P L D 1972 Supreme Court 321 (PLP)

2. In all cases where houses, shops and other properties have been converted to some other use, orders with regard to the disposal of the property, will be passed by the Additional Settlement Commissioner of the area concerned to whom such cases will be submitted by the Deputy Settlement Commissioner.

3. As a general principle, the property will be disposed of according to the use to which it was being put on 20th Decem ber 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in the public interest according to its status at the time it became evacuee property. The following broad principles have, however been laid down by the Chief Settlement Commissioner for the guidance of the Additional Settlement Commissioner :- (iii) A house, a shop or a small industrial concern, converted Into a hotel or a restaurant, may be transferred to the person in possession of such hotel or restaurant on payment of the prevailing market value plus an additional amount up to 50% of such value." In paragraph 4 of this press note it was directed that "Persons to whom any fresh rights have accrued as a result of this announce ment and who are in possession of properties which have not yet been disposed of may submit applications on plain paper to the Deputy Settlement Commissioner of the area concerned, if not already done. Such applications should be accompanied by the prescribed form, if any relating to the transfer of the property according to its use on the 20th of December 1958 and should reach the Deputy Settlement Commissioner concerned by the 21st May 1960 at the latest. Cases already decided, will not be re opened, if the properties have been disposed of in accordance with the orders for the time being in force." Availing of this press note, the appellant preferred an applica tion to the Deputy Settlement Commissioner, Mirpur Khas, on the 16th May 1960, and sought transfer of the hotel on that basis. The Deputy Settlement Commissioner, without taking any action on this application, auctioned the first floor as a house on the 19th of May 1960, without any notice to the appellant and accepted the highest bid of Rs. 70,000 made by one Nawab Hassan Yar Jang. This auction which was subject to confirmation by the Settlement Commissioner was not confirmed by him as, according to him, it had not been properly publicised. The property was, therefore, re-auctioned under his directions on the 24th July 1960, in which one Manzur Ali Khan became the new auction-purchaser against a bid of Rs. 90,

000. Before the second auction had taken place, the appellant filed an appeal to the Additional Settlement Commissioner challenging the first auction. The Additional Settlement Commissioner accepted the appeal on the 15th August 1960, and held that the appellant having satisfied all the condi tions laid down in the press note was entitled to the transfer of the premises which he had converted into a hotel and which he was running as such. This order of the Additional Settlement Commissioner was not challenged by any one in further appeal or revision. Nawab Hassan Yar Jang, the first auction-purchaser filed a revision application under section 20(3) of the Act before the Settlement Commissioner calling in question the second auction in favour of Manzur Ali Khan. The appellant became a party to this revision at his own request. By his order, dated the 31st August 1961, the Settlement Commissioner set aside the second auction, but also reversed the order of the Additional Settlement Commissioner in favour of the appellant and ordered that the hotel in question should be put to auction afresh. The appellant attacked this order in second revision before the Chief Settlement Commissioner which was dismissed as incompetent. The appellant then filed a writ petition in the High Court which was also dismissed. The main grounds on which the learned Settlement Commis sioner set aside the transfer in favour of the appellant were, (i) that the appellant had not been called upon to prove that he had converted the premises into a hotel, (ii) that the instructions con tained in the press note were recommendatory and not mandatory, and (iii) that according to the press note itself although the pro perty was to be disposed of according to the use to which it was put on the 20th December 1958, the Additional Settlement Com missioner had the discretion to dispose it according to its use when it became evacuee property, if that course was necessary in public interest. The learned Settlement Commissioner considered that it was not in public interest to transfer the proper ty in favour of the appellant who was a local. The learned Judges in the High Court in refusing relief to the appellant in writ jurisdiction virtually endorsed the reasonings of the learned Settlement Commissioner adding further that since the property had already been disposed of in the first auction in favour of Nawab Hassan Yar Jang on the 19th May 1960, no fresh right could have accrued to the appellant under paragraph 4 of the press note. The learned Judges also held that the Interest of the appellant was fully safeguarded by paragraph 17 of the Schedule to the Act, which provides that "Any Investment wads by a local or displaced person In any evacuee property acquired under section 3 shall to the extent that such Investment is accept ed by the Chief Settlement Commissioner, be deemed to be a charge created by a Custodian within the meaning of clause (d) of subsection (3) of section 10". It may be noted here that the view of the learned Judges of the Division Bench in the High Court that the property In question having been disposed of did not fall within the ambit of the press note is wholly erroneous. The appellant had filed his application for transfer on the 16th May 1960, before the terminal date viz., the 21st May 1960, and the first auction had taken place without deciding his application. Even so, the auction was set aside on the ground of lack of proper publicity by the Additional Settlement Commissioner and similarly the second auction was also not confirmed by the Additional Settlement Commissioner. The appellant's appeal was pending before the Additional Settlement Commissioner at that time and the second auction was, therefore, without prejudice to the rights of the appellant which were the subject-matter of the appeal. In this situation it is wrong to assume that the property in dispute had been disposed of before the Issuance of the press note. The learned Settlement Commissioner and the learned Judges In the High Court seem to have also been strongly swayed by the consideration that the instructions In the press note were recom mendatory and not mandatory and could, therefore, have had no binding fact. Mr. A. A. Fazeel, learned counsel for respondent No. 3 has not pressed this argument into service and rightly so. The mainstay of this argument as accepted by the High Court is that the use of word "may" In sub-pare. (iii) of para. 3 In contradistinction to the word "shall" as employed in statutory instruments gives the directive a recommendatory character. This argument proceeds on the assumption that while the word "shall" clearly connotes a compulsive obligation, the word "may" merely suggests a recommendatory directive. It is now well settled that the words "may" and "shall" in legal phraseology are interchangeable, depending on the context In which they are used, and are not to be Inter preted with the rigidity which is attributed to them in ordinary parlance. But it is not necessary to define the exact scope of the word "may" as used in the relevant sub-pare of the press note mentioned above. Even if this directive is not to be taken as mandatory one, it does not make much difference to the appel lant's case. Since he had satisfied all the conditions of the press note, it would be an abuse of authority to withhold from him the relief as granted by it, unless the Issuance of the press note be deemed to be a futile exercise. It was pertinently argued by Mr. Brohi, the learned counsel for the appellant that although the relevant directions in the press note are couched in the form of instructions, yet they are sufficiently specific to sustain the plea that when the conditions which they prescribe are satisfied, the relief for which they provide must be allowed otherwise the very purpose of the press note would be defeated. The Additional Settlement Commissioner has judiciously exercised the discretion vested in him and given the relief to the appellant under the press note and no cogent basis is disclosed for interference in it by the Settlement Commissioner. The observation by the learned Settlement Commissioner that it was, not in public interest to transfer the property to an individual who was a local goes entirely against the spirit of the press note which laid down that the property had to be disposed of ordinarily according to the use to which it was put on the 20th December 1951. He could depart from that course only if the demands of the public interest so required. It is not indicated that any public interest was involved in the transfer of this property which has been ignored or made to suffer by the learned Additional Settlement Commissioner. Mr. Fazeel has, however, contended that the appellant being a local could not have had any claim to this premises under the Schedule to the Act as its value exceeded more than Rs. 10,

