BILQIS SULTANA Versus SETTLEMENT COMMISSIONER

1. Brigadier Amjad Ali Chaudhry a Serving Officer of the Pakistan Army secured the allotment of Bungalow No. 104-St. John Park, Lahore Canton ment, on 7-4-1957. He continued to remain the allottee and in possession up to 11-4-1959, when he was transferred out of Lahore. In February 1959, while he was still in occupation of the bungalow, he contacted the office of the Deputy Settlement Commissioner with a view to applying on an NCH form for the transfer of the house to him as he was in possession on 24-12-58, the appointed date, and had been in possession before that date as well as after that date. The Settlement Department informed him that the property could not be transferred to him as the Central Government has granted permission for the transfer of this house along with about 41 others to the Defence Department. It needs no gainsaying that evacuee property in respect of which the Government had granted permission for sale was not included in the list of properties notified as having been acquired under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Con sequently, this property did not form part of the Compensation Pool in Febru ary 1959 when Brigadier Amjad Ali asked for its transfer and the Settlement Department rightly declined to accede to his request as they did not have seisin over the property.

2. Brigadier Amjad Chaudhry having left the possession in April 1959, the present petitioner Mst. Bilqis Sultana applied for its allotment as it was lying vacant. It would be worth mentioning that at that time the country was under Martial Law. The petitioner was the wife of Lt.-Gen. K. M. Sheikh. Minister for Interior in General Muhammad Ayub Khan's Government. The application of the petitioner was accepted and the aforementioned house was ordered by the Chief Settlement Commissioner to be allotted to her on a care-taker basis. The order issued by the Deputy Rehabilitation Commis sioner bears the date 29-6-1959 while possession seems to have been handed over in advance on 11-6-1959. The caption of the order is

3. "Temporary Allotment Order" which specifically says that petitioner "is hereby permitted to occupy tempo rarily, on care-taker basis, the evacuee premises No. 104-St. John Park, Lahore Cantonment, for residential/commercial purposes on the following conditions:-

(1) This permission which confers no right, title or interest is subject to termination:-

(a) As soon as the premises are required to compensate a claimant under the amended Displaced Persons (Compensation and Rehabilitation) Act of 1958, as modified by Ordinance I of 1959.

(b) If the allottee named above is found to have placed the premises, wholly or partially, in occupation of any person or persons other than his dependants.

(c) If the allottee is found to have secured this permission by suppressing or misrepresenting facts.

(d) If the allottee is found to have misused or damaged the premises.

(e) If the allottee fails to pay the rent due from him.

4. [Note.-You will not be eligible for the transfer of this house under the Displaced Persons (Compensation and Rehabilitation) Act, 1958].

(2) In the event of this permission being terminated on any of the above grounds, the care-taker shall vacate the premises forthwith on plain or ejectment without being provided with any alternative accommodation.

5. There is also an undertaking given by the petitioner under her own hand at the foot of this order which runs thus:-

6. "I, the undersigned, as a care-taker allottee for the premises, undertake to abide by the conditions laid down above."

7. It seems that at some date before the 20th June 1960, the petitioner left this house and joined her husband Lt.-Gen. K. M. Sheikh at Lynswood House, Karachi, where she started living with him. This is evident from the address given by her in a CH form filed by her and forwarded by the Private Secretary to the Minister on 12-7-1959. It is further evident from the statement of the petitioner that the house was in occupation of one Capt. Khizar Hayat, A. D. C. to the G. O. C., Lahore at least from 17-6-59 to 13-3-61 and an official telephone No. LH-Military-190 was duly installed in his name in it.

8. On 20-6-60 the Central Government withdrew the order by which per mission for the sale of 41 evacuee bungalows including the one in dispute had been granted.

9. On 2-9-60, the Deputy Settlement Commissioner, Lahore-VI issued a P. T. O. in respect of the house in dispute in favour of Begum Bilqis Sultana Sheikh wife of Lt.-Gen. K. M. Shaikh.

10. Sometime later, Brigadier A. A. K. Chaudhry came to know about this trasfer and since he had been in possession on the appointed day mentioned in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, he thought that he was entitled to its transfer and in any case had a preferential right to any one who was not in possession on that date. He consequently filed an NCH form before the Chief Settlement Commissioner. The Chief Settlement Commissioner obtained the advice of the Legal Adviser of the Settlement authorities and thereupon referred the matter to the Settlement Commissioner, Lahore, who in this case was Mr. M. H. Sindhar, District and Sessions Judge for examining the matter in exercise of his suo motu revisional powers after hearing the parties.

