1. HAMOODUR RAHMAN, C.J.--This appeal, by special leave, is directed against a judgment of a Division Bench of the High Court of West Pakistan, Lahore, in a Letters Patent Appeal arising out of a writ petition filed by the present appellants for quashing the order of the Chief Settlement Commissioner dated the 16th of May 1960, transferring the Regal Cinema to the respondent No, 3 herein.
2. The appellants are the heirs of one, Miraj Din, who migrated from Amritsar to Pakistan. The said Miraj Din died in Pakistan in the year 1952 and the appellants filed a claim for the properties left by Miraj Din in Amritsar. Their total claim was verified by the Deputy Claims Commissioner, Lahore, on the 31st of July 1959, for Rs, 28,61,144-9-5. Their claim under Schedule III was verified as follows :- {{TABLE}} (1)Appellants Nos, 1 to 3: Rs, 56,308-3-10 (2)Appellant No, 4: Rs, 76,622-3-0 (3)Appellants Nos, 5 to 7: Rs, 28,154-1-11 Rs, 1,61,084-8-9 {{TABLE}} According to the appellants, amongst the properties left by the said Miraj Din in India there were two industrial concerns, namely, (i) a factory for manufacturing pharmaceutical products registered under the Factories Act and (2) an unregistered Massala Grinding Factory in which the late Miraj Din had only a 1/4th share. The value of the machinery installed in the factories was verified at Rs, 3,000 only.
3. In the meantime, on the 25th of May 1954, they were allotted shares along with the respondent No, 3 and some others in the Regal Cinema, The Mall, Lahore, by the Industries Rehabilitation Board.
4. Subsequently the management of the Cinema was put to auction and allotted to the appellant No, 1 and one, Ishaque Qureshi, who were the highest bidders. Ishaq Qureshi retired from the management on the 22nd of February 1955 leaving the appellant No, 1 as the sole managing allottee.
5. After the coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the appellants, the respondent No, 3 and some other allottees applied for the transfer of the said cinema on the 29th of August 1959, under the provisions of paragraph 15 of the Schedule to the said Act. The application of the appellants was not accompanied by any certified copy of the order verifying their claim but a certificate showing the extent to which their claim had been verified was attached along with another certificate from the Labour Officer who had, on behalf of the Chief Inspector of Factories, west Pakistan, certified that from the list of registered factories received from the Chief Inspector of Factories, East Punjab, it appeared that the appellant's premises known as Feroze Din & Sons, Feroze Road, Amritsar, stood registered under the Factories Act,1934, on the 14th of August 1947. It was not, however, registered in the register maintained by the Inspector of Factories at Lahore.
6. As the appellants' application for transfer was not accompanied by a certified copy of the order verifying their claim, they were asked to produce the same from the Claims Organization. On the 17th of November 1959, the appellants supplied a copy of their verified claim under Schedules I, III and VI together with a covering letter addressed to the respondent No, 2, the Secretary, Industries Rehabilitation Board, stating that they had appealed against the verification of their claims to the Additional Claims Commissioner and as they felt sanguine about the success of their appeal they prayed that their application for the transfer of the cinema should not be decided until the appeal had been disposed of by the Additional Claims Commissioner.
7. We are not concerned now with any one of the other applicants, except the respondent No, 3 herein. His verified claim under Schedule III was Rs, 4,00,537 out of which the value of machineries abandoned in India was found to be Rs, 2,52,875.
8. In August 1959, when the transfer applications were originally filed the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had been amended by Ordinance No, I of 1959 promulgated on the 5th of January 1959, section 10 was amended to read as follows:-- "Subject to the provisions of this Act and the rules made thereunder the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool :- (a)on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule; and (b)in such other manner as may be prescribed."
9. Paragraph 14 of the Schedule dealing with the industrial concerns was renumbered as paragraph 15 and read as follows :- (1)Every Industrial concern or unregistered factory shall, subject to the provisions of the following sub-paragraph, be sold to the highest bidder in an unrestricted public auction.
10. (2)If any industrial concern is in the possession of a claimant who has left in India or in any area occupied by India, any industrial concern and if there is more than one industrial concern in the possession of such claimant, then any one of them, which he desires to retain, shall in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the amount payment of which is deferred under paragraph 19 or paragraph 20 and the investment made, if any.
11. (3)An unregistered factory which is in the possession of a displaced person or local shall be transferred to him on payment of the prevailing market value. (4) If any local or displaced person has invested in any industrial concern or unregistered factory, not being an industrial concern or unregistered factory transferred under sub-paragraph (2) or sub-paragraph (3) not less than seventy-five per cent. of the prevailing market value, and if there is more than one such industrial concern or unregistered factory than any one of them which such local or displaced person desires to retain shall, in case he applies in that behalf, be transferred to him on payment immediately of the prevailing value, minus the investment made.
12. Explanation.--In this paragraph :- (a)"Industrial concern" includes any factory, registered under the Factories Act, 1934, printing press and cinema house; and (b)"Investment made means the amount already sanctioned by a Custodian or a competent Rehabilitation Authority on or before the twentieth day of December 1958, in respect of such property or category of property as may be prescribed."
13. Again, before the appellants filed the certified copy of their verified claim on the 17th of November 1959, the Schedule was further amended by the Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance No, LIII of 1959, promulgated on the 28th of September 1959. In the amended form paragraph 15 reads as follows "(1) Every industrial concern or cinema house shall, subject to the provisions of the following sub- paragraphs, be "sold" in an unrestricted public auction.
14. (2)If an industrial concern or a cinema house allotted by the Industries Rehabilitation Board constituted under the Pakistan Rehabilitation Board constituted under the Pakistan Rehabilitation Act, 1956 (XLII of 1956), is in the possession of a claimant who has left in India or any area occupied by the India a registered industrial concern or a cinema house or whose verified claim under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, is of the value of rupees one lac or more than the industrial concern or the cinema house in the possession of such claimant "shall", in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made, if any: 'Provided that if the claimant concerned has abandoned a share in a registered industrial concern or a cinema house the industrial concern or the cinema house in his possession shall not be transferred to him unless his verified claim in respect of such share is rupees thirty-three thousand or more.
15. (3)If an industrial concern or a cinema house not allotted by the aforesaid Industries Rehabilitation Board, is in the possession of a displaced person or a local, then such concern or cinema house shall, in case he applies in that behalf, be transferred to him on payment of its prevailing market value minus the investment made, if any.
16. (4)If any local or displaced person has invested in any industrial concern or cinema house, not being an industrial concern or cinema house transferred under sub-paragraph (2) or sub- paragraph (3) not less than forty percent, of its prevailing market value, then that concern or cinema house shall, in case such local or displaced person applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made.
17. (5)Not more than one industrial concern or cinema house shall be transferred to any one person under sub-paragraph (2), or sub-paragraph (3) or sub-paragraph (4).
18. Explanation.--In this paragraph :-- (a)"INVESTMENT MADE" means an amount sanctioned by a Custodian or a competent Rehabilitation authority or the Chief Settlement Commissioner on an application made on or before the 20th day of December 195z4., and (b)"REGISTERED INDUSTRIAL CONCERN" means a factory which stood registered under the Factories Act, 1 934 on the fourteenth day of August 1947."
19. This latter Ordinance also added a paragraph 15-A to the schedule to the following effect :- "15-A. Notwithstanding anything contained in paragraph 15 the Central Government may make an order for the disposal of any class of industrial concerns or cinema houses in such manner as may be specified therein."
20. In the exercise of this power given by paragraph 15-A the Central Government on the 14th of December 1959, issued the following Notification No, F. 3(1)159-SO (Chris.) :-- "In continuation of the Ministry of Rehabilitation Order No, F. 3(1)159-SO (Clms.), dated the 19th October 1959, and in exercise of the powers conferred upon it under paragraph 15-A of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), the Central Government is pleased to make the following order for the disposal of industrial concerns and cinema houses :- (1)If a printing press allotted by the Industries Rehabilitation Board constituted under the Pakistan Rehabilitation Act, 1956 (XLII of 1956) is in the possession of a claimant who has left in India or in any area occupied by India a printing press, then the printing press in the possession of such claimant shall, in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made, if any.
21. (2)If any local or displaced person has invested in any engineering concern, not being an engineering concern transferred under sub-para. (2) of sub-para. (4) of paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. not less than fifty per cent. of the prevailing market value of the machinery installed therein, such engineering concern shall, in case such local or displaced person applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made, if any.
22. (3)If an industrial concern or a cinema house allotted by the aforesaid Industries Rehabilitation Board is in the possession of a claimant whose claim in respect of a registered industrial concern or cinema house left by him in India has been verified for an amount less than rupees thirty-three thousand, then the industrial concern or cinema house in the possession of such claimant shall, subject to the rights of any other person who may otherwise be entitled to retain it, be sold in an unrestricted public auction : Provided that if the value of the industrial concern or cinema house in the possession of such claimant does not exceed three times the amount of his verified claim in respect of the registered concern or cinema house left by him in India, the Chief Settlement Commissioner may transfer the industrial concern or cinema house in the possession of such claimant to him on payment immediately of the prevailing market value.
(4) If an industrial concern or a cinema house allotted by the aforsaid industries Rehabilitation Board is in the 'possession of claimant who has left in India a registered industrial concern or whose claim in respect of an unregistered industrial concern left by him in India has been verified under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, for an amount of rupees one lac or more than unless the value of the machinery installed in the registered or unregistered industrial concern left by him in India, has been verified for a sum of rupees sixty-six thousand or constitutes at least one-third of its total value, the industrial concern or cinema house in the possession of such claimant shall subject to the rights of any other person who may otherwise be entitled to retain it be sold in an unrestricted public auction."
23. These amendments to the Schedule were given retrospective effect by subsection (2) of section 1 of the amending Ordinance. This subsection reads as follows :- "It shall come into force at once and shall be deemed to have taken effect on the 26th day of March 1958," which was the date when the Act of 1958 itself, first came into force.
24. It was after the issuance of this notification that the Chief Settlement Commissioner on the 1st of January 1960, ordered that the case should be fixed for hearing all the candidates on the 7th of January 1960 On this date both the appellants as well as the respondent No, 3 were fully heard but since they had challenged the validity of each other's claims, the Chief Settlement Commissioner called for reports from the Director of Enforcement as regards the claim of the respondent No, 3 and from the Claims Commissioner as regards the claim of the appellants. Then on the 16th of May 1960, the Chief Settlement Commissioner without giving any further hearing to the parties but perusing the reports disposed of the appeal and rejected the application of the appellants on the ground that even if, as claimed by them the value of the machineries left in their factories in India was taken to be Rs, 5,500 and not Rs, 3,000 as verified by the Deputy Claims Commissioner, they would not be entitled under the notification of the Central Government issued on the 14th of December 1959, to the transfer of the Regal Cinema, as this would not amount to 1/3rd of the value of the entire concern. The cinema house was as a result transferred to respondent No,
3. This order was communicated to the appellants on the 23rd of May 1960, and the cinema house was subsequently sealed and made over to the respondent No, 3.
25. This was the order which was sought to be challenged in the High Court on a large number of grounds, but the writ petition was dismissed by a learned Single Judge and this order was upheld by a Division Bench in Letters Patent Appeal.
26. Leave was granted in this case mainly to consider three points :-- (1)Whether the appellants' claim for the transfer of the cinema house should have been decided in accordance with paragraph 15(2) of the Schedule and not according to the notification issued under the amended paragraph 15-A; (2)Whether the notification of the Central Government under paragraph 15-A which disentitled the appellants from transfer of the cinema house not being retrospective could be used against them, and (3)Whether, in any event, the notification was excessive delegation of power and, therefore, ultra vires.
27. This appeal was first heard from 3rd to 7th November 1969, but as there was difference of opinion it was considered desirable to have the matter heard by a Full Court. This hearing took place on the 5th and 6th of November 1970.
28. The main contention advanced on behalf of the appellants is that they had acquired an indefeasible vested right to the transfer of the cinema house in dispute on the date they filed their application for transfer on the 29th of August 1959, under the provisions of sub-paragraph (2) of paragraph 15 ofthe Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as they stood on that date and since this became a right vested in the appellants in consequence of their assertion of that right, namely, the making of the application for the transfer, it could not be taken away by a subsequent notification issued in exercise of powers granted by a subsequent amendment of the Schedule. In any event, a notification could never, it is said, take retroactive effect so as to take away a vested right. Alternatively, it is argued that both paragraph 15-A and the notification are invalid by reason of the excessive delegation of legislative powers which they purported to make in favour of the executive and, in any event, the notification is, it is contended, also ultra vires the provisions of paragraph 15-A of the amended Schedule and, therefore, of no legal effect.
29. In support of the first contention reliance is placed on section 15 of the Act of 1958 which first provides by sub-section (1) that "a claimant other than a claimant convicted under section 14 of the Registration of Claims (Displaced Persons) Act, 1956, shall be entitled to receive payment out of the compensation and rent pools to the extent of the amounts shown in the certificate issued to him under subsection (2) of section 12 subject to such scale of compensation, if any, as may be prescribed from time to time." Then by subsection (3) prescribes that "subject to the provisions of this Act and the rules made thereunder compensation may be paid in any one of the following forms or partly in one and partly in any one of the other forms namely, (a) in cash; (b) by sale or by any other mode of transfer to the claimant of any immovable property out of the compensation pool, setting off the purchase money of the valuation of the property, as the case may be against the compensation payable to him." This, it is said, gives a statutory right to the transfer of an evacuee property to a claimant.
30. Our attention is also drawn to the provisions of sub-paragraphs (2) and (3) of paragraph 15 of the Schedule to the above-mentioned Act where the words used are that the industrial concern or cinema house "shall, in case he applies in that behalf, be transferred to him" if he fulfils the conditions laid down in the said paragraph. Learned counsel also relies on paragraph of the Scheme No, II which says that "every industrial concern shall, unless a person is entitled to retain it under the Act, be sold to the highest bidder in an unrestricted public auction".
31. From the above provisions of the statute and the scheme it is contended that the intention of the law-giver was to give a legal title to a person entitled under the statute and its Schedule, which forms part of it, to retain an industrial concern or a cinema house and the only condition necessary to be fulfilled for clothing him with this right is that he should "apply in that behalf." As soon, therefore, as a person applies for the transfer of an evacuee property on the basis of his entitlement under the Act and the Schedule he acquires, it is argued, an indefeasible vested right which cannot be taken away except by express words or necessary intendment. Such a right, it is further contended, is neither a contingent right nor an inchoate right but a fully completed right enforcible in praesenti under the provisions of the Act, the Schedule and the Schemes framed thereunder, and it is in this sense that one of the learned Judges of this Court in the case of Jamal Shah v. Member, Election Commission , observed that the "Schedule to this Act gives an indefeasible right to certain persons in respect of transfer of property." Again, it was in this very sense that this Court in the case of Barkat Ali v. Muhammad Shari'. and another opined that "it would thus appear that a vested right to the transfer of property acquired under section 3 was created in favour of claimants and although there was to be a Rehabilitation pool for displaced persons, other than claimants, consisting of cash amount, no provision was made for Rehabilitation of locals".
