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Writ Petition No. 22 of 1966, decided on 28th July, 1967.

- S -10 and Settlement Scheme No. VII read with Chief Settlement Commissioner's memo. No. 6149/PL/61, dated 19-1-1962 - Work relating to disposal of evacuee rural properties in any of three category areas-To be carried out according to memo. dated 19-1-1962-Deputy Commissioner though entrusted with disposal of kacha buildings in second category areas and all buildings in third category areas, yet such duties to be carried out by Deputy Commissioner as Additional Settlement Commissioner under Act XXVIII of 1958-Deputy Commissioner not shown to have been appointed as Additional Settlement Commissioner to have been conferred or delegated any powers of Chief Settlement Commissioner to implement Scheme No. VII, orders of Deputy Commissioner transferring properties, held, without jurisdiction and lawful authority.

-Ch. V, para. 4-Katcha rural buildings in second category areas and all rural buildings in third category areas though deemed to have been transferred to occupants but on determination of entitlements of persons claiming transfer of such properties-Determination in such regard-Amounts to disposal or transfer of properties-Determination of such entitlement-Not a mere ministerial or ancillary order but adjudication of substantive rights of contesting parties resulting in transfer of properties.

I. H. B. Hanafi for Petitioner.

Karam Illahi, Basharat Ullah and S. H. Jafri for Respondents Nos. 1 to 3.

Nemo for Respondent No. 4.

Date of hearing : 24,th July, 1967.

-This judgment will dispose of 15 petitions filed under Article 98 of the Constitution being Nos. W. P. 22/66, 45/66, 5/67, 76/65, 23/66, 3/66, 4/66, 10/66, 11/66, 48/66, 49/66, 50/66, 51/66, 76/66 and 77/66 as common questions arise in all these cases relating to Scheme No. VII promulgated under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The disputes between the petitioners and the respondents are with regard to the question as to who, as occupants of the properties which are subject matter of the petitions, are entitled to the transfer of the properties in question under this Scheme. The Deputy Commissioners of the various districts in the Quetta Kalat Divisions accepted the respondents as occupants, and accordingly entitled to transfer of the disputed properties. The revision petitions filed by the petitioners against these orders of the Deputy Commissioners were rejected by the District Judge, Quetta, acting as Ex Offcio Settlement Commissioner, on the ground that the impugned orders were not made by the Deputy Commissioners as Settlement Authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and therefore could not be challenged in revision before the Settlement Commissioner.

2. Two questions only have been argued before us in all these petitions, that is to say : (1) Whether disposal of evacuee properties could validly be made by the Deputy Commissioners under Settlement Scheme No. VII, and if so (2) whether the orders of the Deputy Commissioners could be challenged in revision before the Settlement Commissioner under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The main contest, between the parties, however, centers on the first question, under which the very jurisdiction of the Deputy Commissioners to dispose of the properties under Settlement Scheme No, 7 has been challenged. Before answering this question. it will be useful to briefly refer to the provisions of this Scheme and to the instructions issued thereunder. The Scheme was published on 7th August 1961 by the Chief Settlement Commissioner and was intended to regulate the disposal of immovable evacuee property (other than agricultural land) situated in rural areas, the value whereof was below Rs. 10,000. Chapter IV of the Scheme divides the areas in which these properties are situated in the following three categories;

(i) First Category.-Areas of extension of urban Limits since 14th August, 1947 and towns declared to be urban subsequent to that date by the Government of West Pakistan or the Chief Settlement Commissioner.

(ii) Second Category.-Towns (not declared urban and villages, the population of which is 3,000 or more according to the census of 1951 and other towns, villages or areas urban or rural) included in this category by the Chief Settlement Commissioner from time to time.

(iii) Third Category.-The remaining areas."

Under Chapter V rural buildings, both katcha and Pakka, in the first category area were required to be disposed of as urban properties in accordance with the provisions of the Displaced Persons Compensation Act, 1958 and the Scheme made thereunder. The Pakka rural buildings situated in the second category area were required to be transferred in accordance with the procedure laid down in paragraph 2 of Chapter V of the Scheme. As regards katcha rural buildings in second category area, it was provided in paragraph 4 that all these buildings shall be deemed to have been transferred to the occupants free of charge.