11. Mr. Sindhar disposed of the case on 10-2-1966 in the light of the arguments addressed by the parties before him. He annuled the transfer of the house in favour of Mst. Bilqis Sultana, directed that the Chief Settle ment Commissioner shall issue formal notification of acquisition of this case so as to include it in the compensation pool as well as a notification inviting applications for transfer of the house. He came to the conclusion that Mst. Bilqis Sultana was in any case not entitled to the transfer of the house in dispute.

12. When the matter went up before the Settlement Department, the Deputy Settlement Commissioner, Lahore, transferred the bungalow to Brigadier A. A. K. Chaudhry on 6-6-1966 and a P. T. O. was issued to him on 7-6-1966. Brigadier A. A. K. Chaudhry then served a notice under section 30 to the tenants in occupation of the house who started paying rent to him. Con sequently, Mst. Bilqis Sultana filed the present writ petition on 11-5-1966 praying that-

13. "The order of respondent No. 1 cancelling the transfer of the bungalow in dispute from the name of the petitioner be declared to be without lawful authority and the same may be quashed and the order of the D. S. C. transferring the bungalow to the petitioner be restored."

14. Respondent No. 1, of course, is the Settlement Commissioner, Lahore.

15. Brigadier A. A. K. Chaudhry was not impleaded in the writ petition wherefor he put in an application under Order I, rule 10 for being unpleaded as a respondent. By order dated 14-I1-66 an Hon'ble Judge of this Court directed that Brigadier A. A. K. Chaudhry be impleaded as a party subject to all just exceptions.

16. I have heard the submissions of learned counsel for the parties at length and have perused the record. I have come to the conclusion that there is no force in this petition which I hereby dismiss for the reasons which follow

17. "Immovable evacuee property situated in the Province of West Pakistan was acquired by the Government of West Pakistan in pursuance of the powers conferred upon it by subsection (2) of section 3 of the Act of 1958. The property so acquired was that which was situated within the Province and other than inter alia.

18. Property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the adminis tration of evacuee property in Pakistan, has been accorded before the date of this Notification."

19. This was done by Gazette of Pakistan Notification No. U-8-79/3113, dated the 21st August 1959 reproduced at page 44 of the Old Manual of Settlement Law and Procedure. It is common ground in this case that sanction for the sale of the house in dispute to the Defence Ministry had been given by the Central Government, long before this notification.

20. Under section 3 only such . property forms part of the Compensation Pool as has been acquired under it. Because of the sanction for sale the house in dispute was not excluded from acquisition by the Notification and it did not form part of the Compensation Pool at the time when Brigadier A. A. K. Chaudlhry approached the Settlement Authorities for its transfer and the latter rightly declined to take any action in that manner because they had no jurisdiction to do so.

21. It was for this reason that Brigadier Amjad Chaudhry could not take advantage of Memo. No. 1600-Comp.-Reh/59, dated the Ist August 1959, (printed at page 41 of the aforesaid Manual) whereby the Chief Settlement Commissioner declared that if a Government servant was allotted an evacuee house which had been placed at the disposal of the Estate Officer or other Government Department, the same could be transferred to him provided he was in possession of it pursuant to an order passed by a competent authority on or before the 20th December 1958.

22. Before parting with this notification, it may, however, be mentioned that it was laid down in it that-

23. "If more than one Government servant, has been in possession of the same house, the person who was in possession immediately before the 20th December 1958, will be entitled to its transfer. This concession will also be admissible to a Government servant who was in possession of a house immediately before the 20th December 1958, but was required to surrender it by a competent authority for allotment to another Government servant after that date."

24. Brigadier Amjad Chaudhry was, therefore, not entitled to the transfer of the house in question only because it had not yet been acquired for the purposes of the Act. When, however, the same was acquired at a later date, this Notification issued by the Chief Settlement Commissioner would entitle him to its transfer in preference to all those who came to occupy it after 20th December 1958, and particularly after him. This Notification not having been superseded the right of Brigadier Amjad Chaudhry to the exclusion of all others to the transfer of the house as and when it formed part of the compensation pool m as, therefore, stood sanctified.

25. It may be pointed out at this stage that the petitioner Mst. Bilqis Sultana admittedly occupied the house in dispute on 11-6-59 about seven months after the appointed date. She could, therefore, not take advantage of this Notification.

26. This Notification was further amplified by Memo. No. 2276-PI-Reh/60, dated the 10th February 1960 which runs as follows and is printed at page 115 of the Old Manual:-

27. "It appears that while dealing with the cases of houses in occupation of Government servants, the implication of the sentence, `If more than one Government servant has been in occupation of the same house, the person who was in possession immediately before 20th December 1958, will be entitled to its transfer' occurring in the above-mentioned Memorandum, have not been correctly understood. This sentence read with the subsequent portion of the Memorandum would mean that the entitled person should have taken possession on or immediately before 20th December 1958, and should have continued in occupation after that date. He would also be entitled even if he had to surrender the house after 20th December 1958, for allotment to another Government servant.

