P L D 1966 (W (PLP)

(3) that, in the alternative, the proceedings having been initiated in 1960 on a reference by the Director of Enforcement, they are not governed at all by the notification of the Central Government dated the 1st of September 1961 but by a Press -note of the 29th of September 1960, and as conditions laid down in that Press‑note are not present in the instant case, the transfer in favour of the petitioner could not be cancelled ; and (4) that in any case, the transfer of the bungalow in dispute in favour of the petitioner could not be described as irregular within the meaning of that term as defined in paragraph 1 (c) of the Notification dated the 1st of September 1961 for the reason that the petitioner was in possession of a part of this bungalow and accordingly entitled to its transfer as a whole,

4. A preliminary objection was taken by Mr. Karam Elahi Chohan, the learned counsel for respondent No. 2, to the effect that the petitioner was not entitled to raise the question of jurisdiction in the present proceedings for the reason that he had not done so before Sh. Muhammad Rafiq, who passed the impugned order, and in support of this contention reliance was placed on Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner, Lahore, (P L D 1964 S C 829). In That case their Lordships observed "that 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 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 lacked the jurisdiction it purported to exercise." In reply, it was stated by Sh. Khurshid Ahmad, the learned counsel for the petitioner, that the question of jurisdiction was raised before Sh Muhammad Rafiq by Sardar Muhammad Iqbal, Advocate, since elevated to the Bench, who had appeared for the petitioner in those proceedings but unfortunately Sh. Muhammad Rafiq had not noticed this contention in his order under challenge. In support of this statement an affidavit of the petitioner was placed on the file. As I did not see any reason not to accept the affidavit of the petitioner on this point, I permitted Sh. Khurshid Ahmad to argue the question of jurisdiction.

5. The contention that the notification issued by the Central Government on the 1st of September 1961 has ceased to have any legal sanction after the amendment of section 10 (b) of the Act by Ordinance II of 1962 has to be accepted in view of the dictum of their Lordships of the Supreme Court in Muhammad Siddiq v. Chief Settlement and Rehabilitation Commissioner (P L D 1965 S C 123). After reproducing the newly added subsection (2) of section 10 of the Act which has replaced the old clause (b) of that section, their Lordships have observed that : "Henceforth 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, as it then stood, had lost its efficacy."

6. The question, however, is whether the proceedings which were initiated against the petitioner before the amendment of section 10 (b) of the Act could be continued or not. It was contended by Mr. Karam Elahi Chohan that even though Ordinance II of 1962 did not contain any saving clause in respect of pending proceedings, the situation was governed by section 6 of the Central General Clauses Act. A similar argument was raised before their Lordships of the Supreme Court in Muhammad Siddiq's case, but the point was not decided for the reason that their Lordships observed that even assuming for the sake of argument that this contention was correct, they found that the transaction in dispute did not amount to an irregular transfer.

7. It seems to me that section 6 of the General Clauses Act does apply in the present case. As held by a Division Bench of Con this Court in Messrs Nawa‑i‑Waqt Publications Ltd. v: Messrs Lakshmi Insurance Company (P L D 1959 Lah. 989): "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. The only provision of the General Clauses Act, 1897, which deals with the effect of the repeal of an enactment followed by its re‑enactment with modification is section 24 but as that section says nothing about the point that falls for determination in the present case, nor does any other provision of the General Clauses Act, 1897, it may be safely inferred that the Legislature intended to place repeal of an enactment, and the repeal of any enactment and its re‑enactment with or without modification, on the same footing for purposes of the matters dealt with in section 6 of the General Clauses Act."

