QADEERUDDIN AHMED, C. J.--This Letters Patent Appeal is directed against the judgment of Mr. Justice Wahiduddin Ahmed, a Single Judge of the High Court of West Pakistan, and now a Judge of the Supreme Court of Pakistan, by which he dismissed the Constitutional Petition of the present appellant bearing No, 943 of 1963. In support of the appeal, Mr. A. K. Brohi's stand was that it was unnecessary to go into the facts of the case because the parties had compromised their disputes and the sole question which arose for determination from the terms of the compromise in this appeal was whether respondent No, 4 was a claimant or not, and that this question could be answered simply by examining the definition of the term "claimant" as given in section 2 (2) of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. The definition is as follows : "Claim ant'.--Means displaced person whose claim (excluding claim in respect of agricultural land) has been registered under the aforesaid Act of 19'6 and includes the successor-ininterest of a claimant who dies on or before the 31st day of August 1959, but does not include any such person whose claim has subsequent to registration been withdrawn or rejected."
He pointed out that the second part of the definition beginning from the words "and includes" is an extension of the main definition which was exhaustive except for the extension which was added to it by Ordinance No, III of 1959 dated the 28th of September 1959. He contended that the learned Single Judge was misled by the word "includes" and thought that it was an inclusive definition. This view, according to counsel, was erroneous because the definition or the term "Claimant" begins with the word "means" thus the precise and exhaustive meaning of the term was given in the first part of the definition but later on an addition was made to it and that to that extent only an extension was found in it. This extension, counsel argued, could not alter or affect the first and the main part of the definition more than the contents of the extension ; therefore, the first part must be taken to have remained for all other purposes fully in tact.
2. In order to appreciate the importance which was attached to the above argument by Mr. Brohi, it is necessary to state that the facts which form the background. They are that the dispute relates to a big block of building known as Regal Mansion, situated on Victoria Road, Karachi, which is one of the most important streets of the City. It is not quite clear as to how many flats and shops there are in it but it appears from a perusal of the order of Mr. A. Rauf Chowdhry, the Settlement and Rehabilitation Commissioner, Karachi, dated the 29th of October 1960, that there are 11 flats and two shops in it and that it has three storeys. The judgment of Mr. Justice Wahiduddin Ahmed by which he disposed of Constitutional Petition No, 202 of 1961 shows that three flats, situated on its top floor, were occupied by three persons, namely, Mst. Aisha Bai, Mr. Anwarul Hassan and Mr. J. M.
Zaidi. The flat occupied by Mst. Aisha Bai was No, 10, the one occupied by Mr. J. M. Zaidi was No, 9 and the one occupied by Mr. Anwarul Hassan was No,
8. Each one of the occupants had applied for the transfer of the whole building to himself or herself. It appears from the order of Mr. A. Rauf Chowdhry, dated the 29th of October 1960 that Mr. J. M. Zaidi submitted his application on the 5th of November 1959, and that on the same day it was accepted. The entire building was transferred to him. On the 15th of November 1959, the applications of Mst. Aisha Bai and Mr. Anwarul Hassan were dismissed on the ground that the building was no longer available for being transferred to them.
3. Mr. Anwarul Hassan had applied by submitting an N. C. H. Form because he was not a claimant but his father Haji Mir Hassan, who was a claimant, died in April 1960, therefore, he applied for the conversion of his N. C. H. Form into a C. H. Form. That application was accepted by the Settlement Commissioner on the 23rd of June 1960, as follows:-- "The Deputy Settlement Commissioner concerned may admit the enclosed C. H. Form application as an amendment in his N. C. H. Form application if he files an affidavit that his father received no evacuee house as a claimant."
