This is a Constitutional Petition under Article 98 of the late Constitution of Pakistan (1962) which has been filed by the nine petitioners named heroin. The first three petitioners, namely, A.I Mohainmad.
Sultan Mohammad and Gut Mohammad are the sons of Wali Mohammad. The petition is against the Chief Settlement Commissioner Sind at Hyderabad, the Senior Accounts Officer, Settlement Department, Karachi and the Deputy Settle--ment Commissioner, Karachi.
2. The relevant facts briefly are these ; All the 9 petitioners are claimants displaced persons. Said Wall Mohammad along with petitioners Nos.4 to 9 preferred a joint claim with respect to their property before the Registration Officer, Claims Department, Karachi in 1955 or 1956. They got registration number of the claim which was numbered 2300/1. On 9-5-1959, their claim was verified by the Deputy Claims Commissioner, Karachi trader Schedule I for Rs. 23,865 and under Schedule VI for Rs. 4,773. The procedure after the claim is verified is laid down by the Displaced Persons (Application for Compensation) Rules, 1959, and the relevant rules are rules 3 and 4 which are as under; "3. Within such period as may be notified by the Chief Settlement Commissioner, each claimant shall submit an application in duplicate in Form "A' to the Deputy Settlement Commissioner of the Area in which he resides. An application on behalf of a minor or a person of unsound mind may be submitted by his legal guardian."
4. On receipt of an application under rule 3, the Deputy Settlement Commissioner concerned shall, after such verification of the entries made therein as he may doom necessary, prepare a compensation Book (in triplicate in Form "E'). One copy of the Compensation Book will be supplied to the claimant concerned and one copy to the Settlement Record Section in the once of the Chief Settlement Commissioner, Lahore and the third copy retained in the office of the Deputy Commis-- sioner concerned.
Any entries made in the Compensation Book without final verifications will be indicated in a covering letter. Any entries subsequently verified will also be intimated to the claimant con-- cerned and the Settlement Record Section."
Thus, in accordance with rule 4 mentioned above, one com--pensation book was issued to all the petitioners bearing No. 168006. The petitioners desired to have cash payment by this Compensation Book end for that purpose C. P. III Form had to be filled up by them in the Settlement office. Accordingly for doing so, the petitioners gave their Compensation Book to their advocate one Mr. Farman A.I with directions to fill up Form C. P. III and submit it in their name and on their behalf.
However, before this Form was filled up by the sold Advocate and submitted he lost the Compensation Book somewhere near the Settlement office. Sukkur. The Advocate reported the matter to the police. A public notice was also got duly published in the local newspaper "Rahnuma" dated 20th of November 1963. In spite of these efforts the lost Compensation Book could not be recovered. Accordingly, the petitioners desired to nave a duplicate of the Compensation Book. The procedure for obtaining the duplicate of a lost Compensation Book is prescribed by the Memo. No. 7223-Comp. Reh-59, dated 16th November 1959 which reads as under:- "If a claimant has lost his Compensation or Rehabilitation Book, a duplicate copy of the book should not be issued to him by the Deputy Settlement Commissioner of the Settle--ment Centres.
He should be advised to apply to the Deputy Settlement Commissioner, Settlement Accounts and Record Office, 11, Egerton Road, Lahore, for the issue of the duplicate Compensation or Rehabilitation Book. The application should be submitted on plain paper and should explain detailed circumstances under which the book has been lost and also indicate the number of the book lost by the applicant. A refugee adhesive stamp of Rs. 2 should be affixed to the application.
The application should be accompanied by a declaration to the effect that the circumstances relating to the loss of the Compensation Book stated in the application are correct and that the applicant will immediately surrender the duplicate copy of the Book to the Deputy Settlement Commissioner, Settlement Accounts and Record office, Lahore, as soon as the original copy of the Book has been found and that he will not use the duplicate as well as the original copy of the Book simultaneously. The declaration should also contain full particulars of the property and any compensa--petition in cash obtained by the applicant.
