1984 PLP 533 (SCMR)

MUHAMMAD YAQUB ALI, J.‑The subject‑matter of this appeal by spec leave of the Court is the transfer under the Displaced Persons (Compensation and Rehabilitation) Act of 1958, of Serai Hardit Singh bearing proper No. AA/265 situated on the Nehru Road, Rawalpindi. The thirty‑nine appellants are refugees from occupied Jammu Kashmir State. On Partition they migrated to Pakistan and took up resident in Gurdawara Damdama Sahib in Rawalpindi City. In 1955 the District Administration and the Rehabilitation authorities shifted them to Serai Hardit Singh. There are in all sixty rooms in the Serai. Out of these to rooms were in occupation of the Food Department and eighteen rooms i occupation of Messrs Dada & Co. owned by Yousuf Hussain Dad respondent No. I. They used these rooms for storage of grain. When the Settlement operations commenced in 1959, houses and shop in occupation of displaced persons from occupied Jammu & Kashmir Stat were under section 30 (5) of the Displaced Persons (Compensation any Rehabilitation) Act excluded from transfer. The subsection further provide that such displaced persons will continue in possession till their repatriation to their homes in occupied Jammu Kashmir State. Section 16‑B empowered the Chief Settlement Commissioner to draw up a scheme for temporary rehabilitation and settlement of the displaced persons from Jammu & Kashmir State in occupation of evacuee houses and shops. In pursuance of Settlement Scheme No. IV was issued in 1959. Paragraph 19 of the Scheme provided that "Houses and shops in possession of the displaced persons from the occupied Jammu and Kashmir will not be transferred to any person who was not a displaced person from the said State. Under paragraph 21 houses and shops in occupation of displaced persons from occupied Jammu & Kashmir were to be transferred to persons from the same territory. In case these houses and shops were not transferred they were to be disposed of in such manner and subject to such terms and conditions as may be prescribed by the Chief Settlement Commissioner. The conditions laid down at a later date made provision for auction of houses and shops in the occupation of the displaced persons from Jammu & Kashmir State by restricted auction. Respondent No. I filed at first a C. S. Form for the transfer of the entire Serai as shop to him. Later on he filed another C. H. Form for transfer of the residential portion of the Serai as a house. On 28‑5‑1962 the Deputy Settlement Commissioner transferred the entire Serai excluding the ten rooms in occupation of the Food Department to respondent No. 1 as a house. The remaining rooms were later on sold by public auction and purchased by respondents Nos. 2 and

3. This transfer was challenged by respondent No. 1 before the Settlement authorities but without success. P. T. D. in favour of respondent No. I was issued on the 30th March, 1963. The Scheme framed under section 16‑B of the Displaced Persons (Compensation and Rehabilitation) Act was declared by a Division Bench of the defunct High Court of West Pakistan as ultra vires of section 30 (Zainab Bibi v. Government of Pakistan (P L D 1962 Pesh. 101). No steps were, therefore, taken to dispose of temporarily houses and shops in occupation of displaced persons from Jammu & Kashmir. In the circumstances the appellants did not file any Settlement Form for transfer of the portions of Serai Hardit Singh in their occupation under Settlement Scheme No. IV. Subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was amended by Act X of 1903. Houses and shops in possession of Displaced Persons from occupied Jammu & Kashmir were now made available for disposal under Settlement Scheme IV framed in pursuance to section 16‑B. The appellants, however, could not file Settlement Forms under the Scheme as the entire Serai stood transferred to respondents Nos. 1 to

3. By a subsequent amendment made by Ordinance XIII of 1964 subsection (5) of section 30 was deleted altogether. The bar placed on transfer of houses and shops in occupation of displaced persons from occupied Jammu and Kashmir State was thus removed but it did not mean that claimants other than such displaced persons were made eligible for their transfer. On 25‑8‑1964 the appellants filed an appeal before the Additional Settlement Commissioner against the transfer in favour of the respondents Nos. 1 to 3 of the entire Serai on the ground that the orders of transfer were passed in violation of section 30(5) of the Displaced Persons (Compensation and Rehabilitation) Act. The appeal was dismissed on 6‑10‑1964 inter alia on the ground that the auction of ten rooms in favour of respondents Nos. 2 and 3 was earlier upheld by the Settlement Commissioner and for the remaining portion a P. T. D. had been issued in favour of respondent No.

