ATTA MUHAMMAD QURESHI vs THE SETTLEMENT COMMISSIONER, LAHORE

1. SAJJAD AHMAD, J.--The relevant facts leading up to this appeal for special leave are as follows :- The appellant, Atta Muhammad Qureshi, who is a claimant displaced person, was a co-allottee in a rice husking mill situated in Ganj Mandi, Gujranwala. In the year 1958, under the orders of the Martial Law authorities, all the premises in Ganj Mandi were vacated and their occupants were given alternative accommodation in Khajoor Mandi, Gujranwala. The appellant was able to secure allotment of two properties in Khajoor Mandi, bearing Nos, B. III.

2. S. 27 and B, III.

2. S. 31, which were separated from each other by about a hundred feet. The site plan on the record (page 134) shows that the former is a double-storeyed building consisting of two rooms on the ground floor with a chobara, a verandah and a courtyard above it. The latter consists of a single storey, which is admittedly a shop.

2. At the commencement of the settlement operations, the appellant submitted a C. H. Form No, 2750, dated the 14th July 1959, for transfer to him of property No, 27 as a house, and he also submitted a C. S. Form for the second property No, 31 for its transfer as a shop. Both were duly transferred to him as a house and a shop respectively. In respect of property No, 27, the Settlement Inspector had carried out a spot inspection and reported on the 30th May 1960, that the lower portion of the property was being used by the appellant as residence, and that the house was indivisible. The Deputy Settlement Commissioner thereafter passed the following order on the 31st of May 1960 :-- "This property, as per taxation record, has been shown as a shop but it is being used as a house by the present occupant Atta Muhammad Qureshi, who has applied on C. H. Form No, 2750 for its transfer. As this property is not in a strictly commercial area, therefore, this property is hereby disposed of as a house."

3. A P. T. 0. was also issued in favour of the appellant, and no appeal or revision was preferred by any one against the order of the Deputy Settlement Commissioner, mentioned above.

4. It appears that in October 1960, the respondent, Mst. Akhtar Sultana, complained to the Deputy Settlement Commissioner that the appellant had been given two shops contrary to law, and claimed that one of them be given to her as an informer. The Assistant Accounts Officer of the Settlement Department was deputed to hold an enquiry, who submitted a detailed report, stating that the appellant had been using the property as a house ever since its allotment to him in October 1958, by the Martial Law authorities, and that he had also carried out its repairs with the permission of the Settlement authorities. He found that one room in the building was in use of Chaudhry & Co. as on office by the appellant's permission, which was not denied by the appellant.

5. He further remarked that the major portion of the property having been converted into a residential house since before the 20th of December 1958, its transfer as a house was valid, as it satisfied the requirements of the Press Note issued by the Chief Settlement Commissioner in this behalf on the 3rd of May 1960, in exercise of the powers conferred on him under para. 20 of Settlement Scheme No,

1. This report, however, was not accepted by the Additional Settlement Commissioner, who, on the 29th April 1961, directed a fresh enquiry in the matter by the Deputy Settlement Commissioner.

6. The Deputy Settlement Commissioner this time submitted a report dated the 29th September 1961, which was adverse to the appellant, holding that the property No, 27 was, in fact, a shop. This conclusion was based entirely on the entries in the taxation record for the year 1946-47 of the property in question, in complete disregard of its converted use as a house, as claimed by the appellant on the basis of the Press Note of the Chief Settlement Commissioner, already cited above. On receipt of the report, the Additional Settlement Commissioner directed the respondent to approach the Enforcement Staff, as such a case could be re-opened for action only at their instance. The respondent thereafter moved the Enforcement Staff, who, without making any independent enquiry, and basing their complaint on the report of the Deputy Settlement Commissioner dated the 29th of September 1961, recommended the cancellation of the transfer of property No, 27 from the appellant's name. This, in turn, led to an order of the Additional Settlement Commissioner dated the 16th November 1961, made in the absence of the appellant, without issuing any notice to him, whereby the property in question was taken away from the appellant and given to the respondent as an informer. This order is to the following effect :- "As a result of the finding of Deputy Settlement Commis-sioner, Gujranwala, in his report dated the 29th September 1961, Mr. Ata Muhammad Qureshi has been transferred two shops Nos, B. III.

2. S. 27 and B. III.

2. S. 31 at Gujranwala against C. H. and C. S. Forms. Transfer of two shops to one person is repugnant to the policy of the Government, and as such, it is illegal. I, therefore, cancel the transfer of shop No, BAIL 2. S. 27 from the name of Mr. Atta Muhammad Qureshi. Mst. Akhtar Sultana is an informer, and the said shop is, therefore, transferred to her."

