' SHAFIUR RAHMAN, J.--- Leave to appeal was granted to the auction-purchaser side to examine to following questions of law arising in the appeal: "(1) Whether the property which was disposed of in favour of the petitioner in public auction was available property and could be transferred to the respondent No,1?
(2) Whether the provisions of Paragraph 20 of the Settlement Scheme No,I created any right in favour of the respondent?
(3) Whether the auction in favour of the petitioner was violative of para. 20 of Chapter 3 of Settlement Scheme No,1 and only respondent No,1 was eligible to the transfer of property as it converted it into an Industrial concern?"
2. The Chief Settlement Commissioner by a Press Note appearing at page 103 of the Old Settlement Manual announced a policy of auction of houses and shops in pessession of locals or not transferable otherwise. Pursuant to it a list of properties which were to be auctioned was prepared and in it was included Shop No, M-42-A located in Cantonment. In the Rehabilitation records it appears to have been recorded as a shop and a workshop and this feature was noted by the Additional Settlement Commissioner in his order dated 27-5-1961 as hereunder:--- "In these statements it has been resolved that Mangu Khan and Sadiq Hussain Shah had taken these premises from M/s. Kirpa Ram and Brothers on 29th of July, 1940 on each. It is further on record according to their own statement that they had the agency of new cars and trucks, they had a petrol pump of their own. A workshop and a service station, that the entire fittings and machinery was theirs and that the evacuee owners only possess the building, that they had spent a sum of Rs,2,50,000 on this premises and that they had paid all the rents due to the evacuee owners up to 30th of November, 1956. The allotment chit dated 19th July,1957 in response to Globe Automobile letter of July 2, 1956, is also intact in this file."
3. This property when put to auction fetched from the predecessor of appellants the highest bid of Rs,2,75,000 on 20-2-1960. A P.T.O. Was issued on 22-2-1960. Another Press Note of the Chief Settlement Commissioner issued on 3-5-1960 with regard to the disposal of converted property and the application for such property was required by 21-5-1960 at the latest. While this Press Note was in the field, on 24-5-1960 the contesting respondent (respondent No,1) addressed the following letter to predecessor-in-interest of the appellants and endorsed its copy to the Rehabilitation Commissioner as well:-- "We have learnt that premises No,42-A situated at Lawrence Road, Rawalpindi have been purchased by you at public auction. We have not received any notice from you or the Rehabilitation authority. We are in lawful occupation of the said premises and have been paying rent at the rate of Rs,300 per month to the authority concerned. We have further come to know that rent now assessed is Rs,500 per month. We accordingly remit the amount of Rs,1,500 under cheque No,X003888 as rent for the months of March, April and May, 1960.
' Please acknowledge receipt. Thanking you, Yours faithfully, for Globe Automobiles Ltd.
Sd/- S.H. Shah, Managing Director."
' He started paying rent also to the predecessor-in-interest of the appellants.
4. On 2-3-1961 the respondent No,1 addressed an application to the Deputy Settlement Commissioner, which was described as Revision Petition, and sought the transfer of this property under Paragraph 20 of the Settlement Scheme No,I. His prayer was as hereunder:-- "(viii) That on 20-2-1960, the shop in question was disposed of in an unrestricted public auction.
' That on the announcement of aforesaid policy regarding disposal of evacuee properties converted to some other uses, the applicants have become entitled to the transfer of the shop.
' Under the circumstances it is prayed that the earlier proceedings taken regarding the disposal of the shop be revoked and the shop transferred to the applicants on evaluation basis."
5. The Deputy Settlement Commissioner obtained the permission from the Additional Settlement Commissioner to review the order of transfer by auction and on 29-3-1961 set it aside. His findings were as hereunder:--- "(i) I am of the opinion that Property No, 42-A was wrongly included as shop by the DSC in the list which was published under the orders of the Additional Settlement Commissioner.
(ii) The auction committees are appointed on ad hoc basis only to supervise the auctions. To prepare the lists of the property for auction is the job of the D.S.C., of course with the approval of the Additional Settlement Commissioner.
(iii) Even on compassionate grounds, one has to see that a person should not be put to great loss only due to the reason that he approached the authorities at a late stage."
' Finally, he granted the relief in the following words:--- "The petitioners have sufficient proof that they installed machiney of many types at a cost of Rs,18,000 to 20,000 before 20th December, 1958 and in accordance with para.26, Chapter 3, of Settlement Scheme No,I, this property was included in the auction list, and would be auctioned, therefore I hold that this property was not auctioned in accordance with the law and therefore the case of this property can be re-opened for rectifying the wrong previously done. Moreover the purchaser have not cleared the entire price."
6. An appeal was preferred against this order of the Deputy Settlement Commissioner which was taken up by the Additional Settlement Commissioner and he recorded the following findings in his judgment dated 27-5-1961:--- "(i) That Deputy Settlement Commissioner got my permission to examine the law point involved but proceeded to cancel the auction and in fact by his order dated 28-5-1961, transferred the premises to them.