8. The only question which needs to be answered in this behalf is whether there is a contrary intention, explicit or implied, appearing in the re‑enacted provision. Such a contrary intention cannot be inferred from the mere omission of a saving clause in the amending Ordinance, for that omission is easily explained by the presence of section 6 itself of the General Clauses Act. It was, however, contended by Sh. Khurshid Ahmad that as the new subsection (2) of section 10 of the Act, which had taken the place e of the old clause (b) of the same section, was redically different from the old provision, therefore, there was an implied intention on the part of the Legislature to lay down that pending proceeding shall abate. The learned counsel elaborated the differences between the old and the new provisions, but it is not necessary to dilate on them for, in my opinion, the mere fact that the new provision is radically different from the old, does not necessarily lead to the inference that the Legislature intended to express an intention to the effect that pending proceedings shall not survive in terms of section 6 of the General Clauses Act. Whenever there is repeal of a Statute, followed by re‑enactment, the possibility of a radical alteration in the substance and content o the law cannot be ruled out, but merely because of this alteration it cannot be said that the Legislature has expressed its intention that all rights and liabilities accruing under the repealed legislation must automatically disappear. In the presence of section 6 of th General Clauses Act, such an intention must appear, explicitly or by necessary implication from the repealing or the re‑enacting legislation; otherwise it must be presumed that the Legislature, being aware of the provisions of section 6 of the General Clause Act, did not intend to interfere with the operation of that section. I consider, therefore, that even after the repeal and re‑enactment of the old section 10 (b) of the Act, in a radically amended form, proceedings against the petitioner could continue by virtue of clauses (c) and (e) of section 6 of the General Clauses Act, as no intention to the contrary can be spelt out of the amending Ordinance.

9. At this stage, it would be convenient to dispose of the third contention raised by Sh. Khurshid Ahmad, namely, that the proceedings taken against the petitioner having been initiated in 1960, could not, in fact, be regarded as proceedings under the notification of the 1st of September 1961, but must be regarded as falling under the Press‑note issued by the Chief Settlement Commissioner on the 29th of September 1960. This Press‑note is printed at pages 166 and 167 of the old Manual of Settlement Law and Procedure, and a perusal thereof shows that i t was issued by the Chief Settlement Commissioner on his own authority. The Press‑note itself does not indicate the provision of law under which it was issued, but it is clear that at the relevant time it was only clause (b) of section 10 of the Act which could have been invoked for the transfer of evacuee properties to informers. According to section 10 (b), however, such manner of disposal had to be approved by the Central Government, but the Press- note does not purport to have been issued with the approval of the Central Government and, therefore, it seems to me that it cannot be regarded as having any legal sanction behind it. Such being the case, any proceedings initiated under the terms of the Press‑note could not have any binding legal effect in so far as the transfer of property to informers is concerned. Now, in the o present case, the proceedings were, no doubt, initiated by the Director of Enforcement, in November 1960, but no effective action was taken by any authority until the 20th of February 1962, when Sh. Muhammad Rafiq passed on order summoning the parties and the records. At that time, the Central Govern ment's order dated the 1st of September 1961 had already been promulgated, and as the earlier Press‑note appears to me to be without any legal sanction, I am of the view that the proceedings in fact taken against the petitioner by Sh. Muhammad Rafiq must be deemed to be proceedings under the notification of the 1st of September 1961. On this view of the matter it is not necessary to examine whether the conditions laid down in the Press Note of the 29th of September 1960, are fulfilled or not in this case.

10. I now take up the second contention raised by the learned counsel for the petitioner, viz., that even if the proceedings initiated against the petitioner could be deemed to continue under the Central Government's Notification of the 1st of September 1961, the order passed by Sh. Muhammad Rafiq would still be without jurisdiction for various reasons.

11. One of the reasons urged by the learned counsel in this behalf is that, as the records in this case had not been called before the 13th of January 1962, the revisional power vesting in the Chief Settlement Commissioner under the original sub section (2) of section 20 of the Act could not be exercised in view of the omission of this subsection by the amending Ordinance II of 1962 read with Ordinance XIII of 1962. I have already stated that although the inquiry against the petitioner had been initiated by the Director of Enforcement by his letter dated the 10th of November 1960, yet no effective order was passed by any authority until the 20th of February 1962, when Sh. Muhammad Rafiq directed that the records be made available at Lyallpur on the 28th of February 1962, and the parties be also summoned for that date. It is true that on an earlier date viz., the 27th of May 1961, the Chief Settlement Commissioner, Mr. Ahsanuddin, had passed an order entrusting this case for disposal to Mr. Farzand Ali Khan, Settlement Commissioner, yet that order does not amount to summoning the records of the case. It is, therefore, clear that for the first time such an order was made by Sh. Muhammad Rafiq on the 20th of February 1962, that is, subsequent to the 13th of January 1962. It is, therefore, clear that if Sh. Muhammad Rafiq purported to act as a Chief Settlement Commissioner under the original subsection (2) of section 20 of the Act, then his order was without jurisdiction in view of the provisions of the two Ordinances mentioned above.