7. The appellant challenged this order of the Additional Settlement Commissioner by a revision to the Settlement Commissioner, who called for a report from the Deputy Settlement Commissioner which was submitted on the 7th March 1962, from which a relevant extract is as follows :- "This property including chobara is used by Atta Muhammad Qureshi for his residence and not as a shop. It also contains a bath and a hand pump. The adjacent properties on the eastern side are mostly used as residential houses, because I had also inspected the spot in connection with the dispute of other properties. The property in dispute is situated at such a critical juncture that the real commercial locality starts from a little ahead."

8. The learned Settlement Commissioner, however, disregarded this report and dismissed the revision petition, observing that "it (the property in question) was a shop in Khajoor Mandi in the time of non-Muslims, and it remained a shop after that, and that it was clearly in a commercial area, and it could not be used as a residence because it is not a chobara or balakhana." Dissatisfied with this order, the appellant filed a writ petition in the High Court, which was dismissed in limine by a learned Single Judge. He then filed a Letters Patent Appeal, which was also dismissed. Special leave to appeal was granted to the appellant by this Court on the 13th October 1964, to consider (1) whether the order of the Additional Settlement Commissioner passed in revision under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred as the Act), cancelling the transfer of the property from the name of the appellant, was contrary to the provisions of the Act, as it was made without giving an opportunity to the appellant to show cause against it, and (2) whether the High Court has misinterpreted sub-para. (vi) of paragraph 3 of the Press Note of the 3rd of May 1960, (page 140 of the Old Settlement Manual), which did not require any structural alteration to establish a conversion of a shop into a house.

9. Sh. Muhammad Shah, the learned counsel for the appellant, urged an argument before us, which is outside the contents of the leave granting order, but is of a legal character, and which must first be disposed of. He argued that as the property in dispute was a composite property consisting of a shop and a chobara, and this was disposed of as a house by the Deputy Settlement Commissioner initially on the 31st of May 1960, as a delegatee of the Chief Settlement Commissioner, his order was a final order which could not be subsequently reversed in appeal or revision by the higher officers in the Settlement hierarchy. At first, we were taken in by this argument, as it appeared very attractive, but on a c loser analysis of the facts of the case, we find that it has no substance. The appellant has all along pursued his claim for transfer of the property in dispute not on the basis that it was a composite property and was disposed of as a house in his favour by the Deputy Settlement Commissioner but on the point of its conversion from a shop into a house, as envisaged in para. 20 of Scheme No, 1 and the Press Note issued by the Chief Settlement Commissioner on the 3rd of May 1960. It was admitted by the learned counsel, who appeared for the appellant before the Letters Patent Bench in the High Court, that the property was constructed as a shop and was used as such until its conversion into residential premises by the appellant. Even the Deputy Settlement Commissioner had based his order of the 31st May 1960, on the consideration of its user as a house by its present occupant (the appellant), although it was recorded in the taxation register as a shop.

10. In further proceedings taken by the appellant before the Settlement authorities and also in writ jurisdiction, the appellant had never invoked the provisions of the second proviso to subsection (12) of section 2 of the Act for the claim that the property has been disposed of in his favour as a house by the Deputy Settlement Commissioner in his delegated authority. On the contrary, he had all along depended on the converted use of the shop as a house in terms of para. 20 of Scheme No, 1 and of the Press Note, That being the position, it is too late in the day now for the appellant to shift his stand and to urge that as basically the property was of a composite nature, consisting of a shop below and a chobara above, it was disposed of in his favour as a house by the Deputy Settlemet Commissioner under his delegated powers, and that the transfer was thus immune from any further attack before the higher Settlement authorities. I am afraid, we must, in the circumstances, reject this stand of the learned counsel without giving any further thought to it.

11. Turning now to the two points on which leave was granted, it is convenient to deal with the second point first to understand the legal scope and the purport of the Press Note in question and its effect on the present case. This Press Note of the 3rd May 1960, was issued by the Chief Settlement Commissioner in the shape of instructions for implementing the provisions of para. 20 of Scheme No, 1, which reads as follows :-- "20. Conversions made in evacuee property.--If a building which was a house or a shop on the 14th August 1947, has been converted to some other use, the Chief Settlement Commissioner shall determine whether it is a house or a shop or any other type of property." (Page 274 of the Old Manual).

