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Writ Petition No. 74 of 1961, decided on 20th April 1962.

S. 2 (6) proviso second-Persons deemed to be in "possession"-Conditions to be fulfilled for taking advantage of proviso-Allottee for whose benefit no ejectment proceedings had -been ordered by Rehabilitation Authority-Does not fall within scope of concession of proviso second-Notification No. F. 3 (3)/ 60/SI, published in Gazette of Pakistan dated 11th August, 1960 and reproduced in Manual of Settlement, p. 163-Word "and" occurring after "Authority" [in the first line of Settlement Manual at page 164]-Cannot be read as "or".

Maxwell : Interpretation of Statutes 5th Edn.; p. 386 ref.

Art. 170-Case must fail or succeed on its own strength and not on weakness of opponents' case.

S. M. Zafar for Petitioner.

Ishaq Muhammad, Settlement Commissioner (Legal) and Abdur Rauf Qureshi for Respondent No. 1.

Sh. Khursheed Ahmad for Respondent No. 2.

Dates of. hearing : 19th and 20th April 1962.

-This is a petition by Begum Zeb-un-Nisa Kureshy wife of Mr. S. A. Kureshy, Cantonment Executive Officer, Nowshera, against the Chief Settlement and Rehabilita tion Commissioner, Pakistan, Lahore, as respondent No. 1, and Lt.-Colonel Noor Elahi, C. E. M. E., Headquarters 7th Division, Peshawar Cantonment, as respondent No. 2, for the issue of "a writ of certiorari or mandamus or any other appropriate writ or order". More specifically it is prayed that the orders of the Chief Settlement and Rehabilitation Commissioner dated the 4th of February 1961, of the Settlement and Rehabilitation Commissioner, Peshawar, dated the 25th of April 1960 and of the Additional Settlement and Rehabilitation Commissioner, Peshawar, be quashed and the property in dispute, a bungalow described as No. 54, The Mall, Peshawar Cantonment, be trans ferred to the petitioner. Although she has not given the date of the order of the Additional Settlement Commissioner above refer red to, a copy has been placed on the record as Annexure E', which shows it to have been passed on the 15th of March 1960.

2. The facts as alleged by the petitioner are that the bunga low in dispute which was evacuee property, was allotted to Mr. S. A. Kureshy, husband of the petitioner, by the Station Headquarters, Peshawar, vide letter No. 261/62/Q, dated the 31st of May 1958 (Copy Annexure 'A'). The allotment was approved by the Deputy Rehabilitation Commissioner (Cantonment Area), Peshawar, the approval being given in the form of a certi ficate (Copy Annexure A/2') dated the 2nd of September 1959. It is admitted by the petitioner that at the time of the allotment in favour of her husband the bungalow in dispute was in posses sion of respondent No. 2, the allotment being consequently made subject to the condition that possession would be given when the property was vacated by the above respondent.

3. By order dated the 23rd of September 1959 (no copy has been placed on the record) the Deputy Settlement Commissioner, Peshawar Cantonment, transferred the bungalow in question to the petitioner. Although she does not say so in the petition, it is not disputed that the transfer was temporary. On the 13th of October 1959, however, respondent No. 2 applied to the Deputy Settlement Commissioner, Peshawar for a declaration that he was a displaced person. The application was granted, and on the strength of that declaration he submitted an applica tion in Form NCH on the 24th of October for transfer of the property in dispute.

4. On the 5th of November 1959 the allotment of the bungalow in dispute in favour of the petitioner's husband was cancelled by Station Headquarters, Peshawar, by order No. 261/ 62/Q, dated the 5th of November 1959 (Copy Annexure B') in which it is stated that the order of allotment bearing the same number, dated the 31st of May 1958, had been erroneously issued, and on the 25th of November 1959 the then Deputy Settlement Commissioner, Peshawar-I, cancelled the temporary transfer in the name of the petitioner and transferred the bunga low to respondent No. 2.

5. According to the petitioner Mr. Abdul Jalil Khan, Deputy Settlement Commissioner suo motu sought permission from the Additional Settlement Commissioner to review the order of his predecessor, Major Khan Khel, dated the 25th of November 1959, and by his own order dated the 4th of January 1960, cancelled the transfer in favour of respondent No. 2 and held the transfer in favour of the petitioner to be legal and valid.

6. Against the above order of the Deputy Settlement Com missioner, copy of which is Annexure D' respondent No. 2 filed an appeal before the Additional Settlement and Rehabilita tion Commissioner who, by order dated the 15th of March 1960 (Copy Annexure B'), accepted it, directing that the bungalow in dispute be transferred to the appellant. The declaration granted to the respondent by Major Khan Khel was held to be correct and it was pointed out that as the allotment in favour of the present petitioner's husband had been cancelled, she was neither an allottee nor in occupation of the bungalow at the time of its transfer to her, the transfer being thus contrary to the instruc tions of the Chief Settlement Commissioner, Pakistan, contained in circular No. 7780-Comp-Reh./59 dated the 5th of December 1959, in which it is laid down that only a person who had physi cal possession of a house or shop, was entitled to its transfer.