(ii) The appellants moved the Chief Settlement Commissioner who on 29-5-1961, transferred the case to this Court for disposal.. Unfortunately those orders of the Chief Settlement Commissioner were not shown to me until 1500 hours on 30-3-1961 and the Deputy Settlement Commisssioner had pronounced his orders on 29-3-1961.
(iii) It is therefore now quite clear that right from the beginning, the premises were not a shop but a workshop and that according to the original allotment, when the building ceased to be evacuee property in December, 1954, the respondents claimed to have spent a sum of Rs,2,50,000 on it and that the machinery, fittings, service station and the petrol pump etc. Are their property."
' The Additional Settlement Commissioner inspected the premises and passed the following operative order:--- "(12)I promised to see the premises and I inspected the premises in the presence of both the parties. It is no doubt, a workshop and not a shop. This view of mine is new based on record for the years 1954 and 1955 and which now forms part of the record of this file.
(13) But since I happened to be the Chairman of the Auction Committee and the respondents raised no objection at the proper time when the list for auction of shop was published and did not fight their case on the basis of the Rehabilitation file, I do not consider it desirable to sit in judgment on my own action in my capacity as Chairman of the Auction Committee and to cancel the auction proceedings dated 28-2-1956. It is for the respondents to invoke the revisional powers of the Settlement Commissioner or the extraordinary powers of the Chief Settlement Commissioner.
(14) I accept the appeal and set aside the orders of the Deputy Settlement Commissioner dated 20-3-61."
7. A revision petition was filed by the respondent No,1 which was dismissed by the Settlement Commissioner on 13-7-1961. A second revision petition was thereafter filed which was disposed of on 24-4-1962 by the Settlement Commissioner exercising the delegated powers of the Chief Settlement Commissioner. He granted the relief observing as hereunder:--- "I also do not feel inclined to agree with the views of the learned Settlement Commissioner that by omissions or commissions the petitioners have lost their rights to come up and the time factor was very valuable in this case but in view of the facts as explained above and also the findings of the DSC who admitted applications of the petitioners surely did mean that he allowed period of limitation in their favour and I consider that even though subsequently the case was said to have been transferred from his Court to the other Court and the decision given by him surely this is a matter and which could not be lost sight of.
' I consider, therefore, that the auction of the shop which was in fact an industiral concern and was very well covered by the provisions of the Scheme was not proper. This view finds support from the views expressed by the Additional Settlement Commissioner even who apparently was satisfied about the validity of the rights of the petitioners but he ignored it because of the fact that he did not want to sit on judgment on his own action in putting the shop to auction.
' It is a good case where I should interfere. I accept this revision and direct that the premises in question be transferred to the petitioner on usual terms and conditions as an Industrial concern and the aution to respondents is cancelled."
8. The appellants thereafter filed a Constitution petition in the High Court which was allowed by a learned Judge and Letters Patent Appeal filed against the judgment succeeded. Hence this appeal.
9. Mr. Aamir Ram A. Khan, Senior Advocate, the learned counsel for the appellants has contended that the powers exercised by the Chief Settlement Commissioner in issuing the Press Note dated 3- 5-1960 were relatable under section 10(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as it stood before its amendment in 1962. The Additional Settlement Commissioner had been authorised to determine the status of the converted properties. All disputes with regard to the disposal of such property and the confirmation of the auctions were validated by Ordinance XIII of 1964 and were not open to question on the ground of illegality or a nullity. He cited in support of his contention, Hakim Hafiz Muhammad Hussain v. Settlement and Rehabilitation Commissioner etc. (PLD 1975 Lah. 231), Iqbal Muhammad and others v. Muhammad Ilyas and others( 1983 SCM R 438). According to him even the rights recognised under the notification dated 3-5-1960 were made conditional in that the application had to be preferred before a particular date and the transfers already made were not to be reopened. Both the conditions remained unsatisfied in the case of the respondent No,1. He had not approached the Settlement Authorities within the period prescribed for filing a revision, review or appeal and there was no concept of condoning limitation on compassionate grounds as seems to have been done by the Deputy Settlement Commissioner and the Chief Settlement Commissioner. In support of his contention he has relied on Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167).
Finally, it was contended that there was a clear acquiescence in derogation of whatever rights the respondent No,1 could claim in the property by unilateral attornment by payment of rent to the appellants. The appellants had not served him with a notice at all.
' In support of this contention the learned counsel for the appellant has cited the cases of Muhammad Feroze v. The Settlement and Rehabilitation Commissioner, Sargodha Division and others (1976 SCM R 476), A.R.Khan v. P.N. Boga through Legal Heir (PLD 1987 SC 107) and case of Hakim Hafiz Muhammad Hussain (PLD 1975 Lah. 231).
