P L D 1966 Supreme Court 512 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against an order of a learned Single Judge of the High Court of West Pakistan, Lahore, dismissing in limine a petition under Article 98 of the Constitution. The said petition was filed by the appellant herein for the quashment of an order of the Deputy Settlement Commissioner, Rawalpindi, passed on the 24th of March 1962, cancelling a provisional transfer order issued in his favour with respect to House No. H/155, situated in Chachi Mohalla, Rawalpindi. The appellant; who is a displaced person holding a verified claim, originally participated in a drawing of lots in respect of House No. P/1407, Rawalpindi, under the earmarking scheme. He was successful in the drawing of the lot but as the premises in question subsequently turned out to be flour, mill, an industrial concern, it was not available for transfer under the side scheme. A choice certificate was, therefore, issued to appellant for selecting another house from amongst the avialable houses. He came to know that premises No. H/ 155, which had been allottee to the respondent No. 3 herein, was so available. Accordingly; on the 23rd of November 1960; he applied to the Deputy Settlement Commissioner, Rawalpindi stating that he has selected the above‑mentioned premises and would like the same to be transferred in his name. Nothing further was state in this application. The appellant neither mentioned the house had been allotted to any other person or that had been irregularly so allotted. But on this application the Deputy Settlement Commissioner, Rawalpindi, Zone II, on the 20th of January 1961, issued an Appendix 11 under Settlement Scheme No. V in favour of the appellant in respect of this house. This was followed, in the usual course, by the issuance of a provisional transfer order in his favour on the 7th of April 1961. This house, as already stated, was allotted to the respondent No. 3 herein by the Rehabilitation Officer on the 6th of September 1949, on his representation that before Partition all his business was in Delhi and as he had been allotted a shop in Ganj Mandi, Rawalpindi, in lieu thereof, it was necessary for him also to stay in Rawalpindi. Although even at this stage there were complaints that he being a local was in un-authorised occupation of the said premises, he managed to maintain his possession, and on the 7th of August 1959, actually submitted an NCH form for the transfer thereof maintaining that he was a displaced person and an allottee of the‑ house paying rent at the rate of Rs. 35 per month to the Rehabilitation Department. On this application an Appendix 1X under Settlement Scheme No. 1, was ultimately issued in his favour on the 23rd of March 1960, but on the 12th of October 1960, one Fazal Ali Khan, the constituted attorney of respondent No.' 4 herein, filed on her behalf a complaint before the Director, Enforcement Staff, Evacuee Property, Lahore, giving information that the House No. H/ 155, Alam Khan Road, Chachi Mohalla, Rawalpindi, was in illegal possession of respondent No. 3, as he was a local and was not entitled to its transfer. On the basis of this complaint an enquiry was commenced. In the meantime, however, the Deputy Settlement Commis sioner, Rawalpindi, Zone II, on the 13th of December 1960, presumably on getting' the application of the appellant himself moved the Additional Settlement Commissioner, Rawalpindi, for permission to review the order of his predecessor issuing Appendix IX in favour of respondent No. 3, on the ground that a perusal of the file relating to House No. H/155 disclosed that the said respondent owned agricultural land and ancestral houses in Rawalpindi Tehsil and that he had simply lived in Delhi for a short period in connection with some business. He had not left behind any property at Delhi and, therefore, it was doubtful whether he fell within the definition of a "displaced person." This permission was granted and ultimately after hearing him the order of the predecessor Deputy Settlement Commissioner was reviewed on the 28th of December 1960, the Appendix IX issued in favour of the respondent No. 3 was cancelled and it was declared that the house was available for transfer to the appellant. The respondent No. 3 appealed from this order to the Additional Settlement Commissioner but his appeal was dismissed on the 5th of April 1961. No further revision or review was filed against this order by the said respondent. The Enforcement Department had, however, in the meantime sent information to the Settlement Authorities on the 27th of February 1961, saying that an enquiry with regard to this house was going on and, therefore, no further action should be taken for its permanent transfer. This was not brought to the notice of the Additional Settlement Commissioner when he heard the appeal of the respondent No. 3, but subsequently when he was apprised of it he on the 27th of April 1961, ordered the stay of the implementation of his order of the 5th of April 1961, until receipt of orders on the result of the investigation being carried on by the Enforcement Department. On the basis of this order the provisional transfer order issued to the appellant was also recalled on the 29th of April 1961. On the 30th of August 1961, the Settlement and Rehabili tation Commissioner, Rawalpindi Division, rejected the reference by the Enforcement Department and confirmed the transfer in favour of the appellant. The Enforcement Department went up in revision from this