This judgment will dispose of Writ Petitions bearing Nos, 2984/R and 2985/R of 1963, as well as 534/R and 535/R of 1964 and 630/R of 1966, which involve similar questions of law and fact, and relate to different residential units of the same property, namely, House No. NE-I-K-157, situate on Grand Trunk Road, Lahore. The building is described by the petitioners as a Katri consisting of 20 or 25 residential units and they claim to be in possession of one unit each. All the petitioners, except Rehmat A.I in Writ Petition No. 534/R of 1964, had applied for the transfer of their portions on Forms NCH, whereas Rehmat A.I had made an application on Form LH as a local. No specific order was made by the Deputy Settlement Commissioner disposing of these forms, and instead the learned Assistant Settlement Commissioner only agreed with a note submitted to him by the Settlement Inspector on the 25th of February 1961, to the effect that this official had contacted the occupants of this property regarding the payment of the arrears of rent, and had found that only Messrs Nazir Ahmad, Mukhtar Ahmad, Tasleem Hussain, Ghulam Hussain, Ghulam Mustafa and Abdur Rahim had paid the rent. The Settlement Inspector had, therefore, recommended that the quarters in the possession of these persons may b.- transferred to them subject to the production of the rent clearance certificates, and the remaining quarters may be put in the auction list. The learned Assistant Settlement Commissioner, exercising the powers of the Deputy Settlement Commissioner, agreed with this proposal by his order dated the 28th of February 1961. The auction was accordingly held on the 15th of March 1962, and was confirmed on the 8th of June 1962 after some noting in the office of the Deputy Settlement Commissioner to the effect that the forms submitted by the present petitioners and others had not yet been finally disposed of. At one stage a proposal was made that the confirmation of the auction should be held in abeyance until the final decision is taken on the forms submitted by the present petitioners and some other occupants, but this proposal did not find favour with the learned Additional Settlement Commissioner who con--firmed the auction, as already stated.
2. The petitioners claim that all of them had cleared the arrears of rent on the 30th of April 1962, i.e. Before the date of the confirmation of the auction. They filed appeals which were rejected by the learned Additional Settlement Commissioner on the 15th of April 1963, on the ground that they were barred by time. Their revision petitions were similarly rejected by the learned Settlement Commissioner on the 18th of October 1963, and an additional reason was given, namely, that the petitioners were not eligible for transfer as they had not cleared the arrears of rent by the prescribed date.
3. It is contended on behalf of the petitioners that it was the duty of the learned Deputy Settlement Commissioner to dispose of their forms after giving them an opportunity of being heard in accordance with the procedure prescribed in para--graph 10 of Settlement Scheme No. 1, but as they were not heard, the order putting the property in the auction list is void ab initio, and the 'entire superstructure built on that basis must fall fox that reason. It is next submitted that no question of limitation arose in this case as the petitioners were never informed of the order dated the 28th of February 1961. Finally, it is contended that the learned Settlement Commissioner was in error in thinking that the clearance of the arrears of rent by a prescribed date was, in any manner, a condition precedent for the eligibility of the petitioners to the transfer of this property. It is submitted that in view of the amplified definition of the term " possession " as introduced by the Notification of the Central Government issued on the 13th of October 1959, the clearance of rent by a fixed date was not an essential condition for deeming the petitioners to be in possession.
4. In reply Sheikh Abdul Haq, the learned counsel for the auction-purchasers, has taken up the stand that the petitioners are not entitled to be heard on merits in view of the fact that their appeals and revisions were barred by time, and that there are circumstances to show that the petitioners had acquired knowledge of the adverse orders on their applications much before the date of auction and the filing of their appeals. The learned counsel relies on the note recorded by the Settlement Inspector on the 25th of February 1961, which states that this official bad contacted the occupants of the property. Sheikh Abdul Haq further submits that the auction was held at the spot and, therefore, the petitioners had full knowledge of these proceedings. Finally, it is contended by the learned counsel for the contesting respondents that the clearance of rent by a prescribed date was an essential condition for creating eligibility in favour of the petitioners.
