P L D 1967 Supreme Court 221 (PLP)

S. A. RAHMAN, J.‑‑The facts giving rise to this appeal by special leave are as follows: Bungalow No. J. M. 885/1‑32, Gokhley Road, Karachi, consists of four flats, two on the ground floor and two on the first floor. The building was divided by the Settlement authorities vertically, so as to create two independent houses. One of these houses, consisting of a ground‑floor flat and a first‑floor flat above it was transferred to one, Mst. Nafisa Khatun. That is not the subject of any dispute in the instant case. The parties to the present appeal are contending for the right to the transfer of the other house that was formed of a flat on the ground floor and one on the first floor. Mst. Noor Jehan Begum, the first respondent, was occupying the ground‑floor portion, along with her husband. The first‑floor flat was alleged to be in the occupation of Jamil Ahmad and Vakil Ahmad, the sons of Abdul Majid Shaida, the appellant in the present appeal. Out of them, Vakil Ahmad was said to be a regular allottee, under an‑ order passed in 1955. The first respondent or, her husband was. not an allottee, but they had been in undisputed occupation of the portion in their possession since 1948. Abdul Majid Shaida claimed transfer of this whole house, as a claimant displaced person, on the strength of the possession of his son, Vakil Ahmad. Mst. Noor Jehan Begum also applied for the transfer of the whole of this portion. The Deputy Settlement Commissioner transferred this house to the appellant. An appeal, taken by the respondent to the Additional Settlement Commissioner, was dismissed on the 4th April 1960. On the 9th April 1960, a copy of this order was obtained, on behalf of the first respondent, by her brother who acted as her attorney. No attempt was, however; made to challenge this order by a revision petition, for a long time. As a matter of fact, about a month later, she moved an application, dated the 12th of May 1960, before the Deputy Settlement Commissioner, wherein it was recited that previously, she had undertaken to pay the transfer price of a shop in Gokal Chand Building on Arambagh Road, Karachi, which was in her possession, in 36 cash instalments, but that now, having lost her case in respect of the house on ‑Gokhley Road and there being no appeal or other proceeding filed by her or pending against that order before any authority, she wanted that the price of the shop should be adjusted towards her compensation book which had been issued in the name of her brother and attorney Maqsud Mirza. This prayer was acceded to, by order dated the 13th of May 1960. It appears that subsequently, the appellant demanded rent for the‑ portion of the premises in the occupation of the respondent. No rent having been paid in spite of notice, proceedings in ejectment were started against her. When the ejectment notice was served of her, an attempt was first made to get the appellate order of the Additional Settlement Commissioner, reviewed. By order, dated the 22nd May 1961, the respondent was advised by that officer to take up the matter in revision, rather than to press the review petition. It was then that a revision petition was filed before the Settlement and Rehabilitation Commissioner, on the 8th of June 1961, after the review petition was withdrawn. This petition was rejected by the Settlement Commissioner, by order, dated the 14th of July 1961, on the grounds that it was barred by limitation, that she had exhausted her claim by transfer of the shop in her favour and that her allegation that Vakil Ahmad, son of the appellant, who was said to be an allottee in possession, did not occupy the premises but that it was in the. possession of his brother, Jamil Ahmad, alone, was incorrect. This revisional order was called in question, on behalf of the respondent, by a petition for a writ, submitted to the High Court of West Pakistan, Karachi Bench, on the 17th November 1962. After hearing the parties, a learned Single Judge, who was seized of the case, referred three questions for decision to a Full Bench. These three questions were: (1) Whether a claimant who has exhausted her claim can be considered to be a claimant displaced person, within the meaning of subsections (2) and (3) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, in order to take advantage of the benefits conferable under the Act on claimants. (2) Whether for the purposes of the previsos to para. 