P L D 1966 Supreme Court 817 (PLP)

S. A. RAHMAN, J.‑The question raised in this appeal concerns the interpretation of the phrase "final order", occurring in the Pakistan Government Notification No. F. 1(27) 59‑SI, dated the 13th October 1959, issued under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). The question has arisen in the following circumstances: The appellant, who is a local, was in part‑possession of a premises in Ramgarh, Moghalpura, Lahore, On the authority of an allotment chit, issued to him on the 18th September 1947. The house is valued at less than Rs. 10,000 and it was the appellant's case that he was entitled to its transfer under the Schedule to the Act, by virtue of being an allottee of the house. He, therefore, submitted LH Form to the Settlement authorities. The first respondent, Muhammad Sharif, who was also in part possession of the house and is a claimant displaced person, filed a CH Form on the 12th of February 1960, asking for the transfer of the house to him. He had no allotment order in his favour. The Settlement authorities transferred the whole house to the respondent. The appellant then moved the High Court of West Pakistan for redress in writ jurisdiction but his petition was dismissed by a learned single Judge who purported to follow a Full Bench decision of the High Court, reported as Mst. Noor Jahan Begum v. Settlement and Rehabilitation Commissioner, Karachi and others (P L D 1963 Kar. 726). The learned Judge had himself taken a different view of the legal position in an earlier case, published as Muhammad Iqbal Khan v. The Chief Settlement and Rehabilitation Commissioner (P L D 1963 Lah, 1). His decision in the instant case was affirmed by a Letters Patent Bench of the High Court, on appeal. As the respondent was not an allottee, the point arose whether a local who was an allottee was in a preferential position, as against a claimant in occupation, without an allotment in his favour. The point being one of general importance, leave to appeal was granted to consider it. The notification which calls for interpretation may be reproduced in extenso:‑ "No. F. 1(27)/59‑SI, 13th October 1959.‑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 direct that a claimant, a non claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty‑first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day: Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such amount is adjusted against his claim." This notification has reference to the definition of "possession" given in section 2(6) of the Act, which reads as follows:‑ "'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 any other officer authorised or permitted by the Central or Provincial Government: Provided that if a question arises whether an officer was so authorized 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." It is not denied that the respondent was in undisputed occupation of a part of the house in question, since before the 21st day of December 1958. It is, however, contended, on behalf of the appellant, that he does not satisfy all the conditions of the notification, in so far as the appellant must be held entitled to the transfer of the house in question, in pursuance of a "final order, passed by a competent authority" before the relevant date, namely, the allotment' order in his favour. It is thus sought to be argued that th6' words "final order", occurring in the notification, must be equated with "allotment order". It may be necessary, at this stage, to briefly comment on the Scheme of the Act, with regard to transfer of evacuee properties. Section 3 of the Act enables the Central Government, or, under its direction the Government of West Pakistan to issue a notification for acquisition of all evacuee properties within the Federal Capital or the Province of West Pakistan, as the case may be. Such a notification was issued on the 1st of August 1959, by the Provincial Government and all immovable property, situate within the Province of West Pakistan, other than‑ (i) agricultural land; (ii) property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of evacuee property in Pakistan, has been accorded before the date of this notification; (iii) property with regard to which any proceedings are pending on the date of this Notification under the Pakistan (Administration of Evacuee Property) Act, 1957, before a Custodian; and (iv) property situated within the limits of the Murree Municipal Committee and the Murree Cantonment Board; stood acquired by virtue of this notification. Section 4 of the Act provides that for the purpose of payment of compensation to claimants in respect of immovable property other than agricultural land, a compensation pool shall be constituted comprising, inter alia, of all evacuee property acquired under section 3. Similarly under section 5, a rent pool for the purpose of payment of compensation to claimants in respect of unrealized rent of or income from immovable property, other than agricultural land, left in India, had to be set up and this would include, inter alia, rents realised from immovable evacuee property other than agricultural land profits and income received from such property, arrears of rent and such contribution, not exceeding ten crores of rupees, to be made by the Central Government from the compensation pool constituted under section 4. Section 6 enacts that for the purposes or rehabilitation of displaced persons other than claimants, a rehabilitation pool consisting of such contribution not exceeding ten crores of rupees as may be determined by the Central Government, shall be constituted. It would thus appear