P L D 1968 Lahore 1227 (PLP)

MUHAMMAD GUL, J.‑--The petitioner, a partnership firm, filed a claim in respect of a match‑factory owned by it in what is now India, for registration which was verified and then registered for Rs. 7,000, for which the petitioner was issued, under section 12(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act XXVIII of 1958), read with rule 4 of Displaced Persons (Application for Compensation) Rules, 1959, Compensation Book No. 299293/LHR‑II‑11088 for Rs. 4,700 for deferred payment under Schedule III and for Ra. 6,553 under Schedule IV. The petitioner, however, lost the compensation book along with certain other papers in the process of shifting its record from one building to another and all efforts to trace it have been in vain. The loss of the compensation book was reported at Police Station Old Anarkali, Lahore, on the 13th April 1963. A copy of the report is Annex. `A'. The loss was also notified in The Pakistan Times of the 4th April 1963. The petitioner then applied on the 17th September 1963, to the Deputy Settlement Commissioner (Accounts and Records) Egerton Road, Lahore, for the issuance of a duplicate compensation bo3k stating the circumstances surrounding its loss. The application was supported by affidavit (copy Annex. `D'). In the application as also the affidavit the petitioner undertook to surrender the duplicate if at any time the original was found.

2. After the lapse of about 2 years during which certain enquiries appear to have been made from the Deputy Settlement Commissioner concerned regarding the utilisation elf the compen sation book, the petitioner was ultimately informed by the Additional Settlement Commissioner (Accounts and Records) respondent No. 1, vide letter dated the 10th December 1965 (Anne. `E') that its request for duplicate compensation book has been "rejected after due consideration". Aggrieved by this refusal, the petitioner has moved this writ petition under Article 98 of the Constitution for (a) a declaration that the above refusal by respondent No. 1 is without lawful authority, and (b) a direction in the nature of mandamus requiring respon dent No. 1 to issue a duplicate compensation book to the petitioner. 3. in the report submitted by respondent No. 1, it was admitted that the petitioner has not utilised the compensation book for the grant of compensation in cash or in kind nor there was any allegation of its utilisation by any unauthorized person, Its loss was nest controverted either. Yet respondent No. 1 refused to issue the duplicate on the ground that the circum stances leading to the loss of compensation book showed‑ "Carelessness . . . . . . of (the petitioner) and as such there was no justification for issuing duplicate compensation book." It was also stated that the possibility of the lost compensations book being utilised by Bean unauthorised person . . . . at far flung stations" cannot be entirely excluded.

4. On the basis of above facts, it was urged by: M. Asadullah Siddique, learned counsel for the petitioner, that the loss of the compensation book riot being controverted, nor it being disputed that the petitioner did not utilize the compensa tion book for receiving compensation either in cash or in kind to which it had a statutory right under the provisions of the 1958 Act and the Rules framed thereunder, respondent No. 1 was under a legal obligation to issue duplicate compensation book tea enable the petitioner to receive the compensation of else its right to compensation will be frustrated and the petitioner would be relegated to the position of a non‑claimant. In support of his argument learned counsel relied upon an unreported judgment of this Court in Writ Petition No. 1392‑R of 1962, Muhammad Nishan Khan v. Chief Settlement and Rehabilitation Commissioner wherein a direction was issued to the respondent to issue second duplicate compensation book after the original and the first duplicate had both been lost. It seas pointed out by the petitioners' learned counsel that in the precedent case the Settle ment Department did not dispute its liability to issue a dupli cate in the event of loess of the original compensation book, and the question debated was the Department's liability to issue a second duplicate upon the loss of the original and the first duplicate. It was stressed by the petitioner's learned counsel that the High Court issued direction requiring respondent No. 1 to issue even the second duplicate. Finally, it eras argued that issuing Memo. No. 7223‑Comp‑Reh./59, dated the i6th November 1959, reproduced at page 80 of the Manual of Settlement Law and Procedure (Old Edn.) containing instruction ns regarding the issue of duplicate compen sation books, virtually amounts to an acceptance of this liability.

5. Major Ishaq Muhammad Khan appearing for the respon dents, on the other hand argued that under rule 4 of the 1959 Rules, the Settlement Authorities are under an obligation to issue only one compensation book to a claimant and there is nothing in the 1958 Act, the Rules requiring the Settlement Authorities either expressly or by necessary implication as a matter of legal obligation to issue duplicate compensation book upon the loss of the original. Learned counsel particularly based himself upon rule 5 of the 1959 Rules and argued that a compensation book having been issued to a claimant, rule 5 makes it a condition precedent that the compensation hook shall be produced by him before the Settlement Authority concerned" for obtaining compensation in any form. Learned counsel read the above requirement as mandatory admitting of no exception and impos ing no corresponding liability upon the Settlement Authorities to issue a duplicate compensation book upon the loss of the original.