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, a claimant can take advantage of the physical possession of his parent, son, daughter or spouse, against a person in actual possession? (3) Whether the extended definition of "possession" notified by the Central Government on the 13th October 1959, could be availed of by a person in occupation of a premises, in competition with another such occupant who was in possession under an allotment order, from before the 21st day of December 1958 ? The learned Judges of the Full Bench answered the first question, by saying that a claimant, who had exhausted his claim, still continued to be a "claimant", within the meaning of sub sections (2) and (3) of section 2 of the Act. In respect of the second question, the answer recorded was that a claimant could not take advantage of the possession of his parent, son, daughter or spouse, in competition with an actual occupant. On the third question, the opinion rendered by the Full Bench was that a person, with an allotment order in his favour, could not be preferred, merely on that account, .to a person in undisputed occupation, who satisfied the conditions laid down in the Central Government Notification, dated the 13th of October 1959. By that Notification, the definition of "possession" given in section 2(6) of the Act was extended so that a person not holding an allotment order or permit issued by a competent authority, would be deemed to be in "possession" of the premises in his occupation if his occupation was undisputed from before the 21st December 1958, and no other person is otherwise entitled to the transfer of the premises in question in pursuance of a final order passed by a competent authority before that date and that the rent of the premises had been cleared or adjusted. A condition of eligibility for transfer of property under the Schedule to the Act is that the person should have been in "possession" within the meaning of that term as defined in section 2(6). The Scheme embodied in the Schedule to the Act gives precedence to claimant displaced persons, non‑claimant displaced persons and locals subject to certain limitations, in that order: The case was then remitted back to the learned Single Judge, who in view of the Full Bench decision, allowed the writ petition, quashed the impugned order and directed the Settlement Commissioner to decide the case afresh on the merits of the dispute‑between the contesting parties. He pointed out that the respondent had to be treated as a claimant displaced person in "possession", in respect of the property in question. Special leave to appeal was granted in this case to consider, inter alia, the question whether a person who has exhausted his claim could arrogate to himself the status of a claimant under the Act or not. The first contention raised by Mr. Z, H. Lari, on behalf of the appellant is that the High Court erred in holding that a claimant whose claim had been fully satisfied, still remained a claimant, for the purposes of the Act. He took us through the Full Bench judgment on this point and argued that no cogent reasons had been assigned for the view that prevailed in the High Court. The learned Judges set out the definitions of a "claimant" and "displaced person", as given in section 2 of the Act. They rejected the contention raised, that by virtue of the implications of section 15 of the Act, after a claimant had received compensation in full, he becomes a non‑claimant, on the ground that this argument was inconsistent with the Scheme of the Act. They observed that a claimant, under the Schedule to the Act, would be entitled to the transfer of a residential house as well as a shop. They inferred that even if the claim had been exhausted, in a particular case, by the transfer of a house, the claimant could still ask for a shop in his possession to be trans ferred to him. They also referred to paragraph 4 of the Schedule, which gives a right to a claimant, to obtain the transfer of a . house which has not been transferred under paragraphs 1, 2 or 3, at a price to be determined on evaluation basis. Paragraph 9 of the ‑ Schedule was also referred to in this connection which relates to the entitlement of a non‑claimant displaced person to a shop in his possession. The learned counsel has tried to maintain before us that the inference drawn from these paragraphs of the Schedule by the High Court, by no means, followed from the language used therein. In cases, contemplated by each of the B paragraphs 1 to 4 and 8, the right is given to a "claimant" to obtain transfer, of a house or a shop and this would seem to imply that he must occupy the status of a "claimant", whenever he applies for the transfer of any property under any of these paragraphs. Learned counsel suggests that it would be a contradiction in terms to say that a person, who has exhausted his claim by full satisfaction as contemplated by section 15 of the Act, still retains the status of a claimant. There is a good deal of force in the contentions raised and the view taken by the C High Court would seem to be open to grave exception. After hearing learned counsel for both‑ sides, however, we consider that no final pronouncement is called for on this point, in the present case. Section 11 of the Act authorises the Chief Settlement Commissioner to invite applications, from time to time, by a notification in the official Gazette, from such claimants as may be specified in the notification, for the payment of compensation to them, under the Act. Section 12 lays .down that, on receipt of such an application, the authority concerned shall, after making enquiry in the prescribed manner, inter alia, ascertain the amount of compensation to which he is entitled, separately under the compensation pool and the rent pool, having due regard to "the prescribed scales of compensation". Section 15 further declares that a claimant, other than a claimant convicted under section 14 of the Registration of Claims (Displaced Persons) Act, 1956, shall be entitled to receive payment out of the compensation and rent pools, to the extent of the amounts shown in the certificates issued to him, under subsection (2) of section 12, "subject to such scale of compensation, if any, as may be prescribed from time to time". At page 96 of the Old Manual of Settlement, there appears Memorandum No. 7796‑Comp.