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Present: A. R. Cornelius, C. J., S. A. Rahman, Fazle‑Akbar, B. Z. Kaikaus and Hamoodur Rahman, JJ

Civil Petition for Special Leave to Appeal No. 92 of 1961

Writ Petition No. 4 of 1960 and Civil Petition for Special Leave to Appeal No. 92 of 1961, decided on 9th August 1963.

(On appeal from the judgment and order of the Settlement and Rehabilitation Commissioner, Karachi, dated the 30th July 1960).

Petition dismissed where petitioner had already preferred writ petition direct to Supreme Court‑Constitution of Pakistan (1956), Arts. 22 & 160.

, Preamble & Ss. 3, 4 & 10 (2) [as added by Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance (II of 1962)], Sched para. 9‑Notification under S. 3 acquiring evacuee property to form compensation pool in terms of S. 4 for transfer in accordance with provisions of Schedule‑Non -claimants have no "vested" right in property in their possession (Per Cornelius, C. J., S. A. Rahman, Fazle‑Akbar and Hamoodur Rahman, JJ, Kaikaus, J. contra)‑Claimants "vested" beneficiaries qua‑compensation pool‑Notification issued under S. 3 modified so as to exclude property, approval of sale of which had already been given by Central Government‑Modified Notification has only prospective and not retrospective operation even if modification had been specifically declared to be retrospective in effect‑Plea of non‑claimant based on "vested" right for transfer of property rejected‑Property excluded from compensation pool by subsequent Notification again becomes evacuee property (per Cornelius, C. J., S. A. Rahman, Fazle‑Akbar and Hamoodur Rahman, JJ. ; Kaikaus, J. contra)‑Rights of property or as to status cheated by a Notification cannot be cancelled by a mere subsequent Notification (per Kaikaus J.).

Per Cornelius, C. J., (S. A. Rahman, Fazle‑Akbar, Hamoodur Rahman, JJ. agreeing), Kaikaus, J., contra.‑--A non‑claimant displaced person may base his claim for relief upon para graph 9 of the Schedule, in relation to any shop of which he may be possessed, and his claim would be entitled to be examined on that basis, but he could not claim any right in that property by virtue of that property being in the compen sation pool, for the simple reason that he is not included among the specified beneficiaries who are to receive compensation, as of right, out of the compensation pool. The law as it stands permits of a non‑claimant displaced person having a right to a shop in his possession by virtue, not of any right vested in him personally, but on the strength of his being in possession, subject to satisfaction of all the enquiries and requisites of the Scheme. It is conceivable that this right would not be superior to that of a claimant, if the shop were in the compensation pool, for claimants are vested beneficiaries qua the compensation pool . . . . . . . what seems clear is that a non‑claimant displaced person cannot be thought to acquire any vested interest, as a beneficiary by virtue of section 4 of the Displaced Persons Act, 1958.

A vested beneficiary interest in the property in the com pensation pool can only be allowed, once the pool is constituted, or any property passes into the pool, in favour of claimants.

Upon a true construction of the provisions of section 4 of the Displaced Persons Act, 1958, it is impossible to conclude that once a property enters the compensation pool, it becomes a part of the pool irretrievably.

The argument then that any evacuee property acquired ruder section 3 becomes for all time part of the compensation pool is to that extent, and bearing in mind the character of the other properties which come into the pool, not capable of being accepted as an absolute proposition. It is to be remembered that the acquisition is by a mere notification, and not by a solemn and lengthy proceeding such as that provided in the Land Acquisition Act, or other instruments of a similar kind. There is no great difficulty in the way of applying the principle of section 21 of the General Clauses Act to a modification of a notification issued under section 3, such as will have the effect of excluding from the earlier acquisition, certain property specified in the second notification. It is, of course, settled law that power given by a statute to act by notification with prospective effect as in section 3, cannot be effectively exercised with retrospective effect, whatever the language that may be employed, and conse quently the Central Government's notification of the 12th Septem ber 1959, must be supposed to have effect from that date and no earlier date, notwithstanding the use of words calculated to give it effect as from 8th August 1959. It is true that if in the interval between the two dates vested rights had accrued in consequence of the first notification, those could not be annulled by a mere notification of a later date.

A non‑claimant displaced person has no vested rights is any property included in the compensation pool merely through being in possession of such property, though he may by virtue of section 9 set up a claim to transfer of such property to himself, and the property would vest in him when it was finally and permanently transferred to him. But in the present case there has been no enquiry upon the petitioner's NCS form at all, and' consequently the question of the development in his favour of any right capable of being enforced by a writ did not seem to arise.

In another view of the matter, it is clear that by Presidential Ordinance No. II of 1962, which added a second subsection to section 10 of the Displaced Persons Act, a marked change has been effected, namely, that whereas previously the authorities under the Displaced Persons Act were obliged to apply all property in the compensation pool for the payment of com pensation to claimants, and for relief to others, as provided by the Schedule and the Scheme, as from the date of the amending Ordinance, the Central Government was given power to transfer any property out of the compensation pool in the public interest. It is immaterial on what date such property, came into the compensation pool, and therefore, if the view be taken that this property having once entered the compensation pool, cannot be dealt with otherwise than under the D. P. Act, it is open to the Central Government today to make an order under section 10(2) of the D. P. Act, transferring the property to the State Bank of Pakistan, for it is clear beyond doubt that such a transfer would be in the public interest.