12. However, in the report submitted by the Settlement Department as well as in the arguments advanced on behalf of the contesting respondent, Mst. Janat Bibi, the position taken up is that Sh. Muhammad Rafiq was not acting as a Chief Settlement Commissioner, but merely as a Settlement Commissioner specially empowered in this behalf under subsection (3) of section 20 of the Act. In support of this position reliance was placed by Mr. Karam Elahi Chauhan on an order issued by the Chief Settlement Commissioner on the 4th of May 1962 and bearing No. 2323‑AD Reh/62 to the effect that "Sh. Muhammad Rafiq, Settlement Commissioner will deal with all cases under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, as amended upto date, which are referred to the Settle ment Authority by the Director of Enforcement, of the informants irrespective of the area to which they belong." From this order it is clear that, in the present case, Sh. Muhammad Rafiq was exercising revisional powers under subsection (3) of section 20 of the Act read with the Central Government Notification of the 1st of September 1961.

13. However, it was next contended that in view of the definition of the term "irregular transfer" as given in clause (c) of paragraph (1) of the Notification, the learned Settlement Commissioner had no jurisdiction to determine the question whe ther the transfer made in favour of the petitioner was irregular. In order to appreciate this contention, it is necessary to reproduce here clause (c) of paragraph 1 of the Notification in question "Irregular transfer" 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 mala fide or was not made in accordance with the provisions of the said Act or the Schemes made there under or suffers from a patent error or defect." The argument of the learned counsel is that, according to this definition of the term irregular transfer, it is only the Chief Settlement Commissioner who has to form the necessary opinion, and this duty cast on the Chief Settlement Commissioner, or the power vesting in him, could not be delegated by him to any of his subordinates ; and that in any case it has not in fact been so delegated to the learned Settlement Commissioner who passed the impugned order in this case.

14. It is no doubt correct that according to the definition of the term, "irregular transfer" does mean a transfer about which the necessary opinion has to be expressed by the Chief Settlement Commissioner, and it is also true that no order has been passed by the Chief Settlement Commissioner expressly delegating his power under this definition clause to Sh. Muhammad Rafiq or to any other Settlement Commissioner. I see no substance in the contention that this duty or power could not be delegated by the Chief Settlement Commissioner to Sh. Muhammad Rafiq or to any other Settlement Commissioner, In this definition clause the Chief Settlement Commissioner is not made to act as a delegate of the Central Government; on the contrary, it is a duty cast on him and a power given to him like so many other duties and powers entrusted to him under the Act. Such being the case, there could be a delegation to this behalf under subsection (2) of section 31 of the Act but of course, no such delegation has been expressly or separately made by the Chief Settlement Commissioner. The question, therefore, is whether a Settlement Commissioner specially empowered to deal with cases reported Ly the Director of Enforcement would have the authority or jurisdiction to decide the question whether in a particular case the transfer was irregular or not.

15. It seems to me that the answer to this question is to be found not merely with reference to the definition of the term "irregular transfer", but with reference to the provisions of the Notification read as a whole. After defining various terms, the Notification proceeds to prescribe the procedure for dealing with cases of irregular transfers. Paragraph 2 contemplates that any person may on plain paper submit information regarding any hidden property or irregular transfer to the Director of Enforcement (Evacuee Property and Claims. This paragraph also enjoins the informant to endorse a copy of his information to the Chief Settle ment Commissioner who shall maintain a record of such cases and watch their progress. Paragraph 5 lays down that the Director of Enforcement shall investigate and record or cause to be investigated and recorded the correctness of the information, and the Director or other person making the investigation may also add to the record his own discoveries made during the. investigation Then comes paragraph b which provides that‑ "If as a result of the investigation the Director of Enforce ment has reason to believe that the information is correct in material respects, he shall, subject to the directions, if any, of the Central Government or the Chief Settlement Commissioner, apply for the revision or review of the final order passed by a Custodian, a Rehabilitation Authority or a Settlement Authority or take any other action authorised by law. While making such application to a Settlement Authority he shall also name the first informant who had furnished substantial information." Paragraph 7 of the Notification enjoins the Settlement Authority, to whom such application is made, to hear the interested parties in the presence of a representative of the Director of Enforcement. Paragraph 8 then authorises the said Authority to pass such orders as it deems fit, and also to order the prosecution of any person who in its opinion is liable to be prosecuted under the law. Paragraph 9 confers power on the Settlement Authority, dealing with the case, to order the transfer of the property to the inform ant provided he is otherwise entitled to the same under, the law. Paragraph 10 declares that any dispute as to who is the first informant in a particular case shall be decided by the aforesaid Settlement Authority, whose decision shall be final. The last and the 11th paragraph of the Notification provides that the Chief Settlement Commissioner may, from time to time, direct the Director of Enforcement to submit to him periodical reports and returns relating to the work done by the Director under this order so as to enable the Chief Settlement Commissioner to watch the progress of the work.