(2) The Deputy Settlement Commissioner, Settlement Accounts and Record office, Lahore will on receipt of the application. Scrutinise the application and if the details furnished by the applicant tally with the Records copy of the Compensation Book he a ill make a recommendation to the Chief Accounts Officer for the issue of a duplicate Compensa--petition Book. If there are any circumstances, the Deputy Settlement Commissioner, Records, will try to resolve them after making enquiries from the Deputy Settlement Commis--sioners concerned before submitting the case to the Chief Accounts Officer. After the Chief Accounts Officer has approved a duplicate Compensation Book will be issued by the Deputy Settlement Commissioner, Settlement Accounts & Record Office. The word 'duplicate' will be written in block letters on all the pages of all the three copies of the book. The Deputy Settlement Commissioner's copy will be supplied to the Deputy Settlement Commissioner concerned with the instructions to cancel the original copy maintained in his office.
(3) Particulars of the Compensation Book which has been lost will be circulated to all Deputy Settlement Commissioners by the Deputy Settlement Commissioner, Settlement Accounts and Record office, Lahore as a safeguard against misuse of the book by an unauthorised person."
(Printed at pages 80-81 of the Old Settlement Manual).
Thus, 1n accordance with this Memo, Wali Mohammad, the father of the petitioners Nos. 1 to 3, who was the attorney for the remaining petitioners also filed an application on 1st of February 1964, before the Deputy Settlement Commissioner (Settlements and Record Office), Lahore, praying for issuance of a duplicate, Compensation Book in place of the one that had been lost as stated above. This application is Annexure 'A' to the Petition and is at page 9 of the file. Along with this application declaration/affidavit by Wali Mohammad was also filed which, inter alia, mentioned. "that I hereby undertake to surrender a duplicate copy of the said Compensation Book that will be issued to me in my name and in the name of co-sharers as soon as the original copy of the Book will be found."
Further, an affidavit of the Advocate Mr. Farman A.I was also attached to this application which, Inter alia, sets out the facts that the original Compensation Book had fallen down from the file of this Advocate somewhere in the vicinity of the Settlement Centre, Sukkur. Thereafter, the Chief Settlement Commissioner acting on the above application filed by the said Wali Mohammad called for a report from the Central Record Office, Claims, at Karachi. A report was, accordingly sent which showed the genuineness of the claim of the petitioners as it originally was allowed. However, it appears, thereafter no further action seems to have taken by the Depart--ment, therefore, the petitioners finally on 9th December 1966, sent a reminder in the form of a notice to the Deputy Settlement Commissioner. Settlement Accounts and Record Office, 11, Egerton Road, Lahore through a counsel. Copy of this notice has been attached as Annexure 'D' to the petition. No reply to this notice has yet been received, as alleged by the petitioners, and, therefore, they filed the present Constitutional Petition on 24-8-1967, whereafter it was amended on 19-5-1972. In the notice by way of reminder it was asserted in one of the paras of it that claimants cannot be converted into non-- -claimants and they cannot be deprived of their right to compensa--petition in view of the provisions of section 15 read with section 12 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and it was thereby claimed that the vested right in the petitioners could not be denied to them in order to get compensation out of their Compensation Book.
3. The above facts including the loss of the Compensation Book of the petitioners have not been controverted by the respondents and thus, these facts stand admitted. It is, therefore, clear that the petitioners had obtained a Compensation Book bearing the number which has been already mentioned above and the same was lost by their Advocate Mr. Farman A.I as stated earlier.
4. On these facts the learned counsel for the petitioners contends that in accordance with the Memo reproduced above, which is published in the Old Manual of Settlement, Law and Procedure, it is the vested right of the petitioners to get a duplicate copy of their Compensation Book which they have lost. Even otherwise in view of the same Memorandum when the petitioners have lost their original Compensation Book they are entitled to get a duplicate copy of it. In support of his contention the learned counsel for the-petitioners has cited the decision of the case of Messrs S. A.I Bakhsh & Sons v. Additional Settlement Commissioner and another (PLD 1968 Lah. 1227) wherein in its head-note it is observed as under ;- "The right is created by the statute and the Compensation Book is a mere compendious statement to be used as a handy evidence at a glance to enable the Settlement Department to discharge its obligation. In that respect, it is not dissimilar from the 'pass book' issued to a depositor of a saving bank account. The right of the depositor from his account arises from the deposit itself and not from the entries in the Pass books or even the account books. Loss of the pass book or even the account books would not frustrate the debt, for the books are merely evidence of the debt."