32. Learned counsel also argues that even if it is considered that the Displaced Persons (Compensation and Rehabilitation) Act, 1958, merely conferred a benefit, then the power to take advantage of a benefit conferred by a statute is also a right and this should be treated as an accrued or vested right if it is assertable under the statute in praesenti. Reliance for this proposition has been placed on three decisions of the English Courts. The first is the case of Abbot v. The Minister for Lands . The question for decision in this case was whether the appellant was entitled under section 2 of the Crown Lands Act, 1884, to make additional conditional purchases of adjoining crown lands by virtue of his previous conditional purchase of other crown lands under the Crown Land Alienation Act, 1861. Under section 22 of the Crown Lands Alienation Act of 1861 a holder in fee simple of crown lands not exceeding 280 acres was entitled to make conditional purchases of adjoining lands not exceeding in the aggregate 320 acres including the lands already held by him.
33. The Act of 1884 repealed the Act of 1861 but contained a proviso in section 2 to the following effects: -- "Provided always that notwithstanding such repeal--
(b) All rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enact wants shall subject to any express provisions of this Act in relation thereto remain unaffected by such repeal."
34. In the new Act of 1884 there was no provision similar to the provisions of section 22 of the Act of 1861,1 2, 3 but it was argued on behalf of the appellant in that case that his right to make the additional purchases was a "right accrued" at the time the Act of 1884 was passed and, therefore, under the above-mentioned proviso it remained unaffected. The Judicial Committee of the Privy Council held, firstly, that it was "fallacious to say that the section in question (namely section 22 of the Act of 1861) conferred on the fee-simple holder of land any 'right' to make "conditional purchase" and, secondly, that even if "the power to take advantage of an enactment may without impropriety be termed a right", yet it was not a right accrued within the meaning of the enactment before the Board. It may be worth-while quoting the actual words used by the Lord Chancellor in this behalf.
35. These were as follows:-- "They think that the mere right (assuming it to be properly so-called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment."
36. The above passage would seem to indicate that the Judicial Committee was not accepting that the power to take advantage of an enactment could be termed to be a right. They were merely assuming it for the purposes of this case. This decision is, therefore, in my view, neither an authority for the proposition that the power to take advantage of an enactment is a right nor does it decide that a right accrues or vests merely by the assertion thereof.
37. This decision came up for consideration again in the case of Heston and Isleworth Urban District Council v. Grout . In this case what had happened was that a Local Board had duly served notices under section 150 of the Public Health Act, 1875 on the owners of land fronting a road to sewer, drain, level, pave, and channel the same in a specified manner within three months. The owners defaulted in complying with the notice. The local authority thereupon resolved to do the work itself, but while the necessary sanction for executing the work was being obtained, the local authority adopted the Private Street Works Act, 1892 and the said Act came into force within the area of the local authority from the 1st of August 1894. The scheme was ultimately sanctioned in November 1894 and the local authority on the 30th of January 1895, gave a contract for executing the work.
38. One of the owners of the property who had been assessed to pay a sum of 157 14s. 10d. for the work under section 150 of the repealed Act, refused to pay. The local authority thereupon took out an originating summons to obtain a declaration that he was liable to pay the said sum with interest and costs and that it was a charge on his property. On behalf of the defendant it was contended firstly that the scheme had been abandoned by the local authority and even if it had not been abandoned the effect of section 25 of the subsequent Act of 1892 was to annul the notice issued under the previous Act and in support of this contention the case Abbot v. The Minister of Lands was cited. Neither the original Court nor the Court of appeal even referred to this decision but relying on the provisions of the Interpretation Act of 1889 held that there was no abandonment of the notice issued under the previous Act and all liabilities accruing or the obligations arising as a consequence of that notice were recoverable. There was no discussion in this case to about any vested or accrued right.
39. Again in the case of Hamilton Gell v. White , a tenant holding a tenancy under the Agricultural Holdings Act, 1908, claimed compensation for unreasonable disturbance from his landlord who had given him notice to quit on the ground that he was desirous of selling the holding. The landlord disputed his claim. Under the provisions of the Act of 1908 notice of the intention to claim compensation had to be given within two months of the receipt of the notice to quit and the compensation had to be claimed within three months of quitting the holding. The tenant in this case had given notice within the prescribed time but before he could satisfy the second condition the relevant section of the Act of 1908 was repealed by another Act of 1914. The question was as to whether he could still claim the compensation. He lost in the original Court but succeeded in the4 5 Court of appeal. Again, on the basis of the provisions of section 38 of the Interpretation Act of 1889, it was held that "the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed." In this case too Abbott's case was cited to show that the power to take advantage of the provisions of the repealed statute was not right accrued but Bankes, L. J., pointed out that there is no parity between the two cases, for, in Abbott's case the tenant's right depended upon some act of his own. Here it depends upon the act of the landlord." Atkin, L. J. pointed out with regard to the saving clause that such "provision was not intended to preserve the abstract rights conferred by the repealed Act, such for instance as the right of compensation for disturbance conferred upon tenants generally under the Act of 1908, for if it were the repealing Act would be altogether inoperative. It only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute. Here the necessary event has happened, because the landlord has, in view of a sale of the property, given the tenant notice to quit. Under those circumstances, the tenant has 'acquired a right' which would `accrue' when he has quitted his holding, to receive compensation".
40. These decisions do not, in my opinion, assist us in deter-mining the exact nature of the right, if any, in the appellant in the present case. They are not in pari materia. In order to ascertain this one must, of necessity, refer to the statutory provisions under which the right is being claimed. No general rule can be laid down, for, each case will depend upon its own facts and circumstances and the statutory provisions applicable to it.
41. Let me, therefore, examine the nature of the law which is applicable in this case. As was pointed out by the Federal Court in the case of the Punjab Province v. L. Sita Ram and others , while considering the nature of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, such legislations are legislations of an extremely special character which are from the very nature of things to be construed not so much on considerations that would weigh with Courts of law but also on considerations of policy. They were designed for meeting an extraordinary situation of a complex and confusing nature created by the influx of a larger number of refugees who had to be settled and were intended to be so adaptable as to meet the changes in the situation that developed from time to time. They could not, therefore, be construed upon strict legal principles and certainly not in such a manner as to defeat the very object for which such special legislation was designed.
42. Again as was pointed out in the case of Syed Abdur Rashid v. Pakistan and others , there was no question of displaced persons coming to Pakistan from territories which now constitute India being entitled as of right to get properties in Pakistan in lieu of properties left by them in India. The evacuee laws were designed purely to alleviate the hardship and misery of as large a number of displaced persons as possible who had been uprooted as a result of the setting up of the two Dominions of India and Pakistan by rehabilitating them and in this sense too it was "fallacious to conceive of a claim as being in the nature of a right or interest in property". It was rather a question "of purely granting a benefit or a privilege" and it was, therefore, within the competence of the authorities to determine as to who were the persons best fitted for the grant of such benefit.
43. Keeping this general perspective of evacuee legislation in mind I proceed to examine the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, with which we are now directly concerned. It will be observed that under section 3 of this Act all evacuee property vested wholly and absolutely free from all encumbrances in the Central Government on the publication of the notification of acquisition then sections 4, 5 and 6 provided for the setting up of compensation rent and rehabilitation pools, and into the compensation pool were put all evacuee properties acquired under section 3 of the Act, the sale proceeds or compensation in respect of any immovable evacuee property taken by the Central or Provincial Governments, public dues, etc. The Chief Settlement Commissioner was, by section 10, then authorised to transfer or dispose of any property out of the compensation pool on an evaluation basis or by sale, auction or otherwise6 7 in accordance with the provisions of the Schedule but subject, not only, to the provisions of the Act but also the rules made thereunder. The Central Government, however, reserved to itself the right to transfer or dispose of any property out of such pool in such other manner as it may choose to prescribe. Section 11 gave power to the Chief Settlement Commissioner to invite applications by notification in the form prescribed by him and these had to be submitted within the period prescribed and in the manner laid down. After receipt of the applications the authority concerned was required by section 12 to hold an enquiry again in a prescribed manner. Then section 15, on which reliance has been placed by the appellant, laid down the scale, form and manner of payment of compensation. It gave a right to "receive payment out of the compensation pool", either in the form of cash or by sale or by transfer in any other mode of immovable evacuee property but again subject to the provisions of the Act and the rule made thereunder. Section 16 of the Act gave power to make provision for the payment of interim compensation but these too had to be subject to the provisions of the Act and the rules made thereunder. Then followed provisions for appeals, revisions and reviews in sections 19 to 21 and section 22 gave finality to orders of ultimate Settlement authorities. Section 25 barred the civil Courts from questioning anything done in exercise of any power conferred by or under this Act. With the other provisions we are not in the present case concerned but it may be mentioned that under section 36 thereof the provisions of the Act were to take effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
44. The Act had a schedule appended to it prescribing the qualifications under which and the mode in which immovable evacuee properties of various kinds may be disposed of or transferred to displaced persons and even locals. Then came the schemes prescribing the procedure of disposal and transfer. Under these there had first to be an enquiry for the ascertainment of the entitlement of the applicants and then a determination of the amount payable by the person so found to be entitled. It was after this that an intimation of transfer was issued in the prescribed form requiring the transferee to comply with the directions contained therein. If the transferee complied with the requisitions he was issued a Provisional Transfer Order indicating the amount payable after adjustment of the deferred payment and the manner of payment thereof. If he failed to comply with these, the provisional order was liable to be cancelled but if he complied and made the payments then he was to he issued a Permanent Transfer Deed. Until this was done the property continued to remain vested in the Government.
45. It will be observed that even though mandatory words have been used in some places in the Schedule and the Schemes with regard to the transfer of property, yet the transfer is in implementation of the entitlement under section 15 of the Act and this entitlement is basically to receive payment out of the compensation and rent pools in the manner prescribed by the Schedule, the schemes and the rules, which only give a preferential position to a claimant. He comes before all others and his claim has to be satisfied first. It is in this sense that it has been said that a claimant displaced person is in the position of a vested beneficiary so far as properties in the compensation pool are concerned, but this is not the same thing as saying that he has a vested right to a particular property in the compensation pool, for, after acquisition the legal title to the property vests in the Central Government and until that is divested no one can be said to have a vested right or title thereto. His is merely a general beneficial right which he shares in common with all claimants. The majority decision of this Court in the case of Rehmatullah v. Deputy Settlement Commissioner , did not lay down any different principle nor was this view departed from in the subsequent case of Barkat Ali. In the latter case the dispute was between a local allottee and a non-allottee claimant and it was in this connection that it was said that the Act and its Schedule "fixed the order of preference in respect of transfer of properties in the compensation pool" by according the first place to a claimant who appeared to have "a vested right to the8 transfer of property" in the compensation pool. This certainly was not the same thing as saying that the claimant had a vested right to a specific property in the said pool. This question did not arise for consideration there.
46. The obiter of Kaikaus, J., in the case of Jamal Shah, which arose out of an election dispute, cannot also be taken to have changed the law laid down in Rehmatullah's case.
47. The question that now arises is as to whether, as suggested by the learned counsel for the appellant, such a right is perfected and becomes accrued or vested merely by its assertion, i,e, upon the unilateral expression of the will of the claimant? I think not. To accept that a right becomes complete and accrued as soon as one elects to assert that right would, in any view, be accepting a startling proposition. I have not been able to discover any principle or precedent which would support such a proposition. This was not accepted in Abbott's case, or in any of the other case. Indeed, as was pointed out in the case of Hamilton Gell v. White, the Privy Council declined in the former case to accept such a proposition because that would amount to accepting that a person could perfect his right by doing something which "depended upon some act of his own".
48. The position might well be different if the right was to attach on the happening of an event which was not dependent on an act of the claimant himself.
49. Under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, an elaborate procedure has been laid down. The Act and the Schedule first point out as to who are the persons entitled to claim a property from out of the compensation pool. The method of preferring the claim is prescribed by the Schemes and the rules. Then the law requires an investigation into the claim.
50. From such investigation appeals and revisions may be taken to the higher Settlement Authorities and it is only when these are completed and the right to the transfer of the property is determined that a Provisional Transfer Order issues. The Permanent Transfer Deed issues only when all payments have been made. Until such final determination the right to the transfer of a particular property neither accrues nor vests, for, even though prima facie a person may be entitled to prefer a claim for the transfer of a specific property that does not necessarily give him a right to that property, because, as was pointed out in Rehmatullah's case the property may be taken out of the Compensation Pool by virtue of an order passed under section 10 (b) of the Act by the Central Government. Again questions may arise where there are more than one claimants as to who has a preferential right to be given the property. Instructions issued in that behalf from time to time by means of memoranda of the Chief Settlement Commissioner, even after the expiry of the prescribed target date for the making of applications, show that a claimant in possession of a larger portion is entitled to preference. Similarly, a claimant in occupation of a house has, under other executive instructions, to be preferred over a claimant who applies on the basis of the occupation of such house by his parent, son, daughter or a spouse, even though paragraph 1 of the Schedule purports to give them all an equal right.
51. On the 1st of September 1961, the Central Government by notification No, S.R.O. 8241K)/61 issued in exercise of the powers given by clause (b) of section 10 of the Act actually provided that properties in the compensation pool may be transferred to an informant who gives information of any irregular transfer, although neither under the Act nor the Schedule was any kind of any right given to any informant. Under this notification many transfers were actually set aside and the properties concerned transferred to such informants.
52. In the case of Major J. H. Naqvi v. Enforcement Director, West Pakistan and others , this Court reaffirmed its earlier unreported decision in the case of Kazi Asadul Haq v. Miss R. A. Money Civil Appeal No, 57 of 1960 and held that the Central Government could, under clause (b) of section 10 of the Act, lay down or approve of any mode of transfer different to those enumerated in the Act or the Schedule to the Act, and upheld the validity of the transfers made in exercise of the powers given under the above-mentioned notification of the Government even though the information9 had been lodged after the issuance of the order of transfer and the appendix.
53. This notification also indicates that the power of the Government under clause (b) of section 10 is not a power which is confined, as contended on behalf of the appellant, to making orders for the disposal of a specific property or as to the mode of transfer of such property.