‑Reh/59, dated the 7th December 1959, in which it is stated that the Central Government has prescribed the following scale of compensation to be paid to claimants against their verified claims, under Schedules 1, II and III of the Registration of Claims (Displaced Persons) Rules, 1955:‑ Rs. For the first 5,000 ... 70 For the next 5,000 ... 60 For the next 90,000 ... 50 0 For the remainder ... 25 % subject to a maximum com - pensation of Rs. 3 lacs. This prescribed scale makes it clear that, under the orders so far issued by the Government, the verified claims of no person) could be fully satisfied. Even if compensation has been awarded either in cash or in the shape of property, in accordance with the scale fixed, to a claimant, it would not destroy his status as a claimant, because, on the face of it, the compensation he has received, is only a proportion of his verified claim. The scale is subject to revision, from time to time and the possibility is still open that at some future date, the Government may, if circumstances permit, offer more compensation to the claimants, in respect of unsatisfied portions of their verified claims. In law, therefore, they continue to be "claimants" as defined in section 2(2) of the Act. The definition of "claimant" reads as follows:‑ "(2) `Claimant' means a displaced person whose claim (excluding claims in respect of agricultural land) has been registered under the aforesaid Act and includes the successors in‑interest of a claimant who dies on or before the thirty‑first day of August 1 559, but does not include any such person whose claim has, subsequent to registration, been withdrawn or rejected:" A reference to "the aforesaid Act", in this definition is intended as a reference to the Registration of Claims (Displaced Persons) Act, 1956. Considering, therefore, the factual position, as it obtains today, under the orders of the Central Government, it would be idle to contend that the first respondent, by partial satisfaction of her verified claim, had lost her rights as a "claimant" under the Act. Her verified claim was of the order of Rs. 720 but she apparently has been given credit on this claim, up to Rs. 500 and odd, so far. Mr. Lari's plea, therefore, that she is no longer 'a "claimant", fails. Mr. Lari next contested the view taken in the High Court, that the revision petition filed by the respondent before the Settlement Commissioner, could not have been dismissed on the ground of limitation. Power of revision is conferred by section 20 of the Act, on a Settlement Commissioner, specially empowered in this behalf by the Chief Settlement Commissioner, to call for, at any time, the record of any case or proceeding under the Act, in which an Additional Settlement Commissioner ora Deputy Settle ment Commissioner ora Assistant Settlement Commissioner under his jurisdiction, has passed an order, relating to the entitlement of a person to the transfer of a property or to a matter involving title, for the purpose of satisfying himself as to the correctness, legality or propriety of such order and may pass such order in relation thereto, as he thinks fit. No such order can, however, be passed, revising or modifying an order affecting any person, without giving such person reasonable opportunity of being heard. Learned counsel for. the appellant tried to maintain before us that, though this section provided no limitation for a revision petition, yet under subsection (3) of section 9 of the Act, the Settlement Commissioner and officers below him, were to perform the duties and discharge the functions assigned to them, by or under this Act, "under the general superintendence and control of the Chief Settlement Commissioner", subject to the provisions of the Act and all orders, as from time to time, may be made by the Central Government, in this behalf. Learned counsel suggested that this provision gave authority to the Chief Settlement Commissioner to fix a period of limitation for revision petitions, under section 20 of the Act and that, in fact, he had fixed 15 days' period; by an order, in this connection. This order was apparently present to the mind of the learned Settlement Commissioner, when he observed that the revision petition submitted to him was hopelessly barred by time. It had been filed some 14 months after the appellate .order. The argument raised, however, does not appear to us to be sound. Section 35 of the Act empowers the Central Government to make rules by a notification in the official Gazette, to carry out the purposes of the Act. It is conceded that no rules have been framed under this section to provide for limitation in respect of revision petitions under the Act. We are not satisfied that they power of superintendence, given to the Chief Settlement Commissioner over his