P L D 1976 Supreme Court 410 (PLP)

SALAHUDDIN AHMED, J.‑This is an appeal by special leave of this Court from an order of the former High Court of West Pakistan, Lahore Seat, whereby the respondent's Writ Petition No. 3033‑R of 1962 was accepted and she was declared entitled under the law to the transfer of Sher Borne Cottage on evaluation basis in accordance with the Central Government Notification dated the 16th of March 1960. Leave was granted to consider, inter alia, the following questions : (1) Whether 'Santokh Villa' was acquired by the Central Government on the condition that its occupant will be provided alternate accommodation so as to entitle the respondent for transfer of another house under Instructions dated the 6th of March 1960, at page 123, of the Old Manual ; (2) whether Sher Borne Cottage which the respondent purchased at an open auction fell in category 'B' or 'C' to attract the application of the aforesaid Instructions ; and (3) whether independently of the said Instructions and. Settlement Scheme No. V the respondent was, under Paragraph 4 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, entitled to the transfer of Sher Borne Cottage on payment as against the auction price of Rs. 2,25,

000. It appears that the house known as 'Santokh Villa' situated in Murree bills has been allotted to Nawabzada Dost Muhammad Khan Khakwani on a seasonal basis in the year 1956 by the Allotment Board of the Rehabilitation Department. The allotment was renewed and it continued till the end of October 1959. The allottee and his wife Mst. Akhtar Sultana (respondent herein) both occupied the house and appear to have continued to do so until 1959. On the 20th of July 1959, the respondent submitted a N. C. H. Forms to the Deputy Settlement Commissioner for transfer of the house to her on the basis of possession of her husband. Later, having come to inherit a part of the claim from her uncle, Nawab Muhammad Akbar Khan of Mamdot, she applied on the 17th of November, 1959, for conversion of her N. C. H. Form into C. H. Form, and also submitted a C. H. Form. By a Notification dated the 24th of November 1959, evacuee properties at Murree were acquired under section 3 of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958, hereinafter called the Act, and they became part of the compensation pool. As the said house was required for a public purpose, namely, for accommodating ' Diplomatic Missions, the respondent's prayer for transfer was not acceded to by the Deputy Settle ment Commissioner and the house was sold to the Central P. W. D. under section 10 (b) of the Act some time at the end of 1960. No steps having been taken against the sale it became final. The respondent was reconciled. to this position, for, on the 13th of September 1961, she applied to the: Deputy Settlement Commissioner asking for transfer of Sher Borne Cottage under Paragraph 4 of the Schedule to the Act and asked for the issue of a choice certificate presumably in accordance with the Press Note dated the 16th of March 1960. The application was, ultimately, refused on the 23rd of December 1961. On the 4th of January 1962, the respondent applied to Lt.‑General K. M, Shaikh, Minister for Rehabilitation, for transfer of Sher Borne Cottage under Paragraph 4 of the Schedule. On the 9th of February 1962, she made a similar application to the Deputy Settlement Commissioner, Murree. On the 29th of May 1962, Mr. M. H. Soofi, Joint Secretary, Rehabilitation, recommended that Sher Borne Cottage be transferred to the respondent. The Honourable Minister, however, passed the following order on the 7th of June 1962 "There are other similar cases where bungalows in Murree have been allotted on seasonable basis, and also the possession of these bungalows, have remained with the allottees, and it is possible that these allottees have also fulfilled other conditions. Unless you are prepared to, call applications from such allottees, I consider it is not desirable to create precedence in the above two cases, and we should stick to auc tioning evacuee property in Murree." Accordingly, the Secretary, Rehabilitation, ordered that the cottage should be auctioned and the applicant be given a suitable reply. Sher Borne Cottage was, thus, auctioned on the 20th of June 1962, and the respondent having offered the highest bid of Rs. 2,25,000 was declared its purchaser, and she deposited 1/4th of the auction price through her com pensation book. The balance of the price was payable within a year from the date of sale. On the 12th of December 1962, I.e. after a lapse of about 6 months from the date of the auction the respondent filed the aforesaid writ petition and prayed for‑ (a) a declaration that the acquisition of Santokh Villa by the Central P. W. D. was without lawful authority ; (b) a direction to the Settlement Department to transfer the said Villa to the respondent ; (c) in the alternative, for a declaration that the auction proceedings of Sher Borne Cottage were without lawful authority ; and (d) a direction to the Settlement Authorities to transfer the cottage" to the respondent on the basis of evaluation or a declaration that she was entitled to its transfer under Paragraph 4 of the Schedule` to the Act. The writ petition was allowed by a Division Bench of the High Court on the (6th of November 1967, and the respondent was held entitled to the transfer of Sher Borne Cottage under the Press Note dated the 16th of March 1960, on the basis of evaluation and the auction of the cottage was declared to be without lawful authority. Furthermore, the Settlement Authorities were directed to issue the necessary transfer document to the respondent. The appellants felt aggrieved by the order of the High Court and obtained leave to appeal from it on the 11th of March 1968. Before I proceed to discuss the case on merits, it is desirable to indicate the nature of the law which is applicable to a case of the present description, and I can do no better than reproduce here the following observations of the Court in the case of Rafiuddin v. Chief Settlement and' Rehabilitation Commissioner (PLD1971SC252) in this regard "As was pointed out by the Federal Court in the case of Punjab Province v. L. Sita Ram and others P L D 1956 F C 157, while considering the nature of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, such legislations are legislations of an extremely special character which are from the very nature of things to be construed not so much on considerations that would weigh with Courts of law but also on considerations of policy. They were designed for meeting an extraordinary situation of a complex and confusing nature created by the influx of a larger number of refugees who had to be settled and were intended to be so adaptable as to meet the changes in the situation that developed from time to time. They could not, therefore, be construed upon strict legal principles and certainly not in such a manner as to defeat the very object for which such special legislation was designed. Again as was pointed out in the case of Syed Abdur Rashid v. Pakiston and others P L D 1962 S C 42 there was no question of displaced persons coming to Pakistan from territories which now constitute India being entitled as of right to get properties in Pakistan in lieu of properties left by them in India. The evacuee laws were designed purely to alleviate the hardship and misery of as large a number of displaced persons as possible who had been uprooted as a result of the setting up of the two Dominions of India and Pakistan by rehabilitating them and in this sense too it was `fallacious to conceive of a claim . . . . . . as being in the nature of a right or interest in property'. It was rather a question 'of purely granting a benefit or a privilege' and it was, therefore, within the competence of the authorities to determine as to who were the persons best fitted for the grant of such benefit." In order to meet the changes in the situation the policy kept on changing and Press Notes, Instructions etc. ware issued from time to time under sections 9 and 10 of the Act. Mr. Maqbool Elahi Malik, learned counsel appearing in support of ‑the appeal, has contended that neither Paragraph 4 of the Schedule nor ‑the Press Note dated the 13th of October 1957, is applicable to the respon dent. These contentions have reference to the aforesaid grounds upon which special leave to appeal was granted. Mr. Malik has submitted that .since the 24th of June 1960, all transfers in accordance with the earmarking scheme being Settlement Scheme No. V have been stopped and the Scheme has been replaced by a restricted auction in accordance with the procedure laid down in the Instructions of the Chief Settlement Com missioner dated the 24th of June 1960, issued in pursuance of the letter of the Central Government dated the 17th of June 1960. The Instructions appear at page 153 of the Old Manual, and, inter alia, state as follows : "There should be no transfer of houses in future by earmarking and drawing of lots . . . . ... . . After the lists have been prepared, they should be printed for sale to the public. An announcement may be made on a regional basis fixing a date for the restricted auction. The terms and conditions of auction may be prescribed by the Additional Settlement Commissioners . . . . . . . . . . . . All the claimants who have obtained compensation books from the region in which the houses in the list are included or who declare verbally that they have settled down in that region, may be allowed to participate in the auction. Only those claimants whose Com pensation Books do not contain any entries with regard to the transfer of property or payment of compensation to them, shall be regarded eligible to participate in the auction . . . . . . . . . . . . . . . . . . : ' Thus, on and from the 24th of June 1960, the mode of transfer by way of earmarking was stopped, and this mode of transfer was not available to the respondent on the 13th of September 1961, or the 4th of January