54. In the case of Ch. Abdul Qayum v. Chief Settlement Commissioner and others , a general order of the Central Government in relation to big mansions within the meaning of paragraph 16 of the Schedule was upheld by this Court and it was pointed out that the directive of the Central Government, even though issued by a letter long after the applications for transfer had been made by several claimants, had validly modified paragraph 16 of the Schedule and entitled the Settlement Authorities to dispose of big mansions generally by private negotiations instead of by unrestricted public auction as prescribed in the Schedule.
55. Again in the case of the Chief Settlement Commissioner v. Jamaluddin , where the precise question which fell for decision was as to whether under the provisions of clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it stood in 1960, the Central Government could direct the transfer of an evacuee property to a person other than the one entitled under the Schedule to the Act, this Court held that the directive of the Central Government was valid and competent. In this case too the directive of the Central Government was sent by letter after applications for the transfer of the building site in dispute had been filed under Scheme VI in response to the invitation issued by the Department for applications for transfer of such plots.
56. If this be the position with regard to an order under section 10(b) of the Act then does an order under paragraph 15-A of the Schedule stand in principle upon any different footing? If not, then does it suggest that under the scheme of the Displaced Persons (Compensation and Rehabilitation) Act and the Schedule framed thereunder a claimant displaced person acquires a vested right to a particular property merely by making an application for the transfer of such property? If this were so, then the executive directions of the Government could not have taken away that right. The fact that they could do so seems rather to suggest that having regard to the complexities of the situation and the difficulties that were likely to arise in administering the Act from time to time, the executive authorities retained to themselves the right to alter the provisions of the Schedule in the light of the situation emerging at a particular point of time. It is quite possible that in the original paragraph 15 of the Schedule provision was made to transfer industrial concerns and cinema houses to any one possessing a claim verified under Schedule III of over a lac of rupees in the expectation that there would not be many Muslim evacuees migrating from India who would have such large claims under Schedule III, but when the claims were actually verified and it was found that there were more claimants than industrial concerns and cinema houses available for disposal the administrative authorities thought of revising their programme, for, all claimants could not be satisfied from out of the limited number of properties of this particular nature available for disposal. It is not surprising therefore, that the power which was already possessed by the Central Government under clause (b) of section 10 was specifically re- affirmed in paragraph 15-A of the Schedule. This latter power is not relatable to any other provision in the Act and if there had been no power in the Act itself to make such a departure it is doubtful if the Schedule, which was to take effect subject to the provisions of the Act and the rules made thereunder, could have given such a power. This paragraph was given retrospective effect from the date the P Act of 1958 came into force and the other provisions made in the exercise of the power given thereunder were to take effect notwithstanding anything contained in the recanted paragraph 15 The consequence of this non-obstante clause, as was pointed out by this Court in the case of Irfanulluh Khan v. The Chief Settlement Commissioner and another was that the instructions issued thereunder by the Central Government had to be construed "in the manner of a proviso to the original paragraph 15".10 11 12 In this case too an attack was made on the validity of the action taken in pursuance to the instructions issued by the Central Government under paragraph 15-A for disposal of industrial concerns and cinema houses which had been, in accordance with the Schedule. Already offered for sale by public auction. The Chief Settlement Commissioner was authorised by these instructions, if he was not satisfied that the bids offered were adequate, to dispose of them by private negotiations or by inviting tenders or in such other manner as he may deem necessary. He did so act in the case of the Capital Cinema after cancelling the transfer in favour of the auction purchaser. Nevertheless, this Court held that under paragraph 15-A 'the Central Government was empowered to make any order for the disposal of any class of industrial concerns or cinema houses in such manner as may be specified therein" and that the instructions issued under the said paragraph were to be construed "in the manner of a proviso to the original paragraph 15". It will be observed that in this case the persons who had actually been transferred the cinema house in dispute in that case in accordance with the terms of the Schedule were deprived of their right even after the order of transfer had been made and the cinema house was disposed of in a different manner. A review of the decisions of this Court thus confirms me in the view that this Court has never accepted that a claimant acquires a vested right to the transfer of a specific evacuee preform the moment he makes an application for such transfer and that it has consistently been held that under the powers & reserved to the Central Government by paragraph 10(b) of the Act of 1958 itself it is open to the Central Government to lay down a different mode of disposal either generally with reference to a class of property or specially with regard to a specific property even after a claimant has so asserted his right, at any rate, until the property has not been finally transferred to any one.
57. In my opinion, there is no difference in principle whether the order is made under section 10(b) itself or under the provisions of paragraph 15-A of the Schedule, for, both powers originate from the same source. Indeed no such power could have been reserved under paragraph 15-A of the Schedule, if it had not been conferred by section 10(b) of the Act itself. The power is, therefore, the same whether exercised under section 10(b) of the Act or paragraph 15-A of the Schedule. They both operate to lay down a different mode of disposal of evacuee properties.
58. It is necessary, in my view, to keep in mind that there is a distinction between the right to claim a transfer and the right to the transference of the property itself. The provisions of the Schedule indicated the persons or the category of persons who can claim the transfer of a particular property but the right to the transfer of the property accrues or becomes vested only after a final order for such transfer has been made in accordance with the provisions of the Act itself, the Schemes, the rules framed under the Act and the instructions from time to time issued. Until a final order of transfer has been made it cannot be said that the property has been disposed of and is no longer available for transfer. It is only when a property is no longer available for transfer that an order of the Central Government laying down a different mode of disposal will not affect it, on the principle that a change in the mode of transfer cannot reopen a past and closed transaction.
59. In this view of the matter I am also inclined to hold that there is no question here of the notification being given any retroactive action. The mode of disposal laid down by the notification issued on the 14th of December 1959, applied in praesenti and in futuro to all properties which had not yet been finally transferred and there could be no manner of doubt that the property in dispute had not been finally transferred till that date to any one. If the directives contained in the impugned notification had, been issued as an order under section 10(b) of the Act itself then in accordance with the consistent view of this Court in the cases already referred to, the order would have affected all properties the transference of which was pending determination. The mere fact that the order has been expressed to be under the powers given by paragraph 15-A of the Schedule, as I have already stated, makes no difference. The mere reference to a wrong provision of a statute will not invalidate the exercise of a power if the power actually exists in a public authority vide Province of West Pakistan v. Murree Brewery Co. Ltd. , since both the powers are of the same quality and are not mutually exclusive of each other.
60. In any event since paragraph 15-A was itself expressly given retrospective effect from the date the Act came into force and it stated that any order made thereunder laying down a different method of disposal would apply, notwithstanding anything contained in paragraph 15 of the Schedule itself, the effect would be that paragraph 15-A would be treated as having been incorporated in the Schedule right from the beginning and any order made thereunder would as pointed out by this Court in the case of Irfanullah Khan v. Chief Settlement Commissioner be treated as an exception or proviso to the main provisions of paragraph 15.
61. There is another aspect of the matter which, when taken in conjunction with the fact that paragraph 15-A was expressly given retrospective effect, would seem to confirm the view that it was also to apply to all proceedings pending before the Settlement Authorities for the transfer of properties which had not yet been finalised. This particular aspect, which has not yet been noticed before, is that paragraph 15-A was introduced at a time when the target date for the making of applications for transfer, namely, the 31st of August 1958, had already expired. If the mere making of an application for transfer gave a vested right, then the introduction of paragraph 15-A was an exercise in futility, The legislative authority which introduced paragraph 15-A on the 28th of September 1959, must, however, be deemed to have been aware of the fact that the target date for making of applications for transfer had already expired and, as such, it could only have introduced paragraph 15-A with the intention of laying down a different mode of disposal in respect of properties not yet finally transferred, though applied for.
62. The appellant's contention that he had acquired a vested right to the transference of the property is not also supported by his own conduct. The application for transfer, which was originally filed on the 29th of August 1959, was not complete in so far as it was not accompanied by a certified copy of the verified claim. He was asked to file the same. On the 17th of November 1959 after the amendment of the law and the introduction of paragraph 15-A the appellant filed the same along with a letter requesting the Settlement Commissioner not to finalise his case till his appeal before the claim authorities had been disposed of. This shows that the complete application for transfer, according to the rules, was filed after the amended law came into force. Otherwise his incomplete application for transfer could have been rejected on this ground alone.
63. This brings me to the next contention advanced on behalf of the appellant attacking the validity of paragraph 15-A of the Schedule itself on the ground that it gave an excessive delegation of legislative powers to the executive. It is contended that the Legislature has, by giving such uncontrolled powers to the executive of amending the Schedule, which formed part of the Act, really abrogated its powers of legislation and effaced itself. I am unable to accept this contention, for; having regard to the nature of the legislation itself it was impossible to expect the Legislature to provide for all possible eventualities which were likely to arise due to the complexities of the problems from day-to-day. This was a fit subject, therefore, in respect which the power of making subsidiary provisions could be validly delegated to the executive or those responsible for administering the law. The Legislature having decided that claimants would have the preferential right to claim the transfer of evacuee properties in the compensation pool left it to the executive merely to decide as to what in a given set of circumstances would be the most equitable and fair method of disposal of these properties amongst rival claimants. As already indicated earlier, when claims started coming in it must have been found that claimants were much larger in number than the properties available for transfer. In the circumstances, some decision had to be made as to which out of the said claimants should be given a preferential treatment. It is only this that was13 left to be determined by paragraph 15-A to the executive. In exercise of this power under paragraph 15-A it was not open to the executive to say that no claimant would be entitled to a share from the compensation pool but it was left to the executive merely to determine the circumstances in which a claimant would be considered to be genuinely entitled to the transference of an evacuee property of the nature of an industrial concern or a cinema house. This question could not be pre-determined by the law-making authority without full knowledge of the situation as it was likely to emerge after the invitation of claims for transference. It appears, therefore, that after this was ascertained, an effort was made to give to those who had left behind a larger share in industrial concerns and cinema houses in India a preferential treatment. There is no question here, therefore, of the Legislature having effaced itself or abrogated its powers of legislation.
64. As was pointed out by me in the case of the Province of East Pakistan v. Sirajul Hag Parwari if the "Legislature has suffici-ently expressed its will and exercised its judgment as to the territorial extent, scope and subject-matter of the legislation, the provision of details, particularly when such details are by their very nature incapable . of being laid down by the Legislature itself, can well be left to be done by another agency in whom the Legislature places confidence." What should be the line of separation between the powers which can be delegated and those which cannot be so delegated is incapable of any clear definition, for, this may "vary not only with the scope of the authority of the delegating body but also by the variety of the conditions and circumstances a particular law is intended to meet." Taking all these factors into consideration, I am firmly of the view that having regard to the fact that at the relevant time the Head of the Executive was also the Legislature and he was v being called upon to meet a very complex and diffused situation created by circumstances which were rapidly changing the delegation made cannot be said to be excessive or to amount to an effacement of the legislative authority itself.
65. The difficulty of making complete provisions for all eventualities was felt right from the very beginning and it was for this reason that section 10(b) was introduced into the Act and it was further provided that the Schedule appended to the Act would be subject not only to the provisions of the Act itself but also to rules to be made by executive authorities in exercise of the powers given under the Act. From the start, therefore, it was in the full contemplation of the law-making authority that they could not provide for every situation and, therefore, the power must be given to somebody to make alterations in the Schedule to bring about a more equitable and a just disposal of evacuee properties. The impugned notification has done no more than provide a test for determining as to whether a claimant is a genuine industrialist who can be appropriately transferred an industrial concern or a cinema house. It is for this reason that a provision has been added to the effect that in addition to the claim under Schedule III of rupees one lac or more he must also show that the value of the machinery installed in the industrial concern left by him in India was verified for a sum of Rs, 66,000 or constituted at least one-third of the total value of the industrial concern. This was clearly designed to ascertain that the claimant was a genuine industrialist in India and not merely a person who pretended to be an industrialist.
66. Finally, I would like to point out that the Legislature itself has applied its mind to this problem and decided to remove all doubts with regard to the validity of the actions taken by the Settlement Authorities in exercise of the powers given by such provisions by enacting Ordinance No, III of 1963 which, in the Preamble, states that whereas the Chief Settlement Commissioner, transferred, with the approval of the Central Government, certain immovable properties from the compensation pool constituted under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, in the purported exercise of powers under that Act, and the validity of some of these transfers had been questioned, and then went on to provide by section 2 that:-- "2. Validation of certain transfers.--Any property transferred by the Chief Settlement Commissioner14 with the approval of the Central Government, from the compensation pool constituted under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), to any person or class of persons by any general or special order, on or after the 8th August 1959, but before the commencement of this Ordinance in the purported exercise of the powers under the said Act, shall, notwithstanding anything contained in that Act or in any rule or order made thereunder, be deemed to have been validly transferred as if the Chief Settlement Commissioner had, at all material times, powers under the said Act to so transfer such property, and the validity of any such transfer shall not be questioned in any manner whatsoever It has been argued on behalf of the appellant that this validation was not a blank protection but applied only to approvals with regard to specified properties under section 10(b) of the Act. I am unable to accept this contention for, this limitation cannot inferred from the language of the validation clause which appears to be worded in the widest possible terms. In any event, as I have already pointed out, orders under section 10(b) could be, and had in fact been, made both in respect of specific properties as also generally with respect to a class of properties. In the circumstances, I am of the view that this validation covers even disposals of properties under the directions issued under paragraph 15-A of the Schedule which stand on the same footing as an order under section 10(b).
67. It remains now to consider a subsidiary argument to the effect that the impugned notification was ultra vires the powers given by paragraph 15-A in so far as it dealt with industrial concerns and cinema houses generally and not with "any class" thereof. There is no substance in this contention for paragraph (1) of the notification dealt with printing presses, paragraph (2) with engineering concerns and paragraphs (3) and (4) with industrial concerns and cinema houses allotted by the Industries Rehabilitation Board. A classification was, therefore, clearly made even with regard to industrial concerns and cinema houses, for admittedly all cinema houses were not allotted by the aforesaid Board. It is also possible to construe cinema houses as a class by themselves within the wider category of industrial concerns but it is unnecessary to pursue this point for in my view a classification has been made even otherwise as the notification deals with cinema houses allotted by the Board and not cinema houses in general.
68. For the reasons given above, I see no invalidity in the action of the Chief Settlement Commissioner in transferring the cinema house concerned to the respondent No, 3 herein, who was also a claimant displaced person having a much larger genuine verified claim under Schedule III and fulfilled the qualifications laid down in the notification. The complaint that his claim was bogus was found on scrutiny to be false even by the enforcement department of the police. I would, therefore, dismiss this appeal but leave the parties to bear their own costs.
69. ABDUS SATTAR, J.--I agree.
70. WAHIDUDDIN, J.--I agree that the transfer became valid on account of Ordinance No, III of 1963 and the appeal is liable to be dismissed.
