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Writ Petition No. 655/R of 1960 decided on 7th March 1961.

[as amended by Displaced Persons (Compensa tion and Rehabilitation) (Amendment) Ordinance (1 of 1959) and by Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance (LIII of 1959)], Ss. 3 (2), 29 & 30 read with S. 2 (6)‑"Possession"‑Definition of "possession" as given in S. 2 (6) not applicable to S. 29‑Chief Settlement Commissioner and his delegatee's power under S. 29 to eject persons in possession unlimited‑Scope of protection of S. 30 against ejectment‑Protec tion not extended to hotels and big mansions‑Notification No. U‑8‑79/3113 dated 21‑8‑1959‑Acquisition of evacuee property for Central Government‑Extinguished interest of evacuees and property vested in Central Government obsolutely free from encumbrances.

The power of the Chief Settlement Commissioner and his delegatees to pass orders of ejectment for as long as the property does not pass into the hands of a purchaser from Government are unlimited.

The word "possession" occurring in section 29, Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) has its ordinary dictionary meaning and not the meaning mentioned in subsection (6) of section. 2 of the Act.

If the definition of the word "possession" given in clause (6) of section 2 of the Act were to be substituted for the word "possession", occurring in section 29, the result would be a jumble of words which would not have any meaning and it can be safely inferred that the intention of the law‑giver could not have been that the definition of the word "possession" given in clause (6) of section 2 was to apply to the word "possession" occurring in section 29 of the Act. The ,plain meaning of section 29 and 30 of the Act is that, while in the circumstances mentioned in section 29, the Chief Settlement Commis sioner can, till such time as it has passed into the ownership of a transferee, issue an order of ejectment with regard to any property dealt with by the Act, the person in possession of the property under a valid order mentioned in section 30 of the Act cannot be ejected therefrom for three years after the sale of the property under the Act at the instance of the person to whom the property has been transferred under the provisions of the Act, unless the conditions mentioned in that section exist.

As soon as the notification No. U‑8‑79/3113 dated 21‑8‑1959 under subsection (2) of section 3 of the Act was published, the property vested in the Central Government free from all kind of right that anybody may have had in it before the publication of the notification. It would follow that when the Central Government transfers the property which it has acquired under section 3 of the Act, the vendee would get the property free from all encumbrances because that was the nature of the title of the vendor and ‑ this would have been so in all cases of transfer under the Act but for the provisions of section 30 of the Act with regard to properties dealt with in the Act except big mansions and hotels. With regard to big mansions and hotels, however, even section 30 has not made any provision in favour of persons in possession.

Khawja Abdur Rahim and M. S. Baqir for Petitioner.

Major Ishaque Muhammad Khan, Settlement Commissioner (Legal) for Respondent 1.

M. Ismail Bhatti for Respondents 2 to 11.

Dates of hearing : 22nd and 23rd February 1961.

SHABIR

AHMAD, J.‑By this petition under Article 2 (4) ofJ sl the Laws (Continuance in force) Order, 1958, (President's Order I of 1958), Hali Abdul Karim seeks an appropriate writ for having the order passed by the Chief Settlement Commissioner, Lahore, for ejectment of the petitioner from the premises known as the Elphinstone Hotel, 69, The Mall, Lahore, vacated.

