P L D 1963 (W (PLP)

(BY THE FULL BENCH).-For reasons to be recorded later, we have arrived at the conclusion that section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is not a bar against the power of the Central Government to give approval to modes of transfer other than those provided in the Schedule to the Act, and that the judgment of their Lordships of the Supreme Court in Civil Appeal No. 57 of 1960 (Qazi Asadul Haq v. Miss R. A. Money and others) is applicable to the facts of these cases. There will be no order as to costs. The appeals stand dismissed. SHABIR AHMAD, J.-This Full Bench has been constituted by my Lord the Chief Justice mainly to dispose of a question of law, namely, whether the Chief Settlement or any other Settlement Authority authorised by him in that behalf is competent to sell, by means of a private sale, a house technically known as "big mansion" for the purposes of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958, to be hereinafter referred to as the Act. The question arises in two appeals, namely, this appeal and Letters Patent Appeal No, 328 of 1961 and four Writ Petitions Nos. 584/R of 1960, 171/R of 1961, 832/R of 1961 and 755/R of 1962.

2. The term "house" is defined in subsection (4) of section 2 of the Act, and a "shop" in subsection (12) and in both the subsections it is stated that if the property has been declared to be a "big mansion" the definition shall not apply to it. Para graph 16 of the Schedule to the Act, which deals with `big mansions" and their disposal, reads as under:- "Every building or premises, whether residential or com mercial, declared by the Chief Settlement Commissioner or an officer authorised by the Central Government in this behalf to be a big mansion or hotel, shall be disposed of by unres tricted public auction: Provided that no building the monthly rent of which in 1946 was less than five hundred rupees shall be declared to be a big mansion or hotel." The provision of the Act which requires interpretation is section 10 which on the days that the sales by the Chief Settlement Commissioner, which are the subject of the appeals and the writ petitions under consideration, was termed as follows :- "Subject to the provisions of this Act and the rules made there-under, 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 ; or (b) in such other manner as may be approved by the Central Government." Recently, by means of Ordinance 11 of 1962, promulgated on the 13th of January 1962, an amendment was made in section 10 of the Act as a result of which the section reads as follows :- "(1) Subject to the provisions of this Act and the rules made there-under, the Chief Settlement Commissioner 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."

3. It was contended on behalf of each of those parties in these cases who had wanted to get the property which, though a big mansion for the purposes of the Act, had been sold by means of private negotiations, that section 10 of the Act did not authorise the Chief Settlement Commissioner in any circum stances to transfer a big mansion except by means of unrestricted public auction as declared in paragraph 16 of the Schedule to the Act. In this regard it was contended that it having been provided in clause (a) of section 10 of the Act, as it stood before its amendment by means of Ordinance II of 1962, that the Chief Settlement Commissioner shall dispose of the property in the manner mentioned in the Schedule and as there was nothing in the Act to the contrary, it could not have been the intention that clause (b) should amend clause (a) and confer on the Chief Settlement Commissioner or an officer autho rised by him in that behalf power to enter into a private contract of sale of a big mansion. Support for this contention was sought from a decision of two learned Judges of the Karachi Bench of this Court in Mst. Anwar Jehan Begum v. The Chief Settlement and Rehabilitation Commissioner, Karachi and others (P L D 1961 Kar. 694). There is no doubt that the decision of the Karachi Bench supports the contention, and if it be held that that decision lays down the law correctly, the appeals and the petitions being disposed of by this order must succeed. It was also contended by the learned counsel that clause (b) of section 10 could be invoked only if the mode of sale of the property had not been provided in the Schedule to the Act.