10 Mr. Khalil-ur-Rahman, Senior Advocate, the learned counsel for the respondent No, 1 has stated that in view of paragraph 20 of Settlement Scheme No,I the inclusion of this property into auction list as a shop was itself a nullity and that the auction as required was never confirmed by the Chief Settlement Commissioner and the revisional order passed by the Chief Settlement Commissioner could also be taken to be a suo motu order irrespective of the limitations etc. And being within purview of law then existing notwithstanding the subsequent validation, could hold good.
11. The history of the case throws up two facts in prominence. The first is that at no stage, prior to disposal of the property as a shop by auction was, paragraph 20 of Settlement Scheme No, I, invoked by anyone. This paragraph 20 reads as hereunder: "Conversions made in evacuee property.---If a building which was a house or a shop on 14th August, 1947, has been converted to some other use, the Chief Settlement Commissioner shall determine whether it is a house or a shop or any other type of property."
' It does not mandate that the Settlement Authority shall in every case physically inspect every property to submit a report to the Chief Settlement Commissioner with regard to the use in 1958.
The person who has converted the property, who is in occupation of it, who seeks the benefit of the law is the most appropriate person to raise the claim and to get a declaration. Even independently of it, such a dispute could come to the notice of the Settlement Authorities and a reference of it to the Chief Settlement Commissioner would then have become necessary. Admittedly, neither the occupant, nor the Settlement Authority, nor anyone else questioned the allotment, the occupation and the disposal of the property as a shop. It was published in the aucation list. It was advertised.
The objections were invited against the auction. None were preferred. Even independently of paragraph 20 of the Settlement Scheme No,I if it was industrial concern and had to be disposed of under Settlement Scheme No,11 being an allotted property but not by the Industrial Board, a claim could be made by the occupant of it. None was made. In this context and background no determination by the Chief Settlement Commissioner was called for and the lack of it was not fatal to the auction that took place. An ex post facto inquiry into such matters could not take place on a petition which was time-barred and for which no explanation was available.
12. The other fact is that the respondent had voluntarily and unilaterally come forward to attorn to the appellants. He had done so in derogation of his subsisting rights in the property. He had not been coerced to so attorn. The statutory right of serving a notice and getting a positive response from him had not till then been exercised. There was, therefore, unlike any precedent case cited at the hearing, a clear acquiescence -- a surrender of the right and the claim over the property which could possibly exist.
13. On the legal plane the High Court has not at all taken into consideration the Validation Act i.e,, Ordinance No,XIII of 1964 (Displaced Persons Laws Amendment Ordinance, 1964). Such validation statutes are curative and remedial. They operate in retrospect. They correct omissions and mistakes. They have to be given effect to in pending proceedings. A decision cannot be rendered oblivious to them.
14. As regards the first point made out above namely the inactivity of the respondent No, 1 who claims to have converted the property to lay any claim to it under Paragraph 20 of the Settlement Scheme Nol or as an industrial concern not allotted by the Industrial Board, decision of this Court in Muhammad Sharif Puri v. The Additional District Judge with powers of the Settlement Commissioner, Lahore and 5 others PLD 1980 SC 49 at page 55 will hold good. It was held that "since the petitioner had failed to make any application for the transfer to him of a portion of the main bungalow as an industrial concern he had no locus standi to question the right of respondent Abdul Razzak to whom the bungalow in question had been transferred under Settlement Scheme No,I."
15. As regards his own conduct of unilaterally coming forward, accepting the auction and tendering the rent in derogation of his own rights in the property, if any, the cases cited by the learned counsel for the respondent No,1 all are distinguishable because the acceptance had been preceded by contest over the allotment and was not independently of it. More appropriate precedent governing the facts would be Muhammad Feroze v. The Settlement and Rehabilitation Commissioner, Sargodha Division and others (1976 SCM R 476). In order to claim a right as a converted property, the interest and the claim had to be kept alive as was done in Miss L.M.
Stratford represented by the Principal, New School and others v. Syed Amjad Hussain and 9 others (PLD 1992 SC 51), Dr. Mrs. Ashraf Abbasi v. Settlement Commissioner, South Zone, Karachi and others (1987 SCMR 1636), Muhammad Salch v. The Chief Settlement Commissioner, Lahore and 2 others (PLD 1972 SC 326) and Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61) where transfer was preceded by a proper claim.
16. As regards the validation of certain acts, Ordinance XIII of 1964 (Displaced Persons Laws Amendment Ordinance, 1964) contained in section 3 a validation clause as hereunder:- "3. Validation.---Anything done, action taken, order passed, rule made or notification issued, or purporting to have' been done, taken, passed, made or issued, under any of the aforesaid Acts, before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued under such Act as amended by this Ordinance, and shall have and shall be deemed always to have had effect accordingly."
Such laws have been interpreted in Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. (PLD 1974 SC 180) that until the judgment is final it is subject to the power of the legislature to enact curative legislation which have to be given effect to in pending proceedings.
17. In view of the established position of the law on the subject as discussed above this appeal is accepted, the judgment of the Appeal Bench of the High Court under challenge is set aside and the transfer of the property to the appellants is restored. No order is made as to costs.