P L D 1966 (W (PLP)

"The Central Government has decided that where the house is in the possession of the husband in pursuance of the 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." The Chief Settlement Commissioner issued a Press note on the 9th of September, 1960, inviting applications from those allottees who had not been able to obtain possession of the allotted properties for transfer of those properties. Major M. Nasir Beg, the husband of the respondent, who could obviously have made use of the notification of the 11th of August 1960, did not move any application but his wife, the respondent, did so, presumably on the belief that she was entitled to the transfer of the property as a claimant who should be deemed to be in possession under the combined effect of the two notifications of the 7th of March 1960 and the 11th of August 1960. She considered herself to be a claimant because she was a successor‑in‑interest of her father, who was admittedly a claimant but who had died on the 26th of November, 1959. The definition of a claimant, as contained in section 2 (2) of the Act, is to the following effect :‑ " claimant means a displaced person whose claim excluding claim in respect of agricultural land has been registered under the aforesaid Act and includes the successor‑in‑interest of a claimant who dies on or before the Thirty‑first day of August, 1959, but does not include any such person whose claim has subsequent to registration been withdrawn or rejected." We have referred to this point and the definition of a claimant here as the main argument of the appellants in opposition to the respondent's claim, is that she cannot be considered to be a claimant within the definition, as her father had died after the target date, as mentioned in the definition.

3. The respondent's application for transfer of the property met a peculiar fate The office recorded a note on this application on the 21st of September 1960, as follows :‑ "On the basis of the order on page 5, the C. H. form of Mst. Afzal Jahan Begum may kindly be accepted in, pursuance of recent orders subject to further verification." Beneath it, there is an order by a Deputy Settlement Commissioner of the same date to the effect that "the property has since been transferred and the C. H. form is, therefore, rejected". By a letter dated the 1st of October, 1960, the Deputy Settlement Commissioner sent a letter to the respondent containing the reasons for the rejection of her claim, which were different from the one mentioned above and stated that as she was not in possession of the property, her form was rejected. It was stated that the relaxation of the Government rule did not apply to her case at there are express provisions that the allottee of the house is entitled for transfer' only when the ejectment proceedings had taken place against the persons in occupation of the property to accommodate the allottee. It was further noted that such proceedings had taken place for the allottee in this case and the record showed that proceedings for ejectment of the occupants were stayed as her husband was an allottee of some other house. It appears that at some date there after the Additional Settlement and Rehabilitation Commissioner Mr. J. D. Malik, made an order in respect of this property saying: "I have already issued instructions regarding the disposal of this property. It is, therefore, not to be included in the auction list." This was followed by another order on the 31st of October, 1960 by the same officer, marked to the Deputy Settlement Commissioner, Lahore. "Please transfer this property to Begum B. H. Syed." It appears that this order of transfer in favour of the appellant was passed by Col. Malik on the basis of a letter received from the Enforcement Staff, stating that she had supplied information to the Enforcement Staff about the un-authorised occupation or the illegal transfer in respect of this house. The respondent challenged the rejection of her claim form in an appeal to Malik Ghulam Jilani, Additional Settlement Commissioner, who dismissed it on the 28th of November, 1960, by a short order which was that as he order regarding the transfer of the property had been made by the Additional Settlement Commissioner, on the report of Director of Enforcement Staff on the 31st of October, 1960, he was not competent to entertain this appeal. The respondent then filed a revision in the Court of Khan Farzand Ali Khan, Settle ment and Rehabilitation Commissioner. This officer came to the conclusion that although possession of the property in dispute had been delivered to the petitioner's husband, ejectment proceedings had been started against un-authorised persons and, therefore, this property could not be treated as "hidden" evacuee property and transferred to the respondent. The order of the Additional Settlement and Rehabilitation Commissioner was set aside and the case was remanded to the Deputy Settlement Commissioner for re‑decision on merits. The appellant filed a second revision against this order of Khan Farzand Ali Khan in the Court of the Chief Settlement and Rehabilitation Commissioner, Pakistan, which was heard by Malik Fateh Khan, Settlement and Rehabilitation Commissioner, with powers of a Chief Settlement and Rehabilitation Commissioner. As the opening sentence of this order shows, he heard the matter in his delegated powers as Chief Settlement and Rehabilitation Commissioner. It is further stated in the order that this second revision petition was originally presented before the Chief Settlement and Rehabilitation Commissioner and transferred to him for decision. By this order the second revision application was accepted on the view that the respondent was not a claimant because her father, through whom she was claiming the right, had died prior to the 31st of August, 1959. The second finding given was that as the proceedings for the ejectment of the un-authorised occupants of the house had been stayed on the 29th of October 1957, and were not pending on the 11th of August 1960, when the notification was issued by the Central Government, giving the extended effect to the word "possession," as defined in the Act, and as permitted by the second proviso to clause (6) of section 2, already mentioned above, the petitioner could not on the basis of the allotment in favour of her husband apply for transfer. In respect of the appellant's entitlement for the transfer of the house it was remarked that although there was no transfer order in her favour made on the 13th of September, 1960, it had been reserved for transfer in her favour on that date.