71. SAJJAD AHMAD, J.--I have read with minute care the judgments proposed to be delivered in this appeal by my Lord, the Chief Justice, and by my learned brother, M. R. Khan, J. I am disposed to think that the appellants had a statutory right to claim the cinema in dispute on the date, viz., 29th August 1959, when they filed their application in this behalf, being possessed of the requisite qualifications for eligibility to claim the same under paragraph 15 (2) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958 (hereinafter described as the Act), which was the relevant legal provision governing those qualifications at the time. But I am unable to agree with learned brother, M. R. Khan, J., that the moment this right was asserted by them by filing their application, it became a perfected and an indefeasible substantive right to bear fruition for the transference of the property to them, notwith-standing the change brought about by the introduction of para. 15(a) in the Schedule introduced by Ordinance LIII of 1959, and made enforceable retrospectively with effect from the 25th of March 1958, under which a notification dated the 14th of December 1959, was issued which impaired the qualifications of the appellants for transference of this property before it was actually transferred to them. It is not disputed that on the 26th of May 1960, when the cinema in dispute was transferred to respondent No, 3, he and not the appellant satisfied the conditions of eligibility for its transfer, as imposed by the aforesaid notification.
72. The nature of the right or benefit created by the Act as a measure of policy legislation made to meet a national emergency to compensate and accommodate the swarm of refugees that had come over to Pakistan on Partition of the sub-continent, has been discussed by my Lord the Chief Justice, and by my learned brother, M. R. Khan, J. in their judgments by reference to decided cases of this Court. I would like to say that whatever the terminology used in the decided cases, referred to in the judgments, to describe this right in the context of each case, the conferment of this right or benefit in the compensation pool, which was constituted under section 4 of the Act, was undoubtedly a bounty of the State, and no beneficiary thereunder could claim any inherent right to acquire any property in that pool. It was for this reason that under section 10(b) of the very same instrument, which created the pool and conferred rights on the beneficiaries in that pool, the benefactor, namely, the Central Government, reserved to itself the right to transfer any property in that pool in any manner other than that, which was laid down in the Schedule to the Act. If it were a vested and an indefeasible right of the beneficiaries under the statute, as enumerated in the Schedule, the power retained by the Central Government to withdraw any property from the pool and dispose it of in any other manner, was certainly derogatory to its absoluteness as a substantive right of the beneficiaries. It is difficult to argue that this power of the Central Government ceased to be operative in respect of any property after the beneficiary had asserted his right to claim it under the Schedule, so long as it is available for transfer by any other mode under the powers of the Central Government, the property not having been in the meantime finally disposed of. In adjudicating on these artificially created rights, the right to claim a property should not be confused with the right to the actual transference of that property.
73. I am of the opinion that para. 15(a) of the Schedule, which was given retrospective effect from the date of the enforcement of the Act itself, is complimentary to section 10(b) of the Act and relatable to the same power in respect of industrial concerns and cinema houses, which for their disposal were to be regulated by orders of the Central Government under this para. The notification, mentioned above issued under this para. on the 14th of December 1959, which affected the qualifications of the appellants, did not do so by any retroactive process, but since the cinema in dispute claimed by the appellants had not been finally disposed of in their favour, the notification came very much in their way in praesenti and prospectively to claim that property. As the appellants did not satisfy the conditions of eligibility for the transfer of the cinema, as required by the aforesaid notification competently issued under a validly enacted power, their claim was rightly rejected by the Chief Settlement Commissioner.
74. On this view of the matter, as, I am agreeing with the learned Chief Justice that this appeal be dismissed without any order as to costs, I need not enter into a discussion of the other ancillary issues raised in this appeal, which have been very elaborately discussed in their judgments by my Lord, the Chief Justice, and learned brother, M. R. Khan, J.
75. M. R. KHAN, J.--I have carefully gone through the judgment proposed to be delivered in this appeal by my Lord the Chief Justice, but I regret that I cannot persuade myself to agree with the views taken by him.
76. In order to appreciate the points of law involved here, it is necessary to state the facts of the case on which the appellant's writ petition was based.
77. The dispute in the writ petition giving rise to the present appeal related to a cinema house on the Mall, Lahore called "the Regal Cinema", an erstwhile evacuee property. The facts and circumstances giving rise to the dispute are as follows.
78. Late Meraj-ud-Din, the predecessor-in-interest of the appellants migrated to Lahore from Amritsar in India on the eve of the Independence. He left behind certain properties in Amritsar including an industrial concern registered under the Factories Act, 1934 and another unregistered factory in which he had 1/4th share. Meraj-ud-Din died in Lahore in 1952 and was survived, amongst others, by the present appellants. In May 1954, the appellants were jointly allotted 15% share in the Regal Cinema by the Industries Rehabilitation Board. The appellants preferred claims under the Registration of Claims (Displaced Persons) Act, 1956, and their total claim verified by the Deputy Claims Commissioner, Lahore, by his order, dated the 3Ist July 1959, amounted to Rs, 28,61,000 and odd which, on appeal, was increased to nearly Rs, 33 lakhs. The value of the registered industrial concern was fixed at Rs, 3,43,200 which included Rs, 3,000 as the value of machinery. These facts were either admitted or not denied in the initial report submitted by the Chief Settlement Commissioner or in the written statement filed by him in the writ petition.
79. In their writ petition, the appellants gave an explanation that no certified copy of the appellate order enhancing their verified claim having been supplied, the same could not be furnished by them. In his written statement, the Chief Settlement Commissioner admitted that copy of the appellate order of the Additional Claims Commissioner was not supplied till then. Mr. W. Z. Ahmad, the third respondent and some others were also allottees in respect of certain shares in the Regal Cinema. The management of the Regal Cinema was put to auction. Mian Rafi-ud-Din (appellant No, 1) and one Mr. Ishaque Qureshi being the highest bidders, the management of the Regal Cinema was entrusted to them. Mr. Ishaque Qureshi, however, retired from the management on the 22nd February 1955, whereupon Mian Rafi-un-Din became the sole managing allottee. On the 29th August 1959, the appellants applied for the transfer of the Regal Cinema under the then Paragraph 15 of the Schedule of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter called "the Act" or "the D. P. Act". Their claim for transfer of the Regal Cinema was based on their having left in Amritsar a joint industrial concern known as Feroze Din & Sons, registered under the Factories Act, 1934.
80. Mr. W. Z. Ahmad, the third respondent and three others had also applied for the transfer of the Regal Cinema to them. Of them, Mr. W. Z. Ahmad had a verified claim for Rs, 4,00,537 out of which Rs, 2,52,875, represented the value of machinery.
81. At the time when the appellants and the third respondent made their respective applications for the transfer of the Regal Cinema, Paragraph 15(2) of the Schedule to the D. P. Act prescribing eligibility for transfer of an industrial concern (which includes a cinema house) ran thus:-- "15(2) If any industrial concern is in the possession of a claimant who has left in India or in any area occupied by India, any industrial concern and if there is more than one industrial concern in the possession of such claimant, then any one of them, which he desires to retain, shall in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the amount payment of which is deferred under paragraph 19 or paragraph 20 and the investment made, if any."
82. The appellant as also Mr. W. Z. Ahmad fulfilled the conditions of eligibility as laid down in the said Paragraph 15(2) of the Schedule of the D. P. Act and were, therefore, entitled to the transfer of the Regal Cinema. The Ordinance No, LIII of 1959, which was promulgated on the 28th September 1959, substituted the pre-existing Paragraph 15 by a new Paragraph with retrospective effect from the 26th March 1958. The appellants as well as Mr. W. Z. Ahmad satisfied also the requirements of the new Paragraph 15(2) (this will be quoted hereinafter at the appropriate place) and, therefore, continued to remain entitled to the transfer of the Regal Cinema. By the same Ordinance No, LIII of 1959, another Paragraph, namely, Paragraph 15-A was inserted in the Schedule of the D. P. Act with effect from the 26th March 1958. The new Paragraph 15-A reads as follows:-- "Notwithstanding anything contained in Paragraph 15, the Central Government may make any order for the disposal of any class of industrial concerns or cinema houses in such manner as may be specified therein."
83. During the pendency of the parties' applications for transfer & of the Regal Cinema, the Central Government, pursuant to its powers under the newly inserted Paragraph 15-A, made an order the first time on the 14th December 1959, with regard to the disposal of industrial concerns and cinema houses in general vide Notification No, F. 3(1)/69-60 (Clms) of the said date. The relevant portion of this notification is as follows:-- "In continuation of the Ministry of Rehabilitation Order No, F. 3 (1)/59-60 (Clms), dated the 19th October 1959 and in exercise of the powers conferred upon it under Paragraph 15-A of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to make the following order for the disposal of industrial concerns and cinema houses:
(1) ..............................................
84. (2).............................................
85. (3)If any industrial concern or a cinema house allotted by the aforesaid Industries Rehabilitation Board is in the possession of a claimant whose claim in respect of a registered industrial concern or cinema house left by him in India has been verified for an amount less than rupees thirty-three thousand, then, the industrial concern or cinema house in the possession of such claimant shall subject to the rights of any other person who may otherwise be entitled to retain it, be sold in an unrestricted public auction.
86. Provided that if the value of the industrial concern or cinema house in the possession of such claimant does not exceed three times the amount of his verified claim in respect of the registered concern or cinema house left by him in India, the Chief Settlement Commissioner may transfer the industrial concern or cinema house in the possession of such claimant to him on payment immediately of the prevailing market value.
87. (4)If an industrial concern or a cinema house allotted by the aforesaid Industries Rehabilitation Board is in the possession of claimant who has left in India a registered industrial concern or whose claim in respect of an unregistered industrial concern left by him in India has been verified under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, for an amount of rupees one lakh or more, then, unless the value of the machinery installed in the registered or unregistered industrial concern left by him in India has been verified for a sum of rupees sixty-six thousand or constitutes at least one third of its total value, the industrial concern or cinema house in the possession of such claimant shall, subject to the rights of any other person who may otherwise be entitled to retain it, be sold in an unrestricted public auction."
88. The notification thus provided that in order to be eligible for transfer of an industrial concern or a cinema house, a claimant must satisfy the conditions prescribed therein. Obviously, the conditions prescribed in the notification are new conditions of eligibility and entirely different from those prescribed in Paragraph 15 (2) of the Schedule of the D. P. Act.
89. The applications of the appellants and Mr. W. Z. Ahmad for transfer of the Regal Cinema which remained pending for decision were disposed of by the Chief Settlement Commissioner having regard to the newly introduced conditions of eligibility contained in clause (4) of the said notification. As the value of the machinery left behind by the appellants in Amritsar was Rs, 3,000 only, they were found by the Chief Settlement Commissioner to be no more eligible for obtaining transfer of the Regal Cinema, although they were so eligible when they applied for its transfer in their favour. Accordingly, the Chief Settlement Commissioner, by his order, dated the 16th May 1960, rejected the appellants' application for transfer of the Regal Cinema and, by the same order, transferred the said cinema house to Mr. W. Z. Ahmad. The said order of the Chief Settlement Commissioner runs thus: "ORDER I have gone through the appeal filed by Mian Rafi-ud-Din in the Court of the Additional Claims Commissioner. The registration number of this appeal is 8007. According to the grounds of appeal the value claimed for the machinery left by Mian Rafi-ud-Din was Rs, 5,500. It has been argued in that appeal that this value should not have been reduced from Rs, 5,500 to Rs, 3,000 without assigning any reason for the reduction of Rs, 2,500 in the value of the machinery. He has not claimed that the value of the machinery was more than Rs, 5,500. In view of the order of the Central Government, that the value of the machinery of a factory or cinema left in India should constitute at least one-third of the value of the entire concern to entitle a claimant to ask for its transfer, Mian Rafi-ud-Din's claim for the transfer of the disputed cinema has to be rejected. The cinema should be transferred to W. Z. Ahmad as suggested by the Settlement Commissioner, Industries. The grounds on which Mian Rafi-ud-Din's application is rejected should be conveyed to him. (Sd.) S. H. Raza, Dated May 16, 1960. Chief Settlement Commissioner, Pakistan."
90. Being aggrieved by that order, the appellants filed a writ petition under Article 170 of the 1956- Constitution, read with Article 2 (4) of the Laws (Continuance in Force) Order, 1958, calling in question the validity thereof. A learned Single Judge of the High Court dismissed the writ petition mainly on the ground that the appellants did not satisfy the conditions of eligibility as prescribed in the notification issued under the newly introduced Paragraph 15-A of the Schedule of the D. P. Act.
91. The appellants preferred a Letters Patent Appeal against the decision of the learned Single Judge.
92. In the Letters Patent Appeal, the appellants mainly urged the following points: (1)That the appellants' application for transfer of the Regal Cinema must be governed by paragraph 15 of the Schedule of the D. P. Act and not by paragraph 15-A thereof.
93. (2)That with the making of an application for transfer of the Regal Cinema, the appellants acquired a vested right to obtain its transfer and that the subsequent notification, dated the 14th December 1959, issued under paragraph 15-A of the Schedule did not affect their vested right.
94. (3)That the said notification issued under paragraph 15-A not being retrospective in operation could not, at any rate, affect the appellant's pending application for transfer.
95. (4)That Paragraph 15-A is ultra vires because of excessive delegation and so also the notification, dated the 14th December 1959, issued thereunder.
96. The learned Judges of the Letters Patent Bench rejected all the contentions of the appellants and were of the view that the appellants, on making an application for transfer, acquired no `vested right to the transfer of Regal Cinema'; that the notification issued under paragraph 15-A of the Schedule of the D. P. Act applicable to the appellant's pending application for transfer of the Regal Cinema and that the appellants not having satisfied the conditions of eligibility as laid down in the said notification, their application for transfer was rightly rejected. They were further of the view that the transfer of the Regal Cinema in favour of Mr. W. Z. Ahmad was in order as he had the requisite qualifications under the notification issued under paragraph 15-A. On such view of the matter, the learned Judges dismissed the Letters Patent Appeal.
97. As the question raised in the Letters Patent Appeal are important questions of law, leave was granted to consider them.
98. The appellant's right to get relief, if any, is mainly dependent on the question whether they as claimants acquired any right in, or in relation to, the Regal Cinema, and, if so, what was the nature of that right. In order to find an answer to this question, it is necessary to examine the relevant provisions of the D. P. Act and those of its Schedule. The main purpose of the Act, according to its preamble, is 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 for the rehabilitation of such persons.
