P L D 1961 (W (PLP)

INAIIULLAH, J.‑The petitioner prays for the issue of a writ of certiorari quashing the order dated the 10th of March 1960 passed by respondent No. 1 and also for a writ of mandamus ordering the respondent No. 1 not to interfere with the transfer of the house to the petitioner. The facts giving rise to the present petition are these The petitioner is a displaced person within the meaning of the provisions of the Displaced Persons (Compensation and Rehabili tation) Act, 1958 (hereinafter called the Act). The Petitioner was in occupation of a portion of the house situated on Motilal Nehru Road along with her son who was an allottee of the portion in their possession The respondents 2 to 6 obtained possession of the house after the petitioner. The petitioner applied in C.H. Form as her son, being non‑claimant, did not apply for the transfer of the house. The house was transferred to her by the Deputy Settlement Commissioner, Karachi. The respondents 2, 3 and 5 had also applied in C. H. Forms and respondent No. 4 being non‑claimant applied in N. C. H. Form for the transfer of the house. The Deputy Settlement Commissioner transferred the annexe to the house in occupation of the respondent No. 3 to him and dismissed the applications of respondents 2. 4 and 5.

2. The petitioner got the provisional transfer order dated the 19th November 1959.

3. The respondent No. 4 had filed an appeal before the Rehabilitation and Settlement Commissioner, Karachi which was dismissed. The respondents 2, 3 and 6 made a representation to the Chief Settlement Commissioner stating that they had obtained the possession of the house in exchange of their properties in India and that they were entitled to the transfer of the house. On the 26th November 1959 the Additional Settlement Commissioner Karachi passed an order on the representation of the respondents 2, 3 and 6 and directed the Deputy Settlement Commissioner to review his earlier order. The Deputy Settlement Commissioner after hearing the parties referred the matter to the Chief Settlement Commissioner. The Chief Settlement Com missioner on the 10th March 1960 passed the impugned order ordering a restricted auction, i.e. an auction amongst the occupants of the house.

4. Mr. Naimuddin, the learned Advocate for the petitioner mainly contended before us that the order passed by the Chief Settlement Commissioner on the 10th March 1960 was beyond his jurisdiction and therefore illegal. The relevant portion of the Chief Settlement Commissioner's order reads as under :‑ "The house has got an annexe and the only division that is practicable is between the annexe and the main house. The main house is not capable of any division and has been occupied in a haphazard manner by its present occupants. With the approval of the Central Government, I treat this case under section 10 (a) of the Displaced Persons (Compensation and Rehabilitation) Act, and would dispose of the main house in a restricted auction between its present occupants".

5. In order to appreciate the contention of the learned Advocate for the petitioner it would be useful to reproduce section 10 of the Act. It runs as under :‑. "

10. Subject to the provisions of this Act and the rules made thereunder ttie 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 (b) in such other manner as may be approved by the Central Government." The learned Advocate for the petitioner contended that the peti tioner being a claimant is entitled to the transfer of the house under the conditions laid down in the Schedule to the Act. Mr Idris Qureshi, the learned Advocate for the Chief Settlement Commissioner conceded that the petitioner was in occupation of the house since 1947 and that she was a claimant within the meaning of the Provisions of the Act. On these admitted facts the submission of the learned Advocate for the petitioner was that the Chief Settlement Commissioner did not have any jurisdiction to order restricted auction even with the approval of the Central Government. The fact of the approval was also challenged but we do not propose to consider this question as it has not heed specifically raised in the petition. Reading section 10 of the Act, as a whole, it would appear that the power of the Chief Settlement Commissioner to transfer or dispose of any property out of the compensation pool in such other manner as may be approved by the Central Government is subject to the provision of the Act and the rules made thereunder. The learned Advocate for the respon dent No. 1 contended that "in‑serch other manner" is wide enough to give power to the Chief Settlement Commissioner to act in the manner in which he has acted. In order to accept this contention of the learned Advocate one would have to read section 10 as under :‑ "Notwithstanding the provisions of this Act and the rules made thereunder the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool in such other manner as may be approved by the Central Government." The language of section 10 of the Act is clear and it is not capable of the interpretation put by the learned Advocate for the respondent No.

1. In our view the power of the Chief Settlement Commissioner is subject to the provisions of the Act and, the rules, made thereunder. It is only where the provision of the Act and the rules, if any, are silent that the Chief Settlement Commissioner can deal with the situation in a manner that he thinks proper after approval of the Central Government. The object of the legislature underlying section 10 appears to be to expeditiously dispose of the claims The' legislature with that view, knowing the limitation) that it is not possible to provide for every situation, gave wide power to tire Settlement Commissioner to deal with the new situations that may arise and not provided for in the statute or in the rules. Mr. Idris next contended that "subject to the provisions of this Act and the rules grade thereunder" bas a reference to sections dealing with the determination of the amount of compensation, determination of public dues recoverable from locals and recovery of arrears of rent and not to what has been provided for in the Schedule to the Act. There is no reason to give a restricted‑ inter‑pretation to the words "subject to the provisions of this Act and the rules made thereunder." The intention of the legislature could not be to give power to the Chief Settlement Commissioner so as to override the provisions of the Act or the sales. The intention of the legislature always is to so enact that it leads to certainty and not to uncertainty. Keeping this object in view the legislature could not have intended to keep people in uncertainty by giving overriding power over the provision of the Acct and the rules to the t) Chief Settlement Commissioner, The Chief Settlement Commis sioner will have jurisdiction to transfer or dispose of the property out of the compensation pool in a way that he thinks best in the absence of any provision in the Act or the rules made thereunder. The Schedule forms a part of the statute. The Schedule to the Act provides as to how the house should be dealt with. In the present case there is a clear provision in the Schedule to the Act as to how the claim of the various respondents should be disposed of inter se. The Chief Settlement Commissioner could not act in contravention of the clear provision of the enactment. We would hold that the order passed by the Chief Settlement Commissioner dated 10th March 1960 was in excess of his jurisdiction and would quash the same.

6. Mr. Naimuddin did not press his relief for a writ of mandamus. In the circumstances of the present case we would make no order, as to costs. CONSTANTINE, J.‑I agree to the order. I think the interpre tation of section 10 is 'not easy. The interpretation, which we have adopted is as if words were inserted so as to read "or failing any such provision:" If the words "Subject to the provisions of this Act or rules" did not occur, then I think the meaning would be that the Chief Commissioner can act either (a) according to the Schedule or (b) subject to Government's approval outside the Schedule. But undoubtedly the Schedule is one of the provisions of the Act, is couched in mandatory terms and contains no dispensing power. 'It is true that if the first alternative had stood alone, then the words "Subject to the provisions of this Act" would have excluded the Schedule : but the first alternative does not stand alone, and hence I agree that we cannot limit to the generality of the words "Subject to the provisions of this Act by reading into them the meaning, "subject to the provisions, the than the Schedule, of this Act." Regarding the policy or object of the section, I think there is little to choose between conferring in Government the power to approve a manner of disposition where a manner laid down by the Schedule appears inappropriate to Government and conferring a power to approve a manner only if the Schedule is inapplicable the one power provides more flexibility, while the other provides more certainty both have their uses. S.B.