P L D 1966 (W (PLP)

2. The present appellant is aggrieved by this part of the judgment delivered by our learned brother Muhammad Akram, J. on the 13th of December 1965. Sheikh Khurshid Ahmad, the learned counsel appearing for the appellant, has raised the following contentions before us: (a) That the question whether Abdul Rehman ‑ was in possession or not of the portion in dispute on the relevant date is a question of fact and it was not open to the High Court to interfere with the finding recorded in this behalf by the learned Settlement Commissioner; (b) That even if the question be regarded as one of law, or as a mixed question of law and fact, the High Court had still no authority to interfere simply on the ground that it was inclined to take a view of the law different from the one adopted by the Settlement authorities; and (c) that in any case, even the view of law taken by the learned single Judge is not correct, for the term `possession' as defined in clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, contemplates physical possession besides the other ingredients mentioned in the definition, but in. the present case, on the facts found Abdul Rehman was not in physical possession.

3. We regret, we see no substance in any of these contentions. It is true that the question whether a person is or is not in possession of a particular property would ordinarily be a question of fact and the High Court acting under Article 98 of the Constitution would not interfere with such a finding of fact, but if the question of possession has reference not merely to the factum of physical occupation, but also to the legal definition of that term as adopted in the relevant statutes, then the question can no longer be described as a pure question of fact.

4. In the present case two sets of facts have been found by the learned Settlement Commissioner in his order dated the 15th of October 1962, which was impugned before the learned single Judge. It was found, in the first place, that respondent No. 2, Abdul Rehman was the allottee of the disputed portion, that he had let out the shop to one Abdul Sabur who had in turn rented it out to the appellant Nazar Muhammad. These facts show that the appellant was not in possession in his own right but derived his possessory title from Abdul Rehman through Abdul Sabur. The other set of facts stated by the learned Settlement Commissioner is that it was not established on the record that the appellant Nazar Muhammad was in exclusive physical occupation of the shop in dispute, because respondent No. 2, Abdul Rehman was also claiming to be in occupation of this very portion. It was as a result of this dispute between the parties regarding the factum of physical occupation that the learned Settlement Commissioner decided to place this part of the property in the auction pool, as he could not give a definite finding as to whether one or the other was in possession. It will be seen therefore, that as regards the first set of facts, there is no dispute and the only question which needs determina tion is whether on these facts, Abdul Rehman or the present appellant is to be regarded as in possession within the legal definition of that term. According to the learned single Judge, the Settlement Commissioner has misconstrued the relevant provisions of law, and he has accordingly proceeded to correct that error of law in the exercise of his writ jurisdiction.

5. The question, therefore, is whether under Article 98 of the Constitution, this Court has the jurisdiction to correct such errors or not The learned counsel for the appellant has placed reliance on the observations of his Lordship the Chief Justice in the well known case Mian Jamal Shah v. The Member Election Commission and others (P L D 1966 SC 1). On page 26 of the report, the learned Chief Justice has discussed the question whether an error of law provides justification for interference in the exercise of writ jurisdiction. After pointing to' several English cases, his Lordship has, however, observed (on page 27 of the report) as follows: "I mention these cases in order to emphasise that these are no longer relevant for the application of Article 98, which is worded in clear terms and must be applied according to its terms." His Lordship has then gone on to refer to the earlier decision of the Supreme Court in Badrul Haq Khan v. The Election Tribunal, Dacca (PLD 1963 S C 704), and pointed out that "it will be going too far to say that every little breach of a rule by allowing evidence to come in, which in strict law might be thought inadmissible, would constitute an act, `without lawful authority"'. After stating that Kaikaus, J. differed from the majority judgment of the Court in that case, the learned Chief Justice has quoted with approval a passage from the minority judgment of Kaikaus, J. in that case to show that even Kaikaus, J. did not regard a mere error of law as amounting to a question of jurisdiction. In this passage the concluding observations of Kaikaus, J. are to the following effect: "So if we were to accept the proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a Court of appeal for matters of fact as well as matters of law."

6. From the observations relied upon by Shaikh Khurshid Ahmad, it would appear that an error of law or a misinterpreta tion of the relevant provisions of a statute would not furnish justification for interference under Article 98 of the Constitution, but we consider that the matter is, however, not concluded by these observations in so far as the question of interference with the orders of the Settlement tribunals is concerned. The obser vations to which we have referred above have been made in a general context without any reference to any particular kind‑ of Tribunal, during the course of a discussion 6f the scope of Article 98 vis‑a‑vis Article 171 of the Constitution. On page 54 of the report in Jamad Shah's case, we have a very detailed discussion by Kaikaus, J., in a separate judgment, regarding the power of the High Court to interfere for the purposes of correcting errors of law of judicial tribunal like the Settlement and Rehabilitation Authorities, the Custodian, the Collector of Customs, etc. His Lordship has expressed himself as under: "Let me take the case of Settlement‑ Authorities and the rest will then become clear. Our interpretation of the Displaced Persons (Compensation and Rehabilitation) Act, is that the Schedule to this Act gives an indefeasible right to certain persons in respect of transfer of property. The function of the Settlement Authorities is to transfer property to those entitled to it by virtue of the Schedule. While determining entitlement the Settlement Authorities have to determine certain questions of fact and in this respect they act judicially. The power of division of houses and certain other powers too having been granted to them which too they exercise judicially. Bu they are not entitled to refuse to transfer property by mis interpretation of the provisions which create the right to a transfer. They do not determine judicially the interpretation of the provisions which create rights to a transfer though they have as administrative officers, to find out who is entitled to a transfer.

