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Civil Appeals Nos. 29 and 30 of 1967, decided on 17th July 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 19th March 1966, in Letters Patent Appeal No. 326 of 1964/Letters Patent Appeal No. 327 of 1964).

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10(b) & Sch., para. 16‑Property declared "big mansion"‑Can be disposed of in any manner other than unrestricted public auction if Central Government so directs.

An evacuee property was declared to be a "big mansion" under para. 16 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Central Government decided under clause (b) of section 10 of the Act that big mansion may be transferred to any person who offered at least fifty years gross annual value. Consequently the big mansion was transferred on the basis of the Central Government decision. On the question whether a property admittedly a big mansion within meaning of para. 16 of the Schedule to the Act could validly be disposed of in any manner other than unrestricted public auction it was held that after the Central Government had issued the direction the provisions of para. 16 of the Schedule stood modified and the property was validly transferred by private negotiation.

Noor Muhammad Butt and others v. The Chief Settlement and Rehabilitation Commissioner P L D 1968 S C 336 distinguished.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVI11 of 1958), Sch., para. 16 and Settlement Scheme No. IV, para. 19‑Property declared "big mansion"‑Ceases to be "house" or "shop" under para. 19 of Settlement Scheme No. IV‑No occupant of portion of such property can claim its transfer as of right.

(c) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Sch., Parts I & V and Constitution of Pakistan (1962), Art 98‑Evacuee property declared "big mansion Occupants of portions of such property cease to be entitled to its transfer on basis of their possession and .such declaration affects their locus stands to maintain a writ petition ‑‑Big mansion transferred by private negotiation for a sum of Rs. 6,60,000 Displaced person having a claim of Rs. 3,000 only, asserting personal right to have such property transferred to him could in circumstances 1. , presumed to be acting benamidar for third party and, therefore, has no locus standi to maintain a writ petition.

Civil Appeal No. 29 of 1967

Saeedur Rahman, Advocate Supreme Court (Shaukat Ali Khawaja, Advocate Supreme Court with him), instructed by Abdur Razzaque Raja, Attorney for Appellant.

Ishaq Muhammad Khan, Advocate Supreme Court Settle ment Commissioner (Legal) (K. M. Afzal, Advocate Supreme Court with him) instructed by lftikhoruddin Ahmad, Attorney for Respondent No. 1.

A. K. Brohi, Senior Advocate Supreme Court (Akhtar Mahmood and A. H. Najafr, Advocates Supreme Court with him) instructed by Wajid Hussain, Senior Attorney for Respondent No. 2.

Civil Appeal No. 30 of 1967

Dilawar Mahmood, Advocate Supreme Court instructed by Siddiq & Co., Attorneys for Appellant.

Ishaq Muhammad Khan, Settlement Commissioner (Legal) instructed by Ifiikhar Ahmad, Attorney for Respondent No 1.

A. K. Brohi, Senior Advocate Supreme Court (Akhtar Mahmood and A. H. Najofi, Advocates Supreme Court with him) instructed by Wajid Hussain, Senior Attorney for Respondent No. 2.

Dates of hearing: 16th and 17th May 1.968.

MUHAMMAD YAQUB ALI, J

.‑‑ This will dispose of certificated Appeals Nos. 29 and 30 of 1967 which arise out of the following facts:

The dispute relates to an evacuee property known as "Kirpa Ram Building" situated at 65‑The Mall, Lahore. It is a two storeyed building in the occupation of Ch. Abdul Qayyum, appel lant in Civil Appeal No. 29 of 1967, a claimant displaced person from the State of Jummu and Kashmir and Mst. Aisha Khatoon, appellant in Civil Appeal No. 30 of 1967, a claimant displaced person from India, and late Haji Karim Bakhsh, respondent No. 2, a non‑claimant displaced person. Mst. Aisba Khatoon filed a C.H. Form in 1959 claiming the transfer of the portion in her possession while Met. Razia Begum wife of Ch. Abdul Qayyum filed a K.C.H. Form for the transfer of the entire building to her. The building was, however, declared by the Chief Settlement Commissioner, to be a big mansion under para graph 16 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and was to be disposed of by unrestricted public auction. The respondent No. 2, allottee of the major portion of the building comprising of a shop also applied for its transfer on an evaluation basis. Both the applications of the respondent No. 2 and Mst. Aisha Khatoon were rejected on the ground that the property being a big mansion could only be disposed of by an unrestricted public auction as a single unit.

