1. DORAB PATEL, J.-The appellants before us are the legal heirs of Mirza Bashir-ud-Din Mahmud, deceased, (hereinafter called the deceased). The deceased was a claimant with a large verified claim and a property known as `Rattan Bagh' Lahore had been allotted to him. Later, as that property was acquired by the Government, the deceased had been allotted a flat and shops in a building known as `Jodha Mal Building' near Mayo Hospital, Lahore. The deceased had also been an allottee of a property in Murree known as 'Khyber Lodge' from time to time but it is relevant to point out here that the allotment of this property as of all properties in Murree was for the Summer season only. In this background the claim of the appellants is that after the promulgation of Settlement Scheme No. 1, the deceased had filed a C. H. Form for the transfer of the premises occupied by him in Jodha Mal Building and also for the transfer of Khyber Lodge in Murree.
2. However, Jodha Mal Building was declared a big mansion and disposed of by public auction, therefore, the deceased pressed his claim for Khyber Lodge.
3. Further, according to the appellants, the deceased had filed this C. H. Form on 14-7-1959 and, in the events that happened, he was informed on 14-6-1962 that his C. H. Form had been rejected because the Government had ordered the disposal of Khyber Lodge? Murree by a public auction, and, according to Mr. Anwar the order in this respect was passed by the Rehabilitation Be that as it may, the deceased immediately filed a writ petition Minister in the Lahore Seat of the then West Pakistan High Court against the respondents in which he sought a declaration that he was entitled on his C. H. Form to the transfer of Khyber Lodge in Murree, therefore, the further prayer in the writ petition was that the first respondent should be restrained from auctioning the Khyber Lodge. This writ petition was filed on the 15th June 1962, and together with it the deceased had sought a stay of the auction of Khyber Lodge. As the application for stay was not granted, the High court's order had been challenged in a petition for leave to this Court but that petition was dismissed as meanwhile Khyber Lodge had been auctioned to the third respondent who was therefore duly impleaded in the writ petition. All the respondents including the third respondent contested the writ petition of the deceased which was dismissed by a Division Bench of the then West Pakistan High Court on 17- 6-1970 principally on the ground that the deceased was not in possession of Khyber Lodge on 20th December 1958, being the relevant date under subsection (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act (hereinafter called the said Act) We were informed that this judgment was pronounced after the death of the deceased, therefore, the appellants filed a petition for leave in which they placed reliance on a notification issued by the Central Government dated 3-8-1960 by which in the exercise of its powers under subsection (6) of section 2 of the said Act, the Central Government had altered the target date for determining possession under the subsection. Leave was granted and we have heard the learned counsel on the merits of the entire case.
4. Mr. Anwar, who appeared on behalf of the appellants, submitted that the auction of Khyber Lodge was illegal because the auction was held although the C. H. Form of the deceased had not been disposed of and it would appear that in the High Court the position taken by the deceased was that he was entitled in the events that had happened to the transfer of Khyber Lodge under the earmarking scheme. Although Mr. Anwar did not rely on Paragraph 4 of the Schedule to the said Act, he admitted that the claim of the appellant was not fit to be considered unless they could prove that the deceased had filed a C. H. Form for Khyber Lodge after the pro--mulgation of the Settlement Schemes, and as Settlement Scheme No. 1 was promulgated in May 1959, Mr. Anwar submitted that the deceased had filed a C. H. Form on 14-7-1959 for the transfer of the portion of Jhoda Mal building in his occupation and for the transfer of Khyber Lodge, Murree. We were surprised by this submission because the copy of the C. H. Form in our printed record is dated 13-2- 1959 and bears the signature of the deceased. On an examination of the records, the copy in the paper book was found to be a correct copy of the C. H. Form of the deceased dated 13-2-1969 but as this was before the promulgation of the Settlement Schemes, the existence of this form is somewhat mysterious. Be that as it may, Mr. Anwar repudiated this form dated 13-2-1959 and pro-- duced before us a certified copy of the C. H. Form of the deceased dated 14-7-1959. But as the records before us only contain the C. H. Form of the deceased dated 13-2-1959, the contention of the respondents was that the so-called copy produced by the appellants was a forged document.
