1970 PLP 375 (SCMR)

HAMOODUR RAHMAN, C. J.‑This appeal by special leave arises out of an order of a Division Bench of the High Court of West Pakistan, Karachi, summarily dismissing a Constitu tional Petition under Article 98 of the Constitution of 1962 which. was filed to challenge the validity of an order of the Additional District Judge and Ex Office Settlement and Rehabilitation Commissioner Tharparkar. The circumstances which gave rise to this Constitutional petition may briefly be described as follows :‑ An evacuee house, bearing Survey No. C/56 at Digri, District Tharparkar wherein was housed the Digri Post Office, was auctioned on the 22nd of May 1960 in terms of paragraph 6 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. One Noor Mohammad who had bid Rs. 8,500 for this house was declared the successful bidder and his bid was formally accepted on the 15th July 1960, by the Assistant Settlement Commissioner, Mirpurkhas. Thereafter a P. T. O. was issued in his favour on the l 8th July 1960. He then gave notice to the Post Office authorities about the transfer in his favour and demanded the rent in respect of the premises. On the 5th August 1961, the Superintendent of Post Offices, Mirpur Khas Division replied to this notice calling for an attested copy of the P. T. O. and informing that the building stands in emergent need of repairs. This was followed by another letter of 23rd September 1961, reminding Noor Muhammad to send the documents for examination at an early date for necessary action and again asking him to attend to the emergent repairs. Thereafter Noor Mohammad associated with himself the present appellant and surrendered his rights in the said premises in favour of the appellant who was a claimant displaced person holding a verified claim of Rs. 12,

500. This association was accepted by the Settlement Department and on the 7th March 1962, an amended P. T. O. was issued in favour of the appellant after cancelling the original P. T. O. issued in favour of Noor Mohammad. This was followed by the issuance of a permanent transfer deed on the 20th July 1962, in favour of the appellant. Then the appellant gave notice presumably, under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, to the Postal Department. In response to this notice the Superintendent of Post Offices, Mirpurkhas, on the 3rd September 1963, for the first time, informed the appellant that the transfer of the building in his favour was irregular as it continued to be in possession of the department from before the Partition. The matter had, accor dingly, been referred to the Chief Settlement Commissioner, Lahore and no question of payment of rent, in the circumstances, arises. But the Post Master General, on the following day, wrote to the appellant saying that the matter was under correspondence with the Rehabilitation Authorities. The appellant at this stage applied for the ejectment of the postal authorities from the said premises but while these ejectment proceedings were pending the Government of Pakistan filed a Misc. Appeal, being No. 71 of 1964, in the Court of the Additional District Judge and Ex Office Settlement and Rehabilitation Commissioner, Tharparkar, alleging that on the 1st of March 1960, the Central Government had accorded approval for the sale of the building to the Post and Telegraph Department and this decision had been duly communicated by the Chief Settlement Commissioner to all Deputy Settlement Commissioners including the Deputy Settlement Commissioner of Mirpurkhas. The premises in question could not, therefore, have been auctioned on the 22nd May 1960. The Settlement and Rehabilitation Commissioner treated this as a revision petition and in view of the orders of the Central Government set aside the orders of the Deputy Settlement Commissioner transferring the house to Noor Mohammad and then approving the transfer from Noor Mohammad to the appellant. After this the appellant withdrew his ejectment application from the Court of the Rent Controller, with permission to file a fresh application, on the 28th November 1964. This was the order that the appellant sought to challenge in the High Court on mainly two grounds; firstly, that at the relevant date, namely; the 14th November 1964, the Settlement Commissioner' had no jurisdiction to revise orders of subordinate Settlement authorities and that secondly, in any event, under section 10 (b) of the Displaced Persons (Compensation and Rehabilitation) Act, as it then stood, the Central Government could not approve the transfer of the property in a manner different to that provided its the Schedule to the above Act unless the Settlement Commissioner himself moved the Government for such an approval. The High Court replied both these contentions but leave to appeal was granted in this case to consider whether the Settlement Commissioner had acted upon adequate grounds in allowing the revision moved before him, because, the mere approval of the Government under section 10 (b), even as it then stood did not create a lien or encumbrance of any kind on the building. The question of jurisdiction of the Settlement Commissioner was also sought to be raised but leave was refused on this ground as the objection to the jurisdiction of the Settlement Commissioner had not been raised in the Court of first instance and there was no evidence on the record to show as to whether the Settlement Commissioner had been properly authorised by the Chief Settlement Commissioner to hear the revision. It appears that on the 2nd March 1964, the Central Government by Notification No. S. R. O. 192(K)/64, deleted rule 6 of the Permanent Transfer Rules, 1961 and amended rule