or 9th of February 1962, when she applied for transfer under Paragraph 4 of, the Schedule. Even under the Instructions of the 24th of June 1960, no list having Sher Borne Cottage on it appears to have been prepared, and no announce ment fixing a date for the restricted auction was made. Thus, the cottage ‑was not available for transfer under the Instructions. Apart from the Instructions the respondent is not entitled to transfer, under Settlement Scheme No. V. It has neither been claimed nor shown that any list prepared under Settlement Scheme No. V and published in the official Gazette included in it Sher Borne Cottage. The respondent does not claim and does not appear to have applied for transfer of the cottage B ,in response to an invitation of the Chief Settlement Commissioner notified in the official Gazette in the manner prescribed in the Scheme. In the .case of Muhammad Umar Khan v. Chief Settlement Commissioner (P L D 1963 Pesh. 85), it has been observed thus : "The combined effect of the provisions of the Act, referred to above, is that the Settlement organisation headed by the Chief Settlement Commissioner is responsible for the implementation of the Act, and that at least two necessary steps in such implementation are ; (t) that the Chief Settlement Commissioner shall prepare one or more schemes, when required to do so by the Central Government ; and (ii) that applications shall be invited, by notification in the official Gazette, from claimants etc., for the payment of compensation to them in accordance with. the provisions of the Act. It is clear to us that unless these steps are taken, it i3 not open to any individual claimant to put in an application for the transfer of any property, by way of compensation, as and when he pleases. The action, in fact, taken by the Chief Settlement Commissioner and the Central Government, in pursuance of the provisions of the Act just referred to, conforms to these requirements. In the first instance, Settlement Scheme No. I was promulgated and applications were invited from claimants, non‑claimants and locals who were entitled to the transfer of houses under paragraphs 1, 2 and 3 of the Schedule to the Act, as well as to the transfer of shops under paragraghs 8 and 9 thereof. Then Settlement Scheme No. II was promulgated for the transfer of certain industrial concerns and unregistered factories. Then came Settlement Scheme No. III for the disposal of big mansions and hotels by unrestricted public auction. This was followed by Settle ment Scheme No. IV for the rehabilitation of persons displaced from the State of Jammu & Kashmir. Next came Settlement Scheme No. V for the transfer of houses to claimants by the drawing of lots under paragraph 4 of the Schedule to the Act. This is the scheme with which we are concerned in the present case. This scheme contemplates the preparation of lists of houses, divided into three categories according to their annual rental, and paragraph 4 of this scheme lays down that the Chief Settlement Commissioner shall, from time to time, by notification in the official Gazette, invite applications for the transfer of houses under this scheme. Paragraph 5 contains further instructions as to the manner in which the applica tions are to be made. It is thus clear to us that transfer of houses under paragraph 4 of the Schedule to the Act could only be made under Settlement Scheme No. V and in pursuance of applications invited by the Chief Settlement Commissioner by notification, from time to time, in the official Gazette. It is not disputed by the petitioner that so far no such applications have been invited by the Chief Settlement Commissioner in respect of the house in question. The petitioner, however, contends that Settlement Scheme No V has too application to his case for the reason that it lays down a procedure for the drawing of lots, which has reference only to clause (c) of paragraph 4, namely that if there is more than one applicant for the transfer of the house, the transfer shall be effected by drawing lots in such manner as may be prescribed. It is contended by the petitioner that in the instant case he is the only applicant for the house in question and, therefore, there is no need for the drawing of lots, with the result that the provisions of Settlement Schedule No. V need not be invoked. The petitioner's contention is, however, without substance and is based on a fallacy. It is true that if there is only one application for a house which falls within the purview of paragraph 4, it will be unnecessary to draw lots as the applicant will be the only person entitled to its transfer, but the question is when should the applications be submitted. We have already indicated that the provisions of the Act and the Schedule thereto do not come into operation automatically but they have to be implemented by the Chief Settlement Commissioner through the' medium of preparing schemes and then inviting applications in pursuance thereof. We cannot be persuaded to hold that