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Writ Petition No. 2‑R of 1962, decided on 27th November 1962.

S. 2 (6) Second proviso [as amended by Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance (LIH of 1959)] ‑ Central Government Notification No. F‑1 (27) 59‑SI dated 26‑10‑59‑Benefit of Notification accrues only if there is no one "otherwise entitled" to transfer of property.

---- S. 2 (6) [as amended by Displaced Persons Com pensation and Rehabilitation) (Amendment) Ordinance (I of 1959)]‑ Words "in pursuance" Possession without allotment order ‑Subsequently regularised by order of allotment‑Possession prior to date of allotment, held, legal possession within meaning of definition‑Prior allotment to be preferred to allotment of later date‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Schd. para. 1

Muhammad Iqbal Khan v. Chief Settlement Commissioner and others P L D 1963 Lah. 11 distinguished.

Art. 98‑Question of fact‑Finding, arrived at by Tribunal of exclusive jurisdiction, erroneous or contrary to record‑Question can be decided afresh by High Court exercising writ jurisdiction on materials placed before High Court ‑‑ Chief Settlement Commissioner transferring property to B wrongly assuming him to be prior allottee and erroneously holding that A had no valid allotment in his favour‑ Error committed by Chief Settlement Commissioner, held, error of law justifying issue of writ ‑ Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 25.

Habibullah Khan and another v. Election Tribunal, Jhang P L D 1962 Lah. 797 ; Saleh Muhammad v. Muhammad Roz P L D 1962 Lah. 68 and Muhammad Mohsin Siddiqi v. Chief Judge, Karachi Small Cause Court P L D 1956 Kar. 203 ref.

S. 2 (4) [as amended by Displaced Persons (Compensation and Rehabilitation) Ordinance (LIII of 1959)]‑ Notification No. 6481 p‑Reh/59‑Deputy Rehabilitation Commis sioner in pursuance of authority delegated to him holding property to be divisible into two portions‑Order cannot be set aside by Chief Settlement Commissioner in exercise of revisional jurisdiction.

Special Leave to Appeal Application No. 58 of 1962 (Bahar Muhammad's case (S. C.) (unreported) ref.

Syed Muhammad Zafar for Petitioners.

Sh. Tan Husain for Respondent No. 1.

Nemo for Respondent No. 2.

Dates of hearing : 23rd and 24th October 1962.

The property in dispute consists of a bungalow situated in Model Town, Lahore, bearing No. 77/E. It was in occupation of several persons, namely, the three petitioners of Writ Petition No 2 of 1962, Hafiz Abdul Hakim, Iqbal Hussain and Abdul Aziz ; Muhammad Anwar Khan, respondent in that writ petition and Wahaj‑ud‑Din, petitioner in Writ Petition No. 40‑R of 1962. The Deputy Rehabilitation Commissioner, Lahore, by means of an order, dated the 4th February 1960, divided this bungalow into two portions and transferred one of the portions to Wahaj‑ud‑Din petitioner, and the other to the petitioners. Muhammad Anwar Khan filed an appeal against this order and the Additional Settlement Commissioner, by means of an order dated the 31st March 1960, accepted that appeal and transferred the whole of the bungalow to Muhammad Anwar Khan. The petitioners filed two separate revision petitions against this order and the Settlement and Rehabilitation Commissioner Malik Fateh Khan, by means of an order dated the 22nd September 1960, set aside the order of the Additional Settlement and Rehabilitation Commissioner and restored that of the Deputy Settlement Com missioner. A second revision petition was filed by Muhammad Anwar Khan, respondent, before the Chief Settlement and Rehabilitation Commissioner and that officer, by means of an order dated the 30th October 1961, accepted the second revision petition set aside the order of the Settlement and Rehabilitation Commissioner, Malik Fateh Khan, and restored that of the Additional Settlement and Rehabilitation Commissioner, with the result that the whole of this bungalow now stands transferred in favour of Muhammad Anwar Khan, respondent. It is against this order of the thief Settlement and Rehabilitation Commis sioner that these petitions have been filed, in which it is prayed that a writ of certiorari be issued, quashing the order dated the 30th, October 1961, passed by the Chief Settlement and Rehabilitation Commissioner. In the second‑mentioned writ petition, a prayer is also made that a writ of mandamus be issued directing the Chief Settlement. Commissioner to restore the order, dated the 4th February, 1960, passed by the Deputy Settlement Commissioner, and any other writ or order be issued as may be considered appropriate in the circumstances of this case.