4. On behalf of the vendees of the big mansions concerned and that of the Chief Settlement Commissioner who was repre sented by Major Ishaq Muhammad Khan; Settlement Commis sioner (Legal), it was contended that the Central Government could direct or permit the Chief Settlement Commissioner to transfer any property governed by the Act in a manner other than that mentioned in clause (a) of section 10 of the Act as it stood on the dates of the impugned sales, and reliance was placed on an unreported decision given by the Supreme Court of Pakistan on the 21st of February 1961, in Qazi Asadul Haq v. Miss R. A. Money and seven others (Civil Appeal No: 57 of 1960), wherein while dealing with the question whether or not the claim of a tenant that property sold to one of the parties to the dispute being evacuee property, its sale on behalf , of the, evacuee was not valid, their Lordships remarked as under :- "We are satisfied that clause. (b) of section 10: of the Displaced Persons (Compensation and Rehabilitation) Act and the subsequent amendments empower the Central Government to accord approval of transfer of evacuee property and to authorise the Chief Settlement Commissioner to execute the necessary sale-deeds." This observation of their Lordships of: the Supreme Court was founded on the fact that subsequent to the sale by private parties the Central Government had directed the Chief Settlement Commissioner to execute a sale-deed in favour of the vendees.

5. It is undeniable that if the decision of the Supreme Court has application, this Court will have to hold precisely what that Court held. Lengthy arguments were addressed with a view to showing that the above mentioned decision of the Supreme Court had no application to the present cases as the facts on the basis of which it was: given were entirely different from those in the present cases and, therefore, the general remarks occurring in the judgment of the Supreme Court could not be made applicable to all cases in which the question of the power of the Central Government to accord approval to the sale of any property governed by the Act in a manner other than that prescribed in clause (a) of section 10 of the Act arose. Though it is true that the decision of the Supreme Court did not deal with the kind of property that is under consideration in the present cases, namely, big mansions, that fact alone cannot make it inapplicable to transfers of big mansions by the Chief Settlement Commissioner provided it be held that the decision was intended to have as general an application as its words indicated.

6. It appears to me that the two clauses of section 10 of the Act, as it stood on the dates of the sales, were not as irreconciliable with each other as they were sought to be shown to be by the learned counsel who appeared for the appellants in the two Letters Patent Appeals, and the petitioners in the four writ petitions. The argument of the learned counsel to the effect that clause (b) was intended to apply to the transfer of that kind of property which was not specifically dealt with in the Schedule to the Act is merely specious and cannot stand close scrutiny. As I read the two clauses of section 10 of the Act, as it stood before the 13th of January 1962, they mean that while the Chief Settlement Commissioner has to conform to the Schedule regarding any transfer of any kind of property men tioned in the Schedule, he can act in any manner other than that mentioned in the Schedule, if the Central Government direct or allow him to do so or approve of his action in that behalf either before it is done or afterwards. This would become clear -if one considers some of the other provisions of the Act.

7. It will be noticed that section 10 of the Act authorises only the Chief Settlement Commissioner to make transfers of property falling within the ambit of the Act. Conferment of this power was necessary because the property did not belong to the Chief Settlement Commissioner but to the Central Government, which acting under section 3 of the Act, could acquire any evacuee property of the kind governed by the Act. After the acquisition the Central Government would become the owner of the property and it is for this reason that the power to transfer the property had to be conferred on the Chief Settlement Commissioner which was done by means of section 10 of the Act. If the Chief Settlement Commissioner wants to make a transfer in conformity with the provisions contained in the Schedule to the Act, he is at liberty to do so, but the Central Government has been given the power to permit, approve of, or direct a sale in a manner which would be in contravention of the Schedule, by clause (b) of section 10 of the Act as it stood at the time of each of the impugned sales. There is nothing unreasonable in this reservation of power in the Central Government because, as already mentioned, the property belonged to it and the Central Government could have the right of any other owner of property to dispose of it in any manner the owner likes.

8. If the decision of their Lordships of the Supreme Court in Civil Appeal No. 57 of 1960 is viewed in the light of the remarks made by me above, it becomes manifest that the decision has general application and would apply even to that kind of property dealt with in the Act with which their Lordships were not dealing when they gave the decision. The remarks made by their Lordships are of a general application and would be fully as applicable to the kind of property with which they were dealing as to any other property mentioned in the Act, including "big mansions". In view of the finding that clause (b) of section 10 of the Act, as it stood before the promulgation of Ordinance II of 1962 on the 13th of January 1962, confers on the Central Government, powers of transfer in a manner other than those mentioned in clause (a) of the section, the decision has to be that the Karachi case on which reliance was placed, namely, P L D 1961 Kar. 694 does not lay down the law correctly.