order to the Chief Settlement Commissioner and eventually the Chief Settlement Commissioner on the 29th of January 1962, sent the case back to the Settlement and' Rehabilitation Commissioner, Rawalpindi Division, for disposal on merits. The Settlement Commissioner, Rawalpindi Division, disposed of the case on the 19th of March 1962, in the presence of the appellant, who was made a party to these proceedings and was, it appears, heard by the Settlement Commissioner. The latter held that in view of the investigation pending in the Enforcement Department the house was not available for transfer to the appellant and, therefore, the house should, as provided by law, go to the informant who had been given a preferential claim over all others. The house was accordingly, ordered to be transferred to the respondent No 4 herein. In pursuance of this order the provisional transfer order issued in favour of the appellant was also cancelled on the 24th of March 1962. It was this order that the appellant sought to challenge in the High Court, firstly, on the ground that the property was not hidden evacuee property and, secondly, that even if it was so, the appellant was entitled to its transfer being the first informant in point of time. The High Court repelled both these contentions and held that in any event the appellant had no locus standi to object to the transfer made in favour of the respondent No. 4, as the property in dispute was not transferred to the appellant as a result of earmarking. The transfer on the basis of a choice certificate was held to be illegal. In the view of the High Court properties in the compensation pool could only be transferred in accordance with the provisions of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 19.18. The words "in such other manner as may be approved by the Central Government" in clause (b) of the aforesaid section, according to the High Court, meant that even the "other manner" of transfer must be subject to the provisions of the Act and the rules framed thereunder, and since the Schedule appended to the Act only made provisions to the effect that property, which was not ‑ transferred it an evaluation basis to a person in possession or to a person entitled to it in the earmarking list, should be sold by unrestricted public auction, transfer on the basis of a "choice certificate" 4vas not one of the modes of transfer recognised by the Act. . Leave was granted in this case to consider whether the above view of the High Court was consistent with the view taken by this Court in the case of Kazi Asadul Haq v. Miss R. A. Money and others Civil Appeal No: 57 of 1960 decided on the 21st of A February 1961. In the latter case it was held that even an approval of the Government, communicated by letter, to the sale of an evacuee property by the evacuee owners thereof in 1951.was a mode of transfer permitted by clause (6) of section 101 of the Act of 1958. Before us the learned counsel appearing in support of this appeal has firstly contended that even if the property was hidden evacuee property, it should have been transferred to the appellant, as he was a prior informant. We have already referred to his application which was made on the 23rd of November 1960, by which he merely elected to take this property without making any kind of complaint at all against the respondent No. 3 or giving any information whatsoever as to the nature of the irregularity in the transfer of this property or even making any allegation against the respondent. By a Notification No. S. R. O. 824(K)/61, dated the 1st of September 1961, published in the Gazette of Pakistan Extra ordinary on the 2nd of September 1961, it appears, that the Central Government has issued an Order under clause (6) of section 10 of the Displaced Persons (Compensation and Rehabi litation) Act, 1958, approving of another manner in which properties in the compensation pool may be transferred to certain persons. In this Order after giving the definitions of "hidden evacuee property", "informant". and "irregular transfer" it has been provided by section 2 as follows:‑ "2. (1) Any person may, on plain paper, submit information regarding any hidden evacuee property or irregular transfer. (2) Such information shall be submitted to the ‑ Director of Enforcement. (Evacuee Property and Claims) within whose jurisdiction the property to which the information relates is located. The information shall, as far as possible, be precise and accurate and cover the material aspects of the case. The informant shall endorse a copy of the information to the Chief Settlement Commissioner (Settlement Branch), who shall maintain a record of such cases and watch their progress." Then section 6 lays down that:‑ "

6. If as a result of the investigation the Director of Enforcement 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." Finally section 9 prescribes that:‑