7. Under the amended rule 7 power was given to the Central Government, the Chief Settlement Commissioner or a Settlement Authority not below the rank of an Additional Settlement Commissioner, authorised by the Chief Settlement Commissioner in that behalf to "resume the whole or any part of the property, if at any time, it or he is, for reasons to be recorded in writing, satisfied that the transferee or his predecessor‑in‑interest had secured the transfer o f the property . . . . . . in contravention of any provisions of this Act". In pursuance to this amended provision the Chief Settlement Commissioner had also issued a Memorandum No. 1897‑Pol/b4 dated 15‑6‑1964 (page 332, New Settlement Manual) pointing out that "as a result of the amendment in rule 7 no Settlement authority can institute any proceedings under these Rules unless so authorised by the Chief Settlement Commissioner in this behalf. The Chief Settlement Commissioner does not propose to issue any general orders authorising any Settlement Authority to institute proceedings under Rule 7 of the Rules. He desires that individual cases of this nature should be referred to him for prior approval before any case is taken up in revision under Rule 7 of the Permanent Transfer Rules after permanent Transfer Document has been issued. It is requested that in cases where a reference is made to you by an interested party or by a lower Settlement Authority in revision after the issue of Permanent Transfer Document, the case may be submitted to this office with full facts in the first instance for obtaining the Chief Settlement Commissioner's orders and no further action should be taken till his orders have been received". On the basis of these amendments and the above Notification, it is contended, that the Commissioner who purported to revise the order the requisite authority to do so but, as pointed the leave granting order, there is no evidence on the record to show that this authority had not been obtained in the manner prescribed by the Notification above quoted. In the absence of such evidence it must be presumed that the Settlement Commissioner concerned had acted with regularity in cancelling the issuance of the Permanent Transfer Deed, for there is always a presumption of regularity attaching to all official acts. The onus of rebutting this presumption is on the party who alleges that the official act was not performed regularly. The appellant has not succeeded in doing so. The learned counsel for the appellant next contended that rule 7 of the Permanent Transfer Rules itself was subsequently deleted and, therefore, even this power was no longer there. But this deletion, it appears, took place in December 1964, after the impugned order was made. Hence this argument is of no avail to the learned counsel. The next point urged by the learned counsel is that under the Scheme of the Displaced Persons (Compensation and Rehabilitation) Act a displaced claimant has a vested right to the transfer of an evacuee property and in order to deprive him of that right, the authorities must show that they had acted strictly in accordance with law. At the relevant time the words of clause (b) of section 10, as they originally stood, were as follows :‑