2. Briefly stated the important ones of the relevant facts are these : The petitioner was allotted the property in dispute on the 6th of November 1947 and this allotment was confirmed in his name on the 16th of December 1950, whereupon a formal order of allotment was given to the petitioner on the 23rd of December; 1950. The petitioner continued in possession of this property and set up hotel business therein, the name of his hotel being the Elphinstone Hotel, Lahore, and the petitioner has all along been, paying dues with regard to the premises in question. About the middle of September 1959, an advertise ment appeared in the press that the premises occupied by the Elphinstone Hotel, Lahore, would be auctioned on the 19th of September 1959. This advertisement did not say that the posses sion of the premises auctioned would be delivered to the purchaser. By his application dated the 5th of November 1959 the petitioner applied to the Central Government of Pakistan for transfer of the premises to him for the market value, but this application was not accepted and the petitioner was informed accordingly. It appears that in his application to the Central Government the petitioner had said something about his being allowed to remain in possession of the property in case it was auctioned to someone else, and in the communication sent to him on behalf of the Central Government, intimating the disposal of the application, it was said that the matter will be dealt with according to the provisions of law applicable to the case. In 1960 the petitioner moved an application before the Chief Settlement Commissioner for the transfer of the property in dispute in his favour, but the application was rejected on the 17th of June 1960. On the 22nd of June 1960, another advertisement appeared with regard to the auction of the premises occupied by the Elphinstone Hotel. In this advertisement it was said that the auction will take place on the 27th of June 1960 and that the purchaser will get delivery of possession of the property sold after thirty days of the issue of the provisional transfer order in his favour provided the first instalment is paid if it was due. On the 9th of August 1960 the Deputy Settle ment Commissioner, Centre I, Lahore, issued a notice to the petitioner to vacate the premises in dispute. It was said in this notice, a copy of which is on the record as Annexure E', that possession shall be delivered to the Deputy Settlement Commis sioner within thirty days of the receipt of the notice, failing which ejectment proceedings will be started against the petitioner. This notice was served on the petitioner on the 10th of August 1960 whereupon the petitioner protested to the Settlement authorities against this notice, saying that it was illegal and presented a writ petition (Writ Petition No. 432/R of 1960) in this Court on the 19th of August 1960 for having the notice of ejectment quashed. He also presented an application to the Chief Settlement Commissioner on the 23rd of August 1960, challenging the propriety and the legality of the notice of ejectment. The Chief Settlement Commissioner stayed 'the ejectment pending disposal of the application presented to hire, whereupon the petitioner withdrew his writ petition No. 432/R of .1960. On the 13th of December 1960, by means of the order, a copy of which is on the record as Annexure E', the Chief Settlement Commissioner, Pakistan, dismissed the application of the petitioner by which relief had been sought against the notice of ejectment issued by the Deputy Settlement Commissioner where upon the petitioner presented the present writ petition on the 20th of December 1960:

3. The main grounds on which the order of ejectment passed by the Deputy Settlement Commissioner, Lahore, was attacked by the learned counsel for the petitioner were these‑

(1) that an order of this type had not been passed in any other case, and .

(2) that the petitioner could not be ejected in the summary manner by which he was sought to be ejected under the orders of the Deputy Settlement Commissioner.

It appears to me that the only one of the above two points that requires determination is whether the order of ejectment was allowed by law and the other question agitated by learned counsel for the petitioner during the arguments is entirely irrelevant, because if the order of ejectment is allowed by law, the fact that a similar order was not passed in any other case would not divest the order of ejectment of its legality, and should it be found that the order was not allowed by law, the fact that a similar order was not passed in any other case would require no con sideration at all.

4. It appears necessary at this stage to mention that the property in dispute was auctioned under the provisions of Dis placed Persons (Compensation and Rehabilitation) Act, 1958 (Act XXVIII of 1958) (to be hereinafter referred to as the Act), which became law in March 1958 on receipt of the assent of the then President of Pakistan after it had been passed by the then National Assembly of Pakistan. The Act was amended by Ordinance I of 1959, called Displaced Persons (Compensation and Rehabilitation) (Amendment). Ordinance, 1959, which was promulgated by the President of Pakistan on the 5th of January, 1959, and appeared in the Gazette of Pakistan Extraordinary ,of that date. It was then amended by means of Ordinance LIII of 19 9, called the Displaced Persons (Compensation & Rehabilita tion) (Second Amendment) Ordinance, 1959, which was promul gated on the 28th of September 1959, and appeared in the Gazette Extraordinary of that date. As the Act and the schedule appended to it stood on the dates relevant for the purposes of the present case, the property dealt with by the Act fell in the following categories :‑.

I. Houses.

II. Shops.

III. Building sites.

IV. Industrial concerns,

V. Big Mansions and hotels.

Definitions of some of the above‑mentioned terms were given in section 2 of the Act, but some of them were not defined in that section.

5. For the purposes of the present case it is necessary to have ,a clear picture of some of the provisions of the Act as they stood on the relevant dates. One of these provisions is section 3 of the Act which is in the following terms

The Central Government may, for any of the purposes of this Act, by notification in the official Gazette acquire any evacuee property within the Federal Capital other than agricultural land.

(2) As and when so required by the Central Government the Government of West Pakistan shall, for any of the purposes of this Act, by notification in the official Gazette, acquire such evacuee property, other than agricultural land situated in the Province (excluding the Federal Capital), as the Central Government may deem it necessary to acquire.

(3) On the publication of a notification under subsection (1) or subsection (2), the right, title and interest, of any evacuee in the evacuee property specified in the notification, shall, with effect from the date of such publication, be extinguished, and the property shall vest wholly and absolutely in the Central Government free from all encumbrances.