The Legislature has not entrusted to the Settlement Authorities the function of construing the law with respect to transfers. If on the facts found by them a person be under the law entitled to transfer they have no power to refuse a transfer and in such cases a mandamus and not certiorari would have been the remedy if jurisdiction had been conferred in terms of English Writs. Under para. (1) of clause (a) of Article 98 (2) the High Court can direct them to transfer property in a case where requisite facts are admitted by the Settlement Authorities to exist. So far as facts which are the basis of entitlement of a person are concerned the Settlement Authorities act as judicial tribunals and the same is the position with respect to some other powers which they exercise. Their acts as judicial tribunals can be interfered with only on grounds applicable to judicial tribunals."

7. From this detailed discussion by Kaikaus, J. regarding the power enjoyed by the High Court under Article 98 in the matter of correcting errors of Settlement Authorities and other tribunals of alike nature, it is clear that the power exists and there is no question of holding that the High Court cannot interfere in a case where a Settlement Tribunal has erroneously refused to transfer property to a person entitled under the law on the basis of facts admitted or proved on the record. It seems to us that the observations appearing on pages 54‑55 of the report are directly relevant in the present context and the jurisdiction of this Court, therefore, does not stand ousted only in view of the general observations' made earlier in the judgment of his Lordship the Chief Justice.

8. We now proceed to consider the last contention raised by the learned counsel for the appellant, namely, that the learned single Judge in chambers has erred in thinking that in the circumstances of the present case Abdul Rehman could be regarded as being in possession within the meaning of that term as defined in clause (6) of section 2 of the Act. According to this definition, possession means, possession obtained in pursuance of an order passed on or before the 20th day of December 1958 by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government," The second proviso to this definition clause confers powers on the Central Government to 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 purposes of this Act. It will be seen that in the present case, Abdul Rehman is a person who obtained a valid allotment order before the 20th of December 1958 and in pursuance of that order he did obtain physical possession of that shop, and subsequently, he rented out the same to one Abdul Sabur, who in turn sublet the same to the present appellant. In other words, the facts found on the record show that Abdul Rehman did acquire possession of the disputed portion in accordance with the legal definition of that term, and therefore, the question is whether his act of letting or subletting has the effect of divesting him of that possession. The con tention of the learned counsel for the appellant is that an essential ingredient in this definition of the term "possession" is that there must be physical occupation on the relevant date before entitlement can accrue under the Schedule to the Act, and in support of this contention, the learned counsel has referred us to the interpretation placed on this term by the Settlement Authorities themselves as contained in a memorandum issued on the' 5th of December 1959, and printed on pages 388 and 389 of the new "Manual of Settlement Law and Procedure". In this memorandum one of the statements made is: "under the law only a person who has got physical possession of a house or a shop is entitled to its transfer in accordance with the provisions, of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the schemes made thereunder. Persons who hold allotment orders issued before the 20th of December 1958, but have not been able to secure physical possession are, therefore, not entitled to the transfer of the properties allotted to them under the law . . . . . . " This memorandum was intended to lay down a policy for the disposal of transfer applications received from allottees who had not obtained physical possession. This question was later settled by the Central Government by issuing an order under the proviso to which reference has already been made, and it was laid down that if the allottees had not succeeded in obtaining possession due to no fault of their own then they shall be deemed to be in possession for the purposes of the Act.

9. We think it is clear that there is a basic distinction between the case of an allottee who has obtained physical possession in pursuance of his allotment order and that of an allottee who has not succeeded in doing so. The memorandum to which the learned counsel for the appellant refers has clearly reference to a case where physical possession was never obtained by the allottee, and accordingly the Settlement Authorities were right in observing that under the definition as it stands such persons could not be deemed to be in possession. The reason behind this statement is fairly simple; namely, that the definition contemplates obtaining of possession under a valid order of allotment, and if possession was never obtained the allottee could not be deemed to be in possession unless of course, the Central Government made a special provision in their favour by invoking its power under the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958, and this is precisely what was done. In a case, however, where on allottee has in fact obtained possession in pursuance of his allotment order, the requirements. laid down in the definition clause are fulfilled, and the only question is whether E it can be held that subsequently he stands divested of that possession by the mere act of permitting another person to occupy the , premises under some arrangements made between the two.

10. We consider that the answer to this question musts clearly be in the negative. The allottee having obtained valid possession continues to be in possession in so far as relationship between him and the Settlement Authorities is concerned, and al person in permissive possession on his behalf. does not acquire any independent right under the relevant statute. For all purposes, therefore, relating to, the transfer of the property, it is the allottee who is to be deemed to be in possession, if he has in fact once obtained possession in pursuance of the allotment order, and his allotment has neither been cancelled nor has his possession been legally disturbed by a third party, claiming adversely to him. The mere act of renting out the property will not affect this position, as the power to rent out can be regarded as arising out of the possession enjoyed by the allottee.

11. On this view of the matter, we‑ are in respectful ith the learned single Judge in the conclusion he has reached, namely, that in the circumstances of this case, it is Abdul Rehman respondent No. 2 who is to be deemed to be in possession and not the sub‑tenant, Nazar Muhammad (i.e. the present appellant) who has no independent rights or status of his own. Accordingly, the Settlement Authorities had clearly acted without lawful authority in refusing the transfer of the disputed portion to the respondent, and their order was liable to interference by this Court. The appeal, therefore, fails and is dismissed in limine. K. M. A. Appeal dismissed.