6. Referring tee the Memo. No. 7223 of 16‑11‑1959, Major Ishaq Muhammad Khan argued that it cannot be read as imposing a legal obligation upon the Settlement Department to issue a duplicate compensation book upon tie loss of the original and that if in any case rte Settlement Authorities choose to issue a duplicate in pursuance of the above Memo., it was entirely in the nature of a concession ex gratin arid in no sense in discharge of any legal obligation. It was emphasised that the whole concept of grant of compensation to a displaced person is ex gratin grant to rehabilitate him in the economic life of the country and it would not be correct to read the provisions of the statute or the rules framed thereunder as indemnifying the losses suffered by him in property in India. It was, therefore, urged that the matter rests entirely within the discretion of the Settlement Authorities concerned, and in the instant case, respondent No. 1 after dire enquiry had reached the conclusion that the petitioner lost its compensation book owing to careless ness and, therefore, In his discretion decided not to issue compensation book to the petitioner. In this behalf learned counsel for the respondents also relied upon that part of the unreported judgment in the case of Muhammad Nishan Khan wherein the learned Judges observed that it was competent to the Settlement Department to lay down any conditions including the condition that it will issue a duplicate compensation book only if It was able to prove a bona fide loss of the original.

7. Finally, Major Ishaq Muhammad Khan rested his argument on what may be described as a plea of "inconveni ence". The argument was that if the right of a claimant for the issuance of a duplicate compensation book by the Settlement Authorities on the loss of the original is accepted without any limitation, it will entail bothersome inconvenience and expense to the Settlement Department besides multiplying the chances of unauthorized persons utilizing the compensation books who had been able to secure them by means of theft, fraud, deceit, etc. Learned counsel made a passing reference to the notorious fact that quite a large number of spurious compensation book are in circulation and many unwary persons and even the Settlement Department have been duped into accepting these fake compensation books as genuine.

8. For a proper consideration of the rival contentions of the parties' learned counsel it is necessary to keep clearly in mind the precise nature of the right created in favour of a claimant after the registration of his claim under section 12 of the 1958 Act, which, inter alia, provides for the determination of the amount of compensation on the basis of verification of claim under the Registration of Claims (Displaced Persons) Act, 1956. Section 15 of the 1958 Act provides for the scale, form and manner of payment of compensation, and is crucial on the question. For the material purpose it reads: "Section 15.‑(1) A claimant, other than a claimant convicted under section 14 of the Registration of Claims (Displaced Persons) Act, 1956, shall be entitled to receive payment out of the compensation and rent pools to the extent of the amounts shown in the certificates issued to him under subsection (2) of section 12, subject to such a scale of compen sation if any, as may be prescribed from time to time. (2) . (3) Subject to the provisions of this Act and the rules made thereunder, compensation may be paid in any one of the following forms or partly in one and partly in any of the other forms namely: (a) in cash; (b) by sale or by any other mode of transfer to the claimant of any immovable property out of the compensation pool, setting off the purchase money or the valuation of the property, as the case may be, against the compensation payable to him; (c) (omitted) (d) in such other form as tray be prescribed." The expression "claimant" has been defined in section 2(2) of the Act as under :‑ "'Claimant' means a displaced person whose claim (excluding claim in respect of agricultural land) has been registered under the aforesaid Act of 1956, and includes the successor‑in‑interest of a claimant who dies on or before the 31st day of August 1959 . . . . . . , ." It is manifest from the above two provisions read together that a displaced person whose claim after verification under the 1956 Act has been registered under section 12 of the 1958 Act and the Rules framed thereunder, acquires a vested right to receive payment out of the compensation and rent pools. The expression "shall be entitled to receive payment . . . . ." in section 15(1) plainly creates a vested rights, which is an antithesis of an ex gratia grant. Displaced Persons (Application for Compen sation) Rules, 1959, framed under section 35 of the 1958, Act are devised to effectuate the vested right created by the statute in favour of a claimant and being subordinate Legislature cannot be read so as to nullify or impair the right created by the statute. Under rule 3, each claimant is required to apply in Form 'A' within the specified time to the Deputy Settlement Commissioner of the area in which he resides. Rule 4 is in imperative terms and reads: "On receipt of an application under rule 3, the Deputy Settlement Commissioner concerned shall, after such verification of the entries made therein as he may deem necessary, prepare a Compensation Book (in triplicate) in Form "B" One copy of the Compensation Book will be supplied to the claimant concerned and one copy to the Settlement Record Section in the office of the Chief Settlement Commissioner, Lahore, and the third copy retained in the office of the Deputy Settlement Commissioner concerned. Any entries made in the Compensation Book without final verification will be indicated in a covering letter. Any entries subsequently verified will also be intimated to the claimant concerned and the Settlement Record Section." It was not controverted by the respondents' counsel that the require ‑went of this rule is mandatory. The Deputy Settlement Commis sioner is under a statutory obligation to issue compensation book 'in triplicate in Form "B", one of which is to be given to the claimant. In Mutter v. Eastern Midland Railway ((1888) 38 Ch. D 92), the right of shareholder to "inspect and peruse" a register of debentures stock vide Companies Clauses Act, 1863, was held impliedly to carry with it the right to take copies. It was held in that case that but for this extended interpretation the words "inspect and peruse" in the enactment would confer a mere illusory right. On a parity of reasoning therefore, the right of claimant to the issuance of compensation book to him would include by implication a right to obtain a duplicate on the proof of the bona fide loss of the original. And indeed, this interpretation finds ample support in Memo. No. 7223‑Comp.-Reh./59, dated the 16th November 1959, printed at page 80 of the Manual 61 Settlement Law and Procedure ;Old Edition) which prescribes a procedure for the issue of duplicate compensation book in the event of the loss of the original by the claimant. By this nemo the Settlement Department has undertaken the obliga tion to issue duplicate compensation book upon certain condi tions being satisfied. In this Memo., the Deputy Settlement Commissioner (Accounts and Record Office) is obliged to mane certain enquiries which obviously are intended to consider the bona fide nature of the request for the duplicate It is not disputed that these conditions are satisfied in the instant case. Therefore, even if there is no express rule requiring the Settlement Authorities to issue a duplicate compen sation book on the loss of the original, that obligation is clearly implied in the very nature of the right created in favour of a claimant displaced person under the statute and rule 4 which imposes the corresponding obligation upon the Settlement Authorities. If, as canvassed by learned counsel for the respon dents, the issuance of a duplicate compensation book even on the loss of the original is left to the discretion of the Settlement Authorities, then the vested right created in favour of claimant to receive compensation, would become illusory.