12. By express reference to this para. the Press Note dated the 3rd May 1960, stated that the Chief Settlement Commissioner has decided, with the approval of the Central Government, that the houses and shops and other property, which have been converted to some other use after the 14th August 1947, may be disposed of as follows :-- "...........Para 2. --In all cases where houses, shops and other properties have been converted to some other use, orders with regard to the disposal of the property will be passed by the Additional Settlement Commissioner of the area concerned to whom such cases will be submitted by the Deputy Settlement Commissioner.

13. "...........Para. 3.--As a general principle, the property will be disposed of according to the use to which it was being put on the 20th December 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in the public interest according to its status at the time it became evacuee property. The following broad principles have, however, been laid down by the Chief Settlement Commissioner for the guidance of the Additional Settlement Commissioners: -- Sub-para. (vi).--If a shop is indivisible and the complete shop or a major portion thereof has been converted into a house it may be disposed of as a house."

14. It may be stated here that the Additional Settlement Com-missioner did not at all take into consideration this aspect of the appellant's claim that he had converted the shop or its major portion into a residential house, and he was, therefore, entitled to its transfer as a house. The learned Additional Settlement Commissioner had dismissed the appellant's claim merely on the ground that it was recorded as a shop in the taxation record of 1946-47 which obviously is not of any relevance in dealing with the real question.

15. In revision, the Settlement Commissioner, ignoring the factual position, as submitted in the report of the Deputy Settlement Commissioner, which had been called by him, based his decision on the ground that the property was a shop before Partition, and reached the conclusion that it remained a shop because it was not a chobara or a balakhana. In the High Court, while the learned Single Judge, I say so with all respect has not at all considere the appellant's claim on the basis of the converted use of the property before the 20th December 1958, in the light of the Press Note, on which he relied, the learned Judges of the Letters Patent Bench have held that the view that no structural change was contemplated by the Press Note, was not correct. It was observed that "the important factor in distinguishing a shop from a house is its locale and the form of its structure and not the use to which it is put for a short while. It cannot be said that if a shop in a market or a big commercial centre like narkali, Lahore, is temporarily used for residential purpose, it will not continue to be a shop and is converted into a house".

16. Ordinarily, from the standpoint of their common incidents;) if one were to think of a shop or a house distinguishing: one from the other, the factors taken smite, of by the learned Judges of the Letters Patent Bench, would indeed be relevant. But it is wrong to allow these factors to influence the mind while interpreting the Press Note or construing its intention, which introduces a notional concept of a house or a shop according to the converted use to which it was being put on the 20th December 1958. This concept certainly strikes a departure from the conventional notion of a house or a shop, but a notional distinction was adopted by the Settlement authorities to meet the exigencies of the situation created by the large influx of refugees, who had to be settled down and accommodated in Pakistan. It may not be expedient or it may well nigh be impossible to treat a house as a shop or a shop as a house on its structure or locale, but the Press Note issued under para. 20 of Scheme No, 1, which is its controlling provision to does not refer to the locale or a structure of a building for its`- treatment as a house or a shop. What is relevant for its purpose is the use to which the building was being put on the 20th of December 1958., In my ,view, if the factors of locale and structure were to decide the question, the object of para. 20 of the Scheme and the Press Note would be completely defeated. The word "being" used in the Press Note is important, which merely denotes the current use of the premises as on the 20th December 1958.

17. In the present case, on the material existing on the record including the reports submitted by the relevant authorities from time to time, there ,,is, no doubt in my mind that the property in dispute or a major portion of it was in use to the appellant as a house on the 20th December 1958, and the Deputy Settlement Commissioner, acting under the Press Note, had very rightly transferred the property to the appellant as a house.

18. It is necessary to deal here with the argument of Sh. After Hussain, learned counsel for the respondent, that under para. 2 of the Press Note of the 3rd May 1960, the Additional. Settlement Commissioner, and not the Deputy Settlement Commissioner, has the powers to transfer properties on the basis of their converted use. I do not think that the Press-Note could have the effect of taking away the statutory powers of a Deputy Settlement Commissioner to dispose of the properties under the Act. The combined effect of paras. 2 and 3 of the Press Note is that the property is to be disposed of as a house or a shop on the basis of its converted use, by the Deputy Settlement Commissioner in the exercise of his ordinary powers but if he wanted to depart from this position, he could make a reference to the Additional Settlement Commissioner, who could pass a different order if he was satisfied that the property should be disposed of in the public interest according to its status at the time it became evacuee property. This view finds support from a decision of a Full Bench of this Court in the case of Fateh Muhammad v. Maula Baksh .