99. Section 3 of the Act provides for acquisition of any evacuee property other than agricultural land.
100. The Regal Cinema, among other evacuee properties, was acquired under section 3 and the same vested in the Central Government. Section 4 of the Act provides for the constitution of a compensation pool consisting, among others, of properties acquired under section 3 for the purpose of payment of compensation to claimants in respect of immovable property other than agricultural land. Section 5 provides for the constitution of a rent pool for the purpose of payment of compensation to claimants in respect of unrealised rent of immovable property. other than agricultural land, left in India. Section 15 entitles claimants to receive payment of compensation out of the compensation and rent pools to the extent of the amounts to which they are found entitled under section 12. Section 15 further provides the various modes of payment of compensation to claimants. According to one of these modes, compensation to a claimant may be paid by sale or transfer of any immovable property out of the compensation pool. Section 10 authorises the Chief Settlement Commissioner to transfer or dispose of any property out of the compensation pool on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule. Again, section 10, as it stood at the time of the appellant's application for transfer of the Regal Cinema, authorised the Chief Settlement Commissioner to transfer any property out of the compensation pool in such other manner as might be prescribed i. e., prescribed by rules notified in the official Gazette. Section 10 has undergone changes from time to time, and much reliance having been placed on this section in order to deny relief to the appellants, I shall deal with section 10 hereinafter in greater details. Section 11 empowers the Chief Settlement Commissioner to invite applications from claimants for the payment of compensation under the Act. Pursuant to the provisions of section 16, the Chief Settlement Commissioner prepared a number of schemes for the transfer of immovable property to claimants, non-claimants or locals in accordance with the provisions of the Schedule of the Act. Settlement Scheme No, II prepared under section 16 is a scheme concerning transfer of industrial concerns including cinema houses. Paragraph 15 (2) of the Schedule, as introduced by the Ordinance No, Lill of 1959, dated the 28th September 1959, with effect from the 26th March 1958, is very relevant here. This paragraph runs thus: "15 (2) If an industrial concern or a cinema house allotted by the Industries Rehabilitation Board constituted under the Pakistan Rehabilitation Act, 1956 (XLII of 1956), is in the possession of a claimant who has left in India or any area occupied by India a registered industrial concern or a cinema house or whose verified claim under Schedule III to the Registration of Claims (Displaced Persons) Rules, 1955, is of the value of rupees one lac or more, then, the industrial concern or the cinema house in the possession of such claimant shall, in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made, if any: Provided that if the claimant concerned has abandoned a share in a registered industrial concern or a cinema house the industrial concern or cinema house in his possession shall not be transferred to him unless his verified claim in respect of such share is rupees thirty-three thousand or more."
101. The words underlined by me in the above quotation are significant. These words are mandatory and clearly mean that if a claimant satisfies the conditions of eligibility contained in Paragraph 15(2), then, the industrial concern or the cinema house in his possession, as the case may be, shall be transferred to him if he makes an application in that behalf. Para. 7 of the Settlement Scheme No, II provides for submitting application to the Chief Settlement Commissioner for transfer of an industrial concern (which includes a cinema house) by a person who is entitled to its transfer under sub-paras. (2), (3) and (4) of Paragraph 15 of the Schedule. In view of all these provisions, it is manifest that the D. P. Act conferred on claimants an advantage or benefit which is precisely a right to get compensation either in cash or in kind or partly in cash or partly in kind. In the case of compensation in kind, a claimant, on the strength of his verified claim, is entitled to a transfer of a property in his favour out of the compensation pool.
102. The right to get transfer of a property out of the compensation pool appears to be a general right of claimants, but this right may not be of any value to any individual claimant unless he avails himself of the same by making a timely application for transfer of a particular property (out of the compensation pool) in his favour for the transfer of which he is eligible under the law. If a proper application for transfer is duly made by an eligible claimant, then, the property concerned is bound to be transferred to that claimant and he is entitled, as of right, to its transfer under the mandatory provisions of Paragraph 15(2) of the Schedule to the Act, unless that property has been otherwise Q disposed of by, or under the orders of, the Central Government pursuant to the special provision of section 10 or the property has been taken out of the compensation pool under subsection (2) of section 4 or some other claimant for transfer of the same property has a superior right. If none of the above-mentioned three riders is applicable in a given case, then, the Settlement Authorities have no option but to transfer the property concerned to the eligible claimant who has applied for its transfer, and in such a case, the claimant acquires substantive right to get transfer of that property, and this is his accrued right.
103. The nature of the right of a claimant to obtain transfer of a property out of the compensation pool was considered by this Court in a number of cases. I shall refer to some of them in order to show that the view taken by me that the claimant's right to get transfer is a substantive right is in conformity with the consistent view of this Court. In the case of Rehmatullaih v. Deputy Settlement Commissioner , Rehmatullah, a non-claimant displaced person was in possession of a godown in the city of Karachi. He submitted an application in N. C. H. Form on the 10th November 1959 for transfer of the godown in his favour. His form was rejected on the ground that the property In question had been acquired by the State Bank of Pakistan. Thereupon, he filed a writ petition in the Supreme Court under Article 160 of the 1956-Constitution. He relied upon Paragraph 9 of the Schedule to the D. P. Act in support of his contention that he had acquired a vested right to have the property in his possession transferred to him. The writ petition was dismissed on two grounds.
104. Firstly, the property in question was withdrawn from the compensation pool by a Notification, dated the 12th September 1959 and was not, therefore, available for transfer. Secondly, Rehmatullah, though in possession of the property, was not a claimant displaced person. The second ground for dismissing the writ petition was detailed by Cornelius C. J. as follows : "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 beneficiaries 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 bases, but he could not claim any right in that property by virtue of that property being in the compensation pool, tot the simple reason that he is not included among the specified benefic aries who are to receive compensation, as of right, out of the compensation pool."
105. The clear implication of the view quoted above is that a person applying for transfer of a property15 out of the compensation pool is entitled, as of right, to have that property transferred to himself if he is a claimant and is in possession of the property.
106. In Rahlin Bakhsh v. Ahmad Bakhsh the question arose as to the purposes of vesting of property in the Central Government under the D. P. Act. This question was answered by this Court as follows: "The 'vesting' is for certain purposes of the Act, in the Central Government and not absolutely. The notification under section 3 of the Ordinance is apparently designed to cover only those properties which vest in the Central Government, absolutely, as owners. The Central Government in the present case is under a statutory duty to dipose of the properties for the purposes of the Act, by its transfer to claimants and others."
107. The implication of the above view is that a claimant--particularly a claimant in possession is entitled to transfer of the property in his possession.
108. In Ch. Altaf Hussain v. Chief Settlement Commissioner the dispute between the parties was with regard to transfer of a house in the city of Lahore the different portions of which were in separate possession of several allottees. Ch. Altaf Hussain, one of the allottees initially filed one C. H. Form on the basis of his own possession as an allottee. He claimed transfer of the entire house in his favour.
109. The second respondent who was also an allottee in possession filed one C. H. Form. The entire house was initially transferred to Ch. Altaf Hussain, the first appellant, but, on appeal, it was transferred to the second respondent without, however, taking into consideration the second C. H.
110. Form filed by Ch. Altaf Hussain. On these facts, this Court, having regard to the definition of 'house' and 'possession', stated the law at page 77 of the Report as follows: "If no other claimant was in actual possession of any part of the premises under a regular allotment, then, of course, a claimant out of possession, would be entitled under the opening part of the paragraph (i,e, paragraph 1 of the Schedule) to the transfer of the premises on the strength of the "possession" of one of his relatives mentioned therein."
111. The above quotation clearly supports that a claimant in possession is entitled, as of right, to the transfer of a house in the compensation pool, In the same judgment, at page 80 it was observed: "If the claim of Ch. Altaf Hussain that he was an allottee of the house in his own right was correct, then, he had a vested right to have that claim adjudicated upon under the Schedule to the Act."
112. In Muhammad Yaqub v. Chief Settlement Commissioner the dispute related to the transfer of a Mill. The appellant claimed its transfer in his favour under paragraph 15(3) of the Schedule. In that case, the law with regard to transfer of property in the compensation pool was stated thus: "The rights to a transfer which are granted by the Displaced Persons (Compensation and Rehabilitation) Act are not rights which can be enforced through the ordinary civil Courts. I nay can only be enforced by an application to the Settlement Authorities. It is only if the Settlement Authorities while disposing of the application do not act in accordance with law that the writ jurisdiction of the High Court can be invoked."
113. In this case, the rights of claimants to obtain transfer of property out of we compensation pool was expressly recognised.
114. In Mahmooda Tahsin v. Ijaz Hussain Shah , the appellant Mahmooda Tahsin made a permanent construction on a part of an evacuee plot and later on applied to the Settlement Authorities for the transfer of the whole plot contending that the construction on it covered more than the of the plot and, therefore, she was entitled to the transfer of the plot under paragraph 13 of the Sche, dule to the D. P. Act read with Scheme No, VI. The definition of `permanent building' given in Settlement Scheme No, VI was not consistent with paragraph 13 of the Schedule. On these facts, it was observed: "..........the right of a person to transfer of land and that the entitlement of a person has to be determined in accordance with the Schedule without reference to the definition in the Scheme."
115. Having laid the above premises, it was finally held:16 17 18 19 "The appellant is entitled to a transfer of the land in her possession which she has built upon."
116. In Barkat Ali v. Muhammad Sharif there was a com-petition between a local who was an allottee in possession of a house and a claimant displaced person in part-possession of the same house without an allotment order. After an exhaustive analysis of the D. P. Act and its Schedule, it was held :- "It would thus appear that a vested right to the transfer of the property acquired under section 3, was created in favour of claimants."
117. In the same case, it was further held :- "Paragraph 1 of the Schedule, as it stands after the amendment, gives a right to a claimant in possession either personally or through a parent, son, daughter, or spouse, if the latter makes no claim, to have the property transferred to him at a price determined on evaluation basis."
118. The right of a claimant in possession to obtain property transferred was expressly recognised in this case as well.
119. In the case of Jamal Shah v. Election Commission , the nature of the right of claimants was stated at page 54 as follows :- "The last contention of Mr. Manzur Qadir is that the High Court has been correcting errors of law of judicial tribunals like the Settlement and Rehabilitation Authorities, the Custodian, the Collector of Customs, etc. under Article 98. On a superficial glance this may appear to be correct at least with regard to the Settlement and Rehabilitation Authorities but this is, truly speaking only a misapprehension. Let me take the case of Settlement Authorities and the rest will then become clear. Our interpretation of the Displaced Persons (Compensation and Rehabilitation) Act is that the Schedule to this Act gives an indefeasible right to certain persons in respect of transfer of property. The function of the Settlement Authorities is to transfer property to those entitled to it by virtue of the Schedule. While determining entitlement the Settlement Authorities have to determine certain questions of fact and in this respect they act judicially. The power of division of houses and certain other powers too having been granted to them which too they exercise judicially. But they are not entitled to refuse to transfer property by a misinterpretation of the provisions which create the right to a transfer. They do not determine judicially the interpreta-tion of the provisions which create rights to a transfer though they have as administrative officers, to find out who is entitled to a transfer."
120. It is true that the above was an orbiter. Nevertheless it has much pursuasive value, the same having precisely stated the legal position obtaining under the D. P. Act and its Schedule.
121. In Mumtaz Khan v. Chief Settlement Commissioner the appellant Mumtaz Khan was in possession of a portion of a house. The remaining portion of the same house was in possession of one Abbas, a local with whom his wife, Mst. Khurshid Begum, the second respondent also resided.
122. The appellant and Mst. Khurshid Begum applied for transfer of the house under the D. P. Act. The whole house was transferred to Mst. Khurshid Begum. Having failed to get any relief from the higher Settlement Authorities, Mumtaz Khan filed a writ petition. The writ petition was accepted by a learned Single Judge, holding that the order of transfer did not affect the rights of Mumtaz Khan, appellant who was entitled to its transfer. On Letters Patent Appeal, the judgment of the learned Single Judge was reversed and the order transferring the house to Mst. Khurshid Begum was restored. On these facts, the question raised in this Court was whether an appeal lies under clause 1O of the Letters Patent from an order passed by a learned Single Judge. This Court answered this question in the affirmative for which the following reason was given :- "In the present case, the learned Single] Judge had actually passed an order which finally decided the rights of the parties in respect of an evacuee house. We have no hesitation in affirming therefore that it was a 'judgment' in every sense of the term. It was clearly rendered in a proceeding of a civil nature as rights to property were adjudicated upon."20 21 22 This is yet another case where the rights of claimants to have transfer of property out of the compensation pool were recognised as rights to property.
123. In Abdul Majid Shaida v. Noor Jehan , the question that arose for consideration was whether a person who had exhausted his verified claim still continued to be a 'claimant'. Although no final pronouncement was made on this question, this Court observed :- "In cases contemplated by each of the Paragraphs 1 to 4 and 8 (of the Schedule), the right is given to a 'claimant' to obtain transfer of a house or a shop, and this would seem to imply that he must occupy the status of a 'claimant' whenever he applies for the transfer of any property under any of these Paragraphs."
124. All these decisions having been made on a consideration of the provisions of the D. P. Act itself and the same having directly or indirectly supported the view that the right of a claimant to obtain transfer of the property in his possession is a substantive right, it is not necessary to seek further support from any decision of a foreign Court. As, however, certain decisions of foreign Courts were cited at the Bar, I shall consider them hereinafter and shall also refer to some other relevant decisions of foreign Courts that came to notice. But before doing so, I would like to refer to a recent decision of this Court which, though not under the D. P. Act, seems to be very appropriate with regard to the nature of the right of a claimant in possession. This is the case of Fazal Din v. Lahore Improvement Trust . In this case, my Lord the Chief Justice delivered the judgment declaring what kind of right is capable of being enforced in writ jurisdiction. The dictum laid down in the case is as follows :-- "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
125. In order to appreciate this dictum, it is necessary to state briefly the relevant facts. In the said case, the appellant took Plot No, 86-E/1 in the Gulberg III Scheme of the Lahore Improvement Trust whereon he built a residential house. Plot No, 94-E/I in the same Scheme, which was opposite to the appellant's plot, was earmarked for the construction of a market, but out of this plot a certain quantity of land was allotted by the Improvement Trust to an Anjuman, which is a registered society. The Anjuman constructed a mosque up to the plinth level. The appellant then made a petition under Article 98 of the 1962-Constitution for a declaration that the resolution of the Improvement Trust allotting some land to the Anjuman out of Plot No, 94-E/I, which was earmarked in the Scheme for market, was without lawful authority and of no legal effect. The High Court came to the conclusion that it was open to the Improvement Trust to alter the Scheme and, therefore, dismissed the writ petition. On appeal to this Court, the question of locus standi, of the appellant to claim a writ under Article 98 of the Constitution came up for consideration. This Court took the view that as the petitioner took a plot and built a house thereon in the expectation that a market would be constructed on the opposite Plot No, 94-E/I, his expectation was frustrated by the allotment of some land out of the said plot to the Anjuman and that the deprivation of the facility of a market represented in the Scheme conferred "a sufficiently valuable right" to be enforced in writ jurisdiction. The dictum as quoted hereinbefore was accordingly laid down by this Court.