The required affidavit was submitted by Mr. Anwarul Hassan and a C. H. Form was accepted in palce of his N. C. H. Form. Mst. Aisha Bai and Mr. Anwarul Hassan had no chance of getting the whole or a part of the property transferred to themselves unless the order of the 5th of November 1959, by which the whole building was transferred to Mr. J. M. Zaidi was set aside or modified. They, therefore, submitted appeals to the Additional Settlement Commissioner (Judicial) Karachi, but their appeals remained undisposed of therefore, they submitted revision applications to the Chief Settlement Commissioner which were heard by Mr. Ahsanuddin who noted in the third paragraph of his order that Mr. Anwarul Hassan had "recently been declared to be a claimant after the death of his father" but for various reasons did not consider advisable to decide the case himself. He remanded it to the Additional Settlement Commissioner (Judicial), Karachi. On remand the case was heard by the Additional Settlement Commissioner who held on the 13th of August 1960 that the flats which were in the possession of the three occupants be transferred to them according to their possession and that the rest of the building be disposed of by public auction. All the three occupants went in revision against that order which were disposed of by Mr. A. Rauf Chowdhri, Settlement Commissioner, on the 29th of October 1960.
4. He found that Mr. Zaidi had not played his part fairly. Some of his observations made in that respect should be noted as they form a part of the context in which the above-mentioned compromise was made. He has observed about the acceptance of Mr. Zaidi's application for transfer of the whole building as follows :- "The Assistant Settlement Commissioner's acceptance of it on the same date namely 5-11-59 shows that the other claimant-applicant for the property namely Sqdrn. Leader J. M. Zaidi did not allow the grass to grow under his feet to secure an immediate order without allowing any time for proper hearing of his rivals."
Further:-- "Knowing full well that transfer of building of 11 flats as a single property which could have as well have been declared as a big mansion, was an unusual measure on the part of a Deputy Settlement Commissioner; the transferee should have gone slow in search of (his) associated claimants. (On whose be halt he pleads that they would become homeless). If he went fast in the face of all the protests from the other interested parties he did so at a disadvantage for his associated claimants. There is no reason why I should not agree with the learned Additional Settlement Commissioner who has given very cogent grounds for setting aside the decision of Deputy Settlement Commissioner in the matter. Accordingly I uphold the impugned orders of the learned Additional Settlement Commissioner."
5. Mr. Zaidi filed a Constitutional Petition bearing No, 202 of 1961 to question the order of Mr. A. Raul Chochowhry. It was heard by Mr. Justice Wahiiuddin Ahmad. He has observed that : "In all the property in dispute consists of 8 flats and two shops."
This means that three flats were no longer in dispute. The disputes were compromised during the hearing of the petition with the consent of the Advocate-General. Mst. Aisha Bai was admittedly a claimant; therefore, it was agreed that a substantial part of the property should go to her. About the remaining property it was agreed, according to counsel for the parties, that a part was to go to Mr. Zaidi and with respect to Mr. Anwarul Hassan it was agreed that flat No, 8 should go to him.
After this distribution, there still remained some part of the property which was claimed both by Mr. Zaidi and Mr. Anwarul Hassan. Mr. Zaidi claimed preference over Mr. Anwarul Hassan on the ground that he was a claimant whereas, according to him: Mr. Anwarul Hassan was not. This dispute was settled as follows : "It is disputed on behalf of the petitioner that Mr. Anwarul Hassan is not a claimant. Mr. Anwarul Hassan on the other hand has contended before me that after the death of his father he is also a claimant. The question whether Mr. Anwarul Hassan is a claimant within the Displaced Persons (Compensation and Rehabilitation) Act is left for the decision of the Settlement Authorities. If he is found to be a claimant, the portion in his possession will be vertically divided in his favour, but if he is not found to be a claimant, then only flat No, 8 will be transferred to him. In that event the division of the property will be made between the petitioner and Mst. Aisha Bai. The portion in possession of Mst. Aisha Bai will be vertically divided in her favour and the rest of the property except flat No, 8 will be given to the petitioner."
6. After the decision of the petition according to the above compromise, the parties went to the Settlement Officers. In a proceeding commenced by Mr. Anwarul Hassan, the following order was made by Mr. A. Rauf Chowdhry on the 3rd of January 1963:-- "Claimant's legal heirs are to be jointly treated as a claimant by succession. It would be wrong to hold the successors as non-claimants."
On the 7th of January 1963, a P. T. D. was issued to Mr. Anwarul Hassan.