3. On 19th January 1962, memorandum No. 6149/PL/61 was issued by the Chief Settlement Commissioner. This memorandum is published on page 192 of the new Manual of Settlement Law and Procedure. According to this memorandum, disposal of the properties in the first category area was to be made by the Settlement Organisation, but the properties in the' second and third category areas, according to the decision of the Central Government, had to be disposed of by the Deputy Commissioner in West Pakistan. Paragraph 5 of the memorandum states that necessary action regarding the delegation to the Deputy Commissioners of powers of Additional Settlement Commissioners under the Displaced Persons Compensation and Rehabilitation Act, 1958 was being taken, but that in the meantime the Deputy Commissioners should make preliminary arrangements in connection with this disposal and should also suggest names of officers who should function as Deputy Settlement Commissioners for the purpose.

4. The petitioners' contention is that in fact there was no delegation to the Deputy Commissioners of the powers of the Additional Settlement Commissioner under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and therefore the Deputy Commissioner's decisions in all the present cases, holding the respondents as occupants of the disputed properties and accordingly entitled to the transfer of the same, were made without jurisdiction. The respondents were unable to place before us any notification or order of the competent authority appointing the Deputy Commissioners as Additional Settlement Commissioners under this Act. As a matter of fact, the accepted position before the District Judge, who rejected the revision applications of the petitioners, was that there was no such appointment or delegation. The District Judge took the view that the orders against which these revision applications were directed, not having been made by any of the

officers whose decisions could be revised under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, i. e., one Additional Settlement Commissioner, Deputy Settlement Commissioner and Assistant Settlement Commissioner, he has no jurisdiction to interfere with these impugned orders. Mr. Karam I1ahi and Mr. S. H. Jafri, who argued the case on behalf of all the respondents, in reply raised the following con tentions-

(i) that the Deputy Commissioners did not make any orders of transfers in these cases, as under Settlement Scheme No. VII all katcha rural build ings in second category area and all rural buildings in third category area are to be deemed to have been transferred to the occupants, and that the Deputy Commissioners merely determined as to who was the occupant in each case, which determination in no way could be treated as order of transfer.

(ii) that these transfers should be deemed to have been made under section 10 (b) as it stood before .its amendment by the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance, 1962 (11 of 1962).

5. We are unable to accept either of these contentions. No doubt, under paragraph 4.of Chapter V of Scheme No. VII, all katrha rural buildings in second category areas and all rural buildings in third category areas should be deemed to have been transferred to the occupants but on the determination of the entitlements of the persons claiming transfer, of these properties. Accord ingly, such determination would amount to disposal, or transfer of rural eva cuee properties. Such, determination of entitlement cannot be viewed as a mere ministerial or ancillary, order. A determination of this nature would in several cases, involve adjudication of such disputed questions as to whether a person was in possession of. any rural property in his own right or as a tenant of some claimant or as a licensee. An inquiry into such questions would result in adjudication of substantive rights of the contesting parties. We cannot, therefore, accede to the suggestion that the impugned orders of the Deputy Commissioners cannot be treated as orders of transfer of evacuee rural properties and should be treated only as ministerial proceedings.