9. A word about the recent amendment in section 10 of the Act will not be out of place here. Clause (b) of section 10, as it stood before the 13th of January 1962, has been replaced by the second of the two subsections of the present section

10. It is apparent that the second subsection of section 10 of the Act, as it stands after the amendment introduced by means of Ordinance II of 1962, confers on the Central Government the power to direct the transfer of any property covered by the Act in a manner different from that mentioned in the Schedule to the Act, and the question arises why, if the law was precisely the same as it would be after the amendment, was the amendment considered necessary? The law-maker is competent to make laws but it is for the Courts to interpret them, though it is open to the law-maker to declare what the meaning of any piece of legislation is to be taken to be. The mere fact, therefore, that clause (b) of section 10 was recast by means of Ordinance II of 1962 is not conclusive for proving that clause (b) of section 10 of the Act, as it stood before its amendment by means of Ordinance II of 1962, did not authorise the Central Government to direct the sale of property falling within the purview of the Act in any manner other than that mentioned in the Schedule to the Act. The contention of learned counsel for the appellants in the two appeals and of the petitioners in the four writ petitions was that subsection (2) of the present section 10, which sub section has replaced clause (b) of the section as it stood before the amendment brought about by Ordinance II of 1962, enlarged the powers of the Central Government, but it will have become clear from what I have mentioned already that this contention is not correct. It appears to me that subsection (2) of section 10 of the Act, inserted by means of Ordinance II of 1962, has curtailed the powers of the Central Government in com parison to the powers that existed under clause (b) of the Act before its amendment by means of Ordinance II of 1962. My reason for holding this view is that after the promulgation of Ordinance. II of 1962, the Central Government can direct the Chief Settlement Commissioner to transfer any property mentioned in the Act in a manner different from that mentioned in the Schedule only if public interest requires this course to be followed, while previously the condition of the transfer being in the public interest was not necessary.

10. As the conclusion of the arguments relating to the law point which had necessitated the constitution of this Full Bench, it had been announced that for reasons to be recorded later, the finding would be that the contention raised in the two appeals and the four writ petitions to the effect that in no circum stances could the Chief Settlement Commissioner, make a transfer of property governed by the Act in a manner other than that mentioned in the Schedule to the Act, is not correct, and the reasons for that decision have now been given.

11. The consideration on merits of the two Letters Patent Appeals, both of which are before this Full Bench for disposal, may now be taken up. This appeal, namely, Letters Patent Appeal No. 311 of 1961, is directed against the order passed by a learned Single Judge of this Court on the 9th of November 1961 whereby Writ Petition No. 664/R of 1960 had been dismissed, while Letters Patent Appeal No. 328 of 1961 is directed against the order of the same date of the same learned Judge whereby he dismissed Writ Petition No. 663/R of 1960, and indeed both the Writ Petitions had been disposed of by one order. The question that falls for determination in the first of the above mentioned two appeals is whether the Chief Settlement Commissioner could forfeit a sum of Rs. 5,000 (Rupees five thousand) which had been deposited by the highest bidder at the public auction held for the disposal of a "big mansion" situated on The Mall, Lahore, while the point that arises in the other appeal is whether the Chief Settlement Commissioner could by private negotiation sell a big mansion which had at first been put to auction. The property to which the two appeals relate is the same.

12. It having been held that the Chief Settlement Commis sioner could act contrary to the provisions of the Schedule to the Act if the Central Government directed him to do so or approved of his doing so. Letters Patent Appeal No. 328 of 1961 by means of which a decision was sought that if the first auction of the big mansion concerned became ineffectual another auction had to be held cannot but be dismissed because, the impugned sale had been approved by the Central Government of Pakistan. Consequently the appeal is dismissed but the parties are left to bear their own costs.