5. Taking first the question of limitation, I find that although it is stated in the note submitted by the Settlement Inspector on the 26th of February 1961, that lie had contacted the occupants of the property and had found that some of them had cleared the arrears of rent, whereas the others had not, yet the fact remains that the decision taken on this note by the learned Deputy Settlement Commissioner was never conveyed to the petitioners. It is also clear that in terms of paragraph 10 of Settlement Scheme No. I the petitioners had a right to be heard by the Deputy Settlement Commissioner in regard to the defect or deficiency found in their applications or in the matter of their eligibility to the transfer of the quarters in their possession. No such steps were taken by the Deputy Settlement Commissioner on receiving the report of the Settlement Inspector. The slip-shod manner in which the learned Deputy Settlement Commissioner has dealt with this case is clear from the fact that there is no mention at all of the applications submitted by the present petitioners, and there is no conscious application of the mind to show that these applications were being rejected on the ground of non-clearance of the arrears of rent by the prescribed date. I consider, therefore, that the initial order which has gone against the petitioners, and as a result of which the property was put to auction, suffers from an inherent infirmity as having been passed without notice to the petitioners in violation of the relevant paragraph of Settlement Scheme No. 1.
In such a case no question of limitation would arise for reasons which were stated at some length by a Division Bench, of which I was a member, in Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lah. 1039). While coming to this conclusion I had made reference to the dictum of their Lord--ships of the Supreme Court in the cases cited as PLD 1962 SC 276, PLD 1958 SC (Pak.) 104, PLD 1965 SC 68 and PLD 1967 SC 294, in all of which the principle had been clearly laid down that if an order was without jurisdiction and void, then it need not be formally set aside and no question would, there--fore, arise of holding that the matter could not be considered on merits on account of any bar of limitation. This principle applies in the present case with full force. I would hold, therefore, that the appellate and the revisional authorities were in error in thinking that the applications of the petitioners could not be considered on merits simply because there had been delay in filing the appeals.
6. Coming to the question of eligibility of the petitioners, it seems to me that here again the learned Settlement Commis--sioner has erred in thinking that the petitioners could not be deemed to be in possession simply for the reason that they had not cleared the arrears of rent by the prescribed date It is admitted that the petitioners did not acquire possession of the quarters in pursuance of any allotment order made by any Rehabilitation Authority and, therefore, their case is to be governed by the amplified definition of the term "possession" as notified by the Central Government in pursuance of the power conferred on it by the second proviso to clause of section 2 of the Displaced Persons (Compensation an d Rehabilitation) Act, 1958 (hereinafter referred to as the Act which defines the term " possession". This notification lays down:- "A claimant, non-claimant displaced person, or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act; be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty-first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day: Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if be is a claimant, such amount is adjusted against his claim."
7. It will be seen that apart from the other conditions contained in the main body of the notification the proviso lays down that the rent and other public dues in respect of the house or shop concerned have to be paid by the occupant from the date of his occupation in order that he may be deemed to be in possession. This notification has come up for examination in several reported cases of this Court and the Supreme Court, but in the present context the first case which is directly relevant is that of Qamar Din v. Zawar Hussain and others (PLD 1964 Lah. 185). In this case Muhammad lqbal, J. Came to the conclusion that "a non---claimant displaced person taking the benefit of such a notification. Before he could be deemed to be in possession within the meaning of this notification, had to clear the arrears of rent. Till such time as the arrears were cleared he could not be deemed to be in possession within the meaning of second proviso to clause (6) of section 2 of the Act". In the case before his Lordship the petitioner had not cleared the arrears of rent at all and, therefore, it was held that he was not in possession of the shop within the meaning of that term as defined in the relevant clause. This judgment was noticed by Waheed-ud-Din Ahmad, J.
(as he then was) in the case of Akmal Khan and others v. Settlement Commissioner, Khairpur (Law Notes (NUC) Kar. 1). His Lordship observed that the amplified definition of the term "possession" was divided into two portions, the part dealing with the question of deeming a person to be in possession being contained in the main body, and it being mentioned only in the proviso that such person was further required to clear the arrears of rent. His Lordship thought that Muhammad Iqbal, J. Had only observed that such person would not be eligible for the transfer of the property as long as he did not clear the arrears of rent, but it did not mean that he would not be deemed to in possession. Waheed-ud-Din Ahmad, J. Concluded by saying that in law the proviso should not, by mere implication, withdraw any part of what the main provision had given, and the proper course to adopt would be to treat the proviso as a limitation upon the effect of the principal enactment.