2. The main ground on which these petitions are based is that the petitioners are prior allottees of the property in dispute and, ass such, they were entitled to its transfer in preference to the respondent, who was allotted this property in the year 1956. In upsetting the order of the Settlement and Rehabilitation Commissioner, and in agreeing with the Additional Settlement and Rehabilitation Commissioner, the Chief Settlement and Rehabilitation Commissioner expressed the opinion that the property in dispute was indivisible, and as it has been allotted to Muhammad Anwar Khan, respondent, before its allotment to the petitioners, the whole of it should go to the respondent.

3. The relevant provision of law, which is applicable to this case and on the basis of which the various orders were passed is do Paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and; in particular, is the second proviso to this paragraph, which is in the following words:

Provided further that if a house or a part thereof is in possession of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession."

Reference may also be mode, at this stage, to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958, as amended, which defines "possession" and which is in the following words :‑

Possession' means possession obtained in pursuance of an order passed on or before the twentieth day of December, 1958, by as 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."

One of the Notifications issued by the Central Government, in exercise of the powers conferred by the second proviso to clause, (6) of section 2 of the Act, referred to above, bears No. F. I (27)/59‑S I and is of the 26th October, 1959. This notification is in the following words :‑

In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and l Rehabilitation) Act, 1958, (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non‑claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958 shall for the purpose of the aforesaid Act, be deemed to be in possession thereof if he has been in undisputed occupation of the house or the shop since before the twenty‑first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day:-

"Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation, and, if he is a claimant, such amount is adjusted against his claim."

4. The petitioners' contentions are firstly, that they are prior allottees of the property in dispute anti as such were entitled to its transfer in preference to the respondent who was allotted the premises for the first time in the year 1956, and, secondly, that even if it could be held that they were not in "possession" of this property before it was allotted to the respondent in pursu ance of an order passed by the Custodian or by the Rehabilitation Authorities, as their possession was prior to the allotment of this property in favour of the respondent and was "undisputed", in view of the Central Government's Notification dated the 26th October 1959, they should have been deemed to be in "posses sion" for the purpose of clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and, as such, were entitled to this property in preference to the respondent.

5. So far as the last‑mentioned contention is concerned, they same in my opinion, has no force. One, of the conditions which the petitioners were required to fulfil, before they could take benefit of the Central Government's Notification dated the 26th October 1959, was that no other person was "otherwise entitled' to the transfer of this property and as, admittedly, the respondent is a person who was so entitled, the petitioners could riot succeed on this ground.

6. The first contention raised by the petitioners, however, appears to be correct. Admittedly, the respondent was allotted this property for the first time, in the year 1956. Admittedly, both the parties are claimants, and, therefore, if this property .was in "possession" of the petitioners before a part of it was allotted to the respondent, in pursuance of an order passed by the Custodian or by the Rehabilitation Authorities, they had a pre ferential right, in the matter of transfer as against the respondent. The deciding factor in this case, therefore, is as to whether the petitioners were in "possession" of this property, within the meaning of clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and whether their possession was prior in date to that of the respondent.

7. The Chief Settlement and Rehabilitation Commissioner in his order dated the 30th October 1961 has observed that although an order was passed on the 3rd of June 1962, by the Deputy Rehabilitation Commissioner, allotting this property to the petitioners, that order was subject to payment of rent and as no rent and as paid they could not be deemed to be in "possession". It was very strenuously contended by the learned counsel for the petitioners that this finding of fact arrived at by the Chief Settlement and Rehabilitation Commissioner is not only erroneous but is contrary to the facts which have been placed on the record. My attention was drawn to page 225 of the Rehabilitation file No. 77/E, Model Town, which contains various orders passed by the Rehabilitation Authorities in connection with the allotment of this property, in favour of the petitioners. On the 26th May 1962 the following report was submitted by the Rehabilitation Inspector to the Deputy Rehabilitation Commissioner :‑

"Rent not paid. The premises is according to the requirement and status of the occupants. Allotment may be confirmed subject to the payment of rent."