Thereafter on the 6th November 1959, the respondent No. 2 submitted an application to the Chief Settlement commissioner praying that the building should be partitioned so that each of its occupant could purchase the portion in his or in her possession at the auction. Before this application could be disposed of the respondent No. .2 on the 13th January 1963, made another application to the then Rehabilitation Minister, Government of Pakistan, Lt.‑Gen. Azam Khan, for the transfer of the building to himself at the assessed or market value, but the prayer was disallowed with the direction that the disposal of the building should take place according to law.

The building was not, however, put to auction until on the 30th of April 1960, when the respondent No. 2 submitted another application for the transfer of a half portion comprising his own business premises on the basis of the 50 times the annual rental value or alternatively to sell the entire property to him on the basis of the above‑mentioned evaluation if he was permitted to pay the price on an instalment basis. Syed Hashim Roza the then Chief Settlement Commissioner who also held the office of the Secretary, Ministry of Settlement and Rehabili tation, approved the proposal and on the 7th of May 1960, ordered the transfer of the entire building to the respondent No. 2 on the basis of 50 times the annual rental amounting to Rs. 6,60,000 subject to terms and conditions prescribed for the auction of big mansions. The acceptance of the offer made by respondent No. 2 was communicated to him by s letter of the 11^th May 1960, by the Settlement Commissioner (Industries) and a copy of the letter was also endorsed to Mst. Aisha Khatoon on the 19th May 1960.

On the 20th of May 1960, Mst. Aisha Khatoon applied to the Chief Settlement Commissioner for setting aside the transfer of the property in favour of respondent No. 2. This was treated by Pir Ahsanuddin who succeeded Syed Hashim Roza as an application for review and was fixed for hearing on the 16th June 1960. The application finally came up for hearing on the 14th of September 1960. At this hearing Ch. Abdul Qayyum was also present as he too had in the meantime entered appearance and was represented. The Chief Settlement Commissioner rejected the contention on behalf of Mst. Aisha Khatoon and Ch. Abdul Qayyum first on the ground that the big mansion was not a house which was subject to transfer on a C. H. Form and on the second ground that the claim of the Kashmir refugee was inferior to the claim of a displaced person and reaffirmed the order of the transfer of the property to respondent No. 2.

Against the order of Pir Ahsanuddin both Ch. Abdul Qayyum and Mst. Aisha Khatoon filed writ petitions in the High Court which were eventually dismissed by a learned Single Judge and his decision upheld by a Letters Patent Bench.

Leave to appeal was granted in both the cases to consider the contention that under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act the Chief Settlement Commissioner could only transfer or dispose of properties in the compensation pool in accordance with the provisions of the Schedule unless the Central Government by order directed the transfer of the property in a different manner in the public interest. The question that arose for consideration was whether there was any such order by the Central Government authorising Syed Hashim Roza to dispose of the Kirpa Ram building otherwise than by unrestricted public auction on the 7th of May 1960, and whether that was in the public interest.

The argument raised in the two writ petitions before the High Court was that the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act limited the powers of the Chief Settlement Commissioner under section 10 to dispose of any property out of the evacuee pool. A fortiori under paragraph 16 a big mansion could not be transferred except by unrestricted public auction. The order dated the 7th May 1960, of Syed Hashim Roza disposing of the Kirpa Ram building to respondent No. 2 by a private treaty was accordingly claimed to be without lawful authority.

Section 10 of the Act as it stood at the relevant time was to the following effect: "10. 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 Government." Paragraphs 16 and 16‑A of the Schedule provided that:

"16. Every building or premises, whether residential or commercial, 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 unrestricted 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. and

"16‑A Notwithstanding anything contained in this Schedule, whenever any property is sold by public auction:

(a) The auction shall be subject to such terms and conditions as may be laid down by the Chief Settlement Commissioner, and

(b) The Chief Settlement Commissioner may for reasons to be recorded in writing accept a bid other than the highest bid or refuse to accept any bid.

On the 30th of May 1960, Syed Hashim Raza as Secretary, Ministry of Rehabilitation, communicated to the Chief Settlement Commissioner which office he happened to occupy himself the decision of the Central Government under clause (b) of section 10 for disposal of big mansion by negotiation:

"From: S. H. Raza, S.Q.A., C.S.P.,

Secretary to the Government of

Pakistan.

To

The Chief Settlement

Commissioner, Pakistan.