Property after it comes within the purview of the D. P. Act, does not cease to possess at any rate some of the incidents of evacuee property. Moreover, the D. P. Act has been passed in continuation of and for the final implementation of the purposes for which the laws relating to the protection and later the administration of evacuee property and the other laws relating to the rehabilitation of refugees and the restoration of the economic life of the country, were passed. It is, therefore, in my opinion, not unreasonable to conclude that if in a case such as the present the Central Government acts by notification to exclude certain items of property from the purview of a notifi cation of acquisition under section 3, the consequence is not that the property becomes the property of no one, but must be that its earlier status as evacuee property is restored, and it thereafter again comes within the jurisdiction of the Custodian. Consequently, in my view the property covered by the Central Government's approval granted in this case under section 25, subsection (2) (s) of the Pakistan (Administration of Evacuee Property) Act, 1.957, is indeed evacuee property and as such capable of being transferred.

Syed Ehsan Hussain v. The State P L D 1961 Pesh. 156 mentioned.

Section 21 [General Clauses Act (X of 1897)] has no application to a case where a notification creates rights in some person whether those rights be rights relating to property or to status. If by a notification rights in property pass from one person to another, section 21 cannot empower the authority that issued the notification to nullify the effect of the first notification by a simple cancellation of the previous notification.

Wherever rights in property or relating to status are affected by a notification the effect of such a notification cannot be nullified by a simple cancellation by virtue of section 21 of the General Clauses Act.

Section 21 applies only if there be nothing repugnant to the context, and it can generally be assumed that in cases where rights in property or status are affected there would be a specific provision authorising alteration of an order already passed and that in the absence of such a provision the presump tion should be that the power of alteration does not exist.

By virtue of section 3 of the Displaced Persons Act if there is a notification by the Government with respect to any evacuee property then that property is to be applied henceforth for the purposes of the Displaced Persons Act which purposes are :‑ t

(i) compensation of claimants ; and

(ii) rehabilitation.

The whole of the property acquired comes to what is called compensation pool. As the Act originally stood the Government was granted power to take any property out of the compensation pool but the property was still to be applied for the purpose of the Act. By an amendment of 1962 the Government was granted a further power of taking property out of the compensation pool even for public interest. If on account of section 21 the Government already possessed the power to take any property out of the purview of the Act by a simple denotification, the powers above‑mentioned which are granted by the Act itself would have been unnecessary.

The correct position is that by the first notification the property vested in a trustee for the benefit of the beneficiaries so that it is proper to say that the property henceforth vested in the beneficiaries. Section 21 cannot empower the Government to effect the rights of the beneficiaries, that is, the claimants and other persons who became entitled to certain rights in the property in dispute on account of the notification.

The Government had no power at all by means of a second notification to take the property out of the purview of the Displaced Persons Act. Once it acquired the property under section 3, the property became available for application in accordance with the provisions of the Displaced Persons Act. The only further power that remained in the Government in respect of this property was that which has been provided for in the Act.

The provisions in the Schedule relating to transfer of property are mandatory and the property in possession of a local or non‑claimant refugee must be transferred to him. In fact the Schedule itself contains a, full scheme as to rights of persons and the scheme which is to be prepared by the Settlement Commissioner is intended only to fill up the details and to provide for the procedure for giving effect to rights which are already recognised by the Schedule.

The shop in dispute was in the possession of the appellant. Once it was included in the notification under section 3, the appellant became entitled by virtue of paragraph 9 of the Schedule to its transfer subject, of course, to the power of the Government to take this property out of the compensation pool. The fact, however, that the Central Government was empowered to take this property out of the compensation pool does not negative the existence of a right. A right may exist although it maybe liable to be defeated by the option of a particular person.

Assuming that the property acquired is referred to in some portion of the Displaced Persons Act as evacuee property that hardly means that the property still remained evacuee property there being a distinct provision to the effect that interests of evacuees in such property will henceforth be extinguished.

Possibility of relief, if granted, being made ineffective by Government in exercise of other statutory powers‑Court will not proceed to grant such relief‑Constitution of Pakistan (1962), Art. 98.

The Court will not grant a writ to produce a certain effect when the law provides power to one of the parties affected by the writ, to nullify the Court's writ unilaterally and the circum stances enabling such action are found to be present.

Mahmud Ali and Karam Elahi Chauhan Senior Advocates Supreme Court (No Advocate Supreme Court with them) instructed by Y. H. Naqvi Attorney for Petitioner.

Ghulam Abbas Jafery Advocate Supreme Court instructed by Shafiq Ahmed Attorney for Respondents Nos. 1 to 5, in Writ Petition No. 4 of 1960.

Mansur Alam Senior Advocate Supreme Court (Muhammad Anwar Advocate Supreme Court with him) instructed by S. M. Hanif Attorney for Respondent No. 6 in Writ Petition No. 4 of 1960 and for Respondent No. 2 in Civil Petition No. 92 of 1961.

Dates of hearing : 10^th , 11^th and 12^th June 1963.

‑This order will dispose of two matters pending before this Court between the same parties, namely, Sheikh Rehmatullah, who is described as Managing Director of Eastern Services, Ltd., as petitioner in each case, and as respon dents, four Settlement Authorities of Karachi, the Government of Pakistan and finally the State Bank of Pakistan.