13. The question raised in the Letters Patent Appeal No. 311 of 1961 was that the forfeiture of Rs. 5,000 deposited as earnest money at the auction of the big mansion concerned was against the law. The forfeiture has been directed by .the Chief Settlement Commissioner on the ground that the highest bidder had not been complied with the terms of the sale by auction. It was not denied, and indeed it could not have been denied, that the forfeiture would be unassailable if the conditions of the sale prescribed by the Chief Settlement Commissioner were not complied with. The question whether or not there was a breach of any of the conditions is one of fact, and as the finding given by the learned Judge in Chambers regarding the matter is correct, Letters Patent Appeal No. 311 of 1961 shall stand dismissed but the parties will bear their own costs.

14. The question of law having been decided, the four writ petitions mentioned in paragraph I of this order will now go to a learned Single Judge for being disposed of on merits. The writ petitions cannot be disposed of by this Bench because apart from the question of law which has been disposed of some other questions arise in each of them and those questions have to be considered and disposed of.

15. Before I close, I might mention that at the begin ning of the hearing, Major Ishaq Muhammad Khan, Settle ment Commissioner (Legal), had said that he bad been authorised by the Chief Settlement Commissioner to state in Court that if a big mansion had been sold by the Chief Settlement Commissioner by means of a private contract without the property having before that been put to auction, the sale would be admitted to be irregular. It is not necessary to say anything regarding the effect of this statement made on behalf of the Chief Settlement Commissioner because it would be open to the vendees to urge that the sales in their favour was valid and could not be set aside on the ground that the big mansions concerned had not been put to auction before their transfer by private treaty. MANZUR QADIR, C. J.-I agree. QADEERUDDIN AHMAD, J.-I have the benefit of reading the judgment written by my learned brother Shahir Ahmad, J. and respectfully agree with the conclusions that the Chief Settlement Commissioner could, even before the amendment made by Ordinance II of 1962 in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, with the approval of the Central Government, transfer or disposed of and property out of the com pensation pool in any manner irrespective of the methods which are specified in the Schedule to the Act, and that Rs. 5,00,000 were rightly forfeited, but I beg to disassociate myself from the observations made in paragraph 7 of the judgment that the Central Government becomes the owner of the property that is acquired under section 3 of the Act like "any other owner of property to dispose of it in any manner the owner likes." The Central Government may not be found on final analysis to be such an owner of the property that is so acquired. The obser vations appear to have been made only to explain a point of view by analogy but to my mind the analogy has wider con notations than the specific point that was to be explained. The question as to what is the effect of the acquisition of property under section 3 of the Act is likely to be examined more fully at some other occasion.

2. The reason why I agree with the first conclusion is that although paragraph 16 of the Schedule which is a part of the Act and contains specific provisions in relation to sections 10 and 16 (1) (b) makes it incumbent on the Chief Settlement Commissioner to transfer or dispose of a big mansion by "unrestricted public auction" and paragraph 3 of Settlement Scheme No. 3 which was framed under section 16 (1) (b) of the Act lays down that in the event of the highest bid for a big mansion being considered to be "not reasonable" the auction has to be held on another date or a new notice of auction has to be issued, the rigour of these provisions is eliminated by section 10 (b) of the Act which enables the Chief Settlement Commissioner to transfer or dispose of any property out of the compensation pool "in such other manner", apart from those methods which are specified in the Schedule. "as may be approved by the Central Government."

3. The Supreme Court can be said to have held this in thei r unreported judgment in Qazi Asadul Haq's Appeal (Civil Appeal No. 57 of 1960), although their language is opposite to the facts of that case and reasons for the view have not been set out in the judgment. The judgment leaves no doubt that their Lordships had bestowed careful attention before making the general observation which has been reproduced by Shabir Ahmad, J. The observation clearly decides a question of law and is binding on us.

4. In conclusion, I further agree with respect that Mst. Anwar Jehan Begum's case (P L D 1961 Kar. 694) "does not lay down the law correctly," and that the Letters Patent Appeals Nos. 311 and 328 of 1961 be dismissed. A. H. Appeal dismissed.