5. The learned counsel has also referred to other observa--tions in this reported judgment which portions are at pages, 1231, page 1232 paragraph 9, page 1233 paragraph 11 and page 1235 paragraph 16. These portions respectively are as under :- "The expression 'claimant' has been defined in section 2 (2) of the Act as under :-- 'Claimant' means a displaced person whose claim (excluding claim in respect of agricultural land) has been registered under the aforesaid Act of 1956, and includes the successor-in-Interest of a claimant who dies on or before the 31st day of August 1959 ....: It is manifest from the above two provisions read together that a displaced person whose claim after verification under the 1958 Act has been registered under section 12 of the 1958 Act and the Rules framed thereunder, acquires a vested right to receive payment out of the compensation and rent pools. The expression 'shall be entitled to receive payment . . . .' in section 15(1) plainly creates a vested right, which is an antithesis of an ex gratia grant. Displaced Persons (Application for Compensation) Rules, 1959, framed under effectuate the vested right created by the statute in favour of a claimant and being subordinate Legis--lature cannot be read so as to nullify or impair the right created by the statute. Under rule 3, each claimant is required to supply in Form 'A within the specified time to the Deputy Settlement Commissioner of the area in which he resides. Rule 4 is in imperative terms and reads; "On receipt of an application under rule 3 the Deputy Settlement Commissioner concerned shall, after such verifica--petition of the entries made therein as he may deem necessary, prepare a Compensation Book (in triplicate) in Form 'B'. One copy of the Compensation Book will be supplied to the claimant concerned and one copy to the Settlement Record Section in the office of the Chief Settlement Commissioner, Lahore, and the third copy retained in the office of the Deputy Settlement Commissioner concerned. Any entries made in the Compensation Book without final verification will be indicated in a covering letter. Any entries subsequently verified will also be intimated to the claimant concerned and the settlement Record Section."
It was not controverted by the respondents' counsel that the requirement of this rule is mandatory.
The Deputy Settlement Commissioner is under the statutory obligation to issue Com--pensation Book In triplicate in Form 'B', one of which is to be given to the claimant. In Mutter v. Eastern Midland Railway (1888) 38 Ch. D 92, the right of shareholder to 'inspect and peruse' a register of debentures stock vide Companies Clauses Act, 1863, was held impliedly to carry with it the right to take copies.
It was held in that case that but for this extended interpretation the words 'inspect and peruse' in the enactment would confer a mere illusory right. On a parity of reasoning therefore, the right of claimant to the issuance of Compensation Book to him would include by implication a right to obtain duplicate on the proof of the bona fide loss of the original. And indeed, this interpretation finds ample support in Memo. No. 7223.Comp.-Reh.(59, dated the 16th November 1959, printed at page 80 of the Manual of Settlement Law and Pro--cedure (Old Edition) which prescribes a procedure for the issue of duplicate Compensation Book in the event of the loss of the original by the claimant.
9. Even on general principles of interpretation of statutes, the 1958-Act according to its preamble being plainly remedial, intended to provide for compensation to displaced persons who abandond property in India in the wake of Independence or its aftermath, with a view too rehabilitating them in the economic of the country, it is our 'duty' to place such construction on its provisions which will advance the remedy. In such cases---- Even where the usual meaning of the language falls short of the whole object of the Legislature, an extended meaning may be attributed to the words, if they are fairly susceptible of it. 'Maxwell on Interpretation of Statutes, 1962-Edn: p. 66.
11. We are thus clearly of the view that section 15 of 1958 Act read with rule 4 of 1959 Rules on its proper construction imposes a legal obligation upon the respondents to issue a duplicate upon the proof of bona fide loss of the original. This interpretation is, more just, equitable and in accord with the general intendment of the statute, than the interpretation, canvassed on behalf of the respondents.