Each case arises out of orders made by Settlement Authorities in respect of a certain property, viz., a go down described as No. X.B‑3‑B.G. 5 & 6. Plot No. Ry‑4‑1, Railway Quarters, Karachi. This property qualifies for the description of a shop under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the D. P. Act). It appears that the petitioner who is a refugee from Delhi has been in possession of this shop for a considerable time, his possession having been regularized by an allotment order from the Rehabilitation Authorities, dated the 19th April 1956. After the D. P. Act came into force, and it became possible for the petitioner to apply for transfer of this property, he presented an application in NCS form on the 10th November 1959. On the 5th December 1959, he was informed by a Deputy Settlement Commissioner that his application had been rejected and the ground given was that the property had been acquired by the State Bank of Pakistan. 1 he petitioner appealed against this order to an Additional Settlement Commissioner, without success. In disposing of the appeal, the Additional Settlement Commissioner said that although acquisition by the State Bank had taken place of only 4,370 square yards of the area in question, yet the Central Government in the Ministry of Rehabilitation had "sold out right" the balance of the plot measuring 9650 square yards upon which there were 12 godown (including the godown here in dispute), 7 huts and a mosque, to the State Bank. This fact' was ascertained on reference to the Ministry's file, and as now appears, it was incorrectly ascertained for all that had happened was that the Central Government had given its approval to the sale of the area in question by the Custodian, acting under section 25, subsection (2), clause (s) of the Pakistan (Administration of Evacuee Property) Act, 1957, for the current market value, to be ascertained by the Custodian. 1t may be mentioned here that in the reply to the petition, it has been stated on affidavit by the State Bank of Pakistan that in due course, the Custodian fixed the price of the land at Rs. 9,77,140, that this amount has been paid to the Custodian, and that possession of the area was handed over by the Custodian to the State Bank on the 29th June 1960. This should be understood as excluding the disputed godown which still remains in the possession of the petitioner. All other properties existing on the plot have been vacated and possession has been duly handed over to the State Bank.

From the appellate order of the Additional Settlement Commissioner, the petitioner took a revision before the Settle ment and Rehabilitation Commissioner whose order also proceeds on the basis that a sale transaction in respect of the area in question took place " on or about the 29th July 1959" The case presented by the petitioner before the Settlement and Rehabilitation Commissioner was however much more elaborate than that stated to the Additional Settlement Commissioner. The petitioner made a claim to a vested interest in the disputed property by virtue of his possession, and of the provisions of the D. P. Act and the Schedule thereto, paragraph 9 of which lays down that "a shop in possession of a non‑claimant displaced person and which the non‑claimant desires to retain shall be transferred to him on payment of the prevailing market value". The Schedule is provided in implementation of the provisions of the D. P. Act, of which, in particular, reliance was placed upon section 4 read with section 3. Section 4 lays down that a compensation pool shall be con stituted for the purpose of payment of "compensation claimants" and in this pool shall be included inter alia "(a) all evacuee property acquired under section 3". Section 3 provides inter alia that the Central Government may acquire any evacuee property within Karachi, other than agricultural land, by notification in the Official Gazette, and that on publication of such a notification "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 in-cumbrances". These provisions read with paragraph 9 of the Schedule were relied upon for advancing the claim that a person in the position of the petitioner who was in possession of the property on the date on which the D. P. Act came into force, vie., 26th March 1958, acquired on that date a vested right to have the property in his possession transferred to him.

The Settlement and Rehabilitation Commissioner whose order was regarded by the petitioner as the final order under the D. P. Act, (on the view that more than one revision could not be envisaged), dealt with the argument in the following manner. He postulated that the mere promulgation of the D. P. Act did not affect the status of "evacuee property", but that the Custodian only became divested of such property "after the requirements of section 3 and section 4 of the Act XXVIII of 1958 had been fulfilled". Consequently the claim that the property was vested in the applicant from the 26th March 1958, was rejected. Next, he came to the conclusion that the order of the Central Government sanctioning sale of the property to the State Bank could not be questioned by him as it related to evacuee property before it became part of the compensation pool provided by section 4. Next, he mentioned that on the 8th August 1959, the Central Government issued the first notification under section 3 of the D. P. Act but this notification was "subsequently modified retrospectively by issue of a notification dated the 12th September 1959". By the latter notification, property for the acquisition or sale of which the Central Government had given approval under the Pakistan Administra tion of Evacuee Property Act or under any other law was also excluded from the vesting notification under section 3, with effect from the date of the latter notification. It was contended before the Settlement and Rehabilitation Commissioner that retrospective effect could not be produced as had been sought by the second notification, but the objection was overruled on the basis that the petitioner had only filed his NCS form on the 10th November 1959, that is after the notification of the 12th September 1959, by which the effect was produced that as from that date at least, exacuee property for the sale of which approval had been given stood excluded from the compensation pool. The conclusion was reached that since the property was not a part of the compensation pool on the date when the application was made, the application for its transfer did not lie. This order was made on the 30th July 1960 and in implementation thereof, on the 26th August 1960, a notice issued from the Additional Settlement Commissioner to the petitioner to show cause why he should not be ejected. The petitioner in answer moved the present petition for a writ on the 14th September 1960, that is within a month. Ejectment was stayed and the petition was admitted on the 29th November 1960. At the same time, at the request of counsel, the petitioner was allowed to file a separate petition for special leave to appeal against the order of the Settlement and Rehabilitation Commissioner. This petition was filed on A the 25th March 1961, after a very considerable delay. Having heard arguments in the case, we are of the opinion that the matter in issue is capable of being decided on the terms of the writ petition, and that the petition for special leave to appeal was not necessary. Both for this reason as well as for the inordinate delay which was allowed to occur in its institution, we dismiss the latter petition, making no order as to costs.