it is open to an individual claimant. to make an application at random for the transfer of any property he chooses, and at any time he‑ likes. In the present case this is exactly what the petitioner has done. He has lust selected the house in question and has put in an application, without such applications having been invited and without the house having been included in the list of houses prepared under Settlement Scheme No. V which has reference to Paragraph 4 of the Schedule to the Act. Under these circumstances, it is not surprising that the petitioner is the only applicant for the transfer of this house, as it was not publicly made known that the house was available for transfer under paragraph 4 of the Schedule. If such a practice was to be permitted, the result would be that there would be secret transfers of various properties to individual claimants, to. without the other claimants ever coming to know of the availability ‑alt; of such properties. Such a practice would be against the express no provisions of the Act as well as against public policy and the interests of the claimants at large. We have, therefore, no doubt that, assuming that the house in question is a house which falls within the purview of paragraph 4, and is not a part of a big mansion, then the only way it can be disposed of to claimants under paragraph 4 is by its inclusion in a list to be prepared under Settlement Scheme No. V and on a consideration of the applications which may be submitted for its transfer by claimants on being invited to apply in this behalf by the Chief Settlement Commissioner on a prescribed form and within a prescribed period. As these requirements are not fulfilled in the present case, the application made by the petitioner on the 1st of October 1962, for the transfer of this house has no legal sanction, and it is not obligatory on the part of the Settlement Authorities to consider this application, much less to treat the petitioner as having any statutory right for the transfer of the house in question." I agree with this view. Mr. S. M. Zaffar, learned counsel for the respondent has mainly contended that the respondent's case was covered by the Press Not dated the 16th of March 1960, and she was, thus, entitled to the transfer of Sher Borne Cottage on evaluation basis after Santokh Villa had been sold to the Central P. W. D. at the end of 1960. The Press Note dated the 16th of March 1960, was issued in exercise of the power contained in section 10 (b) of the Act as it stood before the promulgation of Ordinance II of 1962, and it is in these terms "Evacuee properties have been acquired in the past for public purposes, with the sanction of the Central Government subject in some cases to the condition that the refugee occupants would be provided alternative accommodation. Some cases of this type are still pending for finaliza tion due to the shortage of residential accommodation. (2) The Central .Government has been pleased to decide that suitable houses included in category `B' or `C' for disposal by earmarkiag may be transferred to such claimants or non‑claimant displaced persons as were in possession of houses acquired for a public purpose and have to be provided alternative accommodation according to the terms of permission for such acquisitions. The houses selected by the persons concerned will he transferred on evaluation basis in the case of claimant and on prevailing market value in the case of non claimant displaced persons. (3) Applications on form C. H., From the claimants and N. C. H. from non‑claimant displaced persons will be entertained by the Additional Settlement Commissioners of the region concerned when the lists of houses available for earmarking are published for inviting objections. As soon as an application is received and found correct the Additional Settlement Commissioner concerned will delete the house for transfer to the applicant. (4) In case of claimant applicants, they will be entitled to apply for a house which may be of double the value of their verified claims under Schedules I, II and III. The non‑claimant applicants should not apply for the transfer of a house of higher value than the one in their possession which was acquired by Government." The Press Note clearly envisages cases of refugee occupants who were required to be provided alternative accommodation according to the term of permission contained in the sanction of the Central Government whereunder certain evacuee properties had been acquired for public purposes. A refugee occupant to whom the Press Note applied could put in C. H. Form only when the lists of houses available for earmarking had been published for inviting objections, and the house applied for fell in category 'B' or 'C'. The respondent has failed to show, firstly, that the cottage had been included in such list and in category 'B' or `C' ; secondly, ' that the sanction of the Central Government to the sale of Santokh Villa to the Central P. W. D. contained the necessary condition that