P L D 1975 Supreme Court 58 (PLP)

HAMOODUR REHMAN, C. J.‑This appeal, by special leave, arises out of a decision of a Division Bench of the former West Pakistan High Court, Lahore Seat, in a petition under Article 98 of the Constitution of 1962, whereby the validity of an appellate order of the learned Additional District Judge, Rawalpindi in a proceeding under the Cantonments Rent Restriction Act, 1963, was challenged. The said constitutional petition came to be filed in the following circumstances:‑ An evacuee house bearing No 400, Dilhousie Road, Rawalpindi, was transferred to the respondents Nos. 1 to 4 herein by the order of the Deputy Settlement Commissioner. It appears that this house was divided into five portions, namely, 400, 400/A, 400/B, 400/C and 400/D. The portion 400/C was a garage in possession of the present appellant. The respondents claimed that this garage was appurtenant to the residential premises transferred to them but the appellant went up in appeal and the Additional Settlement Commissioner, by his order of the 29th December 1959, accepted the contention of the appellant that the garage was being used separately as a shop and was not included in the portion transferred to the above‑mentioned respondents. Against this order the respondents went in revision to the Settlement Commissioner but before the Revision was decided a Provisional Transfer Order was issued in favour of the respondents on the 7th January 19617, in respect of the premises excluding the garage. The revision was ultimately heard on the 3rdMarch 1960, by the Settle ment Commissioner who restored the garage to the respondents. The Provisional Transfer Order was, however, not amended until the 4th April 1964 when the garage, separately numbered as 400/C, was for the first time included in the P. T. O. In the meantime the appellant had gone in second revision to the Chid Settlement Commissioner but the same was dismissed on the 26thOctober, 1961. Thereafter, the respondents, on the 7th March 1962, gave notice to the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, demanding rent at the rate of Rs. 50 per month. The appellant refused to pay. He was, therefore, served with a second notice terminating his tenancy on the 8th August 1962. Ejectment proceedings were thereafter started by the respondents against the appellant on the 31stDecember 1965, after the P. T. O. had been amended, as earlier stated, on the 4thApril 1964. Nevertheless, the appellant opposed the ejectment proceedings by challenging the validity of the notice on the ground that on the date the notice under section 30 and the subsequent notice, terminating the tenancy, was given, the garage. namely, premises No. 400/C had not been transferred to the respondents. The Rent Controller, Rawalpindi Cantonment came to the conclusion that since the premises in dispute were included in the P.T.O. only on the 4thApril 1964, in pursuance of a specific order passed by the Deputy Settle ment Commissioner on the 30th March 1964, the respondents had not acquired the status of a "transferee" till then and, therefore, had no locus standi to issue a notice under section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act in March 1962. The ejectment petition was, accordingly, rejected. The respondents went up in appeal before the learned Additional District Judge, Rawalpindi. The latter came to the conclusion that the "transferee" referred to in section 30 of the Displaced Persons (Compensation and Rehablitation) Act, 1958, is a person in whose favour, an order of transfer has keen made and since this was done finally on the 26thOctober 1961, the notices issued in 1962, were valid notices. The order of the learned Rent Controller was, accordingly, set aside and the case was remanded back to him for decision in accordance with law. Against this order, the appellant came up to the High Court in the writ jurisdiction. The High Court has also agreed with the learned Additional District Judge, Rawalpindi, and held that at least from the 3rd March 1960, when a formal judicial order had been made by a competent authority directing the transfer of the garage in dispute in favour of the respondents, it became clear that from that day onwards, the respondents must be deemed to he the transferees thereof irrespective of the fact that a formal P. T. O. was issued much later. According to the learned Judges of tit: High Court, the P. T. O. was merely in the nature of implementation of the transfer order which had been made earlier by a competent authority. The writ petition was, accordingly, dismissed ire limine. Leave was granted in this case to consider as to whether transfer meant the transfer of the right, title and interest in the property or merely an adjudication as to the entitlement of the applicant for transfer. The learned counsel appearing in support of this appeal has referred us to the provisions of the Settlement Scheme No. I under which there is