(4) The Central Government shall prescribe the extent to which, and the period within which‑

(a) any charge created by a Custodian or the Chief Settlement Commissioner on any property acquired under subsection (1) or subsection (2), or

(b) (Omitted)

(c) any tax due to the Central or Provincial Government or a local authority, shall be satisfied, and the manner in which it shall be satisfied.

(5) Notification under subsection (1) and subsection (2) may be issued from time to time and may relate to‑

(a) all evacuee property generally ; or

(b) any class of evacuee property ; or

(c) all evacuee property situated in a specified area ; or (d) any particular evacuee property."

The next is the definition of the word "possession" which occurs in clause (6) of section 2 of the Act which section opens with the words : "in this Act, unless there is anything repugnant in the subject or context", the word "possession" is defined as under " possession' means possession obtained in pursuance of an order passed on or before the twentieth day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government

"Provided that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final ;

"Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act."

Then comes section 29 of the Act, under which the impugned order of ejectment purports to have been passed. This section and the one following it are in the following terms :‑

"29. Ejectments.‑(1) The Chief Settlement Commissioner may eject or cause to be ejected any person in posses sion or occupation of any evacuee property or any property acquired under section 3 whose possession or occupation is not authorised by any of the provisions of this Act or who contravenes or may have contravened any of the terms and conditions under which the property is held by him, or who, when called upon, has failed to pay public dues or has wilfully caused damage to any such property allotted to or occupied by him and for the purpose of such ejectment use or cause to be used such force as may be considered necessary.

(2) The Chief Settlement Commissioner may delegate the powers under subsection (1) to any Settlement Commissioner or Additional or Deputy Settlement Commissioner."

"30. Protection of certain occupants.‑(1) Where any person is in possession of any evacuee house or shop or has been declared on or before the twentieth day of December 1958, by a Custodian to have tenancy rights from a date prior to the fourteenth day of August 1947, in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwith standing anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or other wise on which he held it immediately before transfer

Provided that‑

(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment of the Municipality or local authority, as the case may be ; and

(b) it shall not be lawful for the transferee to eject such persons from the house, shop, industrial concern, cinema house or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due).

(2) Where the transferee does not give notice within one month as required by proviso (b) to subsection (1), the period of three years mentioned therein shall count from the date of receipt of such notice by the tenant.

(3) Nothing in proviso (b) to subsection (1) shall apply to a tenant‑

(i) who has not, within three months from the date of receipt of a notice of demand sent to him by the transferee by registered post (acknowledgment due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer ; or

(ii) who, after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof or has committed acts which are destructive of or injurious to the property.

(4) On the expiry of the period of three years mentioned in proviso (b) to subsection (1), or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationships of landlord and tenant between the transferee and .the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship.

(5) Houses and shops in possession of persons displaced from such part of the State of Jammu and Kashmir as is under the occupation of India and are residing in Pakistan shall not be transferred under the provisions of this Act and the possession of such persons shall not be disturbed till their repatriation to the aforesaid state provided that such persons do not contravene or have not contravened any of the terms and conditions on which such houses and shops are held by them or such terms and conditions as may be determined by the Chief Settlement Commissioner from time to time."

6. In the written statement put in on behalf ‑of the Chief Settlement Commissioner, who is shown as the first of the eleven respondents in the petition, the other ten respondents being the persons who had bought the property in dispute in the auction held on the 27th 1of June 1960, the impugned order of ejectment was sought to be defended on two grounds, one of them being that it could be passed because the Chief Settlement Commissioner, who could under the Act fix the conditions of sale, had said in the, notice of auction that possession will be delivered to the auction purchaser after thirty days of the issue of the provisions transfer order and the second that section 29 of the Act authorised the issue of the order of ejectment. It appears to me that the first ground is entirely misconceived, because if an order of ejectment could not be issued under the Act, the power to issue it could not vest in the Settlement authorities by reason of the fact that the Chief Settlement Commissioner could, under the Act, lay down conditions with regard to the sale of any property transferred under the provisions of the Act. If inserting of a condition, like the one in this case, could confer on the Settlement authorities the power to direct ejectment, the Chief Settlement Commissioner will have to be held to have been given the power to amend the law, which power, it may safely be presumed, no one had intended to confer on him. I am clear in my mind that the conditions of sale, which the Chief Settlement Commissioner can lay down under the Act, cannot bind any person, who is not connected with the transaction, howsoever binding those conditions might be on the purchaser and the Settlement authorities. The fact, however, that by inserting in the advertisement of sale the condition relied upon, the Chief Settlement Commissioner could not himself get, nor could confer on any of his subordinates, the power of passing an order of ejectment would not make the impugned order of ejectment illegal or ultra vires, if the power to issue it exists otherwise. This power, as I have already said, was claimed to have been given by section 29 of the Act, and on the contention raised on behalf of the respondents the question that requires determination is precisely the same as the one that arises on the contentions of the learned counsel for the petitioner, namely, whether in the circumstances of the case, section 29 of the Act gives the power of ejectment to the Settlement authorities.