4. The learned Single Judge has referred to the circumstances in which the appellant, according to the Settlement records, appeared on the scene as a claimant for the transfer of the property in her status as an informer and which create a grave suspicion about the whole transaction of this transfer in her favour. It is not necessary for us to probe into that aspect of the case, as we find ourselves in agreement with the learned Judge in Chambers regarding the entitlement of the respondent to the transfer of this house, as a non‑claimant displaced person, although not as a claimant. As rightly pointed out by the learned counsel for the appellant, if the entitlement of the respondent for the transfer of the disputed property can be upheld, the appellant is entirely out of the field, and the question whether or not she should get the house as an informer and whether she was rightly given that house is wholly irrelevant. Before examining that aspect of the case, we might refer here to another matter which was brought to our notice at the end of the arguments and which, in our view, is sufficient by itself for quashment of the impugned order of Malik Fateh Khan, passed in second revision, which is that Malik Fateh Khan did not possess the jurisdiction to interfere with the order of the Settlement Commissioner in second revision. He had, no doubt, the powers of revision under section 20(3) of the Act because by notification such powers had been granted to all the Settlement Commissioners, but under that section a Settlement Commissioner can exercise powers of revision when specially empowered by the Chief Settlement f Commissioner only in respect of the orders passed by an Assistant Settlement Commissioner, Deputy Settlement Commissioner and an Additional Settlement Commissioner, but not in respect of an order of a Settlement Commissioner. The delegation of his own powers by the Chief Settlement Commissioner is different from the special powers which may be granted to a Settlement Commissioner under section

20. It was conceded before us by the learned counsel for the Chief Settlement Commissioner, Major Ishaq Muhammad Khan, that there was no delegation of the powers of the Chief Settlement Commissioner in favour of Malik Fateh Khan and he could not, therefore revise the orders passed in revision by the Settlement Commissioner, namely, Khan Farzand Ali Khan. The question in precisely the same form had come up before the Supreme Court of Pakistan in the case of Mst. Ameena Rai v. The Settlement and Rehabilitation Commissioner, Karachi and others Civil Appeal No. K‑60 of 1963, decided on the 12th of June, 1964, (unreported) where an order passed by Malik Fate h Khan in similar circumstances was held to be without jurisdiction.

5. Mr. Brohi for the appellant and Major Ishaq Muhammad Khan for the Chief Settlement Commissioner have, however, tried to defend this order on another ground by their effort to show that this order was passed by Malik Fateh Khan not under section 20 (2) .of the Act, nor as the delegate of the Chief Settlement Commissioner but as an officer to whom this case had been transferred by the Chief Settlement Commissioner under section 32‑A of the Act. This section reads:

"32‑A.‑Subject to the provisions of this Act and the Rules made there under, the Chief Settlement Commissioner may transfer any case pending before him to any Settlement Com missioner, or an Additional, Deputy, or Assistant Settlement Commissioner, or to any other officer, for report or disposal." In the first place, we have not been shown any order of the Chief Settlement Commissioner, transferring this case to Malik Fateh Khan; but even if it was transferred to Malik Fateh Khan without g the latter being duly invested with the requisite powers to act in the matter, all proceedings taken before him would be without jurisdiction. Section 32‑A begins with the words "Subject to the provisions of the Act" and the provisions of the Act lay down a graded heirarchy of officers for dealing with Settlement cases on the original side and in appellate and revisional jurisdictions. The Chief Settlement Commissioner could not under this section transfer a case, pending before him to any of the lower Settlement officers without his possessing the jurisdiction to deal with it; nor can it be seriously contended that the order of transfer under section 32‑A results in the automatic delegation of powers to the transferee officer for dealing with the matter with the same jurisdiction as possessed by the delegator‑the Chief Settlement Commissioner. That would amount to reducing to a nullity the specific provision as contained in section 31 (2) of the Act, regarding the delegation of his powers to any of the officers under him. Mr. Brohi, in support of his contention, stressed on the peculiarities of the Act where under even an officer of the lowest rank in the Settlement Department can be delegated the powers of the incumbent of the highest office and that for that reason we must recognize this peculiarity, astounding though it may appear to be, that a Chief Settlement Commissioner by a simple order of transfer of a case from his file can create a jurisdiction in the officers below him which they do not otherwise possess. We are' unable to agree with this submission because the peculiar situations such as pointed out by Mr. Brohi could be accepted only if they are the valid creation of the law and are duly processed as such. If the Chief Settlement Commissioner had chosen to delegate his powers to Malik Fateh Khan or any other officer, there would have been no quarrel with the exercise of those powers thus delegated but in the absence of such delegation we are constrained to hold that Malik Fateh Khan's order is wholly without jurisdiction.