that a vested right to the transfer of property acquired under section 3, was created in favour of claimants and although there was to be a rehabilitation pool for displaced persons, other than claimants, consisting of a cash amount, no provision was made for rehabilitation of locals. Sections 10 and 16 of the Act empowered the Chief Settlement Commissioner to transfer or dispose of property in the compensation pool in the prescribed manner, in accordance with the provisions of the Schedule to the Act or in such other manner as may be approved by the Central Government. A study of the provisions of the Schedule makes it clear that the Act fixed the order of preference in respect of transfer of properties in the compensation pool, so as to accord the first E place to "claimants", the second place to "non‑claimant displaced persons" and the third place to "locals". The locals were given the benefit of this transfer right, only by the amending Ordinance I of 1959. Before that, the First Schedule to the Act provided that a house in the possession of local since before the 1st of January 1949 and a shop in the possession of a local or a non‑claimant displaced person could only be sold by restricted auction for the benefit of non‑claimant displaced persons and locals, subject to certain conditions but there was no possibility of their acquiring such property on an evaluation basis, directly. Paragraph 1 of the Schedule, as it stands after the amendment, gives a right to a claimant in possession either personally or through a parent, son, daughter, or spouse, if the latter make no claim, to have the property transferred to him at a price determined on evaluation basis. If there is more than one such house, it is laid down that any one of the houses, which the claimant desires to retain, shall be transferred to him in a similar manner. The first proviso to this paragraph enacts that if a house or a part thereof, is in possession of more than one person and one of them is a claimant, then the house shall be so transferred to the claimant. If there is a contest between two claimants, the one who got the house on a prior date would be given preference, under the second proviso to this paragraph. It is clear that under this paragraph a claimant would succeed in al contest with a non‑claimant displaced person or a local who may be in part‑possession of the property with hips. Paragraph 2 of the Schedule provides that a house in possession of a non‑claimant displaced person and which the non claimant desires to retain, shall be transferred to him on payment of the prevailing market value. Only one house can be so transferred to any one non‑claimant and if there is a contest between two non‑claimants the one who obtained prior possession, would be preferred. The third paragraph deals with the right of a local to transfer of property, but it is confined to a particular house whose value does not exceed Rs. 10,000. It shall be transferred to the local who desires to retain it, on payment of the prevailing market value, subject to the condition that not more than one house shall be so transferred. In the case of competition between two locals prior possession would be the deciding factor. Paragraph 4 enacts that a house not transferred under the first three paragraphs shall be available for transfer to any claimant who applies in that behalf and to whom a house has not been transferred under paragraph 1, at a price determined on evaluation basis, subject to certain provisos which need not be detailed. If certain properties are left over even after action had been taken under the first four paragraphs, then paragraph 6 comes into play and such property would be sold to the highest bidder in an unrestricted public auction. Any further remnant would be disposed of, in the prescribed manner under paragraph 7. Similar provisions exist with regard to shops under the Schedule. The Schedule unmistakably evinces special consideration for claimants as against those who are merely displaced persons or locals. This position was recognised in two judgments of this Court reported as Rehmatullah v. The Deputy Settlement Commissioner (P L D 1963 S C 633) and Ilamuddin v. The Chief Settlement and Rehabilitation Commissioner (P L D 1965 S C 615). It is in the light of this background that the meaning of the notification in question has to be considered. We have heard Mr. M. A. Zullah for the appellant, Major Ishaq Muhammad Khan, a representative of the Department for the Chief Settlement Commissioner and Mr. Aftab Hussain for the respondent, Muhammad Sharif. The learned Attorney General, also appeared at the hearing at our special request to elucidate the law point involved. Mr. Zullah and the Departmental Representative have strenuously contended before us that the words "final order", occurring in the notification could only mean an order of allotment, issued before the relevant date, by a competent authority. It is curious to note that the department had taken a different stand in the High Court in this very case and had sent a report, contesting the appellant's position in that Court. It appears, therefore, that no consistent departmental construction of this notification has prevailed in the Department. Conflicting decisions appear to have been given from tinge to time on this point and that position also seems to have been reflected in some judgments of tile High Court. The main ground urged in support of their position by Mr. Zullah and the Departmental Representative is that before the twenty‑first day of December 1958, there could be no question of an order of transfer of the evacuee