Above this report are mentioned the names of ten occupants, four‑of whom are the present petitioners. Except in the case of Hafiz Abdul Hakim petitioner, all these occupants are shown to have been in possession since the 24th December 1947. Hafiz Abdul Hakim's possession, however, is shown to have been from the 1st January 1949. Underneath the Rehabilitation Inspector's report is the following report made by the Rehabilitation Officer:‑

"Allotment may be confirmed subject to the payment of rent."

Another officer made a third report underneath this one which is in the following words :‑

"Allotment may be confirmed."

Finally, the following order was passed by Mr. F. A. Saleem; Deputy Rehabilitation Commissioner, on the 3rd of June 1952.

"Confirm. But please recover rent."

From a perusal of these reports and the order it appears that the case was not of an initial allotment of evacuee property but was a case where it was discovered that some persons were occupying property since a long time but were not holding any orders of allotment: The recommendation made by the Rehabilitation Inspector was that the allotment may be confirmed "subject to the payment of rent." The Deputy Rehabilitation Commissioner's order, however, was not on the lines of this recommendation, but was to the effect that allotment was being confirmed and the rent was to be recovered. The allotment not having been made subject to the condition of payment of rent, the Chief Settlement and Rehabilitation Commissioner was wrong in saying that such a condition had been imposed and as such the allotment was not effective. The liability to pay rent was, no doubt, there but mere non‑payment of rent by the petitioners and the other occupants could not be construed as meaning that this property had not been allotted to them and that from the 3rd June 1952, the date on which the Deputy Rehabilitation Com missioner passed the order of confirmation of allotment, the petitioners were not in "possession" of the property in pursuance of a lawful order.

8. The question of allotment of this property in favour of the petitioners was raised, again, in the year 1958 and two orders in favour of Abdul Aziz and Hafiz Abdul Hakim petitioners were passed by the Additional District Rehabilitation Officer on the 16th of January 1958, These orders are at pages 547 and 549 of the Rehabilitation file, referred to above. According to them, Abdul Aziz and Hafiz Abdul Hakim were allotted this property and their possession was shown to have been from the 24th of December 1947. In Annexure "P", which is a copy of the order dated the 16th of January 1958 passed in favour of Hafiz Abdul Hakim, the date of his possession has not been mentioned, but that date appears in the original. In the copy of the order Annexure "F‑2" relating to Abdul Aziz, that date is, however, mentioned. In the year 1959, two similar orders were passed in favour of Iqbal Husain and Wahaj‑ud‑Din petitioners. These will be found at pages 603 and 601, respectively, of the Rehabilitation file. A copy of the order in favour of Iqbal Hussain has been placed on the record, but not the other copy. The original shows that the possession of these two occupants was with effect from the 24th of December 1947.

