This is a petition under Article 98 of the Constitution by which the petitioner has challenged the validity of the order dated the 14th of January 1965.
2. The facts which form the background are that the house in dispute bearing No, E/37/870, situated in Buta Lane, Tahir Bazar, Hyderabad, was occupied by Fayyaz Hussain respondent No, 2 who submitted his N. C. H. Form on the 8th of August 1959 with the object that it be transferred to him. The form was submitted in Ward D of Centre 2. On the 3rd of October 1959, a P. T. 0. was issued to him.
3. On the 24th of October 1960, a P. T. 0. for the same house was issued to Wahid Khan also as a result of earmarking proceedings which took place in Centre 3. In 1962 Fayyaz Hussain pointed out to the Additional Settlement Commissioner that there was a double allotment o' the house. On the 24th of July 1962, his application was rejected and an appeal was preferred against the order of rejection to the Additional Settlement Commissioner. This was done on the 16th of August 1962. The appeal was treated as a review application and was rejected on the 25th of November 1963 on the ground that an officer of equal rank had rejected the application of Fayyaz Hussain. A revision application was, therefore, made to the Settlement Commissioner who accepted it on the 14th of January 1965. Wahid Khan has filed this Constitutional petition to challenge that order.
4. The main contention between the parties is whether Fayyaz Hussain could get the house without first paying the outstanding dues. The stand of Wahid Khan has been that payment of the dues was a condition precedent in terms of section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Since Fayyaz Hussain had not paid the public dues before submitting his N. C. H. Form in August 1959 or before making the application in which he pointed out double allotment in 1962 ; therefore, according to Wahid Khan, Fayyaz Hussain was rightly not considered by the Settlement Commissioner to be entitled to get the house. Counsel for the parties pressed their respective points of view and referred to a number of decisions and notifications. I thought it proper that a representative of the Department should be heard. In deference to this desire, Mr. Wasim Hamid Rizvi has appeared on behalf of the Department.
5. In order to appreciate the controversy, it is proper that I should reproduce section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which is the basic subject-matter of the present controversy. It is as follows :-- "2(6) 'Possession'. -- 'Possession' meanspossession obtained in pursuance of an order passed on or before the 20th day of December 1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Government : Provided that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final: Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act."
In accordance with the main part of the above definition it was necessary that possession should have been obtained before the appointed date in pursuance of an order passed by an authority competent to do so. If competence of the authority was questioned, then the decision of the Chief Settlement Commissioner in that behalf was final. This definition was found to be too narrow from the point of view of a large number of persons who bad occupied evacuee property without orders of competent authorities ; therefore, the second proviso was added to the definition by Ordinance No, LIII of 1959 on the 28th of September 1959. By virtue of this ameniment, the Central Government was authorised to specify a class or classes of such persons as may not have obtained possession in pursuance of orders passed by competent authorities and to lay down such conditions as it deemed fit so that on the fulfilment of those conditions the occupation of such class or classes of persons be deemed to be effective. The second proviso thus does not change the definition of 'possession but entitles a class or classes of persons specified by the Central Government to be deemed to be in possession subject to the fulfilment of those conditions which may be prescribed by the Central Government. In pursuance of this provision, the Central Government issued a notification on the 13th of October 1959 which was as follows :-- "A claimant, non-claimant displaced person, or a local who has not obtained possession of a house or a shop in puresuance 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 he is a claimant, such amount is adjusted against his claim."