Sir,

I am directed to say that the Central Government has been pleased to decide under clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, that a big mansion may be transferred by negotiation to any person who offers at least fifty years gross annual rent of such mansion for 1946.

Your obedient servant,

(Sd.) S. H. Raza."

The learned counsel who appeared in support of the writ petition by Mst. Aisba Khatoon at the preliminary hearing accordingly stressed that the power to dispose of a big mansion by negotiation did not vest is the Chief Settlement Commissioner on the 7th of May 1960. '

A report was thereupon called by the High Court as to whether the Central Government had before the 7th of May 1960, authorised the Chief Settlement Commissioner to transfer big mansions in a manner other than by unrestricted public auction as laid down in paragraph 16. In reply the Chief Settlement Commissioner on the 21st January 1961, submitted the following report:

"It is correct that the order of the Central Government was issued on 30th May 1960, while the order of transfer by negotia tion was passed by the Chief Settlement Commissioner, Pakistan, on 7th May 1960. Mr. S. H. Raza was the Chief Settlement Commissioner, Pakistan, who had passed that order. He was also the Secretary to Government of Pakistan, Ministry of Rehabilitation. In his capacity as Secretary to Government he knew that the formal order of the Central Government authorising the Chief Settlement Commissioner to dispose of big mansions by negotiation was on the anvil. This was because of his knowledge of the formal order of issue that he directed the then Settlement Commissioner (Industries) on 3‑5‑1960 to negotiate for the disposal of the mansions. The negotiation was completed and approved on the 7th May 1960.

In this connection, it is submitted that this order of Mr. S. H. Raza was upheld by the present Chief Settlement Commissioner on 14‑9‑1960, while exercising powers of reviewing the order of his predecessor. In the result, the negotiation has been upheld by the present Chief Settlement Commissioner on the date which falls subsequent to 30th May 1960, thus the order of Mr. S. H. Razahas been rectified by the competent authority. Paragraph written statement has not been submitted as being premature because no report has been called on any other point taken up in the writ petition."

At the hearing of the writ petition the authority of the Central Government to approve of modes of transfer other than those provided in the Schedule was also challenged and the learned Single Judge referred the case to a Full Bench who by their order dated the 19th December 1962, answered the reference in the affirmative. It was held:

"While the C. S. C. has to conform to the Schedule regarding any transfer of any kind of property mentioned in the Schedule, he cannot in any manner other than that mentioned in the Schedule, if the Central Government direct or allow him to do so or to approve of his actions in that behalf either before it is done or afterwards."

The two writ petitions which had been directed to be heard together were accordingly found to be without any merit by the learned Single Judge on the view that the decision of the Central Government conveyed in their letter dated the 30th May 1960, was tantamount to approval of the order of Syed Hashim Raza dated the 7th May 1960.

Before the judgment was announced the attention of the learned Single Judge was drawn on behalf of the applicants to the following order of this Court granting review in Noor Muhammad Butt and others v. The Chief Settlement and Rehabilitation Commissioner (P L D 1968 S C 330):

"His reliance on the Central Government's letter of the 30th May 1960 (not a notification) allowing the transfer of big mansions by negotiation, subject to a certain condition, failed at the earlier hearing because the condition was not satisfied, by the price offered, in relation to the rental value of the property, which was stated to be Rs. 1962.50. In this petition, he urges that this figure was incorrectly stated during the hearing in the High Court, and his clients did not challenge it, as it came from the Settlement Authority; and moreover they were defending their rights on a different ground. The figure now ascertained to be correct, is only Rs. 1,520 P. M. and if this be accepted the condition is satisfied. But the contention fails on a different ground, namely that if Mr. Hashim Raza's order accepting the bid of Rs. 10J Lakhs on the 14th November 1959, be regarded as a transfer by negotiation, then, at the time when it was made, the method was not one which bad the general approval of the Central Government, and being outside the other modes of transfer specific in section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it could not affect a legal disposition"

Fresh arguments were heard about the effect of the observations reproduced above on the merits of the two writ petitions "as it appeared to have been held that the validity of a transfer by negotiation was dependent upon the approval of the Central Government accorded before the transfer." The learned Judge, however, came to the conclusion that he was bound by the Full Bench decision which had "to be considered as a part of the judgment to be delivered in the two writ petitions" by him. The two writ petitions were in the result dismissed.

