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Writ Petition No. 1697/R of 1962, decided on 25th November 1965.

, S. 10 (b) read with order of Central Government No. S. R. O. 824 (K)/61, dated Ist September 1961, published in Gazette of Pakistan, Extraordinary, dated 2nd September 1961 and Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance (11 of 1962), S. 2-Order of Central Government dated Ist September. 1961, viz. S. R. O. 824 (K)/61-Ceased to be operative from 13th January 1962, i.e. date on which Displaced Persons (Compensation and Rehabilitation) Ordinance (11 of 1962) came into force whereby clause (b) in S. 10 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been deleted Reference by Director of Enforcement under order of Central Government dated Is t September 1961, (supra) after 13th January 1962-Illegal-Revision under S. 20(3) of Displaced Persons (Compensation and Rehabilitation) Act, 1958-Cannot be based on such incompetent reference-Necessity of enacting legislation enabling Settlement Authorities by revision or review to cancel transfer obtained fraudulently or by misrepresentation-Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 20(3)-Martial Law Regulation [C. M. L. A's] No. 49.

Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others P L D 1965 S C 123 ref.

J. H. Rizvi and Ch. Qadir Bakhsh for Petitioner.

Ishaq Muhammad Khan, S. C. (Legal) for Respondent No. 1.

Ishaq Muhammad for Respondent No. 3.

Date of hearing : 19th November 1965.

The dispute in this writ petition relates to the transfer of a shop in possession of Abdul Karim petitioner. It is part of property No. P/13, Ward No. 1, Rail Bazar, Lyallpur, which comprises of three shops and two residential rooms at the back and two chaubaras above them. One of the shops was in possession of Haji Muhammad Rafique, etc. and the remaining shop was in possession of Altaf Hussain, Akhter Husain, etc. Mehar Din was in possession of a chaubara. The petitioner did not apply for transfer of the shop in his possession, and it was ordered by the Deputy Settlement Commissioner to be included in the list of shops to be auctioned. We are not concerned in this writ petition with the transfer of the other shops, the residential rooms and the chaubaras, which culminated in the order of the Chief Settlement Commissioner dated the 22nd of

2. The petitioner put in a belated NCS form for the transfer of the shop in his possession. On the 28th of April 1960, the Settlement Commissioner (Policy) recommended to the Chief Settlement Commissioner that the belated NCS form of the petitioner for transfer of the shop in his possession may be accepted by condoning the delay, as a special case. This recommendation was accepted by the Chief Settlement Commis sioner on the 29th of April 1960.

3. Mehar Din had appealed against the order of the Deputy Settlement Commissioner, by which the shop was made available for auction. Abdul Karim also moved the Additional Settlement Commissioner for reopening the case of transfer of the shop, but on the 1st of July 1960, he declined to do so. After obtaining condonation of the delay Abdul Karim moved the Additional Settlement Commissioner for review of his order. The Additional Settlement Commissioner decided to refer the case to the head office for decision as to whether he should be transferred the shop or not, as the delay had been condoned by the Chief Settlement Commissioner, and he was a bona fide occupant. By the same order, dated the 16th of July 1960, he rejected the appeal of Mehar Din against the order of the Deputy Settlement Commis sioner directing the shop in occupation of Abdul Karim to be auctioned, for the reasons firstly that he being occupant of the chaubara above the shop had nothing to do with the shop, and, secondly, that the case having already been dealt with in appeal and revision, he was not competent to reopen it. Mehar Din filed a revision petition against the order dated the 16th of July 1960. This was dismissed by the Settlement and Rehabilitation Commissioner on the 14th of February 1962 in the following

"The parties are present. It has been pointed out to me that the case has already been decided by the Chief Settlement Commissioner vide his order dated 22-8-1960. In view of that order it is no good case to be taken up by me. The revision is rejected."

The heading of the above order shows that it was directed only against the order of the Additional Settlement Commissioner dated the 16th of July 1960. Abdul Karim was a respondent in this revision petition.

