the date in 1961, when the Chief Settlement Commissioner made his final order in Haji Ahmad Din's case, he must be held to have had power to reverse a finding of a subordinate Settlement authority that the house in question was divisible. The parties interested cannot complain of having been treated in 1961 otherwise than in accordance with the then accepted interpretation of the relevant law. The terms in which the power in question conferred by the first proviso to section 2 (4) are stated do not allow interference by the Courts, in exercise of their power under Article 98 of the Constitution, with any decision by Settlement authorities as to the divisibility or otherwise of the house. Since the final order in) Settlement is to the effect that the house is indivisible and must go in transfer as a single unit, and since the rights of Haji Ahmad Din as the earliest allottee and the occupant of a major portion of the house are clearly superior to any rights that can be claimed by Muhammad Yusuf or Muhammad Ismail, the final order in Settlement would appear to have been made in proper exercise of lawful authority. is unnecessary therefore to consider in detail the incidents of Muhammad Ismail's litigation before the Settlement authorities. The Appeals filed by Muhammad Yusuf, Civil Appeal No. 115 of 1965, and Muhammad Ismail, Civil Appeal No. 116 of 1965, accordingly fail and they are hereby dismissed but in the circumstances, we make no order as to costs. The facts of the appeal of Mst, Hamida Khanum are simple. The Settlement Commissioner reversing an earlier order by an Additional Settlement Commissioner had declared that the house in question, which is occupied in parts by Mst. Hamida Khanum and Fazal Muhammad, was divisible and he directed that it should be divided in a mode laid down by him, which involved construction of a wall and a stair‑case. This order was made on the 15th August 1960. It was reversed on the 7th August 1962, by a Settlement Commissioner exercising the powers of the Chief Settlement Commissioner, who declared that the house was not divisible and should be transferred as a single residential unit. He also found that Sufi Fazal Muhammad Khan was the senior allottee and accordingly restored the order of transfer in his favour. Here again, the final order in Settlement is one that was made at a time when according to the interpretation accepted and uni formly applied by the Settlement authorities and the High Court, the Chief Settlement Commissioner had power in revision to reverse a finding of divisibility of a house by a Settlement authority subordinate to him. It is this interpretation which today, this Court is obliged to uphold by reason of the amending and validating provisions in the Ordinance of the 2nd June 1965, mentioned above. We may observe here, that the judgment of the High Court in this case was delivered on the 19th February 1965, date subsequent to the pronouncement of this Court in Jalal Din's case and the latter case was cited before the learned Judges, who dealt with the matter in Letters Patent Appeal in the High Court. The learned Judges said that before the Settlement Commissioner could exercise his power to order transfer of a house as two residential units, it was necessary for him to hold that there were in fact two residential units and that without holding to this effect the Settlement Commissioner had created two residential units by directing certain constructions and alterations, which was beyond his power. Speaking with due respect, that was not a sufficient ground on which the High Court could have avoided the duty under Article 63 of the Constitution to treat the decision of the Supreme Court in Jalal Din"s case as binding, whenever the question came before it whether an order under the first proviso to section 2 (4) made by a delegatee was subject to the provisions of Chapter VI. The house in question was actually occupied in parts by two separate claimants, and in the absence of an order declaring that it was to be treated as divisible, it had to go as a single unit. Such an order had been made in the exercise of delegated power and the rule laid down by the Supreme Court in Jalal Din's case was directly applicable at the time when the High Court pronounced its judgment, namely, that the order was not subject to revision on the point of divisibility before any superior Settlement authority. As to the entitlement of the rival claimants, this has been settled with certainty by the Settlement authorities on a proper examination of the facts and there is no doubt whatsoever that the claim of Sufi Fazal Muhammad Khan was superior, his allotment being of earlier date. We have referred to an allotment order on which Sufi Fazal Muhammad Khan relies, which is Annexure 'G' at page 110 of the paper‑book in Civil Appeal No. 40 of 1967 We find that it clearly shows firstly that the allotment was in favour of "Sufi Azhar Khan and Family" and that possession was taken by Sufi Fazal Muhammad Khan, who is Sufi Azhar Khan's father. The date of possession is 1st October 1947, which was regularised by the subsequent formal allotment order. The allotment order produced by the appellant, Mst. Hamida Khanum shows the date of possession to be the 27th February 1948, and was in favour of her mother. In both respects therefore, the claim of Sufi Fazal Muhammad Khan was superior to that of Mst. Hamida Khanum. Accordingly, the appeal of Mst. Hamida Khanum, C. A. No. 40 of 1967, is dismissed, but we make no order as to costs. K. B. A. Appeals dismissed.