Mr. Mahmud Ali for the petitioner has found no difficulty in establishing that the order rejecting the petitioner's NCS form proceeded on a ground which is patently incorrect, namely, that the property in question bad already been transferred to the State Bank of Pakistan. That is the ground upon which the first order of a Deputy Settlement Commissioner and the appellate order of the Additional Settlement Commissioner in fact proceed, but the writ is sought against the order of the Settlement and Rehabilitation Commissioner, which adds further grounds of a legal nature. The question turns upon construction of sections 3, 4 and 10 of the D. P. Act, and the argument presented by Mr. Mahmud Ali is that immediately upon the issue by the Central Government on the 8th August 1959, of a notification under section 3 acquiring all evacuee property in Karachi with the exception of certain categories (among which evacuee property for the sale of which approval had been given by the Central Government was not included) all property so acquired came into compensation pool as provided by section 4 and thereafter it became the duty of the Central Government through the statutory authorities to make this property available for distribution to claimants and others under the Schedule to the D. P. Act and the Schemes. The claim was not that the Court should order the Settlement Authorities to transfer this property to the petitioner. A certiorari was asked for to quash the order of the Settlement and Rehabilitation Commissioner coupled with a mandamus to the Settlement Authorities to proceed upon the petitioner's NCS form as required by law. It was conceded that transfer upon a NCS form did not follow immediately. The law required that there should be enquiry as to eligibility, that the entitlement should be determined as well as the amount payable, that there should be payment in a lump sum, or by instalments, and that after issue of a provisional transfer order the property was still not to vest in the transferee until there was an order for permanent transfer under paragraph 38 of Scheme No. 1, followed by execution of a title deed under paragraph 41. It was not sought to short circuit this entire procedure, but the claim was to have the process set in train by enforcement of paragraph 9 of the Schedule which has been reproduced above.

Against this right are to be set two separate powers vested in we Central Government. The first is a power derivable from section 21 of the General Clauses Act, 1897, which lays down that where by a Central Act, "a power to issue notifications, orders, rules or bye‑laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye‑laws so issued". The argument for the petitioner is met by the contention that it was open to the Central Government which had acquired title in a large area of land in Karachi by mere issue of a notification, to divest itself of a part of that land by issuing an amending notification. It was urged that in the first notification, it was by a pure oversight that evacuee property for the sale or acquisition of which approval by the Central Government had already been given, was not expressly excluded from the acquisition. In the course of the argument, reference was made to a published judgment of the West Pakistan High Court published as Syed Ehsan Hussain v. The State (1) in which mention was made of a notification issued under section 3, subsection (2) of the D. P. Act by the Government of West Pakistan, as required by the Central Government, acquiring evacuee property generally, but excluding therefrom certain categories, one of which was the category of evacuee property for the sale or acquisition of which approval of the Central Government had already been accorded, and this notification was of date the 21st August 1959, which is earlier than the date of the amending notification in relation to Karachi, viz., 12th September 1959. It was contended that the effect of the amending notification was to withdraw the property from that which had become vested in the Central Government by virtue of the notification of the 8th August 1959, and that such withdrawn property again assumed the character of evacuee property vested in the Custodian under the Pakistan Adminis tration of Evacuee Property Act, and could thus be made the subject of a sale, with the approval of the Central Government which had already been accorded.

The second right of the Central Government, upon which reliance was placed in reply to the petition is the right provided by subsection (2) of section 10 of the D. P. Act, to order transfer in the public interest of any property out of the compensation pool, in such manner as the Central Government may deem proper. Even assuming that the property in question had come into the compensation pool by virtue of the notification of the 8th August 1959, and that once in the pool, it could not be be taken out of the pool by mere amendment of that notification, whether with or without retrospective effect, there was nevertheless power in the Central Government to direct the transfer of this property to the State Bank, and such action could not resisted by the petitioner in view of the fact that, should proceedings be commenced upon his NCS form, the property would nevertheless remain in the compensation pool until the final execution of a title deed in his favour under paragraph . 41 of Scheme No. 1, and to reach that culmination would take a very considerable time. Although this contention by itself does (1) P L D 1961 Pesh. 156 not operate upon the commencement of proceedings on the petitioner's NCS form, it was urged that the Court, before it should issue a writ to quash the orders made hitherto, should take into consideration that such a restraint was capable of being easily overcome by the making of an order under section 10(2) of the D. P. Act, and the Court need entertain no doubt of the Government's firm intention to proceed with the transfer of the land to the State Bank of Pakistan by such means as are available to it in law.

Mr. Mahmud Ali urged that the Court should not give undue consideration to the latter argument, since it was in no position to be sure what action the Government might eventually take. As to the former contention, his reply was that the right in paragraph 9 of the Schedule, namely, to file a NCS form and to have it processed in accordance with law, accrued to the petitioner on the 8th August 1959, and cannot be overridden by the mere power of the Central Government to amend a notification as provided by section 21 of the General Clauses Act. It was contended that the earlier notification, by law, produced the effect that all rights of the evacuee in the property covered by the notification were extinguished and consequently it could not there after be treated as evacuee property, nor could the character of the evacuee property be restored to it by mere cancellation pro lento of the first notification. Consequently, it was urged that the Court should quash the orders made by the Settlement Authorities and direct them to proceed upon the NCS form leaving it to the Government to decide whether they will act under section 10 (2) of the D. P. Act to exclude this property from the compensation pool and transfer it themselves to the State Bank of Pakistan.