subordinates, could be invoked as authority for the prescription of a period of limitation for revision petitions, in the absence of any provision in the Act or any rule, to that effect. The High Court were, therefore, apparently right in pointing out that the order of the Chief Settlement Commissioner fixing a period of limitation, could not stand in the way of the entertainment of a revision petition, in law. This, however, does not conclude the matter. Section 20 of the Act gives a discretionary power of revision to a specially empowered Settlement Commissioner. There is no right given to any applicant to move a revision petition before the Settlement Commissioner. It is the latter's discretion to act under the powers, conferred on him by section 20, in a suitable case. The order, passed by the Settlement Commissioner, must be read in the context of this legal position. The Settlement Commissioner, no doubt, had in mind the prescription of a period of limitation by order of the Chief Settlement Commissioner, when he mentioned that the petition should have been filed within 15 days of the impugned order being passed. But, at the same time, he commented adversely on the `fact that the petition had been submitted to him with a delay of 14 months and that no explanation for this delay had been furnished at all. In the circumstances, it could not be said that the Settlement Commissioner had declined to exercise jurisdiction on an arbitrary or fanciful ground. Even apart from the ineffective order of the Settlement Commissioner, prescribing the period of limitation, the learned Settlement Commissioner could have refused to entertain the petition, on the ground of laches and the tenor of his order shows that he was aware of this aspect of the case. The question, therefore, arises whether the High Court were right in the exercise of their equitable writ jurisdiction to interfere with the order of the Settlement Commissioner, declining to exercise his discretionary revisional powers, in the circumstances of this case. As has been observed above, the first respondent appears to have reconciled herself to the appellate order passed against her and she expressly referred to this fact in her application for permission to use her compensation book for payment of the price of a shop, transfer whereof she had sought. In that application, she had expressly stated that the decision, with regard to the house had been against her and that she had not challenged the decision by further appeal or revision. Her compensation book was, therefore, available, to her for adjustment towards the. price of the shop and she prayed for that indulgence. This request of hers was granted. Not till proceedings in ejectment were started by the appellant against her, after she had failed to pay the rent for the premises to the transferee in spite of notice, did she attempt to challenge the order of the Additional Settlement Commissioner, first by a review petition and then by a revision petition to the Settlement Commissioner. It would, therefore, seem that her revision petition was not a bona fide one and was really intended as a counter‑blast to the ejectment proceedings. In view of the inordinate delay, in presenting the . revision petition and the antecedent circumstances, the Settlement Commissioner was not exceeding his jurisdiction or failing to exercise it, in declining to revise the impugned order. On this. ground, we consider that the order, passed by the High Court, in writ jurisdiction was open to serious exception. The alternative stand, adopted by Mr. Lari, on behalf of the appellant, that as his client's son was an allottee, whereas the respondent was merely in possession without an allotment order, the former was to be preferred to the latter, has no legal basis, in, the face of the decision of this Court in Barkat Ali v. Muhammad Sharif (P L D 1966 S C 817). If the respondent was in undisputed occupation of the house, within the meaning of the notification, dated the 13th of October 1959, by which the definition of "possession" was extended so as to include within it, persons in undisputed occupation, subject to certain conditions, then she could not be defeated by the appellant, merely on the ground that his son, who( was an occupant of the house, held an allotment order in hi Is favour. Mr. Lari also attempted to argue before us that a claimant displaced person, not in actual possession, whose parent, son, daughter or spouse was in possession under an allotment order, could also take advantage of the two provisos to paragraph 1 of the Schedule to the Act. This paragraph reads as follows: "A house in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a house which such parent, son, daughter or spouse does not claim under the provisions of the Schedule and if there is more than one such house, then anyone of the houses which the claimant desires to retain, shall be transferred to him at a price determined on evaluation basis: Provided that if a house or a part thereof is in possession of more than one person and one of them is a claimant, then the house shall be so transferred to the claimant: Provided further that if a house or a part thereof is