BEGUM B. H. SYED Versus MST. AFZAL JAHAN BEGUM

1. WAHIDUDDIN AHMAD, J.---- This appeal by special leave is directed against the judgment of a Division Bench of the West Pakistan High Court, Lahore, in Letters Patent Appeal No. 218 of 1961, dated the 15th March 1966, whereby the learned Judges of the High Court dismissed the appeal with costs. It has arisen in the following circumstances:-

2. Property No. 12, Katcha Habib Ullah Road, Lahore, which is a big house, was allotted to the husband of respondent No. 1, Major M. Nasir Beg, on the 15th February 1956. It was in occupation of a number of refugees' families who were directed to vacate it but Major M. Nasir Beg could not obtain its possession. Ejectment proceedings were started against the refugees' families but ultimately on the 29th October 1957, they were stayed by the Secretary, Urban Rehabilitation Commissioner, West Pakistan, Lahore. On the 11 th August 1960, the Central Government issued a notification under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, where by it was directed that an allottee of a house or shop for whose benefit ejectment proceedings have been started and who was unable to obtain physical possession of the house or shop through no fault or negligence of his own, shall be deemed to be in possession thereof for the purpose of the Displaced Persons (Compensation and Rehabilitation) Act. The notification is reproduced below:-

3. "In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to order that an allottee of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation Authority and who, through no fault or negligence of their own, have so far been unable to obtain physical possession of the house or the shop in question shall be deemed to be in possession thereof for the purpose of this Act."

4. The Central Government had also issued a notification dated the 7th March 1960, which is as under:--

5. "The Central Government has decided that where the house is in the possession of the husband in pursuance of the order passed on or before the 20th day of December 1958, by a competent authority, his wife, if staying with him, will also be deemed to be in possession."

6. It appears that on the 9th September 1960, the Chief Settlement Commissioner, invited applications from those allottees who were unable to obtain possession of the properties allotted to them for transfer of those properties. Respondent No. 1, the wife of Major M. Nasir Beg, taking advantage of the above two notifications applied for the transfer of the property in dispute as a claimant as successor of her father. Her application was rejected and direction was issued to reserve the property in dispute for transfer to the appellant. Respondent No. 1 filed an appeal before the Additional Settlement Commissioner against the rejection of her C. H. form, which was dismissed on the 28th November 1960, on the ground that he had no jurisdiction to sit in judgment against the order of another Additional Settlement Commissioner. Thereupon, respondent No. 1, filed a revision petition before Khan Farzand Ali Khan, Settlement and Rehabilitation Commissioner, Lahore, who, on the 11th March 1961, accepted the revision and remanded the case to the Deputy Settlement Commissioner for deciding the case afresh on merits, after hearing both the parties. The appellant challenged this order in Second Revision before the Chief Settlement and Rehabilitation Commissioner. This petition was transferred for disposal to Malik Fateh Khan, Settlement and Rehabilitation Commissioner. The learned Officer, after hearing the parties, came to the conclusion that respondent No. 1, was not a claimant as her father died much after the 31st August 1959. That respondent No. 1 was not herself an allottee and ; therefore could not take the benefit of notification dated the 11th August 1960, issued by the Central Government, reproduced above. He held that it was only the allottee who could take the benefit of that notification and as respondent No. 1 was not an allottee, she was not entitled to the transfer of the property in dispute.

7. Being aggrieved by the said order, respondent No. 1 filed a Writ Petition No. 268-R of 1961 against the appellant and the Department. This petition came up for hearing before Masud Ahmad, J., who, by judgment dated the 13th July 1961, accepted the writ petition. He held that respondent No. 1 should be deemed to be in possession of the property in dispute by virtue of the notification of the Central Government dated the 11th August 1960, read with another notification dated the 7th March 1960, issued under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act. He further held that although respondent No. 1, could not be held to be a claimant within the meaning of section '2(2) of the Displaced Persons (Compensation and Rehabilitation) Act, but she would be considered as a claimant for all purposes as one of the successors-in-interest of her father, who was a claimant and as such would be entitled to the transfer of the property in dispute. He held that the order of Malik Fateh Khan was without jurisdiction. In view of these conclusions, the order of Malik Fateh Khan was quashed and a writ of mandamus was issued to the Chief Settlement Commissioner to transfer the property in dispute to respondent No. 1 under paragraph I of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act.

8. The appellant challenged the above order in Letters Patent Appeal No. 218 of 1961. The Department also challenged it by filing a separate L. P. A. No. 219 of 196 t. Both the Letters Patent Appeals were dismissed on the 15th March 1966. The learned Judges of the High Court held respondent No. 1 to be a non-claimant displaced person and came to the conclusion that though she had not filed N. C. H. form, the Department should have considered her claim after the rejection of her C. H. form on the ground that she was a non-claimant displaced person. They further found that respondent