6. This finding would automatically result in the quashment of the impugned order of Malik Fateh Khan and the restoration of the order of the Settlement Commissioner, Khan Farzand Ali Khan, who had directed a fresh hearing of the case on merits; but as the matter has since then been dealt with by the High Court, disposing of all the points that arose for decision it would be useless to send the case, back to the Settlement authorities, and we have, therefore, to examine the case on merits ourselves. The question requiring examination is whether the respondent, Mst. Afzal Jahan Begum, who is admittedly the successor‑in‑interest of her father, who was a claimant and who had died after the 31st of August, 1959, can claim the transfer of the property in dispute under para.1 of the Schedule to the Act or, alternatively, as a non‑claimant displaced person under para. 2 of the Schedule to the Act on account of her husband being an allottee of that property. On the point of the respondent being a claimant, the learned Judge in Chambers has held that as admittedly the peti tioner's father through whom she claims had died before the 31st of August 1959, she cannot be held to be a claimant within the meaning of clause (2) of section 2 of the Act, but as one of the successors‑in‑interest of her father she is a claimant "for all practical purposes" and, as such, is entitled to apply for transfer of this property. According to the learned Judge, under paragraph 5 of the Settlement Scheme No. 1 and the Press‑note issued by the Chief Settlement Commissioner on the 5th of May 1960 (at page 114 of the old manual of Settlement Law and Procedure) all the heirs of a deceased claimant can jointly make an application on behalf of a deceased claimant and in the case of a disagreement between them each such successor can apply under his or her own signature, giving the names and addresses of the others and where the deceased claimant has died on or before the 31st of August, 1959, the successors‑in‑interest are to be treated as claimants in their own right and are entitled to all the benefits accruing to the claimants. In a nutshell, the conclusion reached by the learned Single Judge on this point. is that where the claimant dies on or before the target date, i.e., the 31st of August, 1959, his successors‑in‑interest would become claimants in their own right, each separately entitled to the benefits of a claimant; but where the claimant dies after that date, the successors‑in‑interest have no separate or independent right in themselves as claimants but they can certainly .pursue their heritable or derivative rights, and if the claimant in this case could obtain the transfer of the house on the basis of the possession of his daughter, she, as the successor‑in‑interest of her father, could claim that right on the basis of her own possession. It is argued that if the father of the respondent had not died, he could have asked for the transfer of the house in his favour on the strength of his daughter's possession under paragraph 1 of the Schedule, provided she did not claim it herself. That right of her father as a claimant in possession could be made use of by the respondent on the basis of her own possession. To understand the reasoning furnished in the judgment of the learned Single Judge, it is necessary to examine paragraph 5 of the Settlement Scheme No. 1, on which reliance is placed, which is at page 270 of the old Manual. The relevant portion or this paragraph is reproduced below: --‑ "(c) An application on behalf of a deceased claimant, non‑claimant displaced person or local may be submitted by his successor‑in‑interest Provided that where there are more than one successors, the application may be submitted by them jointly." In the Press note dated the 19th of October, 1959, the definition of a "Claimant" as continued in the provision already cited was qualified and it was observed that "the revised definition also entitles the successors‑in‑interest of a claimant who died on or before the 31st August, 1959, to apply for compensation or for the transfer of property to them separately. They will now be treated as claimants in their own right and will be entitled to all the benefits accruing to a claimant. Previously the successors- in‑interest of a claimant were required to submit a joint application in Form A as well as apply for the transfer of only such property to them as the deceased claimant would have been entitled to, had he been alive: Under the revised definition the successors‑in -interest of a claimant are entitled to get compensation separately in respect of their shares in the claim." It is also pointed out by the learned Judge in Chambers that the definition of a "claimant" contained in clause (2) of section 2 of the Act is not exhaustive and that a variation is possible if the subject or context gives an indication to the contrary, as stated to the opening words of section

2. With all respect to the learned Judge, it seems to us that in the case of the respondent the definition of "claimant" has been extended beyond its scope. It is remarked in the impugned order that the respondent cannot be held to be a `claimant' but as one of the successors‑in -interest of her father, the respondent is a claimant for all practical purposes." The question which arises for determination is whether she could be considered to be a claimant for the transfer of the house in dispute under paragraph 1 of the Schedule. In her capacity as a successor‑in‑interest of her late father and not as a claimant in her own right (her father having died after the 13th of August 1959), she could get no greater right than the one possessed by her father. Could the father ask for the transfer of this house under paragraph 1 of the Schedule, which is worded as follows: --‑ "A house in possession of a claimant or a parent, son, daughter, or spouse of the claimant, being a house which such parent, son, daughter or spouse does not claim under the provisions of the Schedule, and if there is more than one such house then anyone of the houses which the claimant desires to retain, shall be transferred to him at a price determined on evaluation basis."

