' KHALILUR RAHMAN KHAN, J.-By this judgment we propose to dispose of two petitions (W. P. Nos.
636-R/81 and 91-R/82) as the questions of fact and law involved in both the petitions are one and the same.
2. The factual background of the controversy, briefly stated is that property No, S-73-R-7, commonly known as 6-A, Begum Road, Lahore, is in occupation of the parties and each of them claims to be in occupation as allottee from the Rehabilitation Authorities. The property was owned by the Punjab Co-operative Bank Ltd., a Joint Stock Company, which had its registered office at Amritsar (India) and which carried on Banking Business in various cities of the then Punjab. The Bank in the course of its business acquired considerable properties in the province including the one in dispute.
3. After partition of the country, and coming into force of the West Punjab Protection of Evacuee Property Ordinance VII of 1947, the properties of the Bank in the West Punjab became evacuee properties under the Ordinance and thus vested in the Custodian. The Rehabilitation Department also allotted these properties to the occupants and others. The Bank moved the then Custodian authorities under section 18 of Ordinance XV of 1949 for declarations that its properties were not evacuee properties and vide orders dated 18-6-1952 and 11-11-1954 the Deputy Custodian, Evacuee Property, Lahore, granted the declarationslitayed for subject to the confirmation of the Custodian.
The Additional Custodian (General), Evacuee Property, Lahore, confirmed these declarations but at the same time stated that the Custodian will not dispossessed of the properties till the Central Government had passed orders as contemplated by subsection (3) of section 6 of the Ordinance of 1949. Then Pakistan (Administration of Evacuee Property) Act, 1957, was brought on the Statute Book and even thereunder properties of Joint Stock Companies having registered offices at a place situated in India and continuing to be so situated since partition still remained excluded from the definition of "Evacuee Property" and subsection (3) of section 7 of the said Act still provided that property which had already vested in the. Custodian under any previous law then in force, shall, notwithstanding the above exclusion, continue to remain so vested until the Central Government by notification in the Official Gazette directs that the Custodian shall be divested and dispossessed of any such property. The Bank, therefore, moved the Central Government to pass orders divesting and dispossessing the Custodian of its properties, but without any success. Then the Displaced Persons (Compensation and Rehabilitation) Act, 1958, came to be enforced. The Bank again moved the Settlement Authorities to exclude its properties from the purview of the Act of 1958 but the request was again refused in the absence of the order of divestiture to be passed by the Central Government. Facing this situation, the Bank moved a constitution petition in the High Court on the 16th of September, 1959 seeking not only the issuance of a writ of mandamus on the Republic of Pakistan directing it to issue necessary orders of divestiture but also writ of prohibition against the Settlement Authorities for prohibiting them from dealing with the properties under the said Act of 1958. In the alternative, writ of certiorari was also prayed for quashing orders of transfer, if any, made in pursuance of the provisions of aforesaid Act. While the Bank was engaged in seeking relief from the High Court, the occupants of the property in dispute I. e. The petitioners, the contesting respondents or their predecessors-in-interest submitted forms seeking transfer of the property in dispute under Settlement Scheme No. 1 framed under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Deputy Settlement Commissioner vide order dated 22-9-1960 divided the property in dispute into portions 'A, B and C' as per site plan attached.
Portion 'A' was transferred to Mst. Hafeezan Mohsin Atta and Muhammad Abdullah, her father-in- law, and predecessors. In-interest of the petitioners Nos. 2 to 5. Portion 'B' was transferred to Mst.
Aysha Begum etc. Petitioners in Writ Petition No, 91-R/82. Portion 'C' was transferred to Mst. Amtul Hairs, who is not a party in either of these petitions. Abdur Rauf respondent No, 4 (W. P. No, 636- R/81) who claims to be in possession of some rooms of portion 'A' and in whose favour sale-deed has already been executed by the Custodian of Enemy Property, also submitted N. C. H. Form seeking transfer of the portion in his possession but the learned Deputy Settlement Commissioner in the aforementioned order found that he was originally a resident of village Dine, District Jhelum and that he was not a refugee but a local and for these reasons he rejected his N. C. H. Form. He admittedly then did not challenge the said order of the Deputy Settlement Commissioner. The contesting respondents Nos. 3 to 6 in W. P. No, 91-R/82 are in ocCupation of certain rooms of the portion marked 'B' which was transferred to Mst. Aysha Begum etc. It is stated in the order that Mst.