9. Even ore general principles of interpretation of statutes, tire 1958 Act according to its preamble being plainly remedial, intended to provide for compensation to displaced persons who abandoned property in India in tile wake of Independence or its aftermath, with a view to rehabilitating them in the economic of the country, it is our "duty" to place such construction on its provisions which will advance the remedy. In such cases

"Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to tire words, if they are fairly susceptible of it." Maxwell on Interpretation of Statutes, 1962 Edn., p. 66.

10. Nothing, in our opinion, turns on rule 5 of the 1959 Rules, upon which respondents learned counsel laid great stress during his argument. The rule reads‑ "Copy of the Compensation Book issued to the claimant shall be produced by him before the Settlement Authority concerned whenever he obtains compensation in any form for making entries therein in the appropriate place. If an entry is made by a Settlement Authority other than the Deputy Settlement Commissioner who issued the Compensation Book, necessary intimation to this effect shall be sent by that autho rity to that Deputy Settlement Commissioner in addition to the Settlement Record Section." Learned counsel laid emphasis on the words "shall be produced by him" and argued with certain amount of earnestness that these words make it a condition precedent for a claimant to produce his compensation book for making the necessary entries therein before he obtains the compensation. The argument was, that unless a claimant, to whom a compensation book has once been issued, is able to satisfy the above condition precedent, he is not entitled to obtain compensation, and further if he has lost it, he cannot as a matter of legal obligation require the Settlement Department to issue him a duplicate to enable him to satisfy the above condition precedent. The argument in our opinion is wholly inapt, for in our opinion the words "shall be produced by him" are used entirely in the sense of simple futurity without intending that a failure to produce it would nullify his claim. Such an interpretation of rule 5 would not only be pedantic, but wholly incongruant to context in which the words occur and the general purpose or intendment of the parent statute.

11. We are thus clearly of the view that section 15 of 1958 Act read with rule 4 of 1959, Rules on its proper construction imposes a legal obligation upon the respondents to issue a dupli cate upon the proof of bona fide loss of the original. This C interpretation is more just, equitable and in accord with the general intendment of the statute, than the interpretation convassed on behalf of the respondents.