126. On the ratio of this dictum, the "verified claim" of a claimant is surely a right which is capable of being enforced in writ jurisdiction. In fact, many writ petitions by claimants in respect of specific property in the compensation pool have been entertained by the High Court and appeals arising therefrom have been disposed of by this Court without any challenge from any quarters as to the enforceability of the right of such claimants_ The question then is what really is the right of the claimants, Obviously, the holder of such right can, as of right, obtain transfer of a property from the23 24 compensation pool of which he has been in lawful possession and in respect of which he has duly made an application unless that property, as stated earlier, has been taken out of the compensation pool or otherwise disposed of under the special provision of section 10 or some other claimant has a superior right. The "verified claim", as defined in the Displaced Persons Act, 1958, is heritable and transferable and is also capable of being enforced in accordance with the provisions of the D. P. Act and its Schedule. A claimant can on receipt of consideration or without it, transfer his verified claim by associating some one else with him with the permission of the Settlement Authorities. When a verified claim is heritable andtransferable and is also enforceable, can it be said that the entitlement of a claimant to the transfer of a property for the transfer of which he is eligible under the law, and for which he has duly applied, is not a substantive right but merely a right in the abstract ?
127. In the instant case, the appellants, in view of an advertisement by the Chief Settlement Commissioner under Chapter III of the Settlement Scheme No, II, made an application on the 29th August 1959, claiming transfer of the Regal Cinema in their favour. On the date of making that application, they fully satisfied all the conditions of eligibility as laid down in paragraph 15(2) of the Schedule to the Act. Accordingly, the appellants became entitled to the transfer of the Regal Cinema under the mandatory provision of paragraph 15(2) as the said cinema house was neither taken out of the compensation pool, nor was it disposed of in terms of the special provision of section 10(b) of the Act, as it was then in force, nor was it adjudicated by the Settlement Authorities if the rival claim of the third respondent in respect of the same cinema house was superior to that of the appellants. In this state of things, the appellants, as eligible claimants, having duly made an application for transfer of the Regal Cinema acquired a right to have that cinema house transferred to them, and this was a substantive right vesting in them. In Starey v. Graham , "right acquired" was construed as meaning "some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got". The appellants not only satisfied the conditions of eligibility as prescribed by paragraph 15(2), but also duly applied for transfer of the Regal Cinema in their favour. Paragraph 15(2) expressly provides that "the cinema house in possession of such claimant shall, in case he applies in that behalf, be transferred to him on payment immediately of the prevailing market value minus the investment made, if any". Thus it appears that the right sought to be enforced by the appellants is also a "right acquired" as conceived in Starey v. Graham.
128. Relying on the decisions of this Court in the cases of Abdur Rashid v. Pakistan and Rehmatullah v.
129. Deputy Settlement Commissioner, Karachi, the learned Judges of the High Court took the view that the claimants were 'vested beneficiaries to becompensated out of the compensation pool, but had no vested right in any particular property'. The former case does not appear to be at all relevant here, because that case dealt only with a mere assertion of a claim for its registration under the Registrar of Claims (Displaced Persons) Act, 1956, but the question with regard the incidents of a claim already registered under that Act, i,e,, the incidents of a 'verified claim' under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not considered and decided in that case. The latter case, of course, has a bearing on the present case, and I have also referred to it in this judgment. I do not also say that the appellants as claimants have already a vested right in a specific property out of the compensation pool, that is, the Regal Cinema in this case; what they acquired is a right in relation to the Regal Cinema, namely, the right to have the said cinema house transferred in their favour. This is also a substantive right and is enforceable like any other vested right. It is this very right that the appellants have sought to enforce in accordance with the provisions of the D. P. Act. This right, if they succeed in enforcing it, will ultimately ripen into their vested right in the Regal Cinema itself.
130. A 'vested right', an 'accrued right' or a 'substantive right' does not mean only title to property or25 26 office; a right, benefit or an advantage conferred by a statute, if availed of by doing a thing as required by the statute, is also a right of this kind. Again, if a right, benefit or advantage conferred by a statute is dependent on the happening of a contingency, then, the same becomes a 'vested or accrued right' after the contingency has happened. This can be illustrated by giving some instances. For example, a co-sharer's statutory right to pre-empt the land transferred by another co-sharer out of the common holding, is a substantive right; this right of pre-emption is the co- sharer's 'vested right' and is capable of being enforced. After the Court has granted pre-emption, the pre-emptor again acquires a 'vested right' in the land itself. Similarly, a mortgagor's right to redeem a mortgage is a 'vested right' and is enforcible. Again, a lessor has a right under section 106 of the Transfer of Property Act to determine a monthly tenancy in respect of an urban property by 15 day's notice to quit. This right conferred by the statute is to be availed of by giving such a notice.
131. After such a notice has been given, the lessor acquires a substantive right to eject the lessee and to get possession of the demised premises. This is the lessor's 'vested right'. If the lessee does not quit pursuant to the notice, the lessor is entitled under the law to recover compensation from the lessee for the unauthorised use and occupation of the premises. The right to recover compensation is yet another substantive right. If the lessor has obtained a decree for compensation in a suit brought for the purpose, then, the decree so obtained by him becomes a property and his right thereto is his 'vested right'.
132. Similarly, the right to obtain specific performance of a contract of sale is a right conferred by statute. This is his r vested 'right of action' in the sense that it is he who alone can seek specific performance of the contract. This right is to be availed of by the presentation of a plaint in Court.
133. After he gets a decree for specific performance, the decree becomes his property and his right thereto is his `vested right'.
134. Let us take yet another instance. The East Bengal. (Emergency) Requisition of Property Act, 1948 provides for payment of compensation both for requisition and acquisition of land for public purpose. The entitlement of the owner of a land to compensation under this Act is, however, dependent on the happening of a contingency, namely, the service of notices of requisition and acquisition. After the service of such notice, the owner of the land concerned acquired a substantive right to get compensation for requisition or acquisition, as the case may be, and this is his 'accrued right'. If the owner is not satisfied with the amount of the compensation assessed, he may apply for arbitration and obtain an award. He has a 'vested right' in the award so obtained by him. Thus, the right conferred by a statute may, after it has been availed of or on the happening of the required contingency, become his 'vested or accrued right', irrespective of acquisition of title to property or office.
135. It is not necessary to multiply instance. It will appear from the instances given above that the right conferred by a statute u which is awaiting adjudication, as in the present case, is as much a substantive or vested right as title to property or office.
136. Here, some English decisions may be referred to with advantage. In Queen v. Justices of the West Riding of Yorkshire , a notice was given by a local board of health of the intention to levy a rate under the Public Health Act, 1948 and its amending Acts. Before the expiry of the notice, those Acts were repealed by the Public Health Act, 1875 which contained a saving clause whereby "anything done" under the repealed Acts were saved and gave power to the local board to levy a similar rate upon giving a similar notice. After the repeal of the said Acts, the board levied rate on the basis of the notice issued under the repealed Acts. On these facts, it was held in the said case that the levy of the rate was valid, the notice being a "thing duly done" under the repealed Acts. This means that the right to levy rate conferred by the repealed Acts having been already availed of by the giving of a notice, the same became a substantive right and indefeasible, too.
137. In Abbot v. Minister for Lands , the appellant claimed that as a purchaser of crown land in New27 28 South Wales in 1871, he became entitled under the Crown Lands Alienation Act, 1861, to make additional purchases of crown land adjoining his original holding. Before the appellant could exercise the right to make additional purchases by making an application, under the Act of 1861, that Act was repealed by the Crown Lands Act, 1884 which however, contained a proviso stating that notwithstanding the repeal "all rights accrued" by virtue of the repealed enactment shall remain unaffected. On these facts, it was held by the Privy Council that the appellant not having done anything towards availing himself of the advantage conferred by the Crown Lands Alienation Act of 1861, the right conferred by that Act could not properly be deemed a "right accrued" within the meaning of the proviso contained in the repealing Crown Lands Act, 1884. For a proper appreciation of the view taken by the Privy Council in that case on the facts as stated above, it would be useful to quote below the relevant portion from its judgment, which reads thus: "It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching.
138. It may be, as Windeyer, J. observes, that the power to take advantage of an enactment may without impropriety be termed a 'right'. but the question is whether it is a 'right' accrued within the meaning of the enactment which has to be construed.
139. Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words 'obligations incurred or imposed'. They think that the mere right (assuming it to be properly so-called existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a right accrued' within the meaning of the enactment."
140. Obviously, the above view was taken by the Privy Council on the ground that Abbot, the appellant in that case had not availed of the advantage conferred by the Crown Lands Alienation Act of 1861 by doing anything towards additional purchases under that Act before its repeal. This is clearly implied in the words underlined by me in the above quotation. The underlined words further imply that the Privy Council was of the view that the right of a person to take advantage of an enactment would be an 'accrued right' if that person does some act for the purpose of availing of that right.
141. The view of the Privy Council in the case of Abbott v. Minister for Lands, as quoted above, was construed by the Court of appeal in a later case, namely, the case of Hamilton Gell v. White in the manner I have attempted to construe it. In that case, the landlord of an agricultural holding, being desirous of selling it, gave his tenant a notice to quit. In such a case, the tenant was entitled to compensation under the provisions of the then law subject to two conditions. Firstly, the tenant, within two months after the receipt of the notice to quit, was to give the landlord notice of his intention to claim compensation. Secondly the tenant was to make his claim for compensation within three months after quitting the holding. After the receipt of the notice to quit, the tenant fulfilled the first condition by giving the landlord a timely notice of his intention to claim compensation, but before the second condition could be fulfilled the relevant law providing for such compensation was repealed. On these facts, the question arose whether a right to get compensation accrued to the tenant and was therefore, protected in spite of the repeal of the law providing for compensation. It was held by the Court of appeal that the tenant, in the facts of that case, "acquired a right" to get compensation on account of the happening of the event (i. e., the giving of notice to quit by the landlord to the tenant) on which the right depended. In this connection, Atkin L. J. observed:-- "It is obvious that that provision was not intended to preserve the abstract rights conferred by the repealed Act, such for instance as the right of compensation for disturbance conferred upon tenants generally under the Act of 1908, for if it were the repealing Act would be altogether29 inoperative. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute. Here the necessary event has happened, because the landlord has, in view of a sale of the property, given the tenant notice to quit. Under those circumstances the tenant has 'acquired a right' which would 'accrue' when he has quitted his holding, to receive compensation. A case was cited in support of the landlord's contention; Abbot v.
142. Minister for Lands, where the question was whether a man who had purchased certain land was entitled to exercise a right to make additional purchases of adjoining land under the powers conferred by a repealed Act, the repealing Act containing the usual saving clause. The Privy Council held that he was not. They said that 'the mere right (assuming it to be properly so-called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed to be a 'right accrued' within the meaning of the enactment." I think that bears out the proposition that I have stated above."
143. Also the case of Heston and Isleworth Urban District Council v. Grout appears to support the view that when anything is done under a statute towards availing of a benefit conferred by it, a right is acquired thereby and that such right is not affected by a subsequent statute which impliedly repeals the enactment whereunder the thing was done. In the cited case, on October 30, 1891, the District Council gave a notice under section 150 of the Public Health Act, 1875, requiring the frontagers to pave and make up a certain street. The effect of this notice was that, if the frontagers did not do so within a limited time, the District Council might do the work itself and charge the frontagers with the expense. The liability for the expense of the work was to accrue only after the work was done by the District Council. This frontagers having paid no heed to the notice, the District Council took steps to do the work, but before the work was commenced, the District Council by a resolution, had adopted the Private Streets Works Act, 1892 on the 1st August 1894. With the adoption of that Act, section 150 of the Public Health Act of 1875 whereunder the notice to the frontagers had been given earlier, in view of section 25 of the Act of 1892, ceased to be in force in the district concerned. Sometime after the adoption of the Act of 1892, the work was done by the District Council, and the expense thereof was claimed from the defaulting frontagers. The District Council was granted the relief asked for. The defendant appealed, and relying on the decision of the Privy Council in Abbot v. Minister for Lands, it was contended that the District Council acquired no right by merely giving a notice. The precise argument, in the words of the counsel for the defendant, as stated at page 311 of the report, was thus: "According to Abbott v. Minister for Lands, the option which the local authority had under the notice of 1891 to go on and do the work was not a right accrued when the Act of 1892 came into force in the district, and is not preserved by the Interpretation A ct, 1889, section 38, subsection 2(c). If they had done anything to declare their option before the Act of 1892 applied, the case would stand differently."
144. This argument, it appears, did not weigh with the learned Judges who decided that case and the defendant's appeal was dismissed. Lindley L. J., with whom the other learned Judges agreed, took the view as follows: "It world be, I think, a very strange and forced construc-tion to say that the notice would have to be dropped, and that everything done under it would have to be done over again under a fresh notice.
145. I should not think that was right even without the aid of the Interpretation Act. But that Act appears to me to apply; for 1 cannot help thinking that when section 150, by force of section 25 of the Act of 1892, ceases to apply to this district as from August 1, 1894, that is a repeal of section 150 as from that day so far as regards this district. That I think, lets in the provision contained in the Interpretation Act, 1889 That to my mind preserves that notice and the effect of it I cannot come to the conclusion which30 Mr. Macmorran and Mr. Ribton have urged upon us, that the true construction of the Act of 1892 is to render the previous notice and everything done under it absolutely futile for future purposes it appears to me that the Act of 1892 does not at all affect the validity of a notice given before it came into operation in a district."
146. These English decisions as well go to support the contention of the appellants that their right to a transfer of the Regal Cinema house is a substantive right. The same conclusion will follow if the matter is considered from yet another aspect."
147. The right of action or the cause of action arising out of a contract or under a statute is the vested right of action or the vested cause of action of the person to whom it accrues, and these, as regards effect of new law on them, stand on the same footing as other substantive rights or title to property or office. Like the existing substantive rights including benefits or advantages that have accrued under statutes and title to property or office, the right of action or the cause of action which has already accrued cannot be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, is retrospective in operation. The judicial decisions of superior Courts appear to be uniform in this respect. The above view with respect to right of action was taken In re : Joseph Suche & Co. Limited , which was cited with approval by this Court in Adnan Afzal v. Sher Afzal . In this regard, the following further decisions appear to be very relevant.