28. It may be further clarified that a Government servant who had been in occupation of a house at any time before 20th December 1958, but was not in physical possession on that date will not be entitled to its transfer."

29. It became more than clear, if any doubt was at all left by the previous Notification, that a Government servant who was not in physical possession of a property on 20th December 1958 was not entitled to its transfer at all. Brigadier Amjad Chaudhry was undoubtedly in possession on that particular date. One would like to note here that no date for the submission of appli cations under this Notification was ever fixed. .-

30. The lady had been put into possession of the property in dispute as a temporary allottee on a care-taker basis. As has been seen in the narration of facts given above, the order was subject to termination, inter alia, if the allottee is found to have placed the premises, wholly or partially, in occupa tion of any person or persons other than his dependants. "The petitioner had admitted and it has been her case that she did not put Capt. Khizar Hayat, A. D. C. to G. O. C. in occupation of the house and he continued to occupy it for at least two years. In fact, as would be clear from Annexure `F' a copy of the certificate given by the Accounts Officer, Telephone Revenue, he occupied the house before the 17th June 1959 and continued to occupy it up to the 13th March 1961. During this very period, the lady submitted her CH form and gave Lynwood House, Karachi, as a permanent address. Three things are, therefore, clear that-

(a) She was not in occupation of the house from June 1959 to March 1961;

(b) The house during that period was in the occupation of one Capt. Khizar Hayat; and

(c) Capt. Khizar Hayat was a Commissioned Officer in the Army in his own right and was not dependent upon anybody much less upon the petitioner who was just his cousin.

31. The petitioner took advantage of Press Note No. F. 3(3)/60-SI, dated 6th September 1960. This Notification which was published in the Gazette of Pakistan, Extraordinary on the 3rd August 1960, is reproduced at page 623 of the New Manual of Settlement Law and Procedure and runs as follows:-

32. "In exercise of the power conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilita tion) 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 later 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."

33. The pre-conditions for making an application in pursuance of this Notification were-

(a) The applicant must be in possession of a house

(b) It should be in pursuance of an order passed by a competent authority;

(c) The order must have been passed after the 20th day of December 1958, but not later than the 6th November 1960;

(d) He must be in undisputed occupation of the house; and

(e) No other person is otherwise entitled to the transfer of such house in pursuance of a final order passed by competent authority.

34. The case of the petitioner was not covered by this Notification, inter alia for the following reason :-

(a) She was not in occupation of the house at any time between June 1959 and March 1961 and in any case not when the Press Note was issued.

35. Even if she was in possession, it was not in pursuance of the order of a competent authority because as has been already seen above, the order of the competent authority whereby she was put into possession was to continue only if she did not put anybody else in occupation of the property or a part of it. It has been already found above, that she had contravened this condition of the allotment order and, therefore, her possession ceased to be in pursuance of it because the same had come to an end by virtue of its own terms and her aforesaid act.

36. The permission granted by the Central Government for the sale of the bungalow in dispute along with about 41 bungalows, was rescinded by a letter issued by the Central Government on the 20th June 1960 when it finally refused to acquire it. Later this property was duly acquired by the West Pakistan Government under the Act. It can, therefore, not be denied that the property formed part of the Compensation Pool when it was transferred to Brigadier Amjad Chaudhry, but did not form part of the Pool when the application was made by the lady for the transfer to her. Reference was made before me to Mumtaz Sultana v. Settlement and Rehabilitation Commissioner P L D 1964 Lah. 388 in support of the proposition that the moment the Government decided not to acquire the property, the same automatically became a part of the Compensation Pool. With all respect for the learned Judge who decided that case I would respectfully point out that there could not under the law be any such automatic transfer of the property to the compensation pool. Under section 3 the acquisition had to be by a Notification. No noti fication can act retrospectively. Section 3(3) clearly stipulates that-

37. "On the publication of a notification . . . . . the right, title and interest of any evacuee in the evacuee property specified in the notification shall with effect from the date of such notification be extinguished and the evacuee property shall vest wholly and absolutely in the Central Government free from all encumbrances."

38. It is, therefore, on the publication of a notification and with effect from the date of such publication that the property mentioned in the notification becomes part of the compensation pool. If a property ,belonging to a class which has been specifically excluded from acquisition by 'a notification issued under section 3, is at a later date, released from that class, it cannot form part of the compensation pool for two reasons:-

39. Firstly, because property falling within that class would in any case continue to be excluded from the notification; and Secondly, property which was not specifically acquired by a notification could be transferred to the compensation pool only when a notification specifically transferring that property to that pool is published.

40. There could be no transfer as if by a side wind.

41. The learned Judge decided that case under section 43 of the Transfer of .Property Act which runs as follows:-

42. "Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for considerations, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

43. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."