A preliminary point which has a bearing upon the argument presented by Mr. Mahmud Ali is that the compensation pool is expressly intended for "payment of compensation to claimants" and the petitioner is not a claimant. The Preamble to the D. P. Act states that it is expedient "to provide for the payment of compensation to certain displaced persons for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and the rehabilitation of others" Compensation in the Preamble is thought of in relation to persons who have suffered losses, that is claimants, but the Act also makes provision for "the rehabilitation of others" and it is among these "others" that a non‑claimant displaced person must be placed. The Schedule and the Scheme deal extensively with the provision of relief out of evacuee property not only to claimant but also to non‑claimant displaced persons as well as locals, for the purposes of their rehabilitation, and it is one of these provisions, namely, paragraph 9 of the Schedule upon which the petitioner based his case. But in order to give himself a vested right in the compensation pool, it was necessary, in my opinion, that he should also be a claimant, for the relevant section is clearly worded so as to constitute a compensation pool for the benefit of claimants. It may well be that non‑claimants may also be given relief out of the properties in the compensation pool, but that would be within the secondary purposes of the D. P. Act, namely, the rehabilitation of others, and it could not be in direct assertion of their being among the statutory bene ficiaries of the compensation pool as created by section 4, for the section itself mentions only claimants as beneficiaries. In other words, a non‑claimant displaced person such as the petitioner may base his claim for relief upon paragraph 9 of the Schedule, in relation to any shop of which he may be possessed, and his claim would be entitled to be examined on that basis, but he could not claim any right in that property by virtue of that property being in the compensation pool, for the simple reason that he is not included among the specified beneficiaries who are to receive compensation, as of right, out of the compensation pool. The law as it stands permits of a non‑‑I claimant displaced person having a right to a shop in his possession by virtue, not of any right vested in him personally, 8 but on the strength of his being in possession, subject to satisfaction of all the enquiries and requisites of the Scheme. It is conceivable that this right would not be superior to that of a claimant, if the shop were in the compensation pool, for claimants are vested beneficiaries qua the compensation pool, but that question does not arise for examination here. What seems clear is that a non‑claimant displaced person cannot be thought to acquire any vested interest, as a beneficiary by virtue of section 4 of the Displaced Persons Act.

At first sight, the question might appear to be resolved by the considerations (1) that paragraph 9 of the Schedule does confer a right upon a non‑claimant displaced person in possession of a shop to the transfer thereof (2) that section 10 of the Displaced Persons Act confers power upon the Settlement Authorities to dispose of property out of the compensation pool in accordance with the provisions of the Schedule, (3) that paragraph 9 of the Schedule contains a "special" provision which should override a "general" provision, and (4) that the Schedule follows after the Act. Upon these considerations, an argument was presented, which was at least plausible that a non‑claimant displaced person is as much a vested beneficiary under section 4 of the Displaced Persons Act as a claimant, but on closer examination, it would appear that such a conclusion would not give the full effect to the terms of section 4 which expressly declare that the compensation pool is to be constituted for the payment of compensation to claimants, and since the Act also contains provisions elsewhere for relief to "others" besides claimants, the non‑mention of such "others" in section 4 cannot be denied its full effect. I am therefore led to the conclusion that a vested beneficiary interest in the property in the compensation pool can only be allowed, once the pool is constituted or any property passes into the pool, in favour of claimants.

Such a conclusion necessarily has a bearing upon the petitioner's claim, for unless he can relate the vesting of his right to a date antecedent to the determination of his right to the property he seeks, or at any rate antecedent to the date upon which he first expressed a desire for transfer of the property within the meaning of the Act, the Schedule and the relevant Scheme he can have no cast; for a writ. There is however 4nothqr aspect of the matter, which is relevant also to the nature of the relief in the present case, and that is that upon a true construction of the provisions of section 4 of the D. P. Act, it is impossible D to conclude that once a property enters the compensation pool, it becomes a part of the pool irretrievably. It will be observed that several items of property which are to go into the pool are of a nature such that they are received from time to time and moreover, most of these items can be made the subject of contest and consequently of judicial or quasi judicial decision. Thus, sale proceeds of evacuee property, public dues which include arrears of rent, recoveries of rent, maintenance allowances, and forfeited properties are to go into the compensation pool, and as to each of these, it is possible under the relevant laws for contest to be raised, and eventually, a decision might well be given which would have the effect of taking the properties out of the compensation pool. The argument then that any evacuee property acquired under section 3 becomes for all time part of the compensation pool is to that extent, and bearing in mind the character of the other properties which come into the pool, not capable of being accepted as an absolute proposition. It is to be remembered that the acquisition is by a mere notification, and not by a solemn and lengthy proceeding such as that provided in the Land Acquisition Act, or other instruments of a similar kind. I see no great difficulty in the way of applying the0principle of section 21 of the General Clauses Act to a modifi cation of a notification issued under section 3, such as will have the effect of excluding from the earlier acquisition, certain property specified in the second notification. It is, of course, settled law that power given by a statute to act by notification with prospective effect as in section 3, cannot be effectively exercised with retrospective effect, whatever the language that may be employed, and consequently the Central Government's notification of the 12th September 1959, must be supposed to have effect from that date and no earlier date, notwithstanding the use of words calculated to give it effect as from 8th August 1959. It is true that if in the interval between the two dates vested rights had accrued in consequence of the first notification, those could not be annulled by a mere notification of a later date. An argument was sought to be presented on behalf of the petitioner to the effect that his vested rights were of date earlier than the 12th September 1959, but in view of the earlier discussion, it seems to me to be clear that a non‑claimant displaced person has no vested rights in any property included in the compensation pool merely through being in possession of such property, though he may by virtue of section 9 set up a claim to transfer of such property to himself, and the property would vest in him when it was finally and permanently transferred to him. But in the present case there has been no enquiry upon the petitioner's NCS form at all, and consequently the question of the develop ment in his favour of any right capable of being enforced by a writ did not seem to arise.