"16. For the foregoing reasons, we hereby accept the writ petition and direct respondent No. 1 to issue duplicate Com--pensation Book with all reasonable despatch in respect of the registered claim of the petitioner. Respondent No.1 will, however, be at liberty to require the petitioner to furnish indemnity bond to indemnify the Chief Settlement Commissioner (respondent No.2) against any loss suffered by him on account of the issuance of the duplicate as directed hereunder. In the circumstances of the case we make no order as to costs.---
6. It will be seen from the reproduction above of the portions of the reported judgment that that was also a case of loss of the original Compensation Book and a duplicate copy was being claimed by the claimants. The High Court of Lahore which decided the case in its concluding paragraph 16 at page 1239, as shown above, directed the Settlement Department to issue a duplicate copy of the Compensation Book to the petitioners in that Constitutional Petition. Against this decision an appeal was taken by the Department to the Supreme Court and in that Court also the appeal failed. This decision in the appeal in the Supreme Court is reported as Additional Settlement Commissioner (Accounts of Records), Lahore and others v. M/s. S. A.I Bakhsh & Sons, (1965 SCMR 350) and in it their Lordships of the Supreme Court have observed as under;---- "In the absence of any provision either in the relevant statutes or in the rules framed thereunder, prohibiting the Department from issuing a duplicate Compensation Book where the original Is lost, the Department cannot deprive a claimant of the verified amount of his claim merely by refusing to issue a duplicate Compensation Book. No such power can be spelled out from the provisions of the relevant statutes. Indeed the Department itself has Issued instructions by its Memorandum No. 7223-Comp.-Reh-59, dated 16th November 1959 for the issuance of duplicate Compensation Books in the circumstances therein mentioned. If the Department is of the impres--sion that there is no duty cast upon it by these instructions, then it Is under a grievous misconception. It cannot merely on the ground of alleged inconvenience or difficulty in maintaining proper records absolve itself of this duty. If the applicant for duplicate has satisfied the conditions prescribed in the instruc--tions then the Deputy Settlement Commissioner, Settlement Accounts and Record ogee, is bound to make a re--commendation to the Chief Accounts Officer for the Issuance of a duplicate Compensation Book. The word `will' used in paragraph 2 of the instructions has the same force as the word `shall' and is, therefore, mandatory."
7. Furthermore, counsel for the petitioners has also cited and relied upon an unreported decision in Writ Petition No. 1392/R/1962, decided by the then West Pakistan High Court at Lahore and the Bench which decided this petition comprised of S. A. Mahmud and Jamil Hussain Rizvi. JJ. In this unreported decision also their Lordships have dealt with still a worst case than the present one in hand before me and it has been held by them in their judgment that If the duplicate has been genuinely lost1hen second duplicate must be issued to each petitioner to taking the necessary, precaution that the amount already utilised, if any. Is entered in it and that no fraud is committed.
So that it will be seen that this unreported case is a decision of obtaining second duplicate of the original Compensation Book as well as the duplicate of that Compensation Book being lost by the petitioners. This unreported decision is also referred to in the above-mentioned Supreme Court decision and has been approved by their Lordships of the Supreme Court.
8. Thus, In view of the above facts and the case-law already mentioned above, ft is quite clear that the petitioners in this case are entitled to receive duplicate copy of their original Compensa-- petition Book bearing No. 168006 which has been lost by them. This the Settlement Department has to issue to them as expedi--tiously as possible.
9. I might also mention that this petition was defended on behalf of the respondents, i.e., the Settlement Department, by their counsel who merely submitted that much time would be required by the Settlement Department to scrutinise every matter in this case and according to him the Department should be given a chance to hold an enquiry into the allegations of the loss of the Compensation Book as made by the petitioners. It will, there--fore, be seen that he does not in fact oppose the present petition by the petitioners and merely wants time for the Department to issue a duplicate copy of the lost Compensation Book in this matter.
10. However, a clear reply to his argument will be that the Compensation Book in this case has been lost as far back as in the year 1963 and even the application for the grant of a dupli--cate Compensation Book in the instant matter has been moved before the authorities concerned on 1- 2-1964 which facts clearly show that by this time the Settlement Department has had more than ample time to carry out the necessary scrutiny or any enquiry that it wished to. By now, it should be clear to them that the petitioners are, according to them, entitled to the duplicate copy of the Compensation Book or not? In my opinion since the petitioners have been given no reply for the duplicate copy of their Compensation Book which they have lost it is quite clear that the Settlement Department is also not able to trace their original Compensation Book.
11. Accordingly, in view of the discussion made above, an inescapable conclusion will be that the petition of the petitioners has to be allowed and thus, the Settlement Department through the respondents is directed to supply a duplicate copy of the Com--pensation Book of the petitioners bearing No. 168006 which they have lost by mischance. However, the respondents will be at liberty to require the petitioners to furnish indemnity bond to indemnify the respondents against any loss suffered by them on account of the issuance of the duplicate as directed just now.
12. Looking to the circumstances of the case since the peti--petition has not been directly opposed by counsel for the respondents, I see no ground to award costs in this petition to the petitioners and the parties will bear their own costs. The respondents shall without loss of undue delay issue a duplicate Compensation Book to the petitioner as prayed by them in this petition.