property at all, since the "compensation pool" itself was created in August 1959 under the Act. The "final order" referred to in the notification, therefore, according to them, could only be construed in the sense of an allotment order passed by the Rehabilitation authorities under the Pakistan (Economic Rehabilitation) Ordinance (XIX of 1948). In this connection reliance is placed on a recent unpublished Full Bench decision of the High Court of West Pakistan in Writ Petition No. 834‑R of 1962, dated the 13th October 1965. This case came up for decision before a Bench of five Judges, on a reference made by a single Judge who thought that the opinion of the Full Bench in Mst. Noor Jehan Begum v. Settlement and Rehabilitation Commissioner, Karachi, may require reconsideration. Out of the five Judges, who dealt with the case, two of the learned Judges held that the words "final order" in the context of the notification in question could only mean an allotment order under the Rehabilitation Act, and a condition precedent for claiming benefit under the notification, in view of the extended definition of "possession", was the absence of a person otherwise entitled to transfer in pursuance of a "final order by a competent authority". A non‑allottee in occupation, though a claimant, according to the minority view, could be defeated by an allottee in possession, under an allotment order, prior to the relevant date, where the house in question in the possession of several persons was indivisible. In such a case it was held that one of the essential conditions of the notification would not be fulfilled by the non‑allottee. The other three learned Judges while agreeing with the interpretation of the words "final order" as meaning an "allotment order", held that only a person who had allotment of the whole house in his, favour could defeat a claimant non‑allottee in occupation. . The words "filial order", according to these learned Judges, could only mean a final order of allotment, covering the whole house. Apparently, in the previous Full Bench case of Mst. Noor Jehan Begum v. Settlement and Rehabilitation Commissioner, Karachi, this aspect of the matter had not received adequate attention and a general proposition was laid down therein, to the effect that a person who fulfilled the conditions of the notification, would be on a par with an allottee. With respect, It may be pointed out that the majority view in tile above‑cited Full Bench case, really does not solve the difficulty involved in the interpretation of the phrase Final order occurring in the notification. One of the "conditions to be satisfied by a person in occupation, even on this view of the notification, would be that he should be in "undisputed occupation" prima facie, it seems to me that if an allottee holds an allotment of the whole house in his favour and despite that some other persons, including a claimant, are in possession of a part of the property, the occupation of the claimant could not be said to be "undisputed". The interpretation adopted by the majority of the Judges in the above case, therefore, would appear to involve the germs of its own defeat. It is true that unless the occupation of a person falls within the definition of "possession," as extended by the notification in question, he would have no right to claim transfer of the property under the Schedule to the Act. An essential condition of entitlement under the Schedule is "possession". It seems to me, however, that the idea behind the extended definition of "possession", contained in the notification, was to confer a benefit on those who were in undisputed occupation of the property before the twenty‑first day of December 1958, ever ill, though they held no allotment order in their favour. It would amount to taking away with one hand what is given by the other if the notification is interpreted to mean that, although the person concerned may be in undisputed occupation of a part of the premises since before the relevant date, he could be defeated by another person in possession albeit a local, provided he relied on an allotment order. This does not appear to be in consonance with the scheme of the Act and the Schedule which evinces a distinct solicitude for claimants as against non‑claimant displaced persons and locals. It was first suggested by the Departmental Representative that even if a claimant occupant could be regarded as in possession under the notification, his "possession" would start only from the date of this notification and not from an earlier date. After further reflection, he had, however, to concede that the date of his "possession" should be the date of his occupation, if he satisfied the conditions of the notification. It is possible to conceive of cases in which some orders may have been passed earlier than the constitution of the "compensa tion pool" of evacuee property under the Act, either by the Custodian or by the Central Government, in some proceedings which may entitle the person concerned to claim transfer of an evacuee property. The condition, mentioned in the notification, that there should be no person in existence holding a "final order passed by a competent authority" entitling him to transfer of the property in question, may be intended to refer to such possible cases or it may even have been inserted therein by way of abundant caution. If the intention, as is suggested, was protect the alleged rights of allottees alone, it is unintelligible why a simpler and a clearer formula could not have been adopted to achieve that result. It would have been sufficient to say in that case: "and no other person is