the refugee occupant would be provided alternative accommodation. In fact the existence of this condition was not even claimed by the respondent ; thirdly, that lists of houses available for earmarking had been published fort inviting objections as prescribed under the Press Note. The respondent,' therefore, is not entitled to the benefit of the Press Note, even if it was operative on the relevant date. It is pertinent to state, however, that by Ordinance II of 1962 promul gated on the 13th of January 1962, section 10 (a) and (b) of the Act was substituted by section 10 (1) and (2). Section 10 (a) and (b) as it stood before the amendment is as follows : "Subject to 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‑ (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 Govern ment." Section 10 (1) and (2) of the Act after the amendment is as follows "(1) Subject to the provisions of this Act and the rules made there under, the Chief Settlement Commissioner, or any other officer authorised in writing in this behalf by him, may transfer or dispose of any property out of the compensation pool on evaluation basis, or by sale, by means of auction or otherwise, in accordance with the provisions of the Schedule. (2) Notwithstanding anything contained in subsection (1), the Central Government may order the transfer in public interest of any property out of the compensation pool in such manner as it may deem proper." On a consideration of these two provisions it is evident that on and. from the 13th of January 1962, the Central Government acquired power to transfer in public interest any property out of the compensation pool 'in such manner as it may deem proper', and this notwithstanding the powers of the Chief Settlement Commissioner to transfer or dispose of under subsection (1) of section

10. It is in exercise of this power that the Honour able Minister for Rehabilitation directed on the 7th of June 1962, that among other properties of Murree, Sher Borne Cottage be sold at an auction D as had been the practice in Murree, and the Joint Secretary, Rehabilitation ordered accordingly. This mode of transfer is desirable and in public interest, for, it fetches the highest price available in the market for the evacuee property and the money thus obtained goes to augment the compensation pool to the benefit of the general body of refugees. This is also consistent with the policy of Rehabilitation, namely, benefiting as man refugees as possible. In the case of Rafiuddin v. Chief Settlement and Rehabilitation Commissioner, it has been observed that the evacuee laws were designed purely to alleviate the hardship and misery of as large a number of displaced persons as possible. The power of the Central Government under section 10 (2) of the Act is unquestioned and unquestionable. Furthermore, with the deletion of section 10 (b) of the Act by Ordinance II of 1962 the Press Note dated the 16th of March 1960,1 issued under section 10 (b) ceased to be operative and the respondent could not, therefore, get the benefit of the Press Note even if it was held to be applicable to her. This is in consonance with the view taken by this Court in the case of Allah Ditta v. Jan Muhammad (P L D 1974 S C 113), wherein it has been observed as follows : "The legal force behind the S. R. O. No. 824 (x)/1961 which was promulgated by the Central Government on 1‑9‑1961, was clause (b) of section 10 of the Displaced Persons (Compensation and Rehabili tation) Act. It authorised the Chief Settlement Commissioner to dispose of an evacuee house, shop etc. in such other manner as may be prescribed by the Central Government. Section 10 was re‑drafted by the Displaced Persons (Compensation and Rehabilita tion) (Amendment) Ordinance, 1962 (11 of 1962). Both clauses (a) and (b) were substituted by subsection (2) 'Notwithstanding anything contained in subsection (1), the Central Government may order the transfer in public interest of any property out of the compensation pool in such manner as it may deem proper.' Power to transfer evacuee properties to informers who were not in possession was thus taken away with effect from the 13th January 1962 when the Ordinance came into force. The provisions of section 6 of the General Clauses Act also did not apply as no right had come to be vested in the informers. All pending cases under S. R. O. No. 824 (x)/1961 therefore lapsed with the repeal of clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958." In the case under report S. R. O. No. 824 (x)/1961 dated the Ist of September 1961, promulgated by the Central Government under section 10 (b) of the Act was being considered. It is significant that the respondent not only did not question the auction ordered by the Government but also participated in it and became ,the purchaser of Sher Borne Cottage and she paid 1/4th of its price. For about six months she never protested against the auction, and it was only on the 12th of December 1962, that she filed the writ petition and for the first time