In another view of the matter, it is clear that by Presidential Ordinance No. 2 of 1962, which added a second subsection to section 10 of the Displaced Persons Act, a marked change has been effected, namely, that whereas previously the authorities under the Displaced Persons Act were obliged to apply all property in the compensation pool for the payment of com pensation to claimants, and for relief to others, as provided by the Schedule and the Scheme, as from the date of the amending Ordinance, the Central Government was given power to transfer any property out of the compensation pool in the public interest. It is immaterial on what date such property came into the compensation pool, and therefore, if the view be taken that this property having once entered the compensation pool, cannot be dealt with otherwise than under the D. P. Act, it is open to the Central Government today to make an order under section 10 (2) of the D. P. Act, transferring the property to the State Bank of Pakistan, for it is clear beyond doubt that such a transfer would be in the public interest. The Central Government has given ample proof of its firm intention so to transfer the property. With the exception of the small area which remains in the possession of the petitioner in consequence of the proceedings before the Settlement Authorities, and for the last three years or so, before this Court, the whole of the area in question has been banded over to the State Bank of Pakistan which has paid the purchase price for the entire area including that in the possession of the petitioner, (It should be mentioned that the delay in the disposal of this case is due to efforts having been made from time to time to provide the petitioner with alternative accommodation in the commercial quarter of Karachi. It is said that five different lots were offered to him, and that he gave reasons for refusing each one of them). The Court will not grant a writ to produce a certain effect when the law provides power to one of the parties affected by the writ, to nullify the Court's writ unilaterally and the circumstances enabling such action are found to be present. No advantage is to be gained by postponing the matter for treatment under section 10 (2) of the D. P. Act by the Central Government, as was suggested on behalf of the petitioner in the course of the argument, since if the view be taken that a property in question became irretrievably a part of the compensation pool after the notification of the 8th August 1959, no doubt need be entertained that the relevant power would be exercised.

But, in my view the more correct appreciation of the position is that which I have already indicated, namely, that in relation to the entry into the compensation pool of properties consequent upon a notification under section 3 by the Central Government, it is competent to the Central Government to act by notification to exclude certain of these properties from the effect of the earlier notification, and such exclusion will be effective against everything, except vested rights which may have accrued, between the dates of the two notifications. I am also of the opinion that by such exclusion the properties would not necessarily become devoid of an owner. It is true that the rights of the evacuee are extinguished in consequence of a notification under section 3, but it is noteworthy that the Act in several places speaks of property coming into the various pools as if it might still be evacuee property after being brought within the purview of the D. P. Act. Thus, by section 5 a rent pool is provided in which are to be deposited rents, public dues, profits, arrears recoverable from time to time from or in respect of "immovable evacuee property" and again in section 13 it is provided that "at the time of transfer of any evacuee property to a local or a non‑claimant displaced person," the authority shall make certain enquiries. The impression gained is that property after it comes within the purview of the D. P. Act, does not cease to possess at any rate some of the incidents of evacuee property. Moreover, the D. P. Act has been passed in con tinuation of and for the final implementation of the purposes for which the laws relating to the protection and later the administration of evacuee property and the other laws relating to the rehabilitation of refugees and the restoration of the economic life of the country, were passed. It is, therefore, in my' opinion, not unreasonable to conclude that if in a case such ,I as the present the Central Government acts by notification to exclude certain items of property from the purview of a notification of acquisition under section 3, the consequence is not that the property becomes the property of no one, but must be that its earlier status as evacuee property is restored, and it thereafter again comes within the jurisdiction of the Custodian. Consequently, in my view the property covered by the Central Government's approval granted in this case under section 25 subsection (2) (s) of the Pakistan (Administration of Evacuee Property) Act, 1957, is indeed evacuee property and as such capable of being transferred.

For these reasons, I consider that the petitioner's claim for a writ must fail, and I would accordingly dismiss this petition but in view of the difficult questions which have arisen for the first time in this case, I would leave the parties to bear their own costs.

.‑The appellant applied for transfer to him of the land which was in his possession and to the transfer of which he was entitled under paragraph 9 of the Schedule to Displaced Persons Act. His application was rejected by the Deputy Settlement Commissioner on the ground that the property in dispute had already been acquired by the Government. The Additional Settlement Commissioner maintained the decision of the Deputy Settlement Commissioner on the ground that the property had already been sold to the State Bank of Pakistan. In revision the Settlement Commissioner confirmed the decision of the Additional Settlement Commissioner holding that the pro perty was not liable to transfer because on account of the second notification by the Government under section 3 of the Displaced Persons Act it was no longer available for the purpose of the Displaced Persons Act, The appellant had asked for a writ of certiorari quashing the order of the Settlement Authorities on the ground that the decisions were not in accordance with law.

That the property had neither been acquired nor sold is now admitted. The order of the Settlement Commissioner is, however, being supported by the respondent on the ground that the second notification had the effect of excluding the property in dispute at least from the date of the notification. Section 21 of the General Clauses‑ Act has been relied upon in this connection. That section runs

"21. Where, by any (General Act) or Regulation, a power to (issue notifications), orders, rules, or bye‑laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to amend, vary or rescind any (notifications), orders, rules or bye‑laws so (issued)."

The important question that arises for decision in this case is whether the second notification could affect the property in dispute so that it ceased to be available for transfer to the appellant.