first to be an ascertainment of the entitlement of the applicant. Then under paragraph 16 of the said scheme as soon as the enquiry is completed, the Deputy Settlement Commissioner has to pronounce an order and to supply a copy of the order to the applicant free o" charge. Thereafter, under para graphs 23 and 24 of Chapter IV thereof, the evaluation price has first to be determined and then the amount, if any, payable in addition to such price. The public dues recoverable from the applicant have also to be ascertained tender paragraph 26, The Deputy Settlement Commissions has then, under paragraph 29, to convey his decision to transfer the property to a claimant in a from specified in Appendix X, requiring him to comply with the directions contained in the notice within a specified period. If the applicant is a non- claimant, the notice is issued in the form specified in Appendix IX. The instalment order in the case of a claimant is issued in the form specified in Appendix XI and the Provisional Transfer Order in the form specified in Appendix XII. After all the payments have been made then a title deed known as the Permanent Transfer Deed is prepared in favour of the trans feree under/paragraph 41 of the Scheme. On the issuance of the Provisional Transfer Order, pending the grant of the Permanent Transfer Deed, the transferee may lease out or mortgage the property transferred to him subject to such conditions as may be laid down by the Chief Settlement Commissioner but he has no right to alienate the property in any other way. The property remains resumable in the event of the transferee failing to comply with the conditions of transfer or in paying any of the dues in respect thereof. According to the learned counsel, the adjudication regarding the entitle ment does not, therefore, amount to a transfer of the property. The transfer follows the determination of the entitlement of the applicant. In support of this contention, learned counsel has relied on two decisions of the Lahore High Court. The first is, in the case of Murree Hills Transport Company Ltd. v. Agha Ghulam Jilani (P L D 1970 Lah. 684). In this case, it was held that a P. T. O. holder may be considered to be the transferee for certain limited purposes including the right to deal with the occupant of a premises as a statutory tenant. No such rights have been conferred by any provision whatsoever on the person in whose favour an order of transfer of a property has only been passed. Such an order is in fact only an adjudication of disputes as to the entitlement. Several further steps remain necessary before the title passes. The second is in the case of Mst. Bakho v. Sairan (P L D 1963 Lah. 72), where the view was taken that having regard to the provisions of paragraphs 16, 23 and 29 of the said Scheme No. 1:‑ "The transfer of the property is not affected by the mere fact that an order is passed in this behalf by a Settlement authority. Other necessary formalities have to be observed. Therefore, the simple fact that the Deputy Settlement Commissioner had passed an order of transfer will not, by itself, take this property within the compensation pool as contemplated in section 10 of the Act." In this connection, reliance has also been placed on the Permanent Transfer Rules whereby under rule 2 (d) a "proposed transferee" has been defined as a person who is entitled to the transfer of the property under the Act and a "provisional transferee" is defined as a person to whom that property has been transferred provisionally. Learned counsel contends that actually title passes only when the P. T. D. is issued but since by paragraph 37 of the Scheme No. I itself, the holder of a Provisional Transfer Order has been given, pending the issuance of the Permanent Transfer Deed of the property, the right to lease the property he may be considered to be a transferee within the meaning of section 30 of the Act. But for this provision he would possibly not have been entitled to be treated as a transferee even for this purpose. The intention of the framers of Scheme No. 1 and of the evacuee laws is, therefore, abundantly clear from the provisions referred to earlier. A person in whose favour an order determining his entitlement is made, is only a "proposed transferee" and not even a "provisional transferee within the meaning of that law. Hence, since the statutory tenancy is a: creature of the law itself, the intention of the law‑makers must be given effect to and the protection given to such tenant not taken away save in accordance with the law. As against this, the learned counsel appearing on behalf of the respon dents Nos. 1 to 4 has firstly contended that the amendment of the P. T. O. by the inclusion of the garage therein relates back to the date when the P. T. O. was originally issued. In fact, according to the learned counsel, after it had been determined that the garage was an integral part of the residential premises transferred to the said