1. The appellants thereupon filed a Revision Petition before the Chief Settlement Commissioner which too was rejected on 2‑11‑1964 on similar ground. Eventually the appellants filed a writ petition in the High Court challenging the legality of the orders passed by the Settlement authorities is breach of the provisions of section 30(3) of the Displaced Persons (Compensation and Rehabilitation) Act. There was evidence on the record to show that the appellants were displaced persons from occupied Jammu & Kashmir State and that they were shifted to Serai Hardit Singh by the District Administration and Rehabilitation authorities in 1955. The plea was rejected in the first instance by a learned Single Judge in the view that as the bar to the transfer of houses and shops in possession of the displaced persons from occupied Jammu & Kashmir State had been removed by the deletion of subsection, (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act the transfer made much earlier in favour of respondents Nos. 1 to 3 was validated. Further, appeal filed by the appellants was dismissed in limine by a Division Bench of the High Court on the short ground that as they did not file Settlement Form for transfer of the portions in their possession they had no locus standi to challenge the transfer in favour of respondents Nos. 1 to

3. Leave to appeal was granted to consider correctness of the grounds on which the writ petition was dismissed by the High Court. The deletion of subsection (5) of section 30 by Ordinance XIII of 1964 removed the bar to the transfer of houses and shops in occupation of displaced persons from occupied Jammu & Kashmir State. The proper effect of the deletion was to validate Settlement Scheme No. IV framed by the Chief Settlement Commissioner in pursuance to section 16‑B. As seen under that Scheme houses and shops in occupation of displaced persons from occupied Jammu & Kashmir State were not to be transferred to any person other than such displaced persons. If no such person was found eligible for transfer then the houses and shops were to be sold by restricted auction in which displaced persons from occupied Jammu & Kashmir State alone could participate. With the deletion of subsection (5) of section 30 the reason for which the Scheme was held to be ultra vires the Act no longer held good. It follows that the order for transfer of the rooms in occupation of the appellant to respondents Nos. 1 to 3 were in their inception illegal. The view expressed by the High Court that with the deletion of subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, transfer of the entire Serai in favour of respondents Nos. 1 to 3 was open to challenge rests on an erroneous view of the original provisions of sub section 16‑B and section 30(5) of the Displaced Persons (Compensation and Rehabilitation) Act and the amendments introduced by the two Ordinances referred to above. The amendment of 1963 and finally the deletion of subsection (5) in 1964 spelt out clearly the intention of the Legislature that possession of displaced persons from occupied Jammu & Kashmir State was not to be disturbed till repatriation. It could not therefore be reasonably inferred that with the deletion of subsection (5) houses & shops in possession of displaced persons from occupied Jammu & Kashmir State became available for transfer to claimants from other regions. No fault can also be attributed to the appellants for their failure to file Settlement Forms for transfer of the portions of Serai Hardit Singh in their possession. Up to 1964 there was a statutory bar contained in section 30(5) of the Displaced Persons (Compensation and Rehabilitation) Act to the transfer of the portions in their occupation. Settlement Scheme No. IV was framed in 1959 but the High Court bad held it to be repugnant to section 16‑B and section 30 (5). No steps were thereafter taken to implement the Scheme until the bar was removed by Ordinance XIII of 1964. In the circumstances it could not be said that the appellants had moved the Settlement authorities with inordinate delay for cancellation of the transfer in favour of respondents Nos. 1 to

3. There is another illegality in the transfer of the entire Serai to respondents Nos: 1 to

3. Under the Displaced Persons (Compensation and Rehabilitation Act only one house or shop could be transferred to a claimant, non‑claimant or a local in possession. The Serai in dispute consists of sixty rooms. Each room and shop constitutes a separate residential or commercial unit. The orders passed by the Settlement authorities for transfer of the entire Serai as, one house or one shop to respondents Nos. 1 to 3 were, therefore, void per se, A Serai is not a house or a shop within the definition of clauses (4) and (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act. It consists of a number of houses and shops and must be disposed of as separate residential and commercial units. Memorandum No. 4498‑RI. Reh. 60, dated the 9/10th of March, 1960 issued by the Chief Settlement Commissioner clearly laid down that evacuee Serais and Mandis consisting of more than one residential or commercial units will be disposed of separately on the same terms as houses and shops. The learned Single Judge ignored the memorandum with the observation that the instructions contained in it were `permissive'. This is not so. The word `may' is used in the memorandum in mandatory and not permissive sense. The clause 'may be disposed of makes it clear that where a Serai consists of more than one house or shop it is not to be disposed of as one single residential or commercial unit. A contrary interpretation would on its face be repugnant to the letter and spirit of the Displaced Persons (Compensation and Rehabilitation), Act. From the above discussion it follows that the orders passed by the Settlement authorities transferring the entire Serai Hardit Singh to respondents Nos. 1 to 3 are without lawful authority. Each portion in possession of the appellants constitutes a separate residential unit within the purview of Memorandum No. 4498‑RI‑Reh./60, dated the 9/10th of March, 1960 cited above and has to be disposed of as such under Settlement Scheme No. IV. For this purpose Settlement Forms should be called from the appellants by the Settlement Commissioner within a reasonable time from the date the records are received in his office. The appellants who are found to be displaced persons from occupied Jammu & Kashmir State should be transferred the portions in their possession on the prescribed terms and conditions. The transfer of the remaining portions in favour of respondents Nos. 1 to 3 shall not be disturbed at this late stage of the settlement operations. The excess price paid by them for transfer of the entire Serai shall be refunded to them propor tionately. The appeal is allowed in above terms leaving the parties to bear their own costs. S. Q. Appeal allowed.