148. In Doolubdass Pettamberdass v. Ra'nlol Thackur Seydass , certain wager contracts were entered into between the parties in October and November 1846. The plaintiffs brought an action to recover the amount stipulated in those contracts. After the commencement of the action, wager contracts were declared void by Act No, XXI of 1848 of the Indian Legislature which enacted "that all agreements, whether made in speaking, writing, or otherwise, by way of gaming or wagering, shall be null and void; and no suit shall be allowed in any Court of Law or Equity for recovering any sum of money or valuable thing alleged to be won on any wager, or entrusted to any person to abide the event of any game, or on which any wager is made". On these facts, the Judicial Committee of the Privy Council held that the rights accruing under the wager contracts were "existing rights" and were not, therefore, affected by the subsequent prospective Act of 1848 made during the pendency of the action.
149. In Jackson v. Wooley , the right to sue for recovery of money (on account of payment made by the plaintiff as an agent of the defendant's co-contractor) was held to be a "vested right of action".
150. Consequently, such right was held to be unaffected by the subsequent law having no retrospective effect.
151. In Knight v. Lee , the defendant employed a betting agent to make certain bets in the agent's name on the defendant's behalf. The bets having been made and lost, the betting agent paid the amount of the losses on the defendant's account. Under the law obtaining at that time, the betting agent was entitled to recover the amount from his principal. Before the filing of any action by the agent for the recovery of the amount, the Gaming Act of 1892 was enacted declaring gaming contracts of the above nature null and void and expressly barred action for recovery of money on such contracts. After the coming into force of the Gaming Act, 1892, the agent brought an action against his principal for recovery of the money paid by him on his account. The question arose whether the cause of action was destroyed by the Gaming Act of 1892. It was held in that case that the cause of action arising out of the gaming contract before the enactment of the Gaming Act of 1892 was "a vested cause of action" and was not, therefore, bit by the said Act.
152. In Bowling v. Camp , the plaintiff claimed from the defendant, a book-maker a certain sum, being the amount of 5 cheques drawn by the plaintiff in favour of the defendant in respect of the betting losses on horseracing, which he claimed to be entitled to recover under the Gaming Act of 1835.
153. The suit was resisted on the ground that the consideration for the transaction was illegal and that31 32 33 34 35 36 the Gaming Act, 1835 was repealed by the Gaming Act, 1922. On these facts, it was held that the right to sue was a 'vested right' and that such right continued as 'substantive legal right'. On this basis, it was further held that the repeal of the Gaming Act, 1835 by the Gaming Act, 1922 did not prevent the continuance of the pending proceedings, nor did the latter act prevent the commencement of fresh actions in respect of claims which had actually arisen before the repeal.
154. In Henshall v. Porter , it was re-affirmed that the right to sue accruing under gaming contracts under the Gaming Act, 1835 were 'existing and accruing rights' and were not destroyed by the subsequent Gaming Act of 1922.
155. In Attorney-General v. Vernazza , the view taken by the House of Lords was that the right to prosecute any claim is a `vested or substantive right'.
156. The other cases in support of the same view that have come to notice are The United Provinces v.
157. Mst. Atiqa Begum and others , Rajah of Pittapur v. G. Venkata Subba Row and others , Hazari Tewari v. Mt. Maktula Ghaubain and another and Gopeshwar Pal v. Jiban Chandra .
158. Now, let us see if any right of action accrued to the appellants. Settlement Scheme No, II made in pursuance of the power under section 16(1) of the D. P. Act prescribes the mode for disposal of 'industrial concern' which includes cinema house. Para. 4 of the Scheme provides that every industrial concern shall, unless a person is entitled to retain it under the Act, be sold to the highest bidder in an unrestricted public auction. Para. 5 requires the Chief Settlement Commissioner to publish an auction programme through an advertisement in important newspapers. Para. 7 which is pertinent here runs:-- "Any person who is entitled to transfer of the property under sub-paras. (2), (3) and (4) of para. 15 of the Schedule to the Act, may, if he so desires, submit an application to the Chief Settlement Commissioner............."
159. It is significant that according to the above-quoted provision, none but the person entitled to transfer of an industrial concern under Paragraph 15 of the Schedule can apply for its transfer. Thus, the entitlement to transfer of an industrial concern including a cinema house is recognised both by para. 15 of the Schedule and para. 7 of the Settlement Scheme No, II. This implies that an eligible claimant is possessed of a right to the transfer of an industrial concern in his favour. The application for transfer of an industrial concern, according to para. 8 of the Scheme, is to be submitted to the Chief Settlement Commissioner within ten days of the publication of the advertisement of auction, unless the time for its submission is extended. Obviously, with the publication of the advertisement in respect of the Regal Cinema, a right of action for obtaining its transfer accrued to the appellants as they fully satisfied the conditions of eligibility prescribed in Paragraph 15(2) of the Schedule. This right of action was the appellant's substantive right, and the action actually commenced when the appellants, as eligible claimants, made an application on the 29th August 1959 for transfer of the Regal Cinema in their favour. The appellants' right of action as above could not be destroyed or impaired, nor the proceeding commenced on their application for enforcement of their right could be touched by any subsequent law, unless that law was retroactive.
160. It is then necessary to examine if Paragraph 15-A of the Schedule had any effect on the appellants' right of action or the proceeding commenced on their application for transfer made on the 29th August 1959. The said paragraph was introduced in the Schedule of the D. P. Act by the Central Ordinance No, LIR of 1959 with retrospective effect from the 26th March 1958. It is true that the new Paragraph 15-A of the Schedule provides that the Central Government may, notwithstanding anything contained in Paragraph 15, make any order for the disposal of any class of industrial concerns or cinema houses in such manner as may be specified therein. But the provision of paragraph 15-A do not take effect automatically; this Paragraph could be pressed into service only by the making of an order thereunder. That being so, there would have been no difference even if37 38 39 40 41 42 Paragraph 15-A had been incorporated in the D. P. Act at the inception instead of by a subsequent amending Act. Be that as it may, the Central Government, by Notification No, F. 3(1)/59-60(Clms), dated the 14th of December 1959, made for the first time, an order under Paragraph 15-A. This Notification is plainly prospective and was made during the pendency of the appellants' application for transfer of the Regal Cinema. The Notification having been made in exercise of the subordinate legislative power, could not have been given retrospective effect even if it was so intended. This is evident from the following observation of this Court in Fazal Ahmed v. Ziaullah Khan : "However, the subordinate legislative power is to be permitted only to the extent to which it is necessary for the proper exercise of its function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation.
161. Again, in Rahmatullah v. Deputy Settlement Commissioner this Court observed: "It is, of course, settled law that power given by a statute to act by notification with prospective effect as in section 3 (of D. P. Act), cannot be effectively exercised with retrospective effect, whatever the language that may be employed.
162. By the said Notification, which is of general application, the Central Government prescribed certain entirely new conditions of eligibility for claiming transfer of industrial concerns and cinema houses, but the Notification itself did effect transfer of any particular industrial concern or cinema house.
163. The question then arises whether these new conditions of eligibility prescribed by the said Notification will be applicable in the appellants' case which was pending for adjudication at the time of the making of the Notification or whether they affectea their right of action. It is well settled that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun and not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere rule of procedure or if it has been applied retrospectively to pending proceedings. This rule, as stated in Craies on Statute Law, Sixth Edition, page 400 is as follows : "It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action."
164. There is a long line of authorities in support of this proposition of law. It is not necessary to refer to all these decisions, for I think it would be sufficient to quote some passages from a recent judgment of this Court in Adnan Afzal v. Sher Afzal , which was delivered by my Lord the Chief Justice. These passages which clearly restate the well-settled legal principles run thus : "The general principle with regard to the interpretation of statutes as laid down in the well-known case of the Colonial Sugar Refining Company Limited v. Irving 1905 A C 369 is that `if the matter in question be a matter of procedure only', the provisions would be retrospective. 'On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then 'in accordance with a long line of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature had either 'by express enactment or by necessary intendment' given the legislation retroactive effect. To the same effect are the observ- & Rehb. ations of Jessel, Master of the Rolls, in the case of In re : Commr. Joseph Suche & Co. Limited (1875) 1 Ch. D 48, where it -was observed that as `a general rule when the Legislature M. R. Khan, alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights."43 44, 45 With regard to matters of procedure it was observed in the same judgment as follows :- Nevertheless, it must be pointed out that if in this process (1. e., in giving retrospective effect to new law relating to matters of procedure) any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then, the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute.
165. If the new conditions prescribed by the Notification issued under Paragraph 15-A are applied in the case of the appellants, their eligibility for transfer of the Regal Cinema shall cease and in consequence their entitlement to transfer thereof shall stand destroyed, although they, at the time of making of their application for transfer, were perfectly eligible and entitled to its transfer under the then law, namely, Paragraph 15(2) of the Schedule. It is, therefore, evident that any application of these new conditions of eligibility to the appellants' pending case would destroy their entitlement, that is, their substantive right to have the Regal Cinema transferred to them. The notification whereby the order under Paragraph 15-A was made, on the face of it, is not retrospective in operation. Moreover, this order having prescribed entirely new conditions of eligibility does not relate to a mere matter of procedure. Accordingly, the conditions of eligibility prescribed by the order of the 14th of December 1959, made under Paragraph 15-A are inapplicable to the pending application of the appellants and, for the same reason, the appellants' right of action remained unaffected by that order. The appellants' application for transfer of the Regal Cinema, therefore, deserved investigation on merits instead of the same being rejected by the Chief Settlement Commissioner only on the ground that the new law, namely, the Notification made under Paragraph 15-A of the Schedule rendered them ineligible for the transfer of the said cinema house.
166. Mr. Mahboob Ilabi, learned counsel representing the Chief Settlement Commissioner (respondent No, 1 herein) contended that the order made by the Central Government under Paragraph 15-A of the Schedule to the D. P. Act as per Notification, dated the 14th December 1959 can be construed as a proviso to Paragraph 15 with the result that the order under Paragraph 15-A shall prevail over Paragraph 15 on which the appellants have based their claim. The leanied counsel also cited the case of Irfanullah Khan v. Chief Settlement Commissioner in support of this contention. The contention of the learned counsel appears to have received appreciation in the judgment of my Lord the Chief Justice, but, with due respect, I would say that there is really no substance in the contention of the learned counsel. Paragraph 15-A begins with the words "Notwithstanding anything contained in Paragraph 15". This means that an order made under Paragraph 15-A, shall be operative irrespective of what is contained in Paragraph 15. Paragraph 15 c and the order made under Paragraph 15-A are so inconsistent that C they cannot stand together; the former, in its entirety, has been rendered inoperative by the latter. Even otherwise, the order under Paragraph 15- A is textually inadmissible as a proviso to Paragraph 15. The function of a 'proviso' is to restrict, limit or qualify the enacting part of a section to which it is attached, but not nullify the enacting part or render it wholly inoperative. In the case of East and West Steamship Company v. Pakistan , Cornelius, J. (as he then was) stated the function of a 'proviso' as follows :- "One of the plainest rules of statutory interpretation is that a proviso is to be regarded as something which excepts a particular case from a general Principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it."
167. In the case of Dayal Singh v. Kenyan Insurance Ltd. , the Privy Council stated: "A proviso may limit and severely limit the application of an enactment to which it is a proviso but it could only be held in the most exceptional circumstances that the proviso nullifies the enactment."
168. Applying this principle, it seems perfectly clear that the order under paragraph 15-k which is destructive of paragraph 15 can E never be taken as a proviso to that paragraph. The case of E46 47 48 Irfznullah Khan v. Chief Settlement Commissioner, cited in this connection is of no assistance here.
169. In that case, the folio wing instructions, among others, were issued under paragraph 15-A of the Schedule:-- "If an industrial concern or a cinema house is offered for sale in public auction, and the Chief Settlement Commissioner is not satisfied with the bids offered then he may for reasons to be recorded in writing dispose of such industrial concern or cinema house by negotiations or by inviting tenders or any such other manner as he may deem necessary."
170. Obviously, the above-quoted instructions did not nullify the provisions of paragraph 15, but merely put limitations or qualifications on the provisions of that paragraph, which, however, is precisely the function of a proviso. Accordingly the following incidental observation was made in the cited case: "On a full reading of the instructions the view cannot be avoided that they are to be construed and applied strictly within their terms in the manner of a proviso to the original paragraph 15."
171. The above observation might be justified by the nature of the instructions under paragraph 15-A issued in the cited case. But there is no scope for application of the said observation here for the simple reason that the order under paragraph 15-A, if it is read as a proviso, will render paragraph 15 wholly inoperative instead of limiting or restricting its scope. Even otherwise, if the order under paragraph 15-A can at all be treated as a `proviso', it will be of no consequence, for, the said order being prospective could not affect the appellants' earlier application for transfer awaiting adjudication.
172. There is yet another aspect of the matter. Paragraph 15 of the Schedule is a part of the D. P. Act itself and this paragraph has the same status as a statutory enactment as any other section of that Act. But the order made under paragraph 15-A is a subordinate legislation made in the exercise of the power delegated to the Central Government. A subordinate legislation like the order under paragraph 15-A cannot take the place of a proviso to a statutory enactment like paragraph 15 made by the Legislature itself.
173. Mr. Manzoor Qadir, learned counsel for the third respondent submitted that paragraph 15-A being an overriding provision on the same subject which paragraph 15 deals, the same should be taken to have impliedly repealed paragraph 15 and that, with such repeal, paragraph 15, on which the appellants rely, stood abrogated altogether for which that paragraph can no more be invoked in the appellants' aid. This submission overlooks the well-settled legal principle that the substantive rights vesting in any one under the repealed enactment are not lost or affected in the least by the repealing enactment. This is clearly provided G in clause 6 of the General Clauses Act, 1897. Even the proceedings pending on the date of repeal stand protected by the said Act. Thus, there is no substance in the above contention of the learned counsel.
174. It was next contended that paragraph 15-A having been given retrospective effect from the very date of the enactment of the D. P. Act, that paragraph affected the pending application of the appellants for the transfer of the Regal Cinema. This argument overlooks the patent fact that paragraph 15-A does not operate automatically. In order to press paragraph 15-A into service an order thereunder by the Central Government is necessary. In the absence of any such order, paragraph 15-A was bound to remain dormant and inoperative. The Notification under paragraph 15-A, as stated earlier, was made quite some- time after the appellants, who were eligible under para. 15(2), had applied for the transfer of the Regal Cinema. In this situation the mere giving of retrospective effect to paragraph 15-A could not have any effect on the pending application of the appellants.