12. It yet remains to notice the last link of the argument on behalf of the respondents resting on the plea of "inconvenience" tea the Settlement Department and the possibility of the compen sation book falling into unauthorised hands. All that we need say is that plea of inconvenience has never been allowed to prevail D against what has been ordained by the statute whether expressly or by necessary implication. It was not controverted before us that a claimant has a vested right to receive compensation out of the relevant pool. The right is created by the statute and the compensation book is a mere compendious statement to be used as a handy evidence at a glance to enable the Settlement Depart ment to discharge its obligation. In that respect, it is not dissimilar from the "pass‑book" issued to a depositor of a saving bank account. The right of the depositor from his account arises E from the deposit itself and not from the entries in the pass‑books or even the account‑books. Loss of the pass‑book or even the account‑books would not frustrate the debt, fear the books are merely evidence of the debt. The Past Office Act and the Rules framed thereunder do not provide for the issue of a duplicate pass‑book in the event of the loss of the original by the depositor in a Post Office Saving Bank and yet nobody has thought of refusing a duplicate to the depositor on the proof of bona fide loss of the original, on the ground of inconvenience or a possibility of fraud by an unauthorised person who might have found the original pass‑book or made away with it. A duplicate pass‑book is issued to the depositor to avoid the cumbersome process of proving the debt by secondary evidence. It may be that the nature of claim of a depositor against his banker is not exactly the same as that of a claimant against the compensation pool, but the extension of the principle applicable to the relationship of creditor and debtor to the case of a claimant who has lost his compensation book may not altogether be inapt. On the face of it, there does not appear to be any insurmountable hurdle in the way of a claimant who has lost his compensation book to obtain compensation on the basis of secondary evidence of a certified claim in respect of which he was duly issued compensation book but which owing to a fortuitous circumstances is not available. In this respect there appears to us, a strong analogy between the case of a claimant, a depositor and drawee or holder of a pronote each of whom may have lost the document which merely was an evidence of his claim.

13. In the course of his argument, Major Ishaq Muhammad Khan adverted to the risk involved in issuing a duplicate. It was stated that although under rule 5 a Settlement Authority other than one woo issued the compensation book is required to inform the Deputy Settlement Commissioner who issued the compensation book and also the Settlement Record Office of the entry made by him in the compensation look issued to the claimant and who has obtained compensation, in point of fact it is seldom done. The result is that record in the Settlement Record Office remains incomplete and there is always a risk of issuing a duplicate for the entire amount of compensation book for which the claim was originally registered although it had been partially satisfied, and entry with regard to which was made only on the compensation book issued to the claimant which has since been lost. We wonder if the argument was intended to be pressed seriously: on no discoverable principle can the respondents make their own dereliction of plain duty an excuse for their refusal to perform their obligation which would ultimately frustrate the statutory right of the claimant who may have lost his compensation book. The plea is opposed to prin ciples of justice, equity and good conscience, and we have no hesitation to reject it.

14. The upshot of above discussion is that the respondents are under a legal obligation to issue a compensation book on the proof of the bona fide loss of the original which condition is amply satisfied in this case.

15. The question of appropriate relief to the petitioner also needs to be considered. Of the two reliefs claimed to which refer ence has been made earlier, a declaration in the nature of certiorari would hardly be appropriate, for there is no dispute as to facts and the duty performed by the respondents is not judicial or quasi‑judicial to determine those facts for the appropriate relief to the petitioner. The duty performed by respondent No. 1 is essentially ministerial for which a direction in the nature of mandamus will be the only appropriate remedy. Ferris in Extra ordinary Legal Remedies, 1926 Edn., at p. 224 observes: "It is well to remember that mandamus will not be issued except in a very strong case, as it is an extraordinary remedy and the judiciary i5 loathe to interfere with the exercise of official duties unless some specific act or thing which the law requires to be done has been omitted. The writ is only issued when the ministerial duty sought to be enforced is simple and definite, arising under conditions admitted or proved, and imposed by law, the test being not the power of the Court to issue it, but the propriety of its issuance in the light of a wise discretion, it is a legal duty coupled with a pecuniary loss to plaintiff, which cannot be compensated by damages, that is usually necessary to make out a prima facie case founded on substantial right." All these conditions are amply satisfied in the instant case.

16. For the foregoing reasons, we hereby accept the writ petition and direct respondent No. 1 to issue duplicate compen sation book with all reasonable despatch is respect of the registered claim of the petitioner. Respondent No. 1 will, however, be at liberty to require the petitioner to furnish indemnity bond to indemnify the Chief Settlement Commissioner (respondent No. 2) against any loss suffered by him on account of the issuance of the duplicate as directed hereunder. In the circumstances of the case we make no order as to costs. A.B. Petition accepted.