challenged the validity of the auction in which she had herself participated successfully. The facts disclose that although soon after the 7th of June 1962, she knew that her application for transfer of cottage had been rejected, and that the cottage was going to be put to auction, yet she took no steps to stop the auction. On the contrary she herself participated in the auction. And even after the auction she kept .silent for about six months. In these circumstances her writ petition should have been dismissed on the ground of ]aches. I am supported in this by the following observations of the Court in the case of Din Muhammad v. Chief Settlement and Rehabilitation Commissioner (1968 S C M R 1274) "By the writ petition he was challenging the auction of the shop in 1964, on the ground that it had already been auctioned in 1961. After auction of 1961 the shop was sold to Umargul and on his appeal the said sale was set aside on 7th January 1964, and the Settlement Commissioner, ordered for auction of the shop. He then did not file any writ petition to challenge his order. On the other hand, he participated in the auction. He then filed a time‑barred appeal against the said auction but the same ass dismissed. He instead of going in revision moved a writ in the High Court. In view of the above facts and circumstances the High Court has rightly pointed out that be having accepted the order of the Settlement Officer cannot be permitted to challenge the said order. Further more his petition could Dave also been dismissed on the ground of laches." The delay and ]aches were so palpable that they should have attracted the notice of, the High Court, and the mere fact that no objection was taken at the time was no ground to omit to consider the consequence of delay and ]aches. It was the duty of the respondent to explain the obvious delay in moving the writ petition. Nevertheless, this Court is entitled to consider the ]aches on the part of the respondent and to pass such order as the High Court could or should have passed on a true consideration of the palpable delay in making the constitution petition. As regards the third ground on which leave was granted, I am of the view that independently of the Press Note dated the 16th of March 1960, and Settlement Scheme No. V the respondent is not entitled to transfer of the cottage under paragraph 4 of the Schedule. As has been already noticed Settlement Scheme No. V was framed under Paragraph 4 of the Schedule, and, therefore, the latter without the former was ineffective and inoperative. This view receives support from the observations in the case of R Muhammad Umar Khan v. Chief Settlement Commissioner, which I have .approved. There is, thus, no substance in the contention of Mr. Zafar that the Act contemplated several modes of transfer of evacuee properties and that one such mode was Paragraph 4 of Settlement Scheme No. V, and that inasmuch as the respondent was the sole applicant for the transfer of the; cottage the drawing of lots was unnecessary and, therefore, independently of the said Scheme she was entitled to the transfer of the cottage under Paragraph 4 of the Schedule. So far as the sale of Santokh Villa is concerned suffice it to say the ; its sale to Central P. W. D. towards the end of 1960 not having been . challenged by the respondent became final, and could not be challenged upon the respondent's writ petition moved on the 12th of December 1962, and without having made he Central P. W. D. a party. It may be stated here that the Central P. W. D. was not made a party in the respondent's writ petition. There is yet another aspect of the case. Paragraph 6 of the Schedule to . the Act provides that houses not transferred under paragraphs 1, 2, 3 and 4 shall be sold to the highest bidder in an unrestricted public auction. Admittedly, the cottage had been refused to be transferred to the respondent on her application, and, therefore, it was rightly sold at the auction. Assuming that the words `not transferred' in paragraph 6 of the Schedule l included the connotation of `not transferable' also. respondent's application for transfer of the cottage having been refused and the refusal having remained unchallenged and acquiesced in the provisions of paragraph 6 were attracted and the auction was thus competently held. I may add that where an authority of exclusive jurisdiction has taken certain action, which is well within its competence, the High Court should be slow to interfere with the act of such authority, and, therefore, should no have interfered with the auction held under orders of the Central Government. if It should be borne in mind that the entire Scheme of the Displaced Persons (Compensation and Rehabilitation) Act shows that the Central' Government has an overall and supervisory powers in the matter of transfer or disposal of evacuee properties. I would, accordingly, allow the appeal, but without any order as to costs. and set aside the impugned order of the High Court. S. A. H. Appeal allowed.