7. The question raised in the compromise about Mr. Anwarul Hassan being a claimant or not was taken up by Mr. I. A. Nomani, a Deputy Settlement Commissioner, who held vide his order dated the 9th of September 1963 that: "I find that Mr. Anwarul Hassan had originally filed an N. C. H. Form but on the death of his father who was a claimant moved an application before the learned Settlement Commissioner who permitted him to file a C. H. Form in place of his N. C. H. Form provided that the deceased claimant had not obtained transfer of a house in lieu of his claim. This order was passed on 23-6-60 which was later on accepted by the learned Chief Settlement Commissioner vide order dated 27-6-60.
The fact of Mr. Anwarul Hassan being declared a claimant is also mentioned but no importance seems to have been attached to this fact on account of the dispute between the parties and the status of Mr. Anwarul Hassan was not challenged anywhere except in the present proceedings."
He considered himself, in view of the orders mentioned by him, to be incompetent to decide whether according to the definition of a "claimant" Mr. Anwarul Hassan was a claimant or not and recorded the following conclusion "In view of the (order of the) learned Settlement Commis-sioner dated 23-6-60 I hold that Mr. Anwarul Hassan be treated as a claimant and that he is entitled to all the benefits of a claimant."
8. Mr. Zaidi questioned that order before the Additional Settlement Commissioner (Judicial), namely, Mr. H. I. Kellar and appears to have urged that Mr. Anwarul Hassan had obtained orders in his favour by fraud. The relevant observations of Mr. Kehar are as follows:-- "Since the learned D. S. C. has specifically stated in his order declaring the respondent as claimant and same has been done after and in pursuance of the Hon'ble High Court's decision, I see no ground to interfere at this stage when P. T. D. was issued in favour of respondent. The present appellant has no case to come before me under section 7 when I see no fraud or misrepresentation committed by the transferee. If at all he was aggrieved by the order of D. S. C. treating the respondent as claimant and issued P. T. 0. in his favour it was his duty for the present appellant to have preferred an appeal or revision before the competent authority for which he had failed. Hence he has no case to come before under section 7 of the P. T. D. Rules for which I had granted stay vide my order passed in Miscellaneous Application No, 107/63 dated 14-5-63. The same stands vacated and see no ground to interfere with the present order passed by D. S. C. on 9-9-63."
9. Mr. Zaidi thereafter filed the Constitutional Petition No, 943 of 1963 from which this appeal has arisen, and challenged the orders dated the 3rd of January 1960, the P. T. D. dated 7th of January 1963, the orders dated the 23rd of June 1960, 9th of September 1963 and the 29th of October 1963. It was heard by Mr. Justice Wahiduddin Ahmad and dismissed on 26-11-1965. He held that Mr. Anwarul Hassan was a claimant. His relevant observations are as follows: "I am satisfied that respondent No, 4 was rightly treated as a claimant displaced person within the provision of the Displaced Persons Act, 1958. In the first place, the definition of the word "claimant" wider section 2 (2) is very wide becuase it does not in any way limit its ambit, but only provides that it also includes the successor-in-interest of a claimant who died the on or before the 31st day of August 1959."
Further: "This position is further strengthened by para. 5 of the Settlement Scheme No, 1 which provides as under :- "5 (c) An application on behalf of a deceased claimant non-claimant displaced person or local may be submitted by his successor-in-interest: Provided that where there are more than one successor, the application may be submitted by them jointly : Provided further that where an application is submitted by the successor-in-interest of a deceased person the applicant shall enclose the following documents with his application-- (1)deceased person's name and date and place of his death; (2)death certificate from a local body or a registered medical practitioner or a gazetted commissioned officer; (3)particulars of all heirs of the deceased and their respective addresses so far as they are known to the applicant ; (4)a true copy of the will or other documents, if any, relating to the succession on which the applicant relies for having succeeded to the property of the deceased ; (5)an affidavit in support of the particulars specified in items (1) and (3) authenticating the facts.
The documents referred to above shall be enclosed with only one copy of the application. In the present case, the father of respondent No, 4 is a claimant displaced person. He died in April 1960.