Aysha Begum and Mst. Noor Begum were the regular allottees while the contesting respondents were non-allottees. The contesting respondents or their predecessors, however, claim that they had occupied their respective rooms of the property in pursuant to the valid allotment orders. The petitioners were also issued P. T. O's. But admittedly they were not issued any P. T. Ds. The case of the contesting respondents is that the order of transfer dated 22-9-1960 of the Deputy Settlement Commissioner was withdrawn by him vide order dated 15-11-1960 after seeking permission from the Additional Settlement Commissioner to withdraw the said order. The said order appears to have been withdrawn in view of the fact that the question of title in the property was sub judice before the Supreme Court. This order was admittedly passed ex parte. The matter was ultimately decided by the Supreme Court vide judgment dated 29-4-1964 The Punjab Co-operative Bank Ltd. v. The Republic of Pakistan (1). It was observed that so far as the writ of mandamus, against the Government of Pakistan was concerned, for the issuance of an order under {{FOOT NOTE}}
(1) PLD 1964 SC 616 {{FOOT NOTE}} ' subsection (3) of section 7 divesting and dispossessing the Custodian of the said properties, the learned counsel has himself not pressed this relief, for, he apprehends that such an order would be in the discretion of the Government and in the absence of anything to show that the discretion had not been proper exercised or exercised mala fide, it would be difficult for the courts to direct the issuance of a mandamus to the Government in that behalf. As regards the other relief prayed for it was held that the Bank was entitled to ask for writs against the Settlement Authorities for prohibiting them from dealing with the properties of the Bank as Evacuee Properties or for quashing the orders, if any, that they may have made on the above basis. Resultantly, it was ordered that the transfer orders issued cannot be maintained and must be set aside. Thereafter, vide notification dated 3,9-1968 issued under the Defence of Pakistan Rules, Central Government directed that the properties and assets of the Bank being enemy properties shall vest in the Custodian of Enemy Property for Pakistan. The property in question, therefore, came to vest in the Custodian, respondent No. 1. Thereafter, the Government of Pakistan vide letter dated 21-3-1972 conveyed its decision regarding disposal of the enemy property. The relevant part of this letter may be quoted in extenso : "1 am directed to refer to the correspondence resting with your letter No, EMMB/CMMR/53/68-71 (2), dated 16-6-1971 on the subject mentioned above and to state that it has since been decided by Government that the properties of Punjab Co-operative Bank Ltd., Luxmi Commercial Bank Ltd. And Punjab National Bank Ltd. Detailed in the enclosed list, and other properties of identical nature i. e.
Non-evacuee buildings transferred provisionally permanently to any person by the Settlement Department, which may come to the notice of the Custodian at any time in future as an enemy property may be disposed of in the following manner :-
(1) Existing allottees and/or their successors may be allowed to purchase their respective portions of property at the evaluation made by the Settlement Department and to ask the Settlement Department to transfer to the Enern Property Management Board the amounts received by it from the transferees so that P. T. Ds./P. T. Os. May be replaced by fresh transfer deeds to be executed by the Custodian of Enemy Property."
' Then the Custodian of Enemy Property respondent No. 1 vide memo. Dated 8-3-1979 approved of the following categories of occupants for the purpose of transfer of the enemy properties. The relevant portion of this memo. Reads as under :- "(i) The occupants of the Enemy Bank Properties shall be categorised as under :
(a) Those who are holding P. T. Os./P. T. Ds. From Settlement Department and have made payment of sale consideration of the defunct Settlement Department ;
(b) Those who are holding P. T. Os. From defunct Settlement Department but did not make payment of the sale consideration to that Department.
(c) Those who are bona fide allottees of the defunct Settlement Depart- ment.
(d) The tenants of the Enemy Banks ;
(e) Unauthorised occupants,
(II) In the light of policy approved in 1972 as contained in the Ministry of Communications letter. No, 3 (27) C. E. P. 11/68-dated 21-3-1972, it has been decided that :
(1) The sale price etc. Paid by the occupants falling under category.
(a) to the Settlement Department may be recovered from that Department and the existing P. T.
Os. Be replaced by formal sale-deeds.
(ii) As regards categories (b) and (c) the P. T. Os./allotment orders be replaced by a formal sale- deed on receipt of transfer price as evaluated by the Settlement Department.