000. This contention misses the legal effect of the powers under which the press note was issued, namely, paragraph 20 of the Settlement Scheme No. 1, which was prepared by the Chief Settlement Com missioner under section 16-A(l)(b) and (c) of the Act and which was duly approved by the Central Government giving full authori sation to the Chief Settlement Commissioner to execute it. Section 10 of the Act as it stood at the relevant time which furnished the source of power of the Chief Settlement Commis sioner to dispose of the compensation pool property may here be usefully reproduced:- "

10. Power to transfer property from the compensation pool.

Subject to the provisions of this Act and the rules made there under, the Chief 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 Schedule ; or (b) in such other manner as may be approved by] the Central Government." It will be seen that disposal of the property under clause (b) of this section by the Chief Settlement Commissioner with the approval of the Central Government is unfettered by any limita tion. The manner of its transfer, subject to the approval of the Central Government is entirely within his province. Now, Scheme No, I was prepared with the approval of the Central Government and similarly the press note of the 3rd of May 1960 which was issued under paragraph 20 of the aforesaid Scheme was issued with the approval of the Central Government. Sub-pare. (iii) of para. 3 of the press note which has already been referred to above gave full powers to the Chief Settlement Com missioner to transfer the converted house, a shop or a small industrial concern which has been converted into a hotel or restaurant to the person in possession of such hotel or restaurant on payment of the prevailing market value plus an additional amount up to 50 % of such value without placing any qualification as to the person to whom it was to be transferred and without any limitations on the ceiling value of the property to be transferred. It deals with the case of a converted property which loses its original character after conversion. The ban in the case of a local on the transfer of property worth more than Rs. 10,000 does not, in my view, impinge on this newly-created right under the press note. I am of the opinion that the press note created a fresh right in the appellant to claim the disputed property on the basis of its conversion done by him and of its use by him as such since before the 20th December 1958. The Additional Settlement Commis sioner had rightly transferred the premises to the appellant in pursuance of this press note which was a valid legal instrument issued by the Chief Settlement Commissioner with the approval of the Central Government under the statutory powers conferred on him. The fresh auction of the premises, therefore, as ordered by the Settlement Commissioner seeking to undo the transfer validly made in favour of the appellant was without any lawful authority. In the result. I accept this appeal, set aside the orders of the Settlement Commissioner as well as of the High Court and restore that of the Additional Settlement Commissioner whereby he had transferred the disputed premises to the appellant. I would leave the parties to bear their own costs. HAMOODUR RAH.MAN, C.J. I agree. SALAHUDDIN AHMED, J.-I agree. K. B. A. Appeal accepted.