6. On the second contention, both Mr, Karam Ilahi and Mr. S. H. Jafri argued that under section 10 of the Displaced Persons Compensation and Rehabilitation Act, 1958, before its amendment by Ordinance 11 of 1962, evacuee properties could be transferred under clause (a) either on evaluation basis or by sale of means of auction or otherwise, in accordance with the provisions of the Schedule, or, under clause (b), "in such other manner as may be approved by the Central Government." It was suggested that Settlement Scheme N . VII was this "other manner" contemplated by clause (b) and accordingly it was not necessary that transfers under Scheme No. VII should be made by the Settlement Authorities prescribed by the Displaced Persons (Compensation and Rehabilitation) Act, 1958, or that powers of the .Additional Settlement Commissioner, Deputy Settlement Commissioner or Assistant Settlement Commissioner should have been delegated to the Deputy Commissioners with regard to the disposal of rural evacuee properties. What we understood both the learned counsel to . mean is this that properties, required to be transferred according to the alternative manner provided in clause (b) of section 10, need not be transferred by the ordinary and usual machinery of the Settlement Organisa tion, but by any officers entrusted by the Central Government with this work, and if this does, than such properties are taken out of the operation of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This argument, in our view, suffers from an obvious fallacy. The unamended section 10 provided that transfer and disposal of evacuee properties, whether according to the scheme laid down in the Schedule to the Act, or in such other manner as may be approved by the Central Government, should be made by the Chief Settlement Commissioner. Such transfers and disposals could also be made by the Settlement Commissioners, Additional, Deputy or Assistant Settlement Commissioners, if powers in this behalf were delegated to them by the Chief Settlement Commissioner under section 31 of the Act. Thus, under section 10 of the Act, read with section 31, all transfers and disposals of evacuee properties under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and to be made either by the Chief Settlement Commissioner or by any other Settlement Officers to whom he had delegated his powers, whether transfers were in accordance with the procedure prescribed by the Schedule to the Act or in such alternative manner as was approved by the Central Government. Even if Settlement Scheme No. VII is treated as a scheme as under section 10 (b) of the Act, the transfers thereunder had still to be made by the Chief Settlement Commissioner or his delegatees. This view is strengthened by the memorandum of the Chief Settlement Commissioner himself, bearing No. 6149/P. L./61, issued on 19th January, 1962 and polished at page 192 of the new Manual of Settlement Law and Proce dures. In paragraph 8 of the memorandum it was specifically stated that necessary action for delegation of powers of Additional Settlement Commis sioner to the Deputy Commissioners for the purpose of implementing this scheme was being taken. The argument that evacuee rural properties were intended by Settlement Scheme No. VII to be transferred by machinery other than the one prescribed by the Displaced Persons (Compensation and Rehabilitation) Act, 1958 has therefore no force. This memorandum makes clear that it was not the intention of the Central Government that such properties should be transferred by the Deputy Commissioners as such, and not as Additional, Deputy or Assistant Settlement Commissioners under the Displaced. Persons (Compensation and Rehabilitation) Act, 1958. To hold otherwise, would be contrary to the express language of section 10, as it stood before its amendment by Ordinance II of 1962, and also of the Chief Settlement Commissioner's memorandum of 19th January 1962. The respondents' arguments would lead to the further consequence that orders of the Deputy Commissioner deciding the disputed questions as to occupation of the rural evacuee properties would not be reviewable by any superior officer as. under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. revision applications are maintainable before a Settlement Commissioner only against the orders of the Additional, Deputy and Assistant Settlement Commissioners, and not against any other officer who may be entrusted with the disposal of evacuee property. It cannot he presnmed that the legislative authority, which framed the Settlement Scheme No. VII; intended to deprive any property of the right to question the orders of the Deputy Commissioner by application in revision to the Settlement Commissioner.

We are; therefore, of the view that both under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as well as under Settlement Scheme No. VII read with the Chief Settlement Commissioner's memorandum of 19th January, 1962. work relating to the dispersal of evacuee rural properties in any of the three category areas had to be carried out according to this memorandum the Deputy Commissioners were entrusted with the disposal of katcha buildings in second category areas and all buildings in third category areas, but these duties had to be carried out by the Deputy Commissioners us Additional Settlement Commissioners under the Displaced Persons Compensation and Rehabilitation Act, 1958. As stated above, it has not been shown to us that the Deputy Commissioners, whose orders have been challenged in these proceedings, were appointed as Additional Settlement Commissioners or that any of the powers of the Chief Settlement Commissioner were delegated to them to enable them to implement Scheme No. VII. As we have already noticed, the accepted position before the District Judge, on the basis of which he rejected the revision applications, was that no such appointment or delegation had taken place. Even at the hearing of these Constitutional Petitions no material was placed before us to show the appointment of the Deputy Commissioners as Additional Settlement Commissioners, or delegation to them of the power of the Chief Settlement Commissioner to transfer evacuee properties. We are, therefore, compelled to come to the conclusion that the orders of the Deputy Commissioner in all these Constitutional petitions were made without jurisdiction and are accordingly without lawful authority. These orders, therefore, cannot be sustained and are hereby quashed. We may add here that in Petitions Nos. 16 and 17 of 1966 and 5 of 1967, the impugned orders, did not even purport to have been made by the Deputy Commissioner. The orders in these cases are made by the Assistant Commissioner who is not the authority contemplated either in Settlement Scheme No. VII or in the Chief Settlement Commissioners memorandum of 19th January, 1962 for the purpose of transfer'. of rural evacuee properties. .

8. It was then stated that Settlement Scheme No. VII has been reconstituted and under the re-constituted scheme the Deputy Commissioners have been made officers of the Settlement Organisation but only to deal with pending cases. An apprehension was expressed that the present cases may not be deemed as pending cases and in that case the parties will be without any remedy as the Deputy Commissioners would not be competent to take any steps for the transfer of the properties in question. In our opinion, these apprehensions are misplaced. We think that the present cases can be dealt with under the re-constituted scheme and, even if not so, we have no doubt that the Chief Settlement Commissioner will take such steps as may be necessary to afford relief to the present parties.

9. In the result, we would accept the 15 petitions before us and set aside the orders of the Deputy Commissioners impugned therein. However, in the circumstances of the case we make no orders as to costs.

10. A copy of this.. judgment may be sent to the Chief Settlement Commissioner to enable him to take such actions as may be necessary in connection with the disputes which are the subject-matter of the present petitions.

S. A. H. Petition accepted.