5. Mr. Anwar vehemently denied this allegation and submitted that the entire record was not before us and learned counsel relied on the correspondence in the printed record consequent on the reminders by the deceased about his C. H. Form. Now it would appear that the deceased had sent a reminder in February 1962, to the Chief Settlement Commissioner about his C. H. Form "dated 14- 7-59" in which he had pressed his claim to Khyber Lodge, Murree, as no other house had been transferred to him in Pakistan. Apparently, a copy of this letter was also sent by the deceased to the Additional Settlement and the Deputy Settlement Commissioner, Rawalpindi who had submitted reports, and the Additional Settlement Commissioner had supported the claim of the deceased to the transfer of Khyber Lodge. The Settlement Commis--sioner (Policy) by his letters dated 10-5- 1962 and 25-5-1962 to the Ministry of Rehabilitation and Works had also supported the claim of the deceased. Finally, the Ministry submitted a report dated 29-5-1962 to the Minister of Rehabilitation and I may explain here that other persons had been making claims to houses in Murree on the basis of their allotments. The report proposed that Khyber Lodge should be transferred to the deceased on his C. H. Form and that another property known as Sherbone Cottage should be transferred to one Mst. Akhtar Sultana on her C. H. Form. Now although this report was not accepted by the Minister vide his order dated 7-6-1962 with the result that both Khyber Lodge and Sherbone Cottage were auctioned. Mr. Anwar relied on the report as well as the letters of the Additional Settlement Commissioner and the Settlement Commissioner because, accord--ing to learned counsel, neither the Settlement officials nor the Ministry would have supported the claim of the deceased if he had not filed a valid C. H. Form. There is some force in this contention and it is possible that the deceased had filed a valid C. H. Form which was thereafter mislaid. However it is neither possible on the evidence nor necessary to decide whether the deceased had filed a valid C.
6. H. Form because even if it is assumed for the sake of argument that he had filed a valid C. H. Form, it is clear from the submissions of Mr. Anwar that the deceased was not entitled in the events that had happened to the transfer of Khyber Lodge. And I would now proceed to examine the submissions advanced.
7. The contention of Mr. Anwar that the deceased had obtained an allot--ment of Khyber Lodge, Murree for 1957 and for 1959 was not disputed by the respondents because it is supported by the record. However, the con--tention of the learned counsel for the respondents was that all allotments of property in Murree were for the Summer season only, and this contention is fully supported by a copy of the allotment order in favour of the deceased for the year 1957. The order is dated 9-4-1957 and it expressly states that it is "for the season ending 31st October 1957" on the conditions set out in the order. The first and the fifth condition in the order are relevant to the arguments advanced in this appeal. The first condition prescribes the rent which has reference to the period for which the allotment was made. The fifth condition reads :-- "5.---On expiry of the lease or on your leaving the house earlier than the specified period, possession of the house and all effects in good conditions must be delivered back to the Rehabilitation Authorities or any other officer appointed by them." ---(6) 'Possession---.-`Possession' means possession obtained in pursuance of an order passed on or before the 20th day of December 1958, by Rehabilitation Authorities or any other officer authorised or permitted by the Central or Provincial Governments 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."
8. Mr. Anwar admitted, and this is also proved by the record, that the deceased was not in possession of Khyber Lodge in the year 1958, therefore, the High Court had dismissed the writ petition of the deceased on the ground that he was not in possession of Khyber Lodge and was, therefore, not entitled to its transfer. But unfortunately the attention of the High Court was not drawn to a notification issued by the Central Government on 3-8-1960 in the exercise of its powers under the second proviso to this subsection. This notification insofar as it is relevant reads:--- ---No. F. 3 (3)/60-S I.-In exercise of the power conferred by the second proviso to clause (6) of section 2 of the Displaced, Persons (Compensa--petition and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to direct that a claimant, a non-claimant displaced person or a local who has not obtained possession of a house in pursuance of an order referred to in the said clause but is in possession of a house in pursuance of an order passed by a competent authority after the twentieth day of December 1958, but not latter than the date of this order shall, for the purposes of the aforesaid Act be deemed to be in possession thereof if such claimant, non- - claimant displaced person or local is in undisputed occupation of the house and no other person is otherwise entitled to the transfer of such house in pursuance of a final order passed by a competent authority."
9. As it was admitted before us that the deceased had obtained an allotment order for Khyber Lodge in 1959 for the Summer season of that year Mr. Anwar's submission was that this was an order passed by a competent authority between the 20th of December 1958, and the 3rd of August 1960, within the meaning of this notification.
10. However although the allotment order would fall within the period prescribed in this notification, the deceased, in order to succeed in his claim, had further to show on the plain language of the notification that he was in undisputed occupation of Khyber Lodge. It is difficult to see how he could prove any such claim because the allotment order in his favour was for period of few months only.