"(b) Any such other manner as may be prescribed." This was amended by Ordinance No. LIII of 1959 to read as follows "(b) In such manner as may be approved by Central Govern ment." It further amended subsequently but we are not concerned with those amendments, for, the relevant date in this case is the date of the approval of the Government, namely; the 1st March 1960. The learned counsel contends that in either for clause (b) was controlled by the opening words of section 10, i. e. that the approval of the Central Government had also to be subject to the provisions of the Act and the Rules made there under, as had been held by the High Court in the case of Raza Memorial Educational Society v. The Chief Settlement Commissioner, Karachi and others (P L D 1964 Kar. 217). The Central Government could not, therefore, grant the approval suo moto. This is a decision of a learned Single Judge of the High Court of West Pakistan but as against this there are two decisions of this Court in the cases (i) Major J. H. Naqvi v. The Director, Enforcement Directorate West Pakistan and others (P L D 1966 S C 512) and (ii) Chief Settlement Commissioner and another v. Jamaluddin and others (1968 S C M R 697) where it has been held that the restricted construction of clause (b) of section 10 as it stood in 1960, adopted by the High Court, is contrary to what was laid down by this Court and even a Full Bench of the High Court itself in the case of M. M. Rashid v. Chief Settlement and Rehabilitation Commissioner (P L D 1963 Lah. 227). In the case of Chief Settlement Commissioner and another v. Jamaluddin and others the question was as to whether the approval given by the Central Government by means of a letter was sufficient for the purpose of this clause. This Court held "that the letter by which the Central Government approved of the transfer in favour of the third respondent, even though the latter may not have been entitled to the transfer under the Schedule to the Act, was not ultra vires the provisions of clause (b) of section 10 of the Act. The position was, apparently, misconceived in this respect in the High Court. Any other view would make clause (b) of section 10 redundant." Vide 1968 S C M R

701. In the case of J. H. Naqvi this Court had observed as follows:‑

"The limitations mentioned in the opening words relate to the powers of the Chief Settlement Commissioner and not to those of the Central Government. They do not have the effect of negativing the power of the Central Govern ment to approve of a different mode of a transfer but merely mean that the transfer in such mode too will be in accordance with and subject to such of the other provisions of the Act and rules made there under as may be applicable." Learned counsel attempted to argue that the approval of the Central Government was not final and in this connection relied upon the Memorandum No. 10347‑Pl. Reh./60, dated 28‑7‑1960 (Page 631 of the New Manual of Settlement) by which the Chief Settlement Commissioner had notified that he had decided that the cases of properties in the possession of the postal department which had been transferred to claimants, non‑claimants or locals eligible under the Displaced Persons (Compensation and Rehabilitation) Act of 1958 "should not be reopened at the instance of the Postal Department. Such properties can only be acquired by the Government from the transferees." The Chief Settlement Commissioner had, of course, no power to countermand the powers of the Central Government with regard to the properties specified in the letter of the Central Government dated the 1st March 1960. Hence the Memorandum obviously referred to other properties which had already been transferred to claimants, non‑claimants or locals in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The property in dispute had not, in any event, been transferred to the appellant as a claimant on the basis of his entitlement under the Displaced Persons (Compensation and Rehabilitation) Act. He had merely come in as an associate and purchased the rights of an auction‑purchaser who for all we know may have been neither a claimant, a non‑claimant or an eligible local. The appellant cannot, therefore, take advantage of this Memorandum. It clearly did not apply to his case. Lastly, as pointed out by this Court in the case of Sheikh Rehmatullah v. Deputy Settlement Commissioner (P L D 1963 S C 633) the mere fact that now Government has the power under subsection (2) of section 10 to direct the transfer of a property in a manner different to that prescribed in the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, if it considers it necessary to do so in the public interest, the property in dispute can now certainly be transferred under the direction of the Central Government in the public interest as it is and has been in the occupation of the postal department serving the public interest from before the Partition. Learned counsel has not argued the point on which leave was granted evidently because there were adequate grounds for cancelling the P. T. D. in this case. Once it is accepted that the Central Government had competently approved of the transfer of the premises to the Post and Telegraph department it could not be put up for auction. The transfer in pursuance of such an unauthorized auction was liable to be set aside. In these circumstances we have come to the conclusion that this appeal cannot succeed. It is, accordingly, dismissed but since no one has appeared to oppose this appeal, there will be no order as to costs. The appellant may now apply to the Settlement authorities for the refund of the auction price or any other sum that he may have paid. It will be for him to consider whether he will also take steps to recover from the Settlement Department any damages which he may have suffered for the mistake of the Department itself in placing this property to auction. If the property had been directed to be transferred to the Postal authorities, the Settlement Authorities had no business to place this on the auction pool and auction it. Neither the appellant nor Noor Mohammad were in any way responsible for inducing the Settlement Department to place this property on the auction pool. This is, however, a matter which is for the appellant to consider and we do not wish to express any opinion as to the merits of such a claim at this stage. Appeal dismissed.