4. On the 23rd of July 1960, counsel for Abdul Ka-rim appeared before the Additional Settlement Commissioner and requested him to decide the question of transfer of the shop without sending the case to the head office, as he argued that it would be of no use, and the Additional Settlement Commissioner acceded to his request. Arguments were then heard. The Additional Settlement Commissioner came to the conclusion that as the petitioner was in occupation o f the shop, which still remained un-disposed of, and as he was not a party to the proceed ings before the Settlement Courts, the orders already passed did not operate as res judicata against him and as he had associated with a claimant, and had submitted a copy of Fard Haqiyyat, which showed that he had abandoned agricultural land in the Indian Dominion, so that he was a displaced person, and was a regular allottee in possession of the shop, which was independent and separate, he was entitled to its transfer. The Deputy Settle ment Commissioner had sent the case to him for permission to review his predecessor's order, putting the shop in the list of auction, but he decided that instead of sending the case to the Deputy Settlement Commissioner for disposal, he should dispose it of himself. He, therefore, accepted the review petition, and directed that the shop in dispute should be transferred to the petitioner. Thus, the petitioner was able to obtain transfer of the shop by order of the Additional Settlement Commissioner dated the 25th of July 1960.

5. On an affidavit of Mukhtar Beg (respondent No. 3) who is stated to be a brother of Mehar Din, an inquiry was held by the Enforcement Staff. The allegation in the affidavit was that Abdul Karim was a local, who had obtained a bogus Fard Haqiyyat, and the land to which it related was also situate in village Ada, Police Station Gharib Shah, District Sialkot, which was not situate in India, but was in Pakistan. The Director, Enforcement Staff, made a reference on the 28th of May 1962 to the Settlement and Rehabilitation Commissioner with powers of Chief Settlement Commissioner, Lahore (Sh. Muhammad Rafique) alleging that Abdul Karim was a local, being a resident of Tehsil Shakargarh, the Fard Haqiyyat on which he relied related to an area, which formed part of Pakistan and he could not be described as a displaced person. He requested that the P. T. O. issued in his favour may be cancelled, and the shop transferred to the informer. Sh. Muhammad Rafique issued notice to the parties and passed the following order on the 9th of August 1962, as Chief Settlement Commissioner:-

"Let an inquiry be made from the Central Record Office as to whether Abdul Karim respondent has left any land in India (village Ada) Hadbast 459, Tehsil Shakargarh, District Gurdas pur, relating to Claim No. 11962. Let the copy of the Fard Haqiyyat on the file go to the Central Record Office, O. B. D. for verification and report."

6. The above order of Mr. Muhammad Rafique, respondent No. 1, is challenged by Abdul Karim petitioner by this writ petition under Article 98 of the Constitution of Islamic Republic of Pakistan, as being without jurisdiction, and it is prayed that it be declared that the proceedings taken by Sh. Muhammad Rafique as Chief Settlement Commissioner are without lawful authority and he be ordered not to proceed with the reference. The taking of further proceedings by the respondent No 1 was stayed by a learned Single Judge of this Court.

7. The first contention of the learned counsel for the petitioner is that the Enforcement Staff had no power to make the reference as order of the Central Government No. S.R.O. 824 (K)/61, dated the 1st of September 1961, published in the Gazette of Pakistan Extraordinary, dated the 2nd of September 1961, which was promulgated under clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, was no longer in force, as clause (b) of section 10 of the Act was replaced when the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance II of 1962 was enforced on the 13th of January 1962. In section 10 as re-enacted, clause (b) disappeared, and subsection (2) was introduced by the Ordinance. Subsection (2) provided that 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, whereas clause (b) had authorized the Chief Settlement Commissioner to dispose of any property out of the compensation pool in such manner as may be approved by the Central Government. The Order of the Central Government dated the 1st of September 1961 related to disposal of property by the Chief Settlement Commissioner. On the disappearance of clause (b) it ceased to operate,- as was held by the learned Judges of the Supreme Court in Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others (P L D 1965 S C 123). With the amendment of section 10 of the Act by Ordinance II of 1962, the Chief Settlement Commis sioner lost his powers to take action under the section. The present reference was made subsequent to the promulgation of Ordinance II of 1962, on the 13th of January 1962. Therefore, the reference by the Director of Enforcement under the Order of the Central Government dated the 1st of September 1961, made on the 28th of May 1962, was misconceived, and could not have been made to Mr. Muhammad Rafique, .as Chief Settlement and Rehabilitation Commissioner.

8. The cognisance of the case by Mr. Muhammad Rafique as Chief Settlement and Rahabilitation Commissioner was also not competent for another reason. The Chief Settlement Commis sioner's revisional powers under subsection (2) of section 20 disappeared by its deletion by Ordinance II of 1962 with effect from the 13th of January 1962. The impugned order was made by Mr. Muhammad Rafique; as Chief Settlement Commissioner, on the 9th of August 1962. It has been conceded by Mr. Ishaque Muhammad Khan, the learned counsel for the respondent, that he had no power to make the impugned order under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as Chief Settlement Commissioner. This order was evidently made for the purpose of exercising power of revision and the power under subsection (2) of section 20 was no longer available to the Chief Settlement Commissioner. Mr. Muhammad Rafique was exercising the powers of Chief Settlement Commis sioner by having been delegated his powers under subsection (2) of section 31, but as a Chief Settlement Commissioner be could not exercise the powers of revision any more.