11. And as the competent authority was entitled to allot the house to other persons, it cannot be contended that the deceased was in undisputed occupation. That is one of the reasons why properties in Murree were as a matter of policy not disposed of against claims but wee transferred by auction. Mr. Anwar however relied on the fact that the deceased had remained in exclusive possession of the house even after the expiry of the allotment order for the year 1959. Now even though he may have remained in occupation of the house, this was in breach of condition No. 5 of the allotment order in his favour which I quoted earlier. Additionally, this possession was also in contravention of the first condition of the allotment order because the rent fixed in this clause had reference to the fact that the allotment was for the season only. In these circumstances, even if the deceased was successful in retaining possession as claimed by Mr. Anwar, this was in breach of his undertaking to vacate Khyber Lodge on the expiry of the period of allotment and as his possession was illegal, the; question is whether he was entitled to the benefit of this notification of 3-8-1960. Mr. Anwar submitted that the word `possession' does not exclude illegal possession. That may be so, but if we were to accept learned counsel's submission, a writ would be issued in order to enable the deceased to take advantage of his own wrong. I am, therefore, loath to accept the construc-- petition placed on the word `possession' by Mr. Anwar, and we would not be justified in construing the word `possession' in this manner, unless it is over--whelmingly clear from the notification that this was the intention of the author of the notification, and such an intention cannot be inferred from the mere fact that the notification did not define possession. However, although the word `possession' is not defined, the notification refers to the "possession ' of a house in pursuance of an order, passed by a competent authority", 'Therefore, the word `possession' here cannot mean illegal possession of possession which is contrary to the order of a competent authority and as the possession of the deceased was in violation of the express conditions of the allotment order under which he had entered into possession of Khyber' Lodge, he was not entitled to the benefit of this notification.
12. Mr. Anwar then submitted that Khyber Lodge had passed into the com--pensation pool and as there were no other claimants for it, the property had to be transferred to the deceased under Settlement Scheme No. 1, therefore, its auction was illegal. Now all the properties in Murree had passed into the compensation pool at the relevant time. But as I pointed out earlier, the Settlement Department had supported the claim of the deceased., Similarly, the Ministry's report of 28-5-1962 was in favour of the deceased. But this report was placed before the Minister of Rehabilitation who had disapproved of it by his order dated 7-6-1962, and Khyber Lodge was auctioned in con-- sequence of this order of 7-6-1962. It would appear from this order that properties in Murree, even after the notification of 24-11-1959 were being disposed of by auction, therefore, the learned counsel for the respondents submitted that the auction of Khyber Lodge was in pursuance of a general order under section 10(2) of the said Act for the disposal by public auctions of properties in Murree, and alternatively they relied on this Court's judgment in Settlement Authority v. Mst. Akhtar Sultana (PLD 1976 SC 410). In support of the first limb of the submission Mr. Maqbool Elahi undertook to trace the orders of the Government for the auction of properties in Murree and he requested us to give him time to trace out this order. Although we acceded to this request, we have not been supplied a copy of this order, accordingly, the first limb of the submission fails. Then, as to this Court's judgment in Settlement Authority v. Mst. Akhtar Sultana, I pointed out earlier that the Ministry's report to the Rehabilitation Minister proposed the transfer of Khyber Lodge to the deceased and the transfer of Sherborne Cottage to one Mst. Akhtar Sultana. Now, in pursuance of the Minister's order of 7-6-1962, both Khyber Lodge and Sherborne Cottage were auctioned and like the deceased, Mst. Akhtar Sultana had filed a writ petition to challenge the auction of Sherborne Cottage. As her writ petition was allowed, the Department had filed a petition for leave in this Court which was admitted, and it was this appeal which was allowed in Settlement Authority v. Mst.
13. Akhtar Sultana. Now, one of the contentions advanced by the Department in this appeal, was that the Minister's order of 7-6-1962 was an order under subsection (2) of section 10 of the said Act which could not therefore be questioned and this Court held that the Minister's order was an order passed under subsection (2) of section 10, accordingly, it rejected the claim of the respondent that Sherborne Cottage had been illegally auctioned. As Khyber Lodge has been auctioned in pursuance of the same order of 7-6-1962, this judgment is fatal to Mr. Anwar's submissions and on this ground also the appeal fails. However, the deceased had a verified claim for which no property was trans--feered to him, and if he has filed a C. H. Form on 14-7-1959, as claimed by Mr. Anwar, the Settlement Department should dispose of this claim form according to law. With these observations, the appeal is dismissed with costs.