Admittedly, respondent No, 4 is in possession of flat on the top floor of the property in dispute. His father could take advantage of the provisions of para. 1 of the Schedule to the Displaced Persons Act, 1958. He could claim the flat in possession of the said respondent. After the death of his father the contesting respondent being his heir was quite right in claiming the advantage that accrued to his father as a claimant. It is, therefore, abundantly clear to me that the Settlement authorities were fully justified in treating respondent No, 4 as a claimant."
The learned Single Judge has, in addition to the definition, partly relied on the view expressed in Mst. Afzal Jahan Begum v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and another and partly on the departmentally interpretation of the definition of "claimant" as gathered from Scheme No, 1 framed under the Displaced Persons (Compensation and Rehabilitation) Act of 1958 and the Schedule to the Act.
10. This Letters Patent Appeal has been filed to question that order. Mr. Brohi argued, with remarkable lucidity, that no other material than the definition was relevant and that if the definition was recognized to be not an inclusive definition but only a partly extended definition in which the extension was made with a restricted purpose. Then his point of view was fully established. He emphasised that the meaning of the term was clearly and precisely given in its first and main part but that later on an addition was made which was in the nature of an appendix to it. The appendix had left the main definition unaffected. It was, therefore, erroneous to relax the precise meaning of the main definition beyond the restricted purpose of the extended part.
The main definition limits the meaning of the term 'claimant' to those displaced persons whose claim was registered under the Act of 1956, but by virtue of the extension, which was made later, the term includes the successors-in-interest of those claimants only who died on or before the 31st of August 1959. It cannot in this context include the successor-in-interest of those claimants who died after the specified date. In this case the father of Mr. Anwarul Hassan admittedly died after the specified date, in 1960 ; therefore, Mr. Anwarul Hassan, the successor-in-interest of the deceased cannot be a claimant. Mr. Brohi pointed out that a Division Bench which heard the appeal from the judgment of a Single Judge given in Mit. Afzal Jahan Begum has not approved of the view on which Mr. Justice Wahiduddin Ahmad has relied. The appellate judgment is Begum B. H. Syed v. Afzal Jahan Begum and the reasons for the disapproval are dated at page 975 of it. The Supreme Court has upheld the judgment of the Division Bench in Begum B. H. Syed v. Mst. Afzal Jahan Begum .
11.Mr. Brohi did not attempt to analyse the relevant provisions of scheme No, 1 framed under the Displaced Persons (Compensation and Rehabilitation) Act of 1958 and the relevant provisions of the Schedule to the Act because, he contended, there was no ambiguity in the definition; therefore, the problem of gathering its meaning from other sources did not arise. The error that it was an inclusive definition arose, according to him, only from an erroneous impression created by the words "and includes". Nothing remained to be argued, according to counsel, after this impression was dispelled.
12.He further argued that even if Mr. Anwarul Hassan inherited in 1960 the rights which were enjoyed by his father as a claimant, the status of Mr. Anwarul Hassan could not be equal to that of Mr. Zaidi because Mr. Anwarul Hassan's father was not in possession of any part of the disputed premises and was not entitled to claim for himself the transfer of any part of it. Mr. Anwarul Hassan could not inherit a right from his father which a father himself did not enjoy nor could be engraft his own possession on his inherited rights because to treat him as a claimant by this circumlocation would amount to by-passing the statutory definition.
13.Mr. Khalid Ishaq advanced five arguments in reply. First he argued that Mr. Anwarul Hassan1 2 3 was a claimant according to definition of the term. He referred to sections 15, 16, 17 and 23 (1) of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 and to the judgments embodied in Mst. Afzal Jahan Begum v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and another in Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies and in the Bank of Bahawalpur Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another but none of the sections and judgments was helpful to him.
Section 15 deals with the scale, form and manner of payment of compensation. Section 16 deals with payment of interim compensation to certain persons including claimants, non-claimants and locals. Section 17 deals with payment of compensation in disputed cases and confers on the prescribed authority the power to decide "as to who are successors-in-interest of any deceased claiman" and section 23 deals with the powers of Settlement officers and provides that they shall have the same powers as are vested in a civil Court under the Civil Procedure Code, 1908, when trying a suit in respect of "adding legal representatives of deceased applicants or claimants". The case of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies does not appear to be relevant to the subject under discussion and case of the Bank of Bahawalpur Ltd. v.
