P L D 1962 (W (PLP)

12. In support of her contention that she was in construc tive, although admittedly not physical, possession of the bungalow the petitioner relies on memorandum No. 3223-P1-Reh-60, dated the 7th of March 1960, to be found at page 123 of the Manual of Settlement Law and Procedure (hereinafter referred to as the Manual), which runs: "The Central Government has decided that where a house is in the possession of the husband in pursuance of the (sic) order passed on or before the 20th day of December 1958 by a competent authority, his wife, if staying with him, will also be deemed to be in possession." It is clear that the above memorandum will only help the peti tioner if her husband was in possession of the bungalow in dispute under a valid allotment order passed before the 20th of December 1958. It is contended by the respondents and conceded by learned counsel for the petitioner, that neither she nor her husband, Mr. Kureshy, was ever in physical possession of the premises in dispute. At the time of the passing of the allotment order in favour of Mr. Kureshy the bungalow was occupied by respondent No. 2, who has not up to now vacated it.

13. It being thus established that the petitioner was never in physical possession of the bungalow, it must next be seen whether she can be deemed to have been in possession within the meaning of the Displaced Persons (Compensation and Rehabi litation) Act XXVIII of 1958 (hereinafter referred to as the Act). The definition of possession as given in section 2 (6) q the Act runs :- " possession' means possession obtained in pursuance of an order passed on or before the twentieth day of December 1958, by a Rehabilitation Authority or a Custodian or arty other officer authorised or permitted by the Central or provincial Government: "Provided that if a question arises whether an Officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final: "Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act." The petitioner seeks the protection afforded by the second proviso, and the next question for determination therefore is whether she is a member of any class of persons declared by the Central Government by order in writing to be deemed to be in possession for the purposes of the Act. In support of her contention she relies on a Press Note dated the 4th of July 1959, reproduced at page 26 of the Manual, which runs :- "In some cases houses, shops and other evacuee properties were allotted to certain persons before the 20th December '1958, but they have not been able to obtain physical possession of such properties so far through no fault of their own: The Chief Settlement Commissioner has decided that such allottees may be permitted to submit applications in the appropriate forms for the transfer of them and the applications will be decided by the Settlement Authorities on merits. If the allot ment order issued by a competent authority before the 20th December 1958, has subsequently been the subject-matter of an appeal, revision or review or a writ petition in the High Court or the Supreme Court is pending against the allotment order, the person in whose favour the property stands allotted on the last date fixed for receipt of applications may submit the application in the prescribed form." A perusal of the above Note shows that the only concession speci fically allowed to the persons described is that of submitting applications in the appropriate form for the transfer of the pro perties allotted to them before the 20th of December 1958.

14. It appears that not only were a number of applications made on the basis of the above instructions but also that in some cases orders of transfer were passed. Subsequently, however, it was borne in upon the Chief Settlement Commissioner that the instructions were ultra vires for on the 5th of December 1959 a second memorandum, No.'7780-Comp-Reh./59, reproduced at page 96 of the Manual, was issued. The portion relevant to the purposes of this case is that contained i the first .two para graphs, which run:- "By a press note dated the 4th July 1959, the persons to whom houses, shops and other properties were allotted before 20th December 1958, but had not been able to obtain physical possession of such properties through no fault of their own were permitted to apply for the transfer of such properties in appropriate forms. No orders have so far been issued about the disposal of such applications. Under the law only a person who has got physical possession of a house or a shop is entitled to its transfer in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Schemes made thereunder. Persons who held allotment orders issued before 20th December 1958, but have not been able to secure physical possession are, therefore, not entitled to the transfer of the properties allotted to them under the law. Applications received from such persons in response to the announcement made in July 1959, should be kept pend ing and no action should be taken to transfer the properties in question to them until further orders. If in any case the pro visional order or any other order has been issued by mistake it may be withdrawn immediately." Since only the Central Government had authority to direct that any class or classes of persons should be deemed to be in posses sion within the meaning of the Act, the view expressed in the above memorandum is clearly correct. Even if, therefore, any order of transfer was passed in favour of the petitioner on the strength of the earlier Press note of the 4th of July 1959, it was invalid.