7. Against the above order the petitioner filed a revision in the Court of Settlement and Rehabilitation Commissioner, Peshawar, which was dismissed by a lengthy order (Copy Annexure F') dated the 25th of April 1960. The order of Mr. Abdul Jalil, dated the 4th of January 1960, was quashed and those of the Deputy Settlement Commissioner dated the 25th of Novem ber 1959 and the Additional Settlement Commissioner dated the 15th of March 1960 were upheld.

8. Finally, the petitioner filed a second revision before the Chief Settlement and Rehabilitation Commissioner, Pakistan, which was likewise dismissed by order dated the 4th of February 1961 (Copy Annexure G').

9. Having thus exhausted the remedies open to her, the petitioner has filed the present writ petition.

10. The petition was contested by both respondents. Accord ing to Major Ishaque Muhammad, Settlement Commissioner (Legal), who represented respondent No. 1, a written statement had been drawn up, but it is not on the record. Respondent No. 2 maintained that he was rightly declared a displaced person ; that the bungalow in dispute was properly and validly transferred to him ; and that the petitioner, having never been in possession of the property and not having obtained a valid allotment before the 20th of December 1958, had no locus standi either to obtain the transfer of the property or to file the present petition.

11. The first and most important question for decision in this case is that of the locus standi of the petitioner since, if she is not competent to obtain transfer of the property in dispute, it will be un-necessary to discuss the status of respondent No. 2 or the propriety and validity of the transfer in his favour.

12. In support of her contention that she was in construc tive, although admittedly not physical, possession of the bungalow the petitioner relies on memorandum No. 3223-P1-Reh-60, dated the 7th of March 1960, to be found at page 123 of the Manual of Settlement Law and Procedure (hereinafter referred to as the Manual), which runs:

"The Central Government has decided that where a house is in the possession of the husband in pursuance of the (sic) order passed on or before the 20th day of December 1958 by a competent authority, his wife, if staying with him, will also be deemed to be in possession."

It is clear that the above memorandum will only help the peti tioner if her husband was in possession of the bungalow in dispute under a valid allotment order passed before the 20th of December 1958. It is contended by the respondents and conceded by learned counsel for the petitioner, that neither she nor her husband, Mr. Kureshy, was ever in physical possession of the premises in dispute. At the time of the passing of the allotment order in favour of Mr. Kureshy the bungalow was occupied by respondent No. 2, who has not up to now vacated it.

13. It being thus established that the petitioner was never in physical possession of the bungalow, it must next be seen whether she can be deemed to have been in possession within the meaning of the Displaced Persons (Compensation and Rehabi litation) Act XXVIII of 1958 (hereinafter referred to as the Act). The definition of possession as given in section 2 (6) q the Act runs :-

" 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 arty 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."

The petitioner seeks the protection afforded by the second proviso, and the next question for determination therefore is whether she is a member of any class of persons declared by the Central Government by order in writing to be deemed to be in possession for the purposes of the Act. In support of her contention she relies on a Press Note dated the 4th of July 1959, reproduced at page 26 of the Manual, which runs :-

"In some cases houses, shops and other evacuee properties were allotted to certain persons before the 20th December '1958, but they have not been able to obtain physical possession of such properties so far through no fault of their own: The Chief Settlement Commissioner has decided that such allottees may be permitted to submit applications in the appropriate forms for the transfer of them and the applications will be decided by the Settlement Authorities on merits. If the allot ment order issued by a competent authority before the 20th December 1958, has subsequently been the subject-matter of an appeal, revision or review or a writ petition in the High Court or the Supreme Court is pending against the allotment order, the person in whose favour the property stands allotted on the last date fixed for receipt of applications may submit the application in the prescribed form."

A perusal of the above Note shows that the only concession speci fically allowed to the persons described is that of submitting applications in the appropriate form for the transfer of the pro perties allotted to them before the 20th of December 1958.