16. From the operative provisions of the Notification o the 1st September 1961, as mentioned above, it follows clearly that, from the moment a report is made by the Director of Enforcement, the case has to be dealt with and decided finally by the Settlement Authority concerned who has the power of revision or review of the final order which is sought to be challenged by the informant. The term "Settlement Authority" has been defined in clause (d) of paragraph 1 of the Notification as meaning an officer appointed under section 9 of the Act. This section contemplates the appointment of a Chief Settlement Commissioner and such number of Settlement Commissioners, Additional Settlement Commissioners, Deputy Settlement Com missioners, Assistant Settlement Commissioners and any other officers as may be necessary for the performance of duties and F functions assigned to them by or under the Act. It would be, seen, therefore, that all the functions of adjudication and decision necessitated by the various provisions of the Notification of the 1st of September 1961, have to be performed by the relevant Settlement Authority. If the contention advanced by the learned counsel for the petitioner, viz., that it is only the Chief Settlement Commissioner who could form an opinion about the irregular nature of the transfer, is accepted, then all proceedings before the relevant Settlement Authority would be stultified and become meaningless, as the said Authority would stand deprived of the power to decide the basic question raised by the Director of l Enforcement as a result of the investigation carried out by him on the basis of the information received. I think, such a position cannot be accepted, for it would render unworkable the entire machinery set up by the Notification.

17. The Notification of the 1st of September 1961 is in the nature of a statutory order issued by the Central Government under the provisions of section 10 of the Act and accordingly it would be permissible to apply to its construction the principles which would normally obtain in the matter of interpretation of statutes: (see Maxwell on the Interpretation of Statutes, pp. 50‑51, Ed. X). Now one of the established principles is that construction is to be made of all the parts together and not of one part only by itself. Another principle is that an interpretation which leads to a manifest absurdity or repugnance or to injustice or inconvenience is to be avoided. Viewed in the light of these principles, it seems to me that the definition clause in paragraph 1 of the Notification cannot be used to nullify all the other provisions of the same Notification and, therefore, it would be reasonable to hold that when the Government indicated that in a matter of irregular transfer the opinion is to be formed by the Chief Settlement Commissioner, it intended, by the subsequent provisions of the same Notification, to provide that this duty could be performed by the Settlement Authority to whom the Director of Enforcement may apply for a revision or review of the case, and the Chief Settlement Commissioner shall keep a general watch over the progress of such cases. This position seems to emerge directly from the provisions contained in paragraphs 6, 7, 8, 9, and 10 of the Notification, which provides an elaborate procedure for the hearing of interested parties by the Settlement Authority concerned, and also lay down that the decision of the Settlement Authority shall be final in certain matters. These paragraphs make it abundantly clear that the Settlement Authority concerned is to exercise its powers of revision or review and to pass such order as it may deem fit. These powers cannot be exercised if the Settlement Authority is not competent to form an opinion on the question whether the transfer challenged by the informant is regular or irregular. It would thus appear that the intention of the Central Government has not been very happily expressed in clause (c) of paragraph 1 of the Notification, but there can be no doubt about this intention, namely, that the Settlement Authority concerned would be competent to decide this), question.

18. Another way of looking at the matter would be that once the Chief Settlement Commissioner has designated a specified Settlement Authority for dealing with cases arising under the] Notification, that order must be deemed to include a delegation by the Chief Settlement Commissioner of the power vested in him under the definition clause. On this view also the designated Settlement Authority would be able to decide the question of irregular transfers.

19. For these reasons I am inclined to the view that, in this case, Sh. Muhammad Rafiq, Settlement Commissioner had the jurisdiction to give a final decision on the reference made to him by the Director of Enforcement on the basis of information received from respondent No. 2, namely, Mst. Janat Bibi, alleging that the transfer in favour of the petitioner was irregular.