respondents, the modifica tion of the P. T. O. was wholly unnecessary because whatever was appurtenant to the premises transferred to the respondents, went with it. The fallacy in this argument, however, lies in this that the premises were in fact separately numbered in five portions and each of these separate portions was included specifically in the P. T. O. and the P. T. D., Therefore, a portion so separately numbered if not included in the P. T. O. could not be said to have been transferred to the respondents until so) included in the P. T. O. itself. Learned counsel next contended that the pre‑existence of a P. T. O. is not a condition precedent for the service of a notice under section 30 of the Act. This contention is not sustainable, because, even if the notice determines the date of the commencement of the period of protection from eviction then it is a condition precedent to the initiation of proceedings for eviction. The word "transfer", it is urged, may have different meanings in different contexts and, therefore, one has to look at the substance and not merely the form. Once an order determining the entitlement of a person to the transfer of a property has been made, the issuance of the P. T. O. is merely a mechanical process in pursuance of the order. The words "transfer" and "transferee" in section 30 of the Act of 1958, must therefore, be read in a wide sense and not in a sense which is restricted to the holder of a Provisional Transfer Order. In support of this contention, learned counsel has relied on a decision of the same learned Judge who delivered the judgment now under consideration in the case of Muhammad Umar Khan v. Chief Settlement Commissioner (P L D 1963 Pesh. 85) where too he observed as follows:‑ "For the purposes of paragraph 4, the word "transfer" has to be understood not in the sense of a final transaction of property but in the sense of transfer to a claimant subject to the several provisions of the Act." The contention raised in that case was that the transfer was not complete until the Permanent Transfer Deed had been issued. The Provisional Transfer Order had already been issued in that case but in spite of that the holder of such an order wanted to take another property by contending that since the first transfer had not yet been completed and finalized by the issuance of the Permanent Transfer Deed he was entitled to another property. In this case the decision in the case of Mst, Bakho v. Sairan was distinguished and held to be inapplicable. Learned counsel has also referred us to two decisions from the Indian Jurisdiction. The first is in the case of Roshan Lal Goswami v. Gobind Rai and others (A I R 1963 Pb. 532). In this case it was held that "an auction‑purchaser of an evacuee property, who has not yet obtained a sale certificate, but to whom ‑the occupier had attorned, could, under the ordinary law, maintain a suit for ejectment. But while saying so, the Court made it clear that:‑ "Till a sale certificate as contemplated by rule 90 is issued to the highest bidder and till the balance of the purchase money has been paid, rights of ownership do not vest in the auction‑purchaser and the proprietary rights, therefore, do not stand transferred by the mere fact that the bid of the auction‑purchaser being the highest has been accepted . . . . . Apparently, there is a lacuna in the Act as the transitional stage, after the acceptance of the highest bid of the auction and till the sale certificate is granted, has not been visualised. The protection applies against the transferee but not against the highest bidder at the auction who in contemplation of the formalities had been given provisional possession." In coming to this conclusion, the Punjab High Court of India had relied on a decision of the Supreme Court of India in the case of Messrs Bombay Salt & Chemical Industries v. L. J. Johnson and others (A I R 1958 S C 289) where toe it had been held that until a sale certificate is issued to the highest bidder of an evacuee property and the balance of the purchase money has been paid, it must be held that there is, till then, no transfer of the property sold at the auction. The contention of the learned counsel for the respondents does not, therefore, find any support from any decision other than the decision of the Peshawar High Court referred to earlier and the impugned judgment. This Court in the case of Rahim Bakhsh v. Ahmad Bakhsh ((1964) 2 P S C R 131) also took the view that as long as the P. T. O. holder performs the obligations under the Act and the schemes formulated thereunder, he has the right to lease out the property and the person in occupation of the property would be deemed to be the tenant of the P. T. O. holder on the same terms and conditions as immediately before the transfer. The specific question as to whether the transferee mentioned in section 30 of the Act of 1958 included a person whose entitlement had only been " determined under