7. The learned counsel for the petitioner urged that as the word "possession" occurring in section 29 should be substituted by the definition of that expression given in clause (6) of section 2 of the Act, the meaning of section 29 of the Act is that if a person has been in possession of any property under a valid order issued by a Rehabilitation Authority or the Custodian of Evacuee Property on or before the 20th of December 1958, no order of ejectment could be issued against him under section 29 of the Act. In support of this contention the learned counsel pressed into service the provisions of section 30 of the Act, under which no person to whom property is trans ferred under the Act can eject anyone who is in possession of the property within clause (6) of section 2 of the Act, which contains the definition of "possession". It is clear that to the word "possession" occurring in section 30 of the Act, except possibly in subsection (5) of that section, the definition in clause (6) of section 2 of the Act is applicable, with the result that if a person was, at the time of the transfer of the property under the Act, in possession under an order of allotment of a Rehabilitation authority, issued on or before the 20th of December 1958, he cannot ordinarily be ejected for three years form the date of the transfer of the property in his possession and he will be deemed to be a tenant of the transferee. The contention of learned counsel for the petitioner to the effect that no order of ejectment of the kind under consideration can be passed against a person to whom any evacuee property was allotted under a valid order passed on or before the 20th of December 1958 would be unassailable if the word "possession" used in section 29 of Act has the same meaning as it has in section 30. Mr. Ishaq Muhammad Khan, Settlement Commissioner (Legal), who argued the case on behalf of respondent No. 1 with fairness and learning, pointed out that the opening words of section 2 of the Act control the definitions given in the clauses that follow and consequently the definitions would not be applicable if there was anything repugnant in the subject or context in which the expression defined occurred. Now, it will be seen that the word "possession" mentioned in section 29 of the Act does not stand by itself and the possession mentioned in that section has to have the qualification that it is recognized by some provision of the Act. The contention of learned counsel for the petitioner was that because possession under an allotment order passed before the 20th of December 1958, gives protection to the allottee for the purposes of section 30 of the Act, possession under such an order has to be deemed to be possession which is authorised by the provisions of the Act, but this method of approach is too indirect to be accepted as valid under any recognized canon of interpretation of laws. The fact that certain occupants of property were given protection against ejectment for three years at the instance of persons to whom property may be transferred under the Act would not make possession of that kind possession authorised by any of the provisions of the Act for the purposes of its 29th section. It appears to me that there is great force in the contention of Mr. Ishaq Muhammad Khan, Settlement Commissioner (Legal), that a good example of possession autho rised by the provisions of the Act is to be found in subsection (5) of section 30 by reason of which persons displaced from such parts of Jammu and Kashmir as is under the occupation of India cannot be ejected under the provisions of the Act, nor can their possession be disturbed till their repatriation to the said State subject to the conditions that such persons do not contravene or have not contravened any of the terms and conditions on which houses and shops in their possession are held by them. The force of the contention of Mr. Ishaq Muhammad Khan becomes clear from the fact that except for the insertion of the words "any property acquired under section 3" after the words "evacuee property" occurring for the first time in the section and the substitution of the words "any such property" in place of "any evacuee property" occurring for the second time in the section, the 29th section of the Act attained its present form on the promulgation of Ordinance I of 1959 (Displaced Persons (Compensation and Rehabilitation) (Amend. meat) Ordinance, 1959) which Ordinance gave subsection (5) of section 2, except for the second one of its provisos, its present form and besides inserting subsection (5) therein, brought about a drastic change in section 30 of the Act. It will be doing the law‑giver a good deal of justice if one were to say that he did not notice that while to the word "possession" occurring in section 29 of the Act a qualification had been attached, namely that it should be recognized by the provisions of the Act, no condition was attached to the same word when used in section 30. This would clearly lead to the inference that the word "possession occurring in section 29 was to have its ordinary dictionary meaning and not the meaning mentioned in subsection (6) of section 2 of the Act. Some other examples of the possession) authorised by the Act are to be found in the Schedule to the) Act and though the entries in the Schedule which can be considered to have authorised possession are not as clearly worded as subsection (5) of section 30 of the Act, yet the fact that persons mentioned in the entries are stated to have a preferential right to the transfer of the property in their possession would show that their possession was recognized by the provisions of the Act.