9. Mr. Ishaque Muhammad Khan, the learned counsel for the respondent, however, contended that it was not open to the petitioner to challenge the order of Mr. Muhammad Rafique, as no objection bad been taken by the petitioner to his exercising jurisdiction and making the order. The petitioner has stated that he objected to Mr. Muhammad Rafique's exercising jurisdic tion and the petitioner has moved this Court under Article 98 of the Constitution before. Mr. Muhammad Rafique could make any final order. I do not find the conduct of the petitioner such as shows that he allowed Mr. Muhammad Rafique to assume jurisdiction, or that he submitted to his jurisdiction knowingly, so that he cannot challenge his jurisdiction.

10. For the above reasons, the order of Mr. Muhammad Rafique dated the 9th of August 1962 must be set aside as without jurisdiction.

11. This does not, however, conclude the matter. Mr. Ishaque Muhammad Khan has further argued that as the reference by the Enforcement Staff was made in this case before the Constitution day, and under Martial Law Regulation No. 49, the staff attached to the Directorate, Enforcement Evacuee Property and Claims, was invested with police officers' powers under the Police Act, the reference was competent and valid. The Martial Law Regulation No. 49 along with other Martial Law Regulations were repealed by Martial Law Orders (Repeal) Order 29 of 1962 on the 7th of June 1962, but on the 28th of May 1962, when the Director of Enforcement made the reference, he had the powers of a police officer. The question is, therefore, raised that on a reference by the Enforcement Staff as police officer, it is open to a Settlement Commissioner under subsection (3) of section 20 to revise the order of the Additional Settlement Commissioner. In this connection, my attention has also been drawn to rule 7 of the Permanent Transfer (Houses and Shops) Rules, 1961, published in the Gazette of Pakistan. Extraordinary, dated the 30th of May 1961, which provided that it shall be lawful for the Central Government or a Settlement Authority not below the rank of an Additional Settlement Commissioner to resume the whole or any part of the property. If at any time, it is, for reasons to be recorded in writing, satisfied that the transferee or his predecessor-in-interest had secured the transfer of the property, or had obtained or obtains compensation in any other form by fraud or misrepresentation or in contravention of any provision of the Act. In view of this rule, the power under the Police Act vesting in the Enforcement Staff, it has been argued that the reference could be made, which could be utilised by a Settlement Commissioner for exercise of revisional powers in this case under subsection (3) of section 20 of the Act, because the order of transfer in favour of the petitioner was made by an Additional Settlement Commissioner, which is open to revision by a Settlement Commissioner. In this connection, it may be mentioned that a Settlement Commissioner is authorised to exercise powers of revision against an order of an Additional Settlement Commissioner, as he thinks fit, on calling for a record and this power is much wider than the power which could be exercised under the Order of the Central Government, dated the 1st of September 1961, but the reference in question was made under the order of the Central Government to the Chief Settlement Commissioner for the benefit of an informer, which, it has been shown, was not competent. In the case of exercise of power of revision under subsection (3) of section 20, an inform as a third person, does not come in, and cannot be benefited by the revisional order. It has been so held by the learned l on Judges of the Supreme Court in the above-cited case. The reference to Mr. Muhammad Rafique, as Chief Settlement Commissioner having been made under the order of the Central Government, is not competent and no action can be taken on it. It makes no difference that the Director of Enforcement exercised at t1be relevant time power of a police officer, which would enable him to investigate into a cognizable offence and submit a charge-sheet to a Magistrate, but he did not thereby have power to move a Settlement Commissioner to revise an order of his subordinate. It needs also to be mentioned that rule 7 for the Permanent Transfer (Houses and Shops) Rules, 1961 was omitted by the Central Government on the 27th of December 1964, and is no longer available to set aside an irregular transfer.