(iii) As regards remaining categories who are not covered by or aforesaid policy and fall under categories (d) & (e) above the proportion under their possession will be disposed of through sealed tenders, against the reserve price to be fixed on the basis of the market value of the property. The occupants may, however, take part in the tendering when it takes place and they would be given preference if they offer the price equal to the highest bids."
4. Learned counsel for the Custodian Respondent No. 1 has placed on record a letter dated 2-1-1981 wherein it is stated that the Additional Custodian of Enemy Property has been pleased to decide that "all the following seven occupants may be treated equal and allowed transfer of the portion of the property on the basis of their cancelled documents after recovery of outstanding rents and transfer price and subject to fulfilment of usual formalities, viz. Sucessionship certificates, power of attorney etc."
(a) P. T.
0. Holders falling under category 'b'.
1. Mst. Amtul Hajra.
2. Aysha Begum, Noor Begum.
3. Ch. Muhammad Abdullah and
4. Mst. Hafeeza Mohsin Atta.
(b) Allottees Falling under category 'C'
1. Mr. Abdul Rauf.
2. Mr. Mahmud Hussain.
3. Mr. Aziz Ahmed.
4. Mr. Hamid Ali Khan.
' He further submitted that the policy of the respondent No. 1 is to settle all the occupants and in line with that policy the contesting respondents have been transferred the rooms in their possession as mentioned in the report dated 19-1-1973 (Annex-R/9 of the written statement filed on behalf of respondents Nos. 5 and 6 in writ petition No, 91-R/82) and that the sale-deeds in respect of these portions have either been already executed or will be executed after the decision of these petitions.
He submitted that the respondents in the two writ petitions have been found entitled to the transfer of their respective rooms in possession in view of the decision of the Central Government conveyed vide memo. Dated 21-3.1972 read with the procedure laid down by the Custodian in the memo.
Dated 8-3-1979 and that the petitioners, if they are prepared to pay the transfer price as mentioned in Annexure R/9 referred to above shall be conveyed and transferred the rooms in their respective occupation.
5. Learned counsel for the contesting respondents have adopted the arguments advanced by the learned counsel for the Custodian respondent No. 1 and have further added that under the decision conveyed vide memo. Dated 21-3-1972, the existing allotted or their successors are to be allowed to purchase portions of the property in their respective possession and that the Sale-deeds executed or to be executed in their favour are valid in law. They maintained that the words "the existing allotted" have been used in view of the fact that the learned Judges of the Supreme Court in their decision dated 26-4-1964 had held that the allotments made by the Rehabilitation Authorities were. Still effective despite the fact that the properties were not evacuee properties. They have relied on the following observations of the learned Judges of the Supreme Court contained in the last para. Of the aforesaid judgment :-- "Neither the Settlement Authorities nor the Rehabilitation Authorities have appeared before us to opposed this appeal. But some of the allotted of these properties have appeared and filed objections. They have not been able to advance any cogent argument in support of their contention that these properties should be treated as evacuee properties and brought on to the compensation pool and transferred. Permanent transfer deeds have not been issued to any of the said respondents as yet. Only some provisional transfer orders have been issued after the announcement of the High Court judgment. These clearly cannot be maintained and must be set aside. But so far as the allotments of the properties are concerned, learned counsel appearing for the appellant does not himself press for the cancellation thereof ; for, until the order of the Central Government has been made divesting the Custodian, he is not legally entitled to ask for the cancellation of the allotment. The Rehabilitation Authorities had the power to make such allotment even under the Ordinance of 1947. Neither their possession nor the Custodian's possession can, therefore, be disturbed for the present."
' On the above premises they contended that as the allotments were held to be still subsisting and effective, the Government intentionally used the words "existing allottees" and the contesting respondents being the allottees were entitled to the transfer of the respective portions and that the petitioners on the basis of the P. T. Os., which held to be ineffective in law and were quashed by the Supreme Court cannot seek transfer of those rooms or portions which are in occupation of the respondents.
6. Learned counsel for the petitioners contended that the Central Government by its decision conveyed vide memo dated 21-3.1972 has directed the Custodian Evacuee Property to honour the P. T. Ds./P. T. Os. Which otherwise were held to be ineffective as the properties before being declared as 'Enemy Property' were 'Evacuee Properties" and to replace the same by executing sale- deeds in favour of these transferees by receiving price from the Settlement Department if already paid to it or from the transferees directly in case they had not paid to the Settlement Department.