8. It seems tome that both the judgments in fact purport to lay down the same rule inasmuch as even Waheed-ud-Din Ahmad, J. Thinks that the proviso would operate as a limitation on the main provision, and that being so, the eligibility or the deeming to be in possession would not be complete until such time as the person taking benefit of the notification had cleared the arrears of rent. To put it differently, the not effect of the provisions contained in the main body of the notification, read with the proviso thereto, is that a non-claimant or a local would be deemed to be in possession only if he were to fulfil all the conditions mentioned in the notification taken as a while, including the clearance of the arrears of rent from the date of his occupation.
9. However, the matter does not conclude here. While the clearance of the arrears of rent may indeed be a condition to be fulfilled by a non-claimant or a local who has occupied an evacuee property without any allotment order, the question still remains whether the Chief Settlement Commissioner has the power to prescribe a final date beyond which the clearance of the arrears of rent would not entitle such a person to take benefit of the notification. The Chief Settlement Commissioner has been issuing press-notes from time to time extending the date fixed by him for clearance of arrears of rent and other public dues, and it is conceded on behalf of the petitioners that the last date prescribed for this purpose was the 1st of October 1960 by a press-note issued on the 24th of October 1950, whereas the petitioners cleared the arrears of rent on the 30th of April 1962. The press-notes do not cite the relevant provision of the law or the Settlement Scheme concerned under which they have been issued, and it was, therefore, suggested by Sheikh Abdul Haq that the Chief Settlement Commissioner must have acted under the general power of superintendence and control con--feered on him by section 9 of the Act. A reference to section 9, however, shows that it only deals with the allocation of duties by the Chief Settlement Commissioner among his subordinate officers but does not mention any power in respect of issuing notifications and press-notes such as could have the effect of negativing the provisions of the statute or of notifications issued by the Central Government.
10. The only provision available for prescribing dates appears to be contained in section 11 of the Act which deals with inviting applications for the transfer of property under various Settlement Schemes. While dealing with this particular section their Lordships of the Supreme Court have laid down in Ch. Altaf Hussain v. The Chief Settlement Commissioner and others (PLD 1965 SC 68) that the provisions contained in this section are only of an enabling character and applications presented after the prescribed date could not be held to be invalid. It seems to me that this principle could easily be invoked in the matter of the payment of arrears of rent by persons claiming the benefit of the notifica--petition dated the 13th of October 1959, even though no comparable statutory power seems to exist enabling the Chief Settlement Commissioner to prescribe a limiting date. As a result, it is clear that although for the sake of convenience the Chief Settlement Commissioner could prescribe a date by which the arrears of rent should be cleared, yet the failure of the person concerned to do so would not have the effect of negativing the entitlement which had otherwise accrued in his favour in terms of the notification in question. The moment he clears the arrears of rent he would be entitled to take benefit under the notification, subject to the other conditions contained therein.
11. On this view of the matter, it is clear that by the 30th of April 1962, the petitioners had become entitled to be deemed to be in possession of their respective portions, as they had by that time cleared the arrears of rent and they were in undisputed occupation of these quarters. Although the property had been put to auction on the 15th of March 1962, yet the auctions had not been confirmed until the 8th of June 1962. The property was, therefore, clearly available for transfer against the NCH and LH Forms filed by these petitioners and there was no justification in law for refusing these transfers.
12. For the foregoing reasons, I have come to the conclusion that the orders made by the Settlement authorities putting to auction the quarters occupied by the petitioners and refusing to transfer the same to them against their respective forms are without lawful authority and of no legal effect. They are accord--ingly set aside and the Deputy Settlement Commissioner concerned is directed to consider the applications of the peti--tioners on merits and to transfer the quarters to them in accordance with law. The petitions are accordingly accepted, but in the circumstances of the case, the parties are left to bear their own costs.