otherwise satisfied to the transfer of such a house or shop in pursuance of an allotment order passed by a competent authority before that date". That would have removed all ambiguity from this clause and paced the matter beyond doubt. It is not necessary that the word "order", occurring in this notification, should have the same meaning attached to it wherever it occurs. The meaning may differ, according to the context. In the earlier part of the notification, clearly the words "who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958". could only have reference to an allotment order, or an order passed by a competent authority, permitting a person to occupy a house, within the meaning of section 2(6) of the Act. It need not follow however that the words "and no other person is otherwise entitled to the transfer of such house or shop, in pursuance of a final order passed by a competent authority before that day" should also be interpreted as involving a reference to an "allotment order". Where the word "order" occurs in the earlier part, it is qualified by the words showing that such order would be one entitling a person to possession of the property in question. In the later part, the context is different. Here the qualifying words are "entitled to the transfer of such house or, shop in pursuance of". This means that the "final order" should K be one which should per se create entitlement to transfer, as distinguished from a mere right to possession. Such an interpretation of the notification would be consistent with the letter and spirit of the Act. The learned Attorney‑General suggested that the words of notification reasonably lent themselves to this construction. The learned Attorney‑General also drew our attention to a subsequent notification dated the 3rd of August 1960, issued by the Central Government, in exercise of the power conferred by the second proviso to clause (c) of section 2 of the Act and appearing at page 165 of the old Manual of Settlement. This further extends the definition of "possession", in favour of claimants, non‑claimant displaced persons and locals, who may have obtained possession of a house in pursuance of an order referred to in the said clause after the twentieth day of December 1958. but not later than the date of this notification. The conditions of their entitlement are that they should be in undisputed occupation of a house and no other person should be otherwise entitled to the transfer of such house, in pursuance of a final order passed by a competent authority. The words "before that day", occurring in the earlier notification do not find place in this fresh notification. This indirectly supports the interpretation placed on the words "final order" as not referring merely to an "allotment order". It may be mentioned that CH. and CS Forms had been invited by the Chief Settlement Commissioner from claimants and others, for transfer of property from the "compensation pool", on the 19th May 1959 and some of these forms had been dealt with before this second notification. Orders of entitlement may have been passed, though not actual transfer orders, in certain cases, in respect of these forms, prior to the date of the second notification. Such orders would also be protected by the second notification and the holders of these orders in their favour, would be able to defeat persons otherwise coming within this notification. The inference, therefore, is that the words "final order" in the second notification are not necessarily coincident with an "allotment order" simpliciter. There is thus no difficulty in adopting a more definitive interpretation of the words "final order" in the earlier notification as well. It seems, therefore, that these words "final order", connote an order of higher status than a mere order of allotment which entitles a person to possession alone. It may be mentioned that when allotment orders were originally passed under the Rehabilitation Act, there was no idea that such allotment orders would be pressed into service later, as creating vested rights to transfer of property. Though the point was not discussed at length, yet in Ch. Muhammad Ishaq v. Mehraj Din Civil Petition for Special Leave to Appeal No. 1 of 1964 decided on the 8th January 1964, by this Court, the view appears to have prevailed that in case of a contest between two claimants one holding an order of allotment in his favour and the other without one, the latter would receive preference, if he was earlier in occupation. The departmental orders in favour of a non‑allottee in that case were upheld. That decision would be in conformity with the construction of the notification now arrived at, after full consideration of the context. In view of the above discussion, I have reached the conclusion that the words "final order" in the notification cannot be equated with a mere "allotment order", but must connote an order under which the right to acquire property may have been. recognised, even though it may not amount to an order of actual transfer of the property in question. As no such order existed in favour of the appellant in the present case, even though he had an allotment order to fall back upon, the respondent's position could not be effectively assailed by him, since he was in undisputed occupation from a prior date and was a claimant in addition. C I would, therefore, dismiss the appeal, but, in view of the difficult nature of the question involved, would leave the parties to bear their own costs. A. R. CORNELIUS, C. J.‑‑I agree. FAZLE‑AKBAR, J.‑I agree. HAMOODUR RAHMAN, J.‑I agree. MUHAMMAD YAQUB ALI, J.‑I agree. A H Appeal dismissed.