175. In this connection, my Lord the Chief Justice pointed out that the 31st of August 1958, was the target date for making applications for transfer, but that date having expired long before the introduction of paragraph 15-A on the 28th September 1959, the Legislature must have introduced the said paragraph with the intention that the same would apply to all cases of transfer which did not reach finality before the introduction of paragraph 15-A, namely the proceedings which were pending for adjudication by the Chief Settlement Commissioner.
176. I have carefully considered the above point of view, but, with due respect, I would say that I have not been able to find any merit in it either. There does not appear any provision in the D. P. Act or in its Schedule or in the Settlement Scheme No, II whereby the 31st of August 1958, or any other date was rigidly fixed for making applications for transfer. On the contrary, Settlement Scheme No, II relating to industrial concerns and cinema houses requires the Chief Settlement Commissioner to publish an auction programme through advertisement in important newspapers whereupon the interested persons are to submit applications for transfer within ten days of the publication of the advertisement of the auction or within such further time as might be extended by the Chief Settlement Commissioner. This clearly shows that no fixed date for making applications for transfer of industrial concerns and cinema houses has been prescribed. It, therefore, follows that if no auction programme in respect of any industrial concern or cinema house has yet been published, then, applications for transfer thereof may be made even now, that is within ten days of the publication of the auction programme. Even otherwise, the Chief Settlement Commissioner has power to extend the time. In this situation, the argument that paragraph 15-A was intended to apply to pending proceedings does not appear to hold good.
177. The question whether the time indicated in Settlement Scheme No, I for making applications for transfer for houses and shops was rigid or not, was considered by this Court in the case of Altaf Hussain v. Chief Settlement Commissioner . This question was answered in that case in the negative in the following words:-- "The true view, however, of the provisions of paragraph 2 of the Settlement Scheme No, I seems to be that this is a mere enabling provision which empowers the Chief Settlement Commissioner to invite applications for the transfer of property under the Scheme, from relevant persons, from time to time. The paragraph does not in terms authorize him to lay down a limiting date for the purpose and construing this paragraph strictly, it would not be right to import any such limiting factor into the situation.
178. This view with regard to time equally holds good in the case of applications for transfer of industrial concerns and cinema houses.
179. On the authority of the two decisions of this Court cited hereinbefore, it has been already found that an order under paragraph 15-A being a subordinate Legislation made by a Notification can have no retrospective operation. If the 31st of August 1958, was the target date for making applications for transfer and was unalterable, then, an order made under paragraph 15-A regarding disposal of industrial concerns and cinema houses can have no prospective application either, for the reason that any such order shall be necessarily subsequent to the alleged target date (31-8-58), the date of enactment of paragraph 15-A itself being 28-9-59; Thus a startling result will ensue if it is taken that the 31st day of August 1958, was unalterably fixed as the date for making applications for transfer, because an order under paragraph 15-A, in that case, will have no application either prospectively or retrospectively with the result that the enactment of paragraph 15-A will amount to an exercise in futility. Any argument that the order made under that paragraph on 14-12-59 shall apply to the pending proceedings at least, cannot be at all tenable for the reason that the said order is, on the face of it, prospective.Moreover, that order being a subordinate egislation, as already stated, has no retrospective operation. Even if any force is at all there in such an argument, it will mean that paragraph 15-A has been enacted by the Legislature merely for the purpose of taking care of pending proceedings alone which, however, could not be the intention of the law-maker.
180. It was next contended on behalf of the respondents that the order of the Central Government49 under paragraph 15-A of the Schedule can be sustained as one having been made under section 10(b) of the Act, as it was in force at the time of making of that order. This contention appears to have found favour with my Lord the Chief Justice. Section 10, as it was enacted originally on the 26th March 1958, stood as follows: "10. Subject to the provisions of this Act and the rules made thereunder, the Settlement Commissioner may transfer or dispose of any property out of the compensation pool--.
181. (a)on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the First Schedule; (b)in such other manner as may be prescribed."
182. Section 10 was subsequently amended by Ordinance No, I of 1959, dated the 5th January 1959, with retrospective effect from the 26th March 1958. As a result of this amendment, the words "Settlement Commissioner" in section 10 were replaced by the words "Chief Settlement Commissioner", and in clause (a) of section 10, the word "First" was omitted.
183. Section 10 was next amended by Ordinance No, LIII of 1959, dated the 28th September 1959, with retrospective effect from the 26th March 1958. By this amendment in clause (a) of section 10, the word "or" was added at the end and in clause (b), for the word "prescribed", the words "approved by the Central Government" were substituted. Section 10, as so amended on the 28th September 1959, reads thus: "10. Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool-- (a)on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule; or (b)in such other manner as may be approved by the Central Government."
184. Section 10 in the above form continued beyond the 14th December 1959, on which date the order under Paragraph 15-A was made. The further amendment of section 10 on the 13th January 1962 by Ordinance No, It of 1962 eliminated its clause (b) and empowered the Central Government itself to transfer any property in the public interest.
185. The submission on behalf of the respondents was that the Central Government's order, dated the 14th December 1959, made under Paragraph 15-A can be sustained on the footing that as if that order were made under section 10(b). My Lord the Chief Justice appeared to have accepted this contention. In his view, "the power which was already possessed by the Central Government under clause (b) of section 10 was specifically re-affirmed in Paragraph 15-A of the Schedule". He is further of the view that "no such power could have been reserved under Paragraph 15-A of the Schedule, if it had not been conferred by section 10(b) of the Act itself". The substance of the above view appears to be that the power of the Central Government under Paragraph 15-A is itself included in the Central Govern-ment's power under section 10(b) and that Paragraph 15-A merely re-stated what was already there in section 10(b). On these premises, the view appeared to have taken was that the Notification made under Paragraph 15-A regarding disposal of industrial concerns and cinema houses can be regarded as one made under section 10(b) and, as such, the arguments available to the appellants against Paragraph 15-A would not be available to them.
186. This approach, I am afraid, is not correct for more than one reason.
187. It will be noticed that both Paragraph 15-A and section 10(b), on which reliance is placed, were enacted on the 28th September 1959 by the same Ordinance, namely, Ordinance No, LIII of 1959.
188. Thus it is not correct to say that the power was already possessed by the Central Government under section 10(b) before the enactment of Paragraph 15-A. The simultaneous incorporation of section 10(b) and Paragraph 15-A in the same statute by the same Ordinance clearly manifests that the Legislature intended that they are distinct legal provisions designed to meet different situations. While section 10(b) confers general powers on the Central Government with regard to disposal of all kinds of properties, the power under Paragraph 15-A is a specific power of the Central Government concerning disposal of industrial 'concerns alone. If the power under Paragraph 15-A was intended to be covered by section 10(b), then, there was hardly any necessity for enacting Paragraph 15-A as a provision independent of, and separate from section 10(b) and, that too, by the same Ordinance.
189. It appears that the impugned order, that is, the Chief Settlement Commissioner's order, dated the 16th May 1960 by which the appellants' application for transfer of the Regal Cinema was rejected on the ground of their alleged ineligibility, was, in fact, based on the Notification made by the Central Government in the exercise of its power under Paragraph 15-A. Having based his order on the Notification issued under Paragraph 15-A, it does not lie in the mouth of the Chief Settlement Commissioner to say that the impugned order should be treated to have been made by him pursuant to the approval of the Central Government under section 10(b), although no such approval was actually given under that section.
190. There is yet another serious aspect of this matter. If an order under Paragraph 15-A is at all sustainable under section 10(b) on the ground that the power under the former is covered by the powers under the latter, then, Paragraph 15-A will be rendered redundant and superfluous, for every order made under that Paragraph can be said to have been made under section 10(b). Can the Legislature be presumed to have intentionally enacted Paragraph 15-A as a superfluous provision? No legislative enactment, according to the universally accepted principle, should be held to be redundant or superfluous, and effort must be made by Courts to give effect to every enactment.
191. For all these reasons, I am unable to accept the contention raised on behalf of the respondents that the order under Paragraph 15-A is sustainable as one having been made under -section 10(b).
192. As a last resort, both Mr. Manzoor Qadir and the Departmental Representative contended that the transfer of the Regal Cinema in favour of Mr. W. Z. Ahmad could be said to have been validated by the Central Ordinance No, III of 1963 promulgated on the 17th January 1963. It appears from the preamble of this Ordinance that the Chief Settlement Commissioner transferred certain immovable properties from the compensation pool in the purported exercise of the powers under the Act, but the validity of some of these transfers was questioned apparently on the ground of absence of his jurisdiction. Accordingly, the said Ordinance was promulgated with a view to validating the transfers made by the Chief Settlement Commissioner without jurisdiction. For this purpose, section 2 was incorporated in the Ordinance to provide the necessary cover. This section runs thus: "2. Any property transferred by the Chief Settlement Commissioner with the approval of the Central Government from the compensation pool constituted under the Displaced Persons Compensation and Rehabilitation) Act, 1938 (XXVIII of 1958), to any person or class of persons by any general or special order, on or after the 8th August 1959, but before the commencement of this Ordinance, in the purported exercise of the powers under the said Act, shalt, notwithstanding anything contained in that Act or in any rule or order made-thereunder. be deemed to have been validly transferred as if the Chief Settlement Commissioner had, at all maretial times, powers under the said Act to so transfer such property; and the-validity of any such transfer shall not be questioned in any manner whatsoever."
193. Obviously, the validation provided by section 2 is in respect-of certain transfers of specific properties out of the compensation pool made by the Chief Settlement Commissioner with the approval of the Central Government. This indicates that the-Cruet Settlement Commissioner made certain transfers with the approval of the Central Government under clause (b) of section 10 even after the withdrawal of the power under that clause by the repeal and re-enactment of section 10 by the Central Ordinance No, II of 1962, promulgated on the 17th January 1962. That this was the background of the said Ordinance is evident from the fact that no provision of the Act, other than clause (b) of section 10, provided authority to the Chief Settlement Commissioner to transfer property with the approval of the Central Government. Be that as it may, the notification, dated the 14th December 1959 issued by the Central Government under Paragraph 15-A does not reate to any specific industrial concerns or cinema houses, but is one of general application. Apart from this, the notification itself did not effect any transfer of property. It was the Chief Settlement Commissioner who' himself, without having obtained the approval of the Central Government, transferred the Regal Cinema in this case in favour of Mr. W. Z. Ahmad. Moreover, this is not a case where the power of the Chief Settlement Commissioner to transfer the Regal Cinema is in doubt or questionable ; he was and still is empowered under the law to transfer that Cinema and, that too, without the approval of the Central Government. For all these reasons, the provisions of the Ordinance No, III of 1963 do not, in terms, apply in the present case and are unavailing in order to save the transfer of the Regal Cinema in favour of Mr. W. Z. Ahmad. To the same effect was the interpretation of this Court put on section 2 of the said Ordinance in the case of Muhammad Siddiq v. Chief Settlement Commissioner .
194. If, by any strained construction, section 2 of the Ordinance No, III of 1963 is at all considered to be applicable in the present case, then, an anomalous situation will arise, because, in that case, only that part of the impugned order of the Chief Settlement Commissioner as relates to the illegal transfer of the Regal M Cinema in favour of the third respondent, will stand validated by the 'deeming provision' of the said section 2, but the other part of the impugned order so far as it illegally rejected the appellants' application for transfer of the Regal Cinema shall continue to remain illegal. I am unable to agree to any construction that will give rise to such an anomalous)) situation.
195. I have endeavoured in the earlier part of this judgment to show that the appellants, in the facts of the present case, acquired a substantive right to the transfer of the Regal Cinema, the subject- matter of the litigation between the parties. Moreover, I have found that the appellant's action for enforcement of that right was pending when the Notification under Paragraph 15-A prescribing entirely new conditions of eligibility, was issued. I held the same view when this appeal was first heard by a smaller Bench in November 1969. Even after hearing arguments for the second time in the Full Court, I find no valid reason for changing my view with regard to the substantive right of the appellants and the enforceability of that right by the application for transfer duly made by them before the enactment of Paragraph 15-A. Nor do I find any reason for revising my views on the other points of law arising in this appeal.
196. It then remains to be considered if Paragraph 15-A of the Schedule and the Notification of the 14th December 1959 issued thereunder are ultra vires because of excessive delegation of power by the law-making authority. It is not necessary for the purpose of the present case to go into this question and decide it, because the order of the Chief Settlement Commissioner under challenge is illegal, irrespective of the alleged invalidity of Paragraph 15-A and the Notification issued thereunder. The question as to their vires may be reserved for consideration in an appropriate case in future.
197. The position, therefore, that emerges from the above discussion is that the order of the Chief Settlement Commissioner, dated the 16th May 1960, by which he rejected the appellants' application for transfer of the Regal Cinema and transferred that cinema house to Mr. W. Z. Ahmad, the third respondent, is unlawful and cannot be sustained. I would, there before, allow this appeal, set aside the judgment of the High Court, quash the said order of the Chief Settlement Commissioner and remand the case to him for re-hearing of the application of the appellants and that of the respondent No, 3 for transfer of the Regal Cinema, according to law. Having regard to the points of law involved, I would leave the parties to bear their own costs.50 ORDER OF THE COURT In accordance with the opinion of the majority this appeal is dismissed, but the parties are left to bear their own costs. PLD 1966 SC 1 PLD 1966 SC 817 (1895) A C 425 (1897) 2 Ch. 306 1922 K B 422 PLD 1956 FC 157 P D 1962 SC 42 PLD 1963 SC 633 PLD 1966 SC 512 PLD 1968 SC 362 1968 SCMR 697 PLD 1967 SC 428 PLD 1963 SC 605 PLD 1966 SC 854 PLD 1963 SC 633 PLD 1964 SC 189 PLD 1965 SC 68 PLD 1965 SC 254 PLD 1965 SC 618 PLD 1966 SC 817 PLD 1966 SC 1 PLD 1966 SC 276 PLD 1966 SC 221 PLD 1969 SC 223 (1899) 1 Q B 406 PLD 1962 SC 42 (1876) 1 Q B D 220 1895 A C 425 (1922) 2 K B 422 [Here in italics] (1897) 2 Ch. 306 (1875) 1 Ch. D 48 PLD 1969 SC 187 5 M I A 109 120, E R 292 (1893) 1 Q B 41 39 T L R 31 (1923) 2 K B 193 1960 A C 965 (1940) FC R 110 at pp. 163-64 I L R 39 Mad. 645 AIR 1932 All. 30 I L R 41 Cal. 11251 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 PLD 1964 SC 293 PLD 1963 SC 633 PLD 1969 SC 187 PLD 1967 SC 428 PLD 1958 SC (Pak.) 41 PLD 1955 P C 4 PLD 1965 SC 65 PLD 1965 SC 123
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