44. The conditions which must be satisfied before that section could be brought into operation are that the transferor of the property must have "fraudulently or erroneously" represented that he was authorised to transfer it. In the present case, there was no fraud, there was no erroneous representation, and, therefore, if an order of transfer was passed at the time when the property was not available because it had not been acquired the same would not be legalised by a later acquisition of the property.

45. Reference was also made by the learned Judge to section 18(1) of the Specific Relief Act. With all respect, that also is not applicable, firstly, because according to section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, any order made by an officer appointed under the Act shall be final and shall not be questioned in any Court and if consequently a Settlement Authority declines to transfer a property to some body, it will not be open to the applicant for the transfer to file a suit under section 18 of the Specific Relief Act to compel him to do so. Secondly, section 25 bars the jurisdiction of the civil Courts in respect of any matter which an officer appointed under the Act is empowered to determine and, thirdly and finally, section 36 of the Act provides that the provisions of the Act and any rules or scheme or order made thereunder shall have effect notwith standing anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of such law. The provisions of the Specific Relief Act which permit a person to compel another to do something are, therefore, manifestly inconsistent with the provisions of this Act and would have to give way to the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The analogy of the Specific Relief Act is, therefore, not at all available.

46. It was next submitted that the power to sell property was conferred upon the Custodian by section 25 of the Pakistan (Administration of Evacuee Property) Act. The Central Government could, therefore, not sell or direct the sale of any such property. It was, therefore, urged that the mere fact that the Central Government had granted sanction for the sale of the property in dispute at one time would not exclude it from becoming a part of the compensation pool in the year 1959 was defective in so far as it did try to exclude it.

47. The short answer to this submission is that irrespective of whether the Central Government had the right to sell a property or not, section 3 of the Displaced Persons (Compensation and Rehabilitation) Act gave the power only to the Central Government to acquire any evacuee property except agricultural land for any of the purposes of the Act through a Notification to be issued by the West Pakistan Government. It was, therefore, the power .of the Central Government alone to decide which property was to be acquired and which was not to be acquired. Notwithstanding anything contained in section 25 of the Pakistan (Administration of Evacuee Property) Act, therefore, when the Central Government decided to require the Government of West Pakistan to acquire evacuee property situated in the Province after .excluding that property in respect of which the former had given a sanction -for sale, it would be the provisions of section 3 which would be applicable and the power of the Central Government to make such exclusion would be beyond all doubt. it is wholly incorrect to apply the provisions of section 25 of the Pakistan (Administration of Evacuee Property) Act to such a situation when they are not at all attracted. It is, therefore, incorrect to say that the exclusion of the property by the notification of 1959 was against any law.

48. It was pointed out that Brigadier Amjad Chaudhry had waived his right to the transfer of the property because he remained quiet for four years after its transfer to the petitioner. The first answer to this objection is that as has been shown above, the transfer of the property to the petitioner was wholly void being in excess of lawful authority and, therefore, the -question of waiver would not arise. The second answer would be that it has not been shown at all by the petitioner that the Brigadier was aware of the transfer of the property in her favour or that the property had been released by the Central Government and was thus available for transfer. Waiver has been defined as "an intentional relinquishment of a known right" but it has been held in Midnapore Zamindary Co. v. Kumar Chandra A I R 1943 Cal. 544 that-

49. "Mere omission to claim or enforce a right for sometime does not amount to a waiver of a right."

50. It has been held time and again that the doctrine of waiver would step in only when there is some "clear and decisive act or conduct beyond mere silence, as pure silence by a party in regard to a right perfectly known to the other can rarely mislead a man of average intelligence".

51. One may also take note of the fact that by virtue of Circular No. 1443-P-Reh/59, dated 18th March 1959, Divisional Allotment Com mittees had been formed in West Pakistan and allotments on care taker basis had to be made by these Committees. In the present case, the allotment was made by no such Committees, but by the Chief Settlement Commissioner who has no authority to do so. These committees were abolished by Memo. No. 6227-P-Reh/59, dated 12-11-1959 printed at page 80 of the Old Manual of Settlement Law and Procedure but the all allotment had already been made in June 1959 by the Chief Settlement Commissioner when such committees existed and exercised the power of allotment on care-taker basis to the exclusion of the Chief Settlement Commissioner.

52. From whichever angle the case may be looked at, the irresistible conclu sion is that the transfer of the property in dispute to Mst. Bilqis Sultana was entirely without lawful authority and,. therefore, ineffective, the same is declared to be so. The property has been rightly transferred to Brigadier A. A. K. Chaudhry and there is no lacuna in the order passed in his favour.

53. This petition is, therefore, dismissed with costs throughout.

54. K. B. A. Petition dismissed.