in possession of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession." The main opening part of this paragraph deals with a situation where the claimant who is out of possession, desires to obtain the property in question and is not opposed by any actual occupant. That would be a case of no contest at all. The two provisos, however, are apparently directed towards two different situations where there is a contest between actual occupants of a premises. The first proviso deals with a situation where the house is in occupation of more than one person, one of them being a claimant. In such a case the claimant would have preference over the other occupant. The second proviso lays down that if a house or a part thereof, is in possession of more than one claimant, the house shall be transferred to the claimant who obtained prior possession. If Mr. Lari's argument is to succeed, it would mean that a person, who can claim under the main paragraph, on the strength of constructive possession through one of the relatives mentioned therein, must be deemed to be in actual possession for the purposes of the two provisos. He would in such a case defeat a claimant, in actual occupation, if his own relative in possession had occupied the premises earlier than that claimant. This would mean enlarging the definition , of "possession", as given in section 2 of the Act, to persons who can claim only on the basis of constructive possession. There are no words in the main paragraph, suggesting that such a person is deemed, in law, to be in actual possession. Such a deeming provision could have been made by a notification of the Central Government, under the second proviso to the definition of "possession" in section 2 6) of the Act. That in fact has been done by the Central Government, to give the benefit of "possession" to persons, not holding an allotment order, but who are in undisputed possession from a certain date, subject to certain conditions. But for this extension of the definition, the word "possession" would have to be construed merely, as meaning occupation under an allotment order or some other order issued by a competent authority as laid down in the statutory definition. At page 563 of the New Manual of Settlement appears a Memorandum, dated the 7th of March 1960, declaring that the Central Government has decided that where a house is in the possession of the husband, in pursuance of an order passed on or before the 20th day of December 1958, by a competent authority, his wife, if staying with him, will also be deemed to be in possession. The Memorandum would appear to be redundant if the position adopted by Mr. Lari is accepted as correct. We are not, therefore, convinced ,that a claimant, who is himself out of possession, can, on the strength of possession of his relative son, defeat the claim of an actual occupant who is also a claimant under the two provisos to paragraph 1 of the Schedule. Some question was also raised as to whether the C. H. Form, put in by the respondent on the 12th November 1959, had been submitted, within time or not, Mr. Lari maintained that the last date for the submission of such Forms was the 10th of November 1959. Mr. Muhammad Idris Qureshi for the respondent referred us to certain other Memoranda, issued by the Chief Settlement Commissioner, appealing at pages 118 and 133 of the Old Settlement Manual, which, according to him, further extended the date for submission of C. H. Forms. We have seen these Memoranda but they do not appear to be applicable, in terms, to the case of the respondent. However, this point need not be laboured further, as this objection was apparently not raised at any stage of the proceedings before the Settlement authorities. Being a fresh point taken, for the first time, here, it cannot be allowed to be agitated at this late stage. Mr. Muhammad ldris Qureshi on behalf of the first respondent also attempted to argue that his client had a good case, as she was in actual possession of the premises along with her husband, whereas the appellant was an indirect claimant, and on merits, therefore, the orders of the Settlement authorities were liable to be set aside. If this contention had ‑been put forward at the proper stage, in the proper manner, before the Settlement authorities, perhaps it ‑might have succeeded. But, in the circumstances outlined above, we find that the respondent had precluded herself from challenging the .appellate order of the Additional Settlement Commissioner, by not calling it in question, within a reasonable time and indeed declaring solemnly that she had no intention to challenge it. She utilized her compensation book, as pointed out above, for the payment of the transfer price of another shop on the express declaration that she had accepted the order in respect of the house as final against her. The High Court was, therefore, in error, in giving effect to her plea for interference with the order, passed by the Settlement Commissioner, on the facts of this case. We, therefore, allow this appeal and recall the order, issued by the High Court in writ jurisdiction. There will be no order as to costs, in the circum stances of this case. A. H Appeal allowed.