I am of the opinion in the first place that section 21, has no application to a case where a notification creates rights in some person whether those rights be rights relating to property or to status. If by a notification rights in property pass from one person to another, section 21 cannot empower the authority that issued the notification to nullify the effect of the first notification by a simple cancellation of the previous notification. Under the Lind Acquisition Act, for instance, by a notification the Government can acquire property belonging to any person, but once the property has been acquired it can hardly be urged that by a simple notification canceling the earlier one the rights existing in the property immediately before the first notification can be restored. If the Government appoints an officer by a notification (in a case where the appointment can take place only by means of a notification, e.g., the appoint ment of an Excise Commissioner) the Government cannot by cancellation of the notification terminate the services of the person appointed. Notifications are needed in respect of elected Chairman of local councils and Municipal Committees and if section 21 were interpreted as respondents want us to interpret it, then the Government would be entitled at any time to denotify the election so as to terminate the tenure of office of‑the chairman. Section 21 may authorise the Government to terminate by can cellation of notification the powers that are being exercised by a public functionary. It may cancel a notification by which a Magistrate is granted jurisdiction in a particular district, but wherever rights in property or relating to status are affected by a notification the effect of such a notification cannot be h nullified by a simple cancellation by virtue of section 21 of the General Clauses Act.

The argument against the construction of section 21 con tended for by the respondent may also be put in the form that section 21 applies only if there be nothing repugnant to they context, and is can generally be assumed that to cases where g rights in property or status are affected there would be a specific provision authorising alteration of an order already passed arid' that in the absence of such a provision the presumption should/ be that the power of alteration does not exist. It is possible 1, for instance, to argue that section 21 is not applicable to proceedings under the Land Acquisition Act for there is a procedure provided for acquisition of land and if the intention was that the land could be restored by a simple notification, there would be a provision to that effect in the Act. In the very same way it can be argued with reference to the Displaced Persons Act that there are specific provisions enabling the Government to take property out of the pool or to utilize it for public interest and all this would have been unnecessary if the Government had power by a simple second notification to take property out of the purview of the Displaced Persons Act. By virtue of section 3 of the Displaced Persons Act if there is a notification by the Government with respect to any evacuee property then that property is to be applied henceforth for the purposes of the Displaced Persons Act which purposes are :‑

(i) compensation of claimants ; and

(ii) rehabilitation.

The whole of the property acquired comes to what is called compensation pool. As the Act originally stood the Government was granted power to take any property out of the compensation pool but the property was still to be applied for the purpose of the Act. By an amendment of 1962 the Government was granted a further power of taking property out of the compensation pool even for public interest. If on account of section 21 the Government already possessed the power to take any property out of the purview of the Act by a simple denotification, the powers above‑mentioned which are granted by the Act itself would have been unnecessary. In any case the question as to the power of the Government after a notification is fully dealt with in the Displaced Persons Act itself and there are specific provisions relating to such power and it is reasonable to infer that a power other than one granted by the Displaced Persons Act does not exist.

I have dealt with the question of interpretation of section 21 apart from the concession which was made by the respondents, but it appears to me that what I have stated above follows logically from the concession made. The respondents did not contest the proposition that any rights which were acquired by any person on account of first notification could not be affected by the second notification. It had been accepted that if some rights did vest in some person by virtue of the first notification, the second notification could not take those rights away. The position taken up was that the Government had the power by a second notification to remove property from the purview of the Displaced Persons Act but that the second notification was not to have retrospective effect and if some rights bad accrued to any person on account of the first notification those rights would remain unaffected. This position was taken up in relation to the contention of the appellant that he had by the first notification acquired a right to the transfer of the property in dispute. If be had in fact acquired a right to the property in dispute, then according to the plea of the respondent he would be entitled to it, but otherwise the second notification would have full force. The question to be decided, therefore, in accordance with the position taken up by the respondent was as to whether the appellant had or had not acquired a vested right to have the property in dispute transferred to him.

I will explain now how the proposition which I have put forward namely that section 21 will not avail for restoring the status quo in a case where rights in property or status had been affected logically follows from the concession which has been made. The concession which has been made I may point out here was such that it is almost impossible not to make it for otherwise results would be produced which could never have been contemplated.

Once it is accepted that a right which is vested in some person on account of a notification cannot be affected by a second notification in spite of section 21, I do not see how it is possible to argue that notifications the effect of which is to affect rights in property or status can be nullified by a second notification. If the vesting of a right to a transfer in the appellant cannot be affected by the second notification how can the second notification have the effect of restoring the property to the Custodian as evacuee property, so that the position on a second notification becomes the same as it was when the first notification was issued There is no difference between the vesting of a right in the appellant and the vesting of property in the Government along with the termination of evacuee interest. In order that the point may properly explained let us assume that by a notification under section 3 the property was to vest not in the Government but in a public functionary called the Compensation Commissioner. Could section 21 have in that case been invoked for divesting the Compensation Commissioner of his right in the property and restoring it to the Custodian I do not see any difference between the vesting of a right in the Compensation Commissioner and the vesting of a right in a private person like the appellant. If vesting of aright in the appellant cannot be interfered with by a second notification, the vesting of a right in the Compensation Commis sioner can also not be affected by a second notification. If in the case of a. Compensation Commissioner a denotification was not possible then it will not make any difference that the person in whom the property henceforth vested was the Central Government itself. Actually the Central Government was only a trustee for the application of the property which henceforth vested in it for the purpose of the Displaced Persons Act. That at least was the case as the Act stood at all relevant times. In 1962 a special power was given to the Government by an amendment to take property out of the common pool for applying it for any public interest. But we may overlook this amendment, which came later although this amendment too would not in any way affect the argument. The Central Government would still remain a trustee in spite of the amend ment for the application of the property either for the purpose of the Act or in the public interest. Which particular person was the trustee does not make any difference; it may have been the Compensation Commissioner, it may have been the Central Government, or it may have been any other functionary. The correct position is that by the first notification the property vested in a trustee for the benefit of the beneficiaries so that it is proper to say that the property henceforth vested in the beneficiaries. Section 21 cannot empower the Government to affect the rights of the beneficiaries, that is, the claimants and other persons who became entitled to certain rights in the property, in dispute on account of the notification.