They, on above premises, argued that existing "allotted" means the transferees from Settlement Department and not those persons in whose favour an allotment order was made by Rehabilitation Authorities. According to them, in case such a meaning as is being canvassed by the respondents is attributed to the words "existing allottee", the decision itself will be rendered nugatory and impracticable.
7. Having considered the respective submissions, we are inclined to agree with the point of view canvassed by the learned counsel for the petitioners. The word "allotted" used in the memo. Dated 21-3-1972 cannot be' understood to mean allotted of Rehabilitation Department. Our reason or this conclusion is firstly that in the opening part of the memo. it was stated in unequivocal terms that it has been decided by the Government that properties of the Banks and other properties of identical nature i. e. Non-evacuee buildings transferred provisionally/permanently to any person by Settlement Department which may come to the notice as enemy property may be disposed of in the given manner. Secondly, the respective portions are to be allowed to be purchased at the evaluation made by the. Settlement Department. The words "evaluation made" necessarily refer to the fact already accomplished. The evaluation can only be made in respect of the portion or unit already declared by the Settlement Officer under the relevant provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This evaluation made can have no reference to allotment made by Rehabilitation Authorities. Thirdly, in case of mere allottees under Rehabilitation Laws no question arises of asking the Settlement Department to transfer to the Enemy Property Management Board the amount received by it from transferees. Likewise the fact that PTOs./PTDs.
Are to be replaced by fresh deeds to be executed by the Custodian Enemy Property, is also not without significance. The argument, that where there is no conflict of interest between a P. T.
0./P. T. D. Holder and an allottee, the transfer as made by the Settlement Department is to be kept intact but in case where P. T.
0./P. T. D. Was issued inclusive of the portion in occupation of an allotted, the transfer is to be restricted to the portion in actual physical possession, has not impressed us. This plea cannot be supported by either the memo., dated 21-3-1972 of the Central Government or memo., dated 8-3- 1979 of the Custodian. On the other hand, if this plea is accepted then the decision conveyed cannot be practically complied with. For instance, according to the manner of disposal, portions are to be transferred at the evaluation made by the Settlement Department by asking it to transfer the amount of price received from the transferee. What will happen in a case where there is an allotted in occupation of part of the portion transferred? How will the price, be apportioned? Who is to order refund of the price charged for the part now being sliced away? Had the Government intended to authorize the Custodian to enter into the question of entitlement to transfer, the manner of disposal should have been provided in altogether differently. The Government did not intend to open pandora's box once again and instead decided to honour the P. T. Ds./P. T. Os.
Issued though at the time of their issuance these were not valid in law. This intention cannot be defeated and hence the word "allottee" really means "transferee". We are justified on sound principle to read the word "transferee" for the word "allottee" as used in the memo., .Dated 21-3-1979 of the Central Government because Courts are entitled to B modify the language of even a statutory instrument, to give effect to the manifest or undoubted intention of the Legislature. This principle is stated in Maxwell's "Interpretation of Statutes", 12th Edition at page 228 as under:- "1. Modification of the language to meet the intention.-Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by department from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Lord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule; "the canons of construction are not so rigid as to prevent a realistic solution".
' This principle was also applied in the case of Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty etc. (1) See also Brooke Bond (Pakistan) Ltd. v. Second Sind Labour Court, Karachi and another (2).
8. The last argument that as order dated 22-9-1960 was withdrawn by the Deputy Settlement Commissioner vide his order dated 15-11-1960, the petitioners cannot claim that they were P. T.
0.-holders, is of no avail as firstly this order was passed ex parte against the petitioners. Secondly, the order was withdrawn on the basis that the matter was sub judice before the Supreme Court.
Ultimately Supreme Court held those P. T. Os. To be void and ineffective but in the two memos. The said cancelled P. T. Os. Were recognised for the purposes of transferring the portions and for replacing those invalid P. T. Os. With properly executed Sale Deeds. These P. T. Os are thus referred to for the purpose of specifying the persons in whose favour the deeds are to be executed.
9. For the reasons given above, both the petitions are accepted and it is hereby declared that the petitioners are entitled to the transfer of their respective portions marked 'A' and 'B' exclusively at the evaluation made by the Settlement Department and to the exclusion of the respondents and that the Sale Deeds, executed by respondent No. 1 in favour of any of the contesting respondents are illegal, void, and ineffective as against the rights of the petitioners. There will be, however, no order as to costs. {{FOOT NOTE}}
(1) PLD 1961 SC 119 (2) PLD 1973 Kar. 189 {{FOOT NOTE}}