9. Having had to admit that on three different occasions, namely, in the years 1952, 1958 and 1959, orders of allotment of this property had been passed in favour of the petitioners, the learned counsel for the respondents contended that those orders are of no avail to them, because their "possession" was not in pursuance of those orders, but. w as prior to the dates when the said orders were passed and also that, as held by the Chief Settlement Commis sioner, the order passed in the year 1952 was not operative, because of non‑payment of rent by the petitioners. So far as the last‑mentioned contention is concerned, that has already been disposed of by me, because the Chief Settlement Commissioner misconstrued that order and has wrongly held that the allotment made in favour of the petitioners was subject to payment of rent, although no such condition was imposed by the Deputy Re habilitation Commissioner when he passed the order in question. The second‑mentioned contention also, in my opinion, has no force, because, although the petitioners were in possession of the property in dispute prior to the date of those orders, their previous possession having been regularised by those orders, they must be deemed to have been in "possession" of the property in pursuance of those orders even prior to the date when the orders were passed. The word "pursuance", occurring in clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. cannot be construed to mean that a person who is already in pos session of an evacuee property and whose right to remain in possession has been recognised by an allotment order cannot be deemed to be in possession of that property in pursuance of such an order, because the possession was prior and not subsequent in date to the order in question. If the interpretation placed on this clause by the learned counsel for the respondents is accepted as correct, it would mean that about ninety per cent. of the displaced persons who, on migration, took possession of evacuee properties without any lawful orders and whose possession was subsequently regularised by the authorities concerned by passing orders of allotment could not be deemed to be in "possession" of such properties, although those persons who took possession of such properties long afterwards, after obtaining the requisite orders would be deemed to be in "possession" and would have a pre ferential right as against those who had occupied such properties earlier, When the orders in question were passed in the years 1952, 1958 and 1959 by the Rehabilitation Authorities, they were aware that one of the petitioners was in possession since the year 1949 and the other since the year 1947, and in passing those orders what they intended to do was to regularise their possession and their intention was not simply to make allotments in their favour from the date when the orders in question were passed. If the previous possession of the petitioners was not to be recognised, no question of recovery of rent for that period could have arisen, and, therefore; the Deputy Rehabilitation Commissioner, in his order passed in the year 1952, would, not have directed that the rent be recovered from them.

10. Learned counsel for the respondents drew my attention to the judgment of a Single Judge delivered in Muhammad Iqbal Khan v. Chief Settlement Commissioner and others (P L D 1963 Lah, 11) in which the possession of an allotee was not held to be valid prior to the date of the order of allotment. The facts of this case were different from those of the present one, and the Court rightly came to the con clusion that when the order of allotment was passed, it is not intended to give retrospective effect to it. The following observa tions made in paragraph 13 of the judgment support this view:‑

"It seems to me that the above document cannot be inter preted as having any retrospective effect. There is no doubt that the' recommendation made by the subordinate officers does mention the fact that the petitioner has been residing in the room since long and has paid the rent up to the 31st of October 1958, but these facts are mentioned to justify the issuing of an allotment order, and there is no recommendation that the allot ment should take effect from a specified date in the past. In fact, the Rehabilitation Officers have given no definite finding as to the date of occupation of the petitioner. In other words, in my view, the allotment order dated the 7th of December 1958 is only prospective in effect and does not have the effect of converting the previous occupation of the petitioner into legal possession as defined in the Act. The starting point for that possession remains the 7th of December 1958. This date is subsequent to .the date of possession of the respondent No. 2".

This reasoning would not apply to the present case, because, as stated above, the intention of the Rehabilitation Authorities in passing the orders was to recognise the unauthorised possession of the petitioners and to consider them to be in lawful possession of the property from the date of their original occupation. If this had not been their intention, it was unnecessary for them to mention in the orders the dates on which the petitioners occupied the property, nor, as stated above, would they have asked them to pay the rent which had become due from them.

11. In view of what has been stated above, I am of opinion that one of the petitioners was in possession of the property in dispute since the year 1949, and the others since the year 1947, and that even if the order passed in the year 1952 cannot be construed as having retrospective effect, at least, from the date of that order, the petitioners should be deemed to be in "possession" of the property in dispute in pursuance of a lawful order passed by a Rehabilitation Authority, and as, admittedly, the respondents came into possession for the first time, in the year 1956, the peti tioners were entitled to preference m the matter of transfer as against the respondent in accordance with the provisions of para. 1 of the Schedule to the Displaced Persons (Compensation and Re habilitation) Act, 1958.