19. On my view that the Deputy Settlement Commissioner had, in the exercise of his ordinary powers, rightly transferred this property to the appellant as a house under the Press-Note issued by the Chief Settlement Commissioner, and that the reversal of his orders by the higher Settlement authorities has proceeded on wrong assumptions and misinterpretation of the Press Note, and as I disagree, with all respect, with the view of the learned Judges in the High Court that it was a case of multiple transfer of two shops, this appeal must succeed on that basis alone.But the order of the Additional Settlement Commissioner, by which he had reversed the orders of the Deputy Settlement Commissioner and cancelled the transfer of the property in dispute from the name of the appellant suffers from another fatal defect, to which 1 would now advert, and which is the second point on which leave to appeal was granted in this case. Since the order of the Deputy Settlement Commissioner was competently made by him in the exercise of his ordinary powers, it could only be revised by the Additional Settlement Commissioner under section 20 of the Act, as it then stood, the relevant part of which is as follows:-- "20 (4).--An Additional Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may at any time call for the record of any case or proceedings under this Act in which a Deputy Settlement Commissioner, or an Assistant Settlement Commissioner, under his jurisdiction, has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation thereto as he thinks fit.

20. 20 (5).--No order under this section shall be passed revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard."

21. It will be seen that the exercise of revisional powers by the Additional Settlement Commissioner under this provision is subject to the condition, as laid down in subsection (5), that no order under this section shall be passed, revising or modifying any order without giving such person a reasonable opportunity of being heard.

22. The learned counsel for the appellant argued that sub-section (5) ibid contains an absolute command of the Legislature couched in negative language, prohibiting the taking of an adverse action against any person under section 20 without giving him an opportunity to show cause against it. The learned counsel for the respondent, on the other hand, argued that subsection (5) is1 merely directory in nature and its noncompliance did not render the order void, and that, in any case, the absence of show-cause notice by the Additional Settlement Commissioner has lost all importance, as the appellant, by taking the matter in further revision before the Settlement Commissioner, got a full opportunity there of being heard by him, and that the principles of natural justice were thus fully satisfied.

23. It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and where as merely directory?

24. It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure.

25. If, on the other hand, the language is affirmative, it may be considered as a directory provision.

26. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R. , it was stated that "the words negative and affirmative of a statute mean nothing. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same. In Liverpool Borrough Bank v. Turner , Lord Campbell observed as follows:-- "No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."

27. In Howard v. Bollingdon , Lord Penzance after citing this dictum of Lord Campbell added as follows:-- "I believe as far as any rule is concerned, you cannot safely go further than that. In each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object to be secured by the Act and upon review of the case in that aspect, decide whether an enactment is, what is called, imperative or only obligatory."

28. One other principle which has been enunciated in this behalf is that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. At page 226 of Craies on Statutory Laws, 6th Edition, this rule is stated thus:-- "That when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly applied."

29. Bearing these principles in mind, I have reached the conclusion that sub-clause (5) of section 20 of the Act is mandatory in character and places a limitation on the juris diction of the revising authority not to make any adverse order against a person without giving him opportunity to show cause against it. If such an order is made without fulfilment of this pre-requisite, it would certainly lack jurisdiction.

30. The argument that the appellant had an opportunity of being heard by the Settlement Commissioner, which is a sufficient redress for his grievance, may be well-founded when the grievance is made to rest on the principle of natural justice viz., audi alteram partem (nobody is to2 3 4 be condemned unheard). But when, as already stated above, an absolute requirement of the statute has been defied, the order passed is a nullity. It was held by this Court in the case of Yousaf Ali v. Muhammad Aslam Zia as follows:-- "If on the basis of a void order, subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with superstructure of rights and liabilities built upon them, must, unless some statute or principle of law, recognising as legal the changed position of the parties, is in operation, fall to the ground, as such orders have as little legal foundation as the void order on which they are founded."

31. In my opinion, the order of the Additional Settlement Commissioner and that of the Settlement Commissioner, that followed it, must be struck down on this basis also.

32. The result is that this appeal is accepted, the orders of the Additional Settlement Commissioner, the Settlement Commissioner and of the High Court are set aside, and the decision of the Deputy Settlement Commissioner dated the 31st of May 1960, transferring this property to the appellant as a house, is restored. In the circumstances of this case, I would leave the parties to bear their own costs of this appeal.

33. HAMOODUR RAHMAN, C. J.--I agree. WAHIDUDD1N AHMAD, J.--I agree.

34. PLD 1963 SC 311 (1848) 13 Q B 30 (1861) 30 LJCH 379 (1877) 2 P D 203 PLD 1958 SC (Pak.) 105