8. The matter may now be considered in another manner. If the definition of the word "possession" given in clause (6) of section 2 of the Act were to be substituted for the word "possession", occurring in section 29, the result would be a jumble of words which would not have any meaning and it can be safely inferred that the intention of the law‑giver could not have been that the definition of the word "possession" given in clause (6) of section 2 was to apply to the word "possession' occurring section 29 of the Act. The plain meaning of sections 29 and 30 of the Act is that, while in the circumstances mentioned in section 29, the Chief Settlement Commissioner can. till such time as it has passed into the ownership of a transferee. issue an order of ejectment with regard to any property dealt with by the Act, the person in possession of the property under a valid order mentioned in section 30 of the Act cannot be ejected therefrom for three years after the sale of the property under the Act at the instance of the person to whom the property has been transferred under the provisions of the Act, unless the conditions mentioned in that section exist.

9. Another contention of the learned counsel for the petitioner was to the effect that ejectment of a person who held a valid order of allotment with regard to the property described in the Act as "big mansions and hotels" by means of orders passed under section 29 of the Act could not have been con templated by the law‑giver, because it could not have been intended that persons who could not be considered to be trespassers should be ejected in the summary manner envisaged in section 29 of the Act. The provisions of the Act show that it was applicable to property which was evacuee property as defined in the Pakistan Administration of Evacuee Property Act (XII of 1957). Laws dealing with evacuee property authorised Rehabilitation authorities to pass orders, of allotment with regard to that property. If an order of allotment was passed by these authorities, it would, unless there was a provision to the contrary in the relevant law, remain in force till the property retained its evacuee character and not after that. Now, by Notification No. U‑8‑79/3113 dated the 21st August 1959, issued under section 3 of the Act, all immovable property in West Pakistan to which the Act is applicable was acquired by the Government of West Pakistan for the Central Government under sub section (2) of section 3 of the Act. Subsection (3) of section 3 of the Act says that when a notification about acquisition is published under subsection (2) the property mentioned in the notification shall vest wholly and absolutely in the Central Government free from all encumbrances, and the interest of the evacuee in the property shall be extinguished. On a plain reading of this provision of the Act it would become clear that whatever rights any person had in the property which was evacuee property, be that person an evacuee or anybody else, shall cease to exist on the issue of the notification about acquisition. The learned counsel for the petitioner urged that encumbrances mentioned in subsection (3) of section 3 of the Act would mean only mortgages, charges and liens and not the rights of tenants and in support of this contention he relied on section 57 of the Transfer of Property Act. It appears to me that it is not permissible to hold that the word "encumbrances" occurring in subsection (3) of section 3 of the Act has the same meaning as in section 57 of the Transfer of Property Act. No definition of the word "encumbrances" is given either to the Act or in the General Clauses Act and one has, therefore, to turn to the dictionary meaning of the expression which would clearly include the right which a tenant has in the property of another, because such a right is clearly an encumbrance on the property. It follows, therefore, that as soon as the notification under sub section (2) of section 3 of the Act was published, the property vested in the Central Government free from all kind of right that anybody may have had in it before the publication of the notification. It would follow that when the Central Government transfers the property which it has acquired under section 3 of the Act, the vendee would get the property free from all encumbrances because that was the nature of the title of the " vendor and this would have been so. in all cases of transfer under the Act but for the provisions of section 30 of the Act with regard to properties dealt with in the Act except big mansions and hotels. With regard to big mansions and hotels, however, even section 30 has not made any provision in favour of persons in possession. The learned counsel for the petitioner 'admitted that if the case had fallen under section 30, the petitioner could not have claimed the rights in the property which persons who are in possession of houses, shops, industrial concerns and cinemas can claim, but he asserted that only the persons to whom the property was sold would get the right to eject the petitioner and that the right of ejectment did not vest in the Settlement authorities. I have already shown that the power of the Chief Settlement Commissioner and his delegatees in this behalf to pass orders of ejectment for as long as the property does not D pass into the hands of a purchaser from Government were unlimited and the contention of the learned counsel for the petitioner cannot but be repelled as untenable.

10. In view of what I have said above, I would dismiss the petition but would leave the parties to bear their own costs.

S. A. MAHMOOD, J.‑I agree.

A. H.

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