14. It appears that not only were a number of applications made on the basis of the above instructions but also that in some cases orders of transfer were passed. Subsequently, however, it was borne in upon the Chief Settlement Commissioner that the instructions were ultra vires for on the 5th of December 1959 a second memorandum, No.'7780-Comp-Reh./59, reproduced at page 96 of the Manual, was issued. The portion relevant to the purposes of this case is that contained i the first .two para graphs, which run:-

"By a press note dated the 4th July 1959, the persons to whom houses, shops and other properties were allotted before 20th December 1958, but had not been able to obtain physical possession of such properties through no fault of their own were permitted to apply for the transfer of such properties in appropriate forms. No orders have so far been issued about the disposal of such applications. Under the law only a person who has got physical possession of a house or a shop is entitled to its transfer in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Schemes made thereunder. Persons who held allotment orders issued before 20th December 1958, but have not been able to secure physical possession are, therefore, not entitled to the transfer of the properties allotted to them under the law. Applications received from such persons in response to the announcement made in July 1959, should be kept pend ing and no action should be taken to transfer the properties in question to them until further orders. If in any case the pro visional order or any other order has been issued by mistake it may be withdrawn immediately."

Since only the Central Government had authority to direct that any class or classes of persons should be deemed to be in posses sion within the meaning of the Act, the view expressed in the above memorandum is clearly correct. Even if, therefore, any order of transfer was passed in favour of the petitioner on the strength of the earlier Press note of the 4th of July 1959, it was invalid.

15. It was not until the 11th of August 1960 that the Central Government in the Ministry of Rehabilitation and Works exer cised the power conferred on it by section 2 (6) of the Act. In the Gazette of Pakistan Extraordinary of the above date an order was issued which was reproduced in a press note dated the 9th of September 1960 (page 163 of the Manual), the relevant portion of which runs :-

"No. F. 3 (3)/60-SI :-In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to order that the allottees of a house or a shop for whose benefit ejectment pro ceedings have been ordered by a Court or a Rehabilitation Authority and who, through no fault or negligence of their own, have so far been unable .to obtain physical possession of the house or the shop in question shall be deemed to be in posses sion thereof for the purpose of the said Act."

16. It will be seen that before an allottee can take advantage of the above concession, three conditions must be fulfilled:

(1) Ejectment proceedings must have been ordered for his benefit by a Court or a Rehabilitation Authority.

(2) He must have been unable to obtain physical possession of the house or shop in question.

(3) Such failure must be due to no fault or negligence of his own.

The petitioner may possibly fulfil the second and third of the above conditions, but it is admitted that no ejectment proceedings were ever ordered in her favour by a Court or a Rehabilitation Authority. Mr. S. M. Zafar attempted to argue that the word "and" occurring after "Authority" in the tenth line of the order should be read as "or", but this contention is completely untenable. In support of it he cited the following passage from Maxwell's stan dard work "On the Interpretation of Statutes", 5th Edition, at page 386 :-

"To carry out the intention of the Legislature, it is occasion ally found necessary to read the conjunctions or' and and' one for the other."

The instances cited by Maxwell, however, clearly show that the above principle has no application to cases like the present. One such instance is 43 Eliz. c. 4, which speaks of property to be employed for the maintenance of "sick and maimed soldiers". I t was held that the reference was to soldiers who were either sick or maimed, and not only to those who were both. Again, a Turnpike Act imposed a toll on every carriage drawn by four horses and a separate toll on ridden horses, but provided that not more than one toll should be demanded for repassing on the same day "with the same horses and carriages". It was held that the real intention of the Legislature required that this "and" should be read as "or", and that a carriage repassing with different horses was not liable to a second toll. By no stretch of imagination, however, can the instructions now under dis cussion be considered capable of such an interpretation, it being clearly the intention of the Central Government that an allottee for whose benefit no ejectment proceedings have been ordered by a Court or Rehabilitation Authority does not fall within the scope of the concession. Mr. Zafar also cited certain passages from "Craies an Statute Law" dealing with the distinction between absolute and directory enactments and the effect of pro visions in a statute benefitting only a particular person or class of persons (pages 240, 246 and 248 of the 5th Edition of the above work), but these are even less in point than the quotation from Maxwell above referred to.

17. For the above reasons we have no hesitation in holding that the petitioner cannot be deemed to have been in possession of the property in dispute within the meaning of the Act even if the allotment order passed in favour of her husband on the 31st of May 1958 be considered as valid, which, in our opinion it clearly is not (the Station Headquarters, Peshawar, which pur ported to make the allotment, had no authority to do so, juris diction vesting only in the Deputy Settlement Commissioner).

18. In view of the above finding the petitioner has no locus standi to claim transfer of the bungalow in dispute. Her petition accordingly fails and is dismissed, but in the circumstances we pass no order as to costs.

19. Before concluding we may mention that Mr. Zafar, expressed his intention of bringing what. he considers to be th 9e illegal allotment and transfer of the property in dispute in favour of respondent No. 2 to the notice of the Enforcement Staff., This, however, is no reason why we should help him by giving' a finding as to the status of respondent A. 2 when such a finding is unnecessary in deciding the fate of the present petition.

K. B. A. Petition dismissed.

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