6. The main part of the above notification lays down that those who were not in possession of an evacuee house or shop in terms of the definition of 'possession' contained in section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 could be deemed to be in possession thereof if (a) they were in undisputed occupation of it and if (6) there was no other person otherwise entitled to its transfer. These qualifications created a class of persons. Now in order to satisfy the requirements of the second proviso it was necessary to lay down conditions on the fulfilment of which that class could get the benefit of the supposed possession. That condition has been laid down in the proviso to the above notification and it is that such class of persons should have paid the rent and other public dues in respect of the house or shop in the possession of which it is deemed to be "provided that the rent and other public dues .. . . have been paid by the occupant from the date of his possession". The words "provided dues have been paid from the date of occupation" have been the subject of discussion in several cases and were subjected to further discussion by learned counsel in these proceedings. There is only one judgment in which the view has been taken that these words prescribe a condition precedent for eligibility or, in other words, they mean that anybody of the above-mentioned class of persons who did not pay the public dues before applying for transfer of a shop or house was ineligible and incompetent to apply for it. This view was taken in a judgment of a learned Single Judge in Qamar Din v. Zawar Hussain . As against the above judgment, there are five other judgments in which a different view has been taken. They are Bashir Ahmad v. Khushi Muhammad , Akmal Khan and others v.
Settlement Commissioner, Khairpur, Gul Muhammad v. Settlement Commissioner, Kwachi , Ghulam Qadir v. Sj ed Muhammad Zaid land another and Ch. Sardar All v. Ch. Ali Muhammad and another . If the number of judgments could be the deciding factor, then it is obvious that the preponderent view is in favour of the interpretation that payment of the public dues is not a condition precedent for the eligibility of a person who is deemed to be in possession of a house or shop for applying for its transfer or for getting it transferred to himself.
7. The controversy has continued mainly for two reasons, firstly, because the judgments in Bashir Ahmed v. Khushi Muhammad and Qamar Din v. Zawar Hussain were given by Mr. Justice Muhammad Iqbal who has distinguished his previous judgment in favour of his subsequent view that the payment of public dues in terms of the notification was a condition precedent, and secondly, because the words "have been paid" which occur in the proviso to the notification do not specify any point of time with the result that in order to interpret them collateral considerations are introduced.
8. Mr. Justice Wahiduddin Ahmed, as he then was, took the view in Akmal Khan and others v.
Settlement Commissioner, Khairpur that the main part of the notification had a different weight from the proviso to it so that the proviso did not effect the class of the persons who could be deemed to be in possession and that in terms of the proviso a condition was introduced which had to be fulfilled but on the fulfilment of which the eligibility of the class did not depend. The same view has been taken by Mr. Justice Feroze Nana Glaulamally in Gul Muhammad v. Settlement Commissioner, Karachi. Mr. Justice Anwarul Haq has elaborated the points of view in Ch. Sardar All v. Ch. All Muhamamd. According to him, the view taken by Mr. Justice Muhammad Iqbal and Mr. Justice Wahiduddin Ahmed are basically the same inasmuch as Mr. Justice Wahiduddin Ahmed did not think that the proviso operated as a limitation on the main provision. According to Mr. Justice Anwarul Haq, the effect of this conclusion is that "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".
9. One result of the above view of Mr. Justice Anwarul Haq would be that unless eligibility existed at the time of submitting the application for transfer, such application was not competent but he proceeded to take into consideration and was influenced by the notifications which were issued by the Chief Settlement Commissioner to extend time for paying the public dues. While doing so Mr. Justice Anwarul Haq was confronted with the objection that the Chief Settlement Commissioner did not have the power to prescribe any time limit and has met this objection by observing that no extension of time made by the Chief Settlement Commissioner could negative the entitlement of an applicant and has arrived at the following conclusion : "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 time1 2 3 4 5 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 auction, had not been confirmed until the 8th of June 1962. The property was, therefore, clearly available for transfer against the N. C. H. and L. H. Forms filed by these petitioners and there was no justification in law for refusing these transfers."