the provisions of the Act but to whom no P. T. O. had yet been issued, did not come up for consideration because the contention there was that even P. T. O. holders were not transferees of the property under the Act of 1958. Learned counsel has next contended that the tenancy is created by operation of law and the service of the notice is not a condition precedent to the maintainability of a proceeding for ejectment. The notice, as held by this Court in the case of E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 520) is "designee, to fix the terminus a quo of the period of protection". In the circumstances, the service of the notice contemplated under section 30 determines the period during which the occupant can continue as a statutory tenant. It is true that the statutory tenant is created by the statute and is subject to the conditions laid down in the statute but under subsection (3) of section 30, the protection giver by proviso (b) of subsection (1) is taken away only if the occupant has failed ‑ to pay or to tender the rent due for any period after the transfer within three months of the date of the receipt of the notice sent to him by the transferee. The service of the notice is, therefore, essential for the maintain ability of an application for ejectment if such ejectment is sought on the ground of non‑payment of rent, because, the protection, created by the statute, is not lost until a breach is committed after the receipt of the notice. Therefore, an ejectment proceeding can only be instituted after a period of three months has elapsed since the service of the notice of demand. The specific question that arises here is as to who can serve such a notice of demand? Can a person in whose favour merely an order of transfer has been made immediately serve the notice or must he wait till the Provisional Transfer Order is issued in his favour? Learned counsel for the respondents has also referred us to another decision of a Division Bench of the former West Pakistan High Court, Lahore Seat, in the case of Qazi Khalil Ahmad v. Settlement and Rehabilitation Commissioner (P L D 1965 Lah. 384) where it was held that an application to file a belated C. H. form was rightly rejected after an order for the transfer of the house in favour of another person bad already been made. From this, it is argued that in this case too it was not accepted that until a P. T. O. has been issued, the property is still available in the compensation pool for transfer and, therefore, a belated C. H. form can be filed. The Settlement Authorities have, it is true, no jurisdiction to limit the time for the filing of such forms as held in the case of Altaf Hussain v. Chief Settlement Commissioner (P L D 1965 3 C 68) but this does not mean that they have no right to consider and reject such forms if the person in whose favour an order has already been made has a preferential right to the transfer of the property. The case of contending applicants for transfer stands on a different footing and has to be decided on different principles. Lastly, learned counsel has contended that the order of the learned Additional District Judge, even if erroneous in law, cannot be considered to be without lawful authority and, therefore, in the writ jurisdiction, it was rightly not interfered with. An assumption of jurisdiction upon a clear misreading of the provisions of the law is an error apparent on the face of the record and such an error does furnish a ground for interference in the writ jurisdiction. Vide Rex. v. Narthumberland Compensation Appeal Tribunal, Ex parte Shaw ((1952) 1 A E R 122). In the present case the jurisdiction to order ejectment depended upon a breach being committed after service of a valid notice under section 30 of the Act of 1958. If there was no valid notice then there was no breach and hence no jurisdiction to order ejectment. The High Court could, therefore, have rightly interfered in the writ jurisdiction with the order of the learned Additional District Judge, Rawalpindi. The High Court did not do so because it agreed with the interpretation of the law given by the learned Additional District Judge but having heard the learned counsel for the parties and carefully examined the provisions of the law and the Scheme No. I, the Permanent Transfer Rules and the requirements of the Act of 1958, I have come to they that the "transferee" referred to in section 30 of the Act is a person in whose favour at least a P. T. O. has been issued and, therefore, a mere order determining the entitlement to the transfer does not amount p to transfer nor does it make a person in whose favour such an order has been made a "transferee" within the meaning of the Act. This appeal must, therefore, in my view, succeed. I would, therefore, allow the same but would leave the parties to bear' their own costs. SALAHUDDIN AHMAD, J.--‑I agree. MUHAMMAD GUL, J.--‑I agree. MUHAMMAD AFZAL CHEEMA, J.--‑I agree: S. A. H. Appeal allowed,