15. It was not until the 11th of August 1960 that the Central Government in the Ministry of Rehabilitation and Works exer cised the power conferred on it by section 2 (6) of the Act. In the Gazette of Pakistan Extraordinary of the above date an order was issued which was reproduced in a press note dated the 9th of September 1960 (page 163 of the Manual), the relevant portion of which runs :- "No. F. 3 (3)/60-SI :-In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to order that the allottees of a house or a shop for whose benefit ejectment pro ceedings have been ordered by a Court or a Rehabilitation Authority and who, through no fault or negligence of their own, have so far been unable .to obtain physical possession of the house or the shop in question shall be deemed to be in posses sion thereof for the purpose of the said Act."

16. It will be seen that before an allottee can take advantage of the above concession, three conditions must be fulfilled: (1) Ejectment proceedings must have been ordered for his benefit by a Court or a Rehabilitation Authority. (2) He must have been unable to obtain physical possession of the house or shop in question. (3) Such failure must be due to no fault or negligence of his own. The petitioner may possibly fulfil the second and third of the above conditions, but it is admitted that no ejectment proceedings were ever ordered in her favour by a Court or a Rehabilitation Authority. Mr. S. M. Zafar attempted to argue that the word "and" occurring after "Authority" in the tenth line of the order should be read as "or", but this contention is completely untenable. In support of it he cited the following passage from Maxwell's stan dard work "On the Interpretation of Statutes", 5th Edition, at page 386 :- "To carry out the intention of the Legislature, it is occasion ally found necessary to read the conjunctions `or' and `and' one for the other." The instances cited by Maxwell, however, clearly show that the above principle has no application to cases like the present. One such instance is 43 Eliz. c. 4, which speaks of property to be employed for the maintenance of "sick and maimed soldiers". I t was held that the reference was to soldiers who were either sick or maimed, and not only to those who were both. Again, a Turnpike Act imposed a toll on every carriage drawn by four horses and a separate toll on ridden horses, but provided that not more than one toll should be demanded for repassing on the same day "with the same horses and carriages". It was held that the real intention of the Legislature required that this "and" should be read as "or", and that a carriage repassing with different horses was not liable to a second toll. By no stretch of imagination, however, can the instructions now under dis cussion be considered capable of such an interpretation, it being clearly the intention of the Central Government that an allottee for whose benefit no ejectment proceedings have been ordered by a Court or Rehabilitation Authority does not fall within the scope of the concession. Mr. Zafar also cited certain passages from "Craies an Statute Law" dealing with the distinction between absolute and directory enactments and the effect of pro visions in a statute benefitting only a particular person or class of persons (pages 240, 246 and 248 of the 5th Edition of the above work), but these are even less in point than the quotation from Maxwell above referred to.

17. For the above reasons we have no hesitation in holding that the petitioner cannot be deemed to have been in possession of the property in dispute within the meaning of the Act even if the allotment order passed in favour of her husband on the 31st of May 1958 be considered as valid, which, in our opinion it clearly is not (the Station Headquarters, Peshawar, which pur ported to make the allotment, had no authority to do so, juris diction vesting only in the Deputy Settlement Commissioner).

18. In view of the above finding the petitioner has no locus standi to claim transfer of the bungalow in dispute. Her petition accordingly fails and is dismissed, but in the circumstances we pass no order as to costs.

19. Before concluding we may mention that Mr. Zafar, expressed his intention of bringing what. he considers to be th 9e illegal allotment and transfer of the property in dispute in favour of respondent No. 2 to the notice of the Enforcement Staff., This, however, is no reason why we should help him by giving' a finding as to the status of respondent A. 2 when such a finding is unnecessary in deciding the fate of the present petition. K. B. A. Petition dismissed.