Further Letters Patent Appeals preferred by Mst. Aisha Khatoon and Ch. Abdul Qayyum were dismissed by a Division Bench in limine on the findings that:

"notwithstanding the fact that the Central Government's letter addressed to the Chief Settlement Commissioner was actually issued on the 30th May 1960, it can be read as ex post facto approval by the Central Government of the transfer order made by the Chief Settlement Commissioner on the 7th May 1960."

The learned Judges further found that the order of the Central Government authorising the Chief Settlement Commissioner to dispose of big mansions by negotiations was actually made on the 2nd May 1960, and that Syed Hashim Raza had signed the order as Secretary to the Central Government, Ministry of Rehabilitation, and, in pursuance to that decision had on the 30th May 1960, addressed to himself the letter conveying the decision taken by the Central Government under section 10 (b) of the Act.

The contention raised on behalf of Ch. Abdul Qayyum that the transfer of the portion in his possession was in contraven tion of para. 10 of the Settlement Scheme No. IV was also repelled on the ground that the entire building having been declared a big mansion it ceased to be a 'shop' or a 'house' for the purposes of that paragraph,

Lengthy arguments were addressed in support of the two appeals, but in view of the facts appearing on the records of the Settlement Department and the Ministry of Rehabilitation, Government of Pakistan, it is unnecessary to elaborate them for the purposes of this order. Firstly we find that Ch. Abdul Qayyum, appellant in C. A. No. 29 of 1967, did not file any Settlement form for the transfer of any portion of the Kirpa Ram building. It was claimed that his wife Mst. Razia Begum had filed a K. C. H. Form and in proof of it reference made to an entry in K.A. and K.C.H. Forms Register. We saw the original entry at No. 9 page 16 and considered that the objection taken by Major Ishaq Muhammad Khan, Settlement Commissioner (Legal) who appeared for the Chief Settlement Commissioner that the entry was interpolated at a later date was not without substance. The entries at page 16 close with the particulars of the form submitted by one Nazir Ahmad Wafa of 63‑C, the Mall, Lahore. On the following page appears entry No. 9 relating to the form of one Habibullah Shahab of SE‑14‑R‑38 Empress Road, Lahore, but at the foot of page 16 appears another entry at serial No. 9 pertaining to the Settlement form of Mst. Razia wife of Ch. Abdul Qayyum. It further appears that neither Mst. Razia Begum nor Ch. Abdul Qayyum filed a review petition before Pir Ahsanuddin though he (Ch. Abdul Qayyum) entered appearance in the petition filed by Mst. Aisha Khatoon and pressed his claim for the transfer of the entire building to himself. Be as it may the fact remains that Kirpa Ram building ,4 was declared a big mansion and none of its occupant had any entitlement to its transfer.

We next found that on 3‑5‑1960 the Deputy Settlement Commissioner (Industries) put up a report before the Settlement Commissioner (Industries) pointing out that the auction of big mansions recently held (six instances are quoted) did not fetch good price and in some cases the bid was even less than 40 years rental value. He suggested that a policy for the transfer of big mansions by negotiations will in these circumstances be beneficial as the Department will be in a position to get at least offers equal to 50 years rental value of the buildings. On the same day the Settlement Commissioner (Industries) made the following note on the file and marked it to the Chief Settlement and Rehabilitation Commissioner:

"CS&RC may kindly glance through the above note. The prices have not been steady. The average of these auctions is 481 years rent. When auctions of shops, houses and lots take place simultaneously the bids for big mansions will go down further. I would, therefore, propose that we may dispose of big mansions by negotiations at 60 (sixty) years rent if they are located in Karachi and at 50 years rent if they are situated elsewhere in Lahore or outside."

At the foot of the note of the Settlement Commissioner (Industries) Syed Hashim Raza passed the following order on 4‑5‑1960:

"There is no justification for treating Lahore and Karachi op a. different footing now that Karachi has ceased to be The Federal Capital. Settlement Commissioner (Industries) may negotiate on the basis of 50 years rent everywhere."

On the 5th May 1960 the Settlement Commissioner (Industries) agreeing with the proposal put up by the office for the sale of Kirpa Ram building to respondent No. 2 on 50 years annual rental value forwarded the case to Chief Settlement and Rehabilitation Commissioner with the recommendations that:

"I would suggest that ibis offer which accords with the general policy may be accepted and the benefit of installments allowed."

The "general policy" apparently refers to the order of Syed Hashim Raza dated the 4th May 1960, reproduced above. On the 7th May 1960, the recommendation was approved by the Chief Settlement and Rehabilitation Commissioner and in due course the sale in favour of respondent No. 2 on the bas's of 50 times the annual rental value was completed.