I would hold on this point that the Government had no power at all by means of a second notification to take the property out of the purview of the Displaced Persons Act. Once it acquired the property under section 3 the property became available for application in accordance with the provisions of the Displaced Persons Act. The only further power that remained in the, Government in respect of this property was that which has been provided for in the Act.

I will consider next whether apart from the argument put forward above the appellant had acquired a right to the transfer of this property once the notification under section 3 was made. According to paragraph 9 of the Schedule to the Displaced Persons Act the appellant being in possession of the property on the relevant date is entitled to its transfer. There is no doubt a provision in section 16 of the Act saying that the Central Government may by order in writing require the Chief Settlement Commissioner to prepare a scheme or schemes for transfer of property to claimants, non‑claimants, etc., but the use of word "may" in this connection does not mean that the Government had power either to have a scheme prepared or not to have it prepared. Here the word "may" cast a duty on the Government to act although the manner and time of acting must be left to the Government. The provisions in the Schedule relating to transfer of property are mandatory and the property in possession of a local or non‑claimant refugee must be transferred to him. In fact the Schedule itself contains a full scheme as to rights of p persons and the Scheme which is to be prepared by the Settlement Commissioner is intended only to fill up the details and to provide for the procedure for giving effect to rights which are already recognised by the Schedule.

It does not in my opinion make any difference to the vesting of a right in the appellant that rights of persons were to be judicially inquired into by the Settlement Authorities before the property was transferred. Rules framed in this connec tion only empower the Settlement Authorities to determine whether or not an applicant had a right to a transfer of property. The transfer of property is not a matter of discretion of the Settlement Authorities. The Settlement Authorities do not grant rights; they simply adjudicate upon their existence. When ever the law grants a right there has to be some authority which investigated it. Ordinarily it is the Civil Court, but sometimes the function of investigating a right is granted to a special 1963 tribunal. If in the present case it was the ordinary Civil Court which determined whether or not a person had a right to a transfer of property nobody could have argued that the right was not in existence and the Civil Court was itself granting rights of transfer. It should not make any difference that a special tribunal has been appointed for the purpose of making inquiries into the existence of rights of transfer. The Settlement Autho rities only ascertain already existing rights and. it cannot be said that any right came into existence by the determination of a Settlement Officer

The shop in dispute was in the possession of the appellant. Once it was included in the notification under section 3 the appellant became entitled by virtue of paragraph 9 of the Schedule to its transfer subject, of course, to the power of the Government to take this property out of the compensation P pool. The fact, however, that the Central Government was empowered to take this property out of the compensation pool does not negative the existence of a right. A right may exist although it may be liable to be defeated by the option of al particular person. There may be rights under a void-able contract, there may be a sale of immovable property by a guardian or the sale may be the result of undue influence The party concerned may have the right to avoid the contract and so to cancel the transfer, but it is not possible to urge till the contract is actually avoided, that rights of ownership do not vest in the vendee. The vendee is the owner of the immovable property which has been transferred to him subject to the right of the person concerned to exercise his option and have the contract cancelled.

It is useful to refer in this connection to what is contained in subsection (3) of section 3, of the Displaced Persons Act. This subsection runs:

"3 (3). On the publication of a notification under sub section (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 publica tion, be extinguished, and the property shall vest wholly and absolutely in the Central Government free from all encumb rances."

In accordance with this subsection property henceforth vests in the Central Government. If this vesting was subject to any qualification it would be mentioned here. If there be no qualification it means that the vesting is absolute and henceforth the property shall vest in the Government till it is applied in accordance with the provisions of the Act.

Assuming that the property acquired is referred to in some portion of the Displaced Persons Act as evacuee property that hardly means that the property still remained evacuee property there being a distinct provision to the effect that interests A evacuees in such property will henceforth be extinguished.

There remains a question as to whether we should dismiss this appeal on the gt Fund that the Government has expressed the intention of acting under section 10 and taking this property out of the common pool for transfer to the State Bank. In the first place I do not see how any official can speak in this matter on behalf of the Government. The Central Government just now vests wholly in the President. Has the President expressed any intention of taking this property out of the common pool No body has said so. No other person is entitled to say how the Government is going to act. At the same time the President may be a person who acts on the advice of the Cabinet and the Cabinet has certainly not yet met and has not decided this question. I do not think it is correct at all to anticipate what action the Government will take just on the strength of statements of persons who are prosecuting in the case. It may be that the Government has not yet made up its mind at all and in any case when the Government is called upon to take a decision it may not exercise its power under section 10. 1 cannot see how the assumption is justified that the Government will necessarily act in a particular manner. At the same time, I have to point out that if we dismiss this appeal and refuse a certiorari quashing the orders of the Settlement Authorities the result would be that those orders will stand. The effect of those orders is different from the effect of the exercise of power by the Central Government under section 10. In accordance with the decision of the Settlement Authorities the property has gone back to the Custodian and has now to be transferred by the Custodian. If on the other hand we set aside these orders the Government will be using one or other of its two powers under section 10 of the Displaced Persons Act. In that case the property will continue to vest in the Government to be applied in accordance with the Act and the legal effects will not be the same.

In my opinion the proper order to pass would be to quash the orders of the Settlement Authorities acting in certiorari leaving the Government to take such further action as may be open to it in accordance with law.

In accordance with the view of the majority, we dismiss these petitions, but leave the parties to bear their own costs.

A. H. Petitions dismissed.

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