12. The main reason alleged for questioning the transfer in favour of the petitioner is that he is a local, and is not a displaced person. He was transferred the shop on the ground that he produced a Fard Haqiyyat showing possession of land in village Ada in Bet Ravi, Tehsil Shakargarh. Tehsil Shakargarh is in Pakistan, but the learned counsel for the petitioner has urged that a part of village Ada is in India, and a part of it is in Pakistan. On the other hand, the Department has sent a photostat copy of a certificate of the A. D. C. dated the 8th of September 1962 showing that the petitioner owned agricultural land comprising Khewat No. 135 measuring 12 marlas in village Ada, Tehsil Shakargarh, District Sialkot, and it falls within the Pakistan Border. I have also been shown a report that this part of the area is in possession of Pakistan. It is not, however, for me to go into or decide this question. In this connection, I may only refer to Paragraph 27, Chapter I1, Part I of Rehabilitation Settlement Scheme, which is to the effect that persons who had ownership, occupancy or other rights in land, falling in the Pakistan territory, according to the Red-cliff Award, but situated on the Indian side of rivers Ravi and Sutlej, and who had to abandon them; should be treated as displaced persons from India, and subject to title, settled on land, allotted to them under the Scheme, provided they surrender their rights in favour of the Pakistan Government in land, which has gone outside their possession, and is now in the de facto control of India. I may also mention that it has been held by a Division Bench of this Court in Dr. Hassan Din v. Syed Mahmood Ali Shah and others (P L D 1965 Lah. 188), that property in section 2(3) of the Displaced Persons (Compensa tion and Rehabilitation) Act includes agricultural property, and a person abandoning agricultural property in India or any territory occupied by India is a displaced person within the meaning of these words. In deciding the question, therefore, whether the petitioner is a displaced person or not, it will have to be consider ed whether the petitioner has abandoned property in India, or any territory occupied by India. It will include the property which is under its control. It has further to be made clear that the status of the petitioner has to be considered as on the 20th of December 1958 and not as in 1962, because the transfer of property under the Displaced Persons (Compensation and Rehabilitation) Act has to take place in accordance with the possession of a claimant, non-claimant or a local on that date. Therefore, any report relating to 1962, as the report of the A. D. C. is, will not be conclusive.

13. With regard to the contention of Mr. Ishaque Muhammad Khan, the learned counsel for the respondent, that action can still be taken against the petitioner by a Settlement Commis sioner suo motu to set aside the transfer under subsection (3) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, the learned counsel for the petitioner has contended that a revision of the order of the Additional Settle ment Commissioner is not now possible at all, because his order was approved and maintained by the Settlement Commissioner in his order dated the 14th of February 1962. It is pointed out that the order was passed subsequent to the order of the Additional Settlement Commissioner dated the 25th of July 1960 in favour of Abdul Karim, by which he was transferred the shop. The contention is that the order of the Settlement Commissioner must be deemed to be an order, in which the order of the Additional Settlement Commissioner dated the 25th of July 1960 had merged. I am not inclined, however, to accept this contention, because the revision before the Settlement Commissioner was directed exclusively against the order of the Additional Settlement Commissioner dated the 16th of July 1960, which held that Mehar Din's appeal had no force, because the Additional Settle ment Commissioner was not competent to reopen the case. In view of the orders in appeal and revision already passed; and the Settlement Commissioner upheld the order by saying that the Chief Settlement Commissioner had already disposed of the case by his order dated the 22nd of August 1960, and in view of that order there was no sense in his dealing with the case. He did not at all apply his mind to the question of transfer of the shop in favour of Abdul Karim, and it cannot be said that the order dated the 25th July 1960 has been examined and upheld by the Settlement Commissioner by his order dated the 14th of February 1962 on a revision petition filed against that order. I, however, express no opinion whether it will be proper for the Settlement Commissioner to reopen the case, and revise an order passed on the 25th of July 1960. I have made the above observations because of the contentions raised before me, and I would have preferred not to say anything on this question. I would like to make it clear that if the Settlement Commissioner wants to interfere, it should not be on the basis of the report of the Enforcement Staff, which is in particular under the Order of the Central Government.

14. I find that in the Land Settlement Act there are sections 10 and 11, which enable the Chief Settlement Commis sioner to cancel an allotment, which has been obtained by means of fraud or false representation, etc., but there are no similar provision in the Displaced Persons (Compensation and Rehabilitation) Act to deal with cases, in which transfers may have been obtained fraudulently or by misrepresentation. Rule 7 of Permanent Transfer (Houses and Shops) Rules, 1961, has even) been deleted. In the circumstances it may be examined by the Central Government, whether it is not necessary to have legislation enabling the cancellation of such transfers by a revision or review of the transfers.

15. For the reasons given above, this writ petition is accepted, the order of Mr. Muhammad Rafique is set aside, and it is declared that the reference made by the Enforcement Staff to the E Chief Settlement Commissioner under the order of the Central Government was incompetent, and that Mr. Muhammad Rafique as Chief Settlement Commissioner, had no jurisdiction to deal with it. There is no order as to costs.

K. B. A.

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