20. The last point which needs to be considered is whether the transfer of the bungalow occupied by Ch. Jalal Din Advocate, in favour of the petitioner could be described as irregular within the meaning of that term as defined in paragraph 1 (c) of the Notification. It is contended by Sh. Khurshid Ahmad, the learned counsel for the petitioner, that the petitioner was in possession of a part of this bungalow and accordingly he was entitled to its transfer as a whole, and that the Deputy Settlement Commissioner, who passed the order of transfer in favour of the petitioner on the 10th of February 1960, was within his jurisdiction in doing so, as it was open to him to treat the entire property as one house in accordance with the legal definition of the term "house" as given in clause (4) of section 2 of the Act.

21. The definition of the term "irregular transfer" has already been reproduced in an earlier part of this judgment, and it would be recalled that, according to this definition, irregular transfer means a transfer which was made mala fide or was not made in accordance with the provisions of the said Act or the Schemes made there under or suffers from a patent error or defect. The question is whether the transfer made in the present case falls within any of the clauses of this definition.

22. The spot inspection carried out by Sh. Muhammad Rafiq showed that the entire property bearing No. P‑143 consisted of three independent units, viz., the dairy farm of the petitioner and two residential bungalows occupied by two local advocates. The bungalow now in dispute was occupied by a Hindu Lawyer named Lakhmi Das in the year 1928 when the petitioner first started his dairy business in this property. Since 1928 the bungalow and the dairy farm remained as distinct and independent properties and the petitioner was never in possession of any part of the bungalow. This finding of fact recorded by the Settlement Commissioner clearly shows that the petitioner was not entitled to the transfer of the bungalow as it was separate and independent from that part of the property on which his dairy farm was located.

23. Further, in the CH and KCH forms filed by the petitioner the request made was only for the transfer of the property in his possession, as is evident from the fact that against question No. 10 of the application, viz., whether the house or part thereof is in the occupation of any person other than the applicant and his family, the petitioner clearly stated that he alone was in possession of the same. If it was his intention to apply for the bungalow which was in the possession of a local advocate, the petitioner was bound to mention the name of the occupant thereof. But he did not do so. It is, therefore, clear that he was making an application for the transfer of only that portion of the property which had been in his possession all along for the purposes of his dairy farm. This fact is further clear from the amount of rent mentioned by him against questions Nos. 12 and 13 of the application. Against these questions he has indicated a monthly rent of Rs. 13 and an annual rent of Rs.

156. This rent, admittedly, relates only to the dairy farm, and does not cover the bungalow occupied by Ch. Jalal Din and transferred to the petitioner by the learned Deputy Settlement Commissioner.

24. From the facts and findings mentioned above, it is clear that the bungalow in dispute and the dairy farm of the petitioner are two distinct and independent properties, and that the petitioner never applied for the transfer of the bungalow. In these circumstances, the transfer of the bungalow to the petitioner was clearly against the provisions of the Act and also suffered from a patent error or defect. A property for which the petitioner had not at all applied in his CH or KCH form, could not have been transferred to him under the provisions of the Act. l This was, therefore, clearly an irregular transfer and liable to be set aside.

25. To sum up my conclusions in this case are that in spite of the repeal of section 10 (b) of the Act, proceedings under the Central Government Notification of the 1st of September 1961, could continue under clauses (c) and (e) of section 6 of the General Clauses Act; that Sh. Muhammad Rafiq, the learned Settlement Commissioner, acted in this case under subsection (3) of section 20 of the Act read with the Notification in question; that on a true construction of the various provisions of the Notification the learned Settlement Commissioner had the jurisdiction to decide whether the transfer of the bungalow in dispute in favour of the petitioner was irregular or not: and that, finally, the transfer was indeed irregular for the reasons that the bungalow was distinct and independent from the dairy farm of the petitioner, and the latter had never applied for the transfer of the bungalow in his CH or KCH form, and he had never been in possession of the same. The transfer was, therefore, rightly set aside on a reference made by the Director of Enforcement. No justification is thus made out for interference by this Court.

26. Before parting with this case I would like to add that even if I had accepted the contentions of the petitioner on the questions of jurisdiction and lapsing of all proceedings falling under the Notification of the 1st of September 1961, I would not have been inclined to grant any relief to the petitioner for the reasons that he was never in possession of the bungalow, he never applied for the transfer of the same, and it does appear to be separate and distinct from the petitioner's dairy farm.

27. As a result, the petition fails and is hereby dismissed with costs. K. B. A. Petition dismissed.