12. The only other contention raised by the learned counsel for the respondents was that as the Chief Settlement Commissioner came to the conclusion that the allotment order passed in the year 1952 was a conditional order of allotment, his finding, on a question of fact, should be accepted as correct and, therefore, this Court should not go into this question at all. It is no doubt, true that, normally, in exercise of jurisdiction conferred by Article 98 of the Constitution, this Court does not go into disputed questions of fact, but if on a certain point the finding on a ques tion of fact arrived at by a Tribunal of exclusive jurisdiction is erroneous or is contrary to the record, there is nothing to prevent this Court from going into that question and deciding it afresh on the material placed before it. If any authority for this is needed, reference may be made to Habibullah Khan and another v. Election Tribunal, Jhang (P L D 1962 Lah. 797), a case decided by a Division Bench of this Court. At pages 802 and 803 of this reported judgment, the following observations were made:‑

"Learned counsel for the petitioners contended that the evidence before the Election Tribunal did not justify the finding against Khushi Muhammad, petitioner No. 2. This argument of learned counsel for the petitioners has to be ignored on the short ground that the question whether or not the evidence before a Tribunal of special jurisdiction justified the finding of fact given by the Tribunal is not a matter which can be made the subject of a writ petition. Whether or not the evidence justified the order is for a Tribunal which can hear appeals or revision petitions against the order of the Tribunal which gave that finding to decide and cannot be gone into by a Court which possesses no other power than that of issuing writs. However, I am not to be understood to be saying that the findings of fact given by a Tribunal of exclusive jurisdiction are sacrosanct before a Tribunal which has merely the power to issue a writ and not to hear an appeal or a petition, for revision against the order which has been attacked because I am clear in my mind that if the Tribunal of exclusive jurisdiction has given a finding of fact on the assumption that a piece of evidence exists, while it does not, or has kept out of consideration a piece of evidence which could not have been kept out of consideration or has misread any material part of the evidence, the order of the Tribunal of exclusive jurisdiction will stand on no better footing than an order without jurisdiction and occasion for issue of a writ would arise."

Somewhat similar views have been expressed in Saleh Muhammad v. Muhammad Roz (P L D 1962 Lah, 68) a case decided by another Division Bench of this Court. Reference may also be made to Muhammad Mohsin Siddiqi v. Chief Judge, Karachi Small Cause Court (P L D 1956 Kar. 203) in which it was held that certiorari to quash the decision of a Tribunal lay, not only where the Tribunal had exceeded its jurisdiction, but also where an error of law appeared on the face of the record. The following passage occurring at page 88 of Judicial Review of Administrative Action by S. A. deSmith, which deals with the question of issuing a writ of certiorari, relied upon by the learned counsel for the petitioners, can also be quoted with advantage :‑

"Certiorari will issue to quash the decision of a statutory Tribunal if an error of law is apparent on the face of the record, but not if the error is one of fact unless the error goes to the Tribunal's jurisdiction."

In the present case the Chief Settlement Commissioner transferred the property in dispute to the respondent on the wrong assumption that the respondent was a prior allottee of the property in dispute, and that there was no valid allotment in favour of, the petitioners. But for that wrong assumption the property in dispute would not have been transferred by the Chief Settlement Commissioner in the, respondent's favour, and, hence, the error committed by him was' not merely on a question of fact but an error of law and, hence', this Court would be justified in issuing the writs asked for.

13. Before ending I would like to point out that even if it could be held that no valid allotment order was passed in favour of the petitioners in the year 1952 and that only two of them, namely, Hafiz Abdul Hakim and Abdul Aziz, were in possession of the property in dispute in pursuance of a lawful order passed prior to the 20th of December 1958, in that case also the whole of this property could not be transferred to the respondents, because the Deputy Rehabilitation Commissioner, Lahore, by means of hiss order dated the 4th of February 1960, held that the property in dispute was divisible into two portions and as in passing that order he acted in pursuance of the authority delegated to him by the Chief Settlement Commissioner under clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by means of a Notification issued on the 14th of October 1959, which has been printed at page 70 of the Manual of Settle ment Law and Procedure, the Chief Settlement Commissioner could not have set aside that order in exercise of revisional jurisdiction. For authority reference may be made to a recent decision of their Lordships of the Supreme Court of Pakistan in Special Leave to Appeal Application No. 58 of 62 Bahar Muhammad's case. However, as my finding is that the peti tioners were in possession of the property in dispute prior to the date of the respondent's possession, no part of this property could be transferred in favour of the respondent.

14. For reasons given above, I accept both the petitions with costs and, hereby issue the writs asked for.

K. B. A./A. H. Petition accepted.

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