It has been mentioned that Syed Hashim Raza held the dual office of the Chief Settlement and Rehabilitation Commissioner and Secretary, Ministry of Rehabilitation, Government of Pakistan. The order dated the 4th May 1960, passed by him was unmistakeably in his capacity as Secretary and the letter dated the 30th May 1960, was issued by the Ministry in the implementation of that order. The learned Single Judge in the High Court took the view that Syed Hashim Raza knew that the decision by the Ministry to dispose of big mansions by negotia tions was on the anvil. The factual position, however, is that an order to that effect had been made earlier on the 4th of May 1960, which order was in accord "with the general policy."

The learned counsel for the appellants were unable to point out to any order, noting or instrument from which it could be inferred that the decision of the Central Government conveyed in the letter of the Ministry of Rehabilitation dated the 30th May 1960, was based on order or policy decision other than the order of Syed Hashim Raza dated the 4th May 1960. This position is further reaffirmed by the Departmental representative The legal position which emerges out, therefore, is that the order dated the 7th May 1960, by Syed Hashim Raza accepting the offer of respondent No. 2 for the purchase of the Kirpa Ram B building on 50 times the annual rental value was covered by the order of the Central Government under section 10 (b) of the Displaced Persons (Compensation and Rehabilitation) Act anti to that extent the provisions of paragraph 16‑A of the Schedule stood modified.

A word may be said at this stage about the decision in the case of Noor Muhammad Butt and others v. The Chief Settlement and Rehabilitation Commissioner in which review was granted to consider whether a property which is admittedly a big mansion within the meaning of paragraph 16 of the Schedule to the Dis placed Persons (Compensation and Rehabilitation) Act, 1958, can be validly disposed of in any manner other than unrestricted public suction. The sale by private negotiation in that case was made in November 1959, on which date the Chief Settlement and Rehabilitation Commissioner did not possess the power to depart from the provisions of paragraph 16‑A of the Schedule. The contention raised in support of the sale on behalf of Noor Muhammad Butt and others, accordingly, was that the order of Syed Hashim Raza dated the 14th November 1959, accepting their joint offer for the purchase of Mela Ram building for Rs. 10,50,000 was in continuation of the auction held on 21‑10‑1959 at which the first named had given a bid of Rs. 10,20,000 and the second named a bid of Rs. 10,30.000. The contention did not find favour with the Settlement and Rehabilitation Commissioner who on remand set aside the sale as without lawful authority. A writ petition filed against that order was dismissed by the High Court and the petition for leave to appeal was dismissed on 6th March 1963. However, on a subsequent application review was obtained to consider whether the proceedings before Syed Hashim Raza were really in continuation of the public auction held on 2t‑10‑1959. The Departmental representative did not support the contention and on a larger view of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act the application was by order dated, 20‑5‑1968, dismissed.

The facts of the two cases were thus clearly distinguishable so that while sale of a big mansion by private negotiation by the Chief Settlement and Rehabilitation Commissioner was held to be without lawful authority in the case of Noor Muhammad Butt and others v. The Chief Settlement and Rehabilitation Commissioner the sale in the present case was covered by the order of the Central Government under section 10 (b) of the Act.

Another aspect of the case is that Kirpa Ram building having been declared a big mansion neither appellant hate entitlement to its transfer. This affected their locus standi to challenge the transfer in favour of respondent No. 2. It could be said that Mst. Aisha Khatoon having filed a review petition against the order of Syed Hashim Raza dated the 10th May 1960, had a right to bring that order before the High Could for quashment under Article 98 of the Constitution, but we, found on inquiry that she had a verified claim of little more than Rs.3,000. She could not therefore be a genuine prospective purchaser of the property valued at Rs. 6,60,000. In the, circumstances it could be fairly concluded that she did not approach the High Court to assert her personal right, but was, acting as a benamidar for some third party. the writ petition filed by her for quashment of the order of Syed Hashim Raza was, therefore, liable to be dismissed for want of locus stanat alone. As to locus standi of Ch. Abdul Qayyum it has been earlier brought out that he did not file any Settlement form for the transfer of the Kirpa Ram building. He had therefore no right to challenge the transfer in favour of the respondent No. 2.

For the foregoing reasons both the appeals are found to be without any merit and are dismissed. In the circumstances of the case we, however, leave the parties to bear their own costs.

K. B. A Appeal dismissed.

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