The Chief Settlement and Rehabilitation Commissioner, Lahore and another merely contains a discussion on inclusive definitions. It does not appear to meet the contention of Mr. Brohi because in the present case the meaning of the term "claimant" has been precisely defined and then extended only to a limited extent. I agree with Mr. Brohi in this respect.
14. The second contention of Mr. Khalid Ishaq was that even if Mr. Anwarul Hassan was not a claimant he could combine his own possession with the right which he inherited from his father and thus enjoyed a right which was equal to that of Mr. J. M. Zaidi. This was an inadequate reply to the criticism which was advanced by Mr. Brohi and to which reference has already been made above. This argument was overruled by a Division Bench in Begum B. H. Sayed v. Afzal Jahan Begum. Thirdly, Mr. Khalid Ishaq argued that the final transfer deed having been issued to Mr. An .4: arul Hassan and the attempts of Mr. Zaidi having failed to get that order cancelled he could not question the transfer in these proceedings. It is no answer to the stand taken on behalf of the appellant that the P. T. D. and the order of the learned Single Judge were inconsistent with the compromise and not in accordance with law. Fourthly, Mr. Khalid Ishaq argued that Constitutional Jurisdiction should not be invoked in aid of injustice. He referred to Tufail Muhammad and others v.
Raja Muhammad Zia Ullah Khan and another and elaborated his point of view by saying that Mr. Zaidi had received a bigger share than was his due strictly legally ; therefore, he had no right to get that part of the property which was claimed by Mr. Anwarul Hassan. In support of the contention, he referred to S. Muhammad Hashim and others v. Dr. S. Muhammad Asghar . He concluded this argument by saying that it is the duty of the Court to apply the law and referred to Haji Abdullah Khan and others v. Nisar Muhammad Khan and others . Those contentions were based on a presumption that injustice would be done if Mr. Zaidi was given any portion of the property which Mr. Anwarul Hassan had claimed but this angle of view itself is open to question because the whole dispute has arisen from allegations of the violation of a compromise and not from a judicial order.
The agreement of the parties on the solution of a mutual dispute is ordinarily the best solution for them.
15.In the fifth place Mr. Khalid Ishaq argued that the question as to whether Mr. Anwarul Hassan was a claimant or not had arisen from the terms of a compromise ; therefore, it was to be answered in accordance with these terms and not as if it was an abstract proposition of law which was to be technically tested.
16.His last argument appealed to me as sound, because the compromise which was recorded by Mr. Justice Wahiduddin Ahmad to dispose of the Constitutional Petition bearing No, 202 of 1961 did not embody a conclusion which was arrived at strictly in accordance with law. A part of the4 5 6 7 8 9 property was agreed to be given to Mst. Aisha Bai and another part was agreed to be given to Mr. Zaidi. It was also agreed that Mr. Anwarul Hassan would get fiat No,
8. Mr. Anwarul Hassan was not entitled to get more than one residential premises irrespective of whether he was a claimant or not. Yet it was agreed that if he was found to be a claimant by the Settlement Authorities he would get the remaining part of the property otherwise the remaining part would also go to Mr. Zaidi.