I respectfully agree with the view that payment of the public dues is not a condition precedent for making an application legally competent for the transfer of a house or shop but I feel that a simpler argument in support of this view is that the second proviso to the definition of 'possession' contained in section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act consists of two parts. The first part permits the creation of a class or classes of persons who may be deemed to be in possession and the second part permits the prescription of those conditions the fulfilment of which would be necessary. In deference to these two parts of the second proviso the notification dated the 13th of October 1959 issued by the Central Government has been prepared in two parts. The main part deals with the creation of a class or classes of persons and the second part prescribes conditions. The result is that eligibility is determined by the first part but the fulfilment of the prescribed conditions is compulsory. They can be fulfilled after making the applications for transfer and even after the orders of transfer. The words "have been paid" which occur in the proviso to the notification and which have been criticised as vague have in fact given an elasticity to the proviso in order to make it capable of the interpretation that the public dues can be paid without rigid restriction of time limit. In support of this view, I may mention that the Chief Settlement Commissioner appears to have understood the notification in this sense because he has issued a number of notifications in which the date for making payment was fixed and has from time to time extended the date. The extensions have been made liberally and according to some notifications recoveries could be made after provisional transfer orders and even final transfer orders were issued. See for instance clause (i) of Part (B) of the Memo. dated the 6th of October 1960 reproduced at pages 592 to 596 in the new Manual of Settlement. The relevant part of the Memo. is as follows :
(1) Non-claimant displaced and locals who had applied on the prescribed forms for the transfer of properties in their possession, were required to clear arrears of rent outstanding against them for the period ending 30th September 1959, in order to render themselves eligible for the transfer of properties to them. Apparently, there should be no difficulty in recovering arrears of rent from the occupants of this category, as transfer of property to them can be withheld if they do not produce 'clearance certificates'. In cases where properties have been transferred, but the transferees have not cleared arrears of rent, Provisional Transfer Orders should not be handed over to them. Where Provisional Transfer Orders have already been issued, the defaulting transferees may be required to clear the arrears of rent within 15 days under threat of cancellation of their Provisional Transfer Orders."
In addition to the above notification of the Chief Settlement Commissioner, I may also refer to his notification dated 28-1-1960, 4-2-1960, 5-3-1960, 13-4-1960, 15-2-1961 and 16-6-1964.
10.Mr. Wasim Hamid Rizvi has taken the stand that the intention of the notification was that payment of the public dues should become a part of the eligibility of an applicant to get a house or a shop transferred to himself but this intention has not been achieved because the condition of the payment of public dues has been included in a proviso.
11.Mr. Khalilullah has contended that the crux of the question was whether payment of the public dues was a condition precedent for becoming eligible to get a house or shop transferred and that an applicant could succeed only if he was found to be eligible. He argued that section 13 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on which Mr. Abdul Majid had relied did not support the view that payment of the public dues was a part of eligibility because that section contains a general provision whereas the definition of 'possession' and the notification which has been issued under it deal with special situations. Section 13 is as follows t "13. At the time of transfer of any evacuee property to a local or a non-claimant displaced person the authority concerned shall, after making enquiries in the prescribed manner, determine the amount of public dues, if any, recoverable from him and shall require such local or non-claimant displaced person to pay such dues to the person or authority entitled to receive the same."
There is no doubt that it is a part of the statute and is of a general application. Equally there is no doubt that according to it payment of the public dues is always subject to the determination of that amount by the relevant authorities. The section contains no exception. In fact it was on account of this provision that Settlement Scheme No, 1, which relates to the transfers that are made in terms of the Government notification, embodies paragraphs 26 and 29. They provide that the public dues can be recovered by instalments as well as after transfer.
12.I feel that the above discussion irresistibly leads to the conclusion that payment of public dues is not a part of the qualification which makes a class or classes of persons eligible to get a house or shop transferred to itself but that it is a necessary condition which must be fulfilled though not necessarily at the time of making an application for such transfer or before such transfer. The flexibility which is to be found in this provision is consistent with section 13 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as well as with the practical problems which must have been in the view of the Chief Settlement Commissioner who extended time for payment of the public dues on several occasions.
13.In conclusion, the petition is dismissed with costs. PLD 1964 Lab. 185 PLD 1963 Lab. 507 PLD 1968 Kar. 669 1970 L N 367 PLD 1970 Lab. 647