9. If the Settlement Authority, within whose jurisdiction the evacuee property to which the information relates is situated, is satisfied that in a case decided by a Custodian, or a Court or a Settlement Authority, the informant had furnished 1 substantial information leading to the decision, he may, on payment, transfer the whole or any part of the said property to the informant: Provided that no one else is in law entitled to the transfer of the same property: Provided further that, under a specific provisions of the Displaced Persons (Compensation and Rehabilitation), Act, 1958, or any scheme made thereunder, the informant would have been entitled to the transfer of the said property had he been in its possession." "An "informant" has been defined in this Order in the following terms:‑ "(b) Informant means a person who informs the authority specified in this order of the existence of any hidden evacuee property or of any irregular transfer." It will thus be seen that under this Order the information may be either as to the existence of any hidden evacuee property of any irregular transfer of an evacuee property. In the present case, the information given by the constituted attorney of tile respondent No. 4 was of an irregular transfer, whereas the appellant's application to the Deputy Settlement Commissioner on the 23rd of November 1960, gave no information at all nor was it submitted as required by the above Order to the Director of Enforcement, Evacuee Property and Claims, within whose jurisdiction the property in question was located. In the circumstances, the appellant could not come within the category of an "informant" and was rightly not treated as such by the Settlement Commissioner. Iv is also evident that the letter written by the constituted attorney of the respondent No. 4, which must be treated as an information lodged by the said respondent herself, was also prior in time to the application of the appellant to the Deputy Settlement Commissioner having been filed on the 12th of October 1960, more than three months before the appellant's application. The appellant, therefore, has no legitimate ground for complaining that he was not treated as a prior informant. The argument that the property was not a hidden evacuee property is not of any force, for, the information could be of irregular transfer as well and in the present case the information of respondent No. 4 was to that effect. The next contention of the learned counsel for the appellant is that the second revision before the Settlement Commissioner was incompetent, as the power to entertain the same had been taken away by the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance, 1962, with effect from the 13th of January 1962. Department on the 3rd of October 1961, and was disposed of on the 19th of March 1962, but two days before that on the 17th of March 1962, the Displaced Persons (Compensation and Rehabilita tion) (Second Amendment) Ordinance, 1962, was promulgated and given retrospective effect from the 13th January 1962. This second amendment provided as follows:‑ "For the removal of doubts it is hereby declared that omission by this Ordinance of subsections (2) and (4) of section 20 and subsections (1), (1‑A) and (2) of section 21 of the said Act shall not affect, any case or proceeding the record of which was called for under subsection (2) of section 20 of the said Act, or any review proceeding under subsection (1) of section 21 thereof, which was pending immediately before the commencement of this Ordinance." It would thus appear that if the record had already been called for, then there was no ouster of jurisdiction. The appellant has not stated either in his writ petition in the High Court or in his petition for leave or concise statement in this Court the record was not called for before the relevant date. Indeed it appears to us that the record was already there, for, on the 11th October 1961, the Director of Enforcement informed the Deputy Settlement Commissioner that the relevant files asked for by him could not be returned till the final decision of the revision. In any event, if the records were not already there, it would not have been possible to dispose of the revision within two days of the promulgation of the Second Amendment Ordinance. Coming now to the last point on which leave was granted it will be observed that originally section 10 of the Act of 1958 (it has since been amended) provides:‑ "Power to transfer property from the compensation pool‑ Subject to the provisions of this Act and the rules made thereunder, the Settlement Commissioner may transfer or dispose of any property out of the compensation pool‑ (a) on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the First Schedule; (b) in such other manner as may be prescribed." The High Court has taken the view that even clause (b) is, "subject to the provisions of the Act and the rules made thereunder" and, therefore, even the Central Government could not lay down or approve of any mode of transfer different to those enumerated in the Act or the Schedule to the Act. This Court has not accepted this restricted interpretation in the case of Qazi Asadul Haq v. Miss R.

4. Money and others and we see no reason to depart from this view, for, otherwise clause (b) would be rendered entirely redundant. The limitations mentioned in the opening words relate to the powers of the Chief Settlement Commissioner anti not to those of the Central Government. They do not have the effect of neatening the power of the Central Government to approve of a different mode of transfer but merely mean that the transfer in such mode too will be in accordance with and subject to such of the other provisions of the Act and rule made thereunder as may be applicable. But even in this view of the matter no benefit accrues to the appellant, for, the transfer under the notification of the 1st September 1961, must then be held to be valid and under that notification the respondent No. 4 had clearly a prior claim to the transfer of the premises. In the result this appeal must fail and is, accordingly, dismissed with costs. A. H. Appeal dismissed.