Strict legal basis of Mr. Zaidi's entitlement to it was also not examined. The question as to whether Mr. Anwarul Hassan was a claimant or not was "left for the decision of the Settlement authorities". If it was intended to be decided strictly in accordance with the legal rights of the parties, then Mr. Justice Wahiduddin Ahmad who was hearing the petition could have decided it but for some reason or the other and perhaps for the sake of their own convenience the parties agreed that it should be left to be decided by the Settlement authorities. After the case went back, the Settlement authorities assumed jurisdiction on account of a term of com-promise which was embodied in an order. When a compromise is made and the decision of a factual or legal disagreement is left to the decision of a specified body, then it is consistent with the spirit of compromise that the same body should decide it. Looking at the case as a whole it is difficult to guess as to what part of the property would have gone to Mst. Aisha Bai and how much of it would have gone to. Mr. Zaidi if purely legal considerations were applied. In this connection, it should be noted that the question which was left for the decision of the Settlement authorities did not include any consideration of the number of units which existed in the property. Mr. Anwarul Hassan was to get one flat and it was one whole unit, then there was no question of his getting anything more than that. Similarly, the other claimants were to get other portions of the property irrespective of whether those portions consisted of one or more units. From the strictly legal point of view, Mr. Anwarul Hassan's claim to get more than one flat was not dependent on his being a claimant, yet for the sake of convenience the solution of the disputes was, by agreement, made dependent on the determination of his status by the Settlement authorities.
17.Mr. Brohi did not hear Mr. Khalid Ishaq because he was not feeling well and was permitted to leave Court soon after concluding his address. Mr. S. A. Nusrat addressed the Court in answer to the replies of Mr. Khalid Ishaq. He took the stand that the consent order which was recorded by Mr. Justice Wahiduddin Ahmad was a just one because the parties including the Advocate-General had accepted it and that there was no room left for attempting to question its fairness. There was, according to him, no illegality or injustice in the order, therefore, in supporting that order there was no question of aiding injustice. He referred to Fazal Din v. Wall Muhammad and drew our attention to the following passage: "The learned counsel for the petitioner has contended that the High Court has no jurisdiction under Article 98 of the Constitution to make orders on compromise. We consider that it does not lie in the mouth of the petitioner to raise this plea. He was a party to the compromise which was filed in the Court and he along with others invoked the jurisdiction of the Court to accept that compromise. In these circumstances, we consider that the petitioner is disqualified to raise the issue in this petition for special leave that the High Court was not competent to pass the orders on a compromise in writ jurisdiction. We refuse to grant leave."
18.He further argued that the parties did state that the determination of the question as to whether Mr. Anwarul Hassan was a claimant or not be left to the Settlement authorities but this could not amount to giving a free hand to those authorities to decide the question illegally or in violation of law. He said that even the award of an arbitrator when found to be in violation of a provision of la w was liable to be modified by the Court. It is true that the Court can remove an arbitrator under section 11 (1) of the Arbitration Act, 1940 if he fails to use all reasonable dispatch in entering and proceeding with the reference and making an award, can remit an award under section 16 (1) (c) of the said Act when an objection to the illegality of an award "is apparent on the10 face of it", can modify an award under section 15 (b) of the said Act if it "contains any obvious error which can be amended without affecting such decision" and can set aside an award under section 30 (c) of the said Act if it is improperly procured or is otherwise invalid. But let us not forget that these are not proceedings under the Arbitration Act, 1940. Moreover, the error which has been lucidly brought out by Mr. Brohi cannot be said to be an illegality, "apparent on the face" of the decision or to be an "obvious error" because the same view has been taken In two Single Bench judgments and there are similar expressions of Departmental views also. The award has not been improperly procured nor can it be said to be invalid merely because it is not in accordance with the latest view or this Court's view of the law--see Ghularn Jilani and others v. Muhammad Hussain and Durga Prosad Chamria and another v. Swokishendas Bhattar and others much less can it be said to be without lawful authority and of no legal effect for purposes of Article 98 of the Constitution.
19. It follows from the above discussion that Mr. Anwarul Hassan is not a claimant strictly in terms of the definition of that expression but the compromise was made to settle mutual disputes in a specified manner therefore, the answer to the question which was left to the decision of the Settlement authorties cannot be declared as without lawful authority and of no legal effect simply in consequence of weighing the question in the delicate scales of strict legal technicalities.
Consequently, the appeal Is dismissed with no order as to costs. PLD 1962 Lah. 970 PLD 1966 Lah. 967 PLD 1970 SC 29 PLD 1962 Lah. 970 PLD 1964 SC 97 PLD 1966 Lah. 515 PLD 1965 SC 269 PLD 1970 SC 326 PLD 1965 SC 690 1970 SCMR 180 (1901) 29 I A 51 PLD 1949 P C 187