7. The admitted position in the present case is that the respondent was never in physical possession of the house, which could be made use of by her father for transfer of the house under paragraph

1. He had died on the 26th of November 1959. The notification of the 7th of March, 1960, under which she could be deemed to be in possession of the house of which her husband was the allottee and of which he could not, get possession, was not in existence during the lifetime of her father. Again, it is clear that one of the other conditions of the transfer in the case of the father of the respondent under paragraph 1 ibid needed to be satisfied which was that the daughter was not herself claiming the property under the provisions of the Schedule. She has asserted a claim to the property and it would be a mere surmise to say whether or not she would have claimed the property for herself as a non‑claimant displaced person, if not as a claimant. As the father could not get the property in dispute during his lifetime on the basis of his own possession or that of his daughter under the Act, the latter as his successors‑in‑interest could not assert any such right.

8. The learned Judge in Chambers has also considered whether the respondent was not entitled to the property under paragraph 2 of the Schedule as a non‑claimant, and the finding given by him is that there was nothing to prevent her from claiming the property under paragraph 2 of the Schedule to the Act as a non‑claimant in possession, because she is to be deemed to be in possession on account of the Government's notification of 7th March, 1960, as she was living with. her husband who, being an allottee of the house and who could not obtain possession of the house, is deemed to be in possession of it under the Central Government's Notification of the 11th of August 1960. The sole argument against her position as a non‑claimant is that she had not claimed the property in that capacity and, therefore, her claim as a. non‑claimant in possession cannot be considered. We feel that the argument of Mr. Brohi and Major Ishaq Muhammad Khan on this point proceed on a very high degree of technicality and, if allowed, would defeat the ends of justice. It is true that persons desiring the transfer o an evacuee property have to file their forms in different capacities, as claimants, non‑claimants and locals. But this does not mean that if a person files a claim form in the belief that he is a claimant, which he is unable to sustain, he should be precluded from pressing his claim for his alternative status as a l non‑claimant and that the Settlement authorities must also ignore it. She was undoubtedly a displaced person and if her possession of the house could be maintained by the fiction of law, as sought to be created by the two notifications, her claim should have received the attention of the authorities as a non‑claimant in possession of the house. The material question that arises in this respect is whether she can be deemed to be in possession as a result of the notifications which have already been reproduced above.

9. It was contended by the counsel for the appellant, and also by Major Ishaq Muhammad Khan, the learned counsel for the Chief Settlement Commissioner, that it was wrong to combine the two notifications to create the result as done by the learned Single Judge that while under the notification of the 11th of August, 1960, her husband is to be deemed to be in possession of the property in dispute and under the other notification the possession of the husband is to be deemed to be that of the wife, it follows that the wife must be deemed to be in possession under the effect of the two notifications. In our view, both the notifica tions have to be given their full effect and there would be no warrant for keeping them in watertight compartments for their own separate effect without reacting on each other. The phrase "shall be deemed"; which is frequently employed in legislation by statutes and in notifications creates a status or an attribute for a person or thing which is not intrinsically possessed by that person or thing on whom the conferment is made. The important H thing in this respect is not the meaning of the word "deemed" but the effect of it as used in the statute. Commenting on this fiction of law, as created by such deeming clauses, Lord Asquith of Bishopstone observed as follows in the case of East End Dwellings Co. Ltd. v. Finsbury Borough Council (Law Reports, House of Lords, 1952, page 132) :‑ "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences, and incidents which, if the putative state of affairs had in fact existed, must inevitably have Rowed from or accompanied it . . . . . . The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." It would be noted that the notification of the 7th of March, 1960, I had already made the possession of the husband as that of the wife in case she was living with him and the respondent was already possessed of that imaginary status when the notification of the 11th of August 1960, was promulgated, according to which the possession of the husband as an allottee of the house in dispute was to be deemed as an effective possession for transfer , of that house to him and as a logical corollary she could validly draw on that notification to maintain her claim. We see no rational basis for denying, her the advantage of the fiction or possession created in favour of her husband and of herself by the cumulative effect of the two notifications:

10. The result is that we hold that the respondent was a non‑claimant in possession of the property in dispute and was entitled to its transfer as such, on the prevailing market value under paragraph 2, of the Schedule. In view of this finding, it is not necessary to enter into the merits of the order of the Settlement authorities by which the property was transferred to the appellant in her capacity as an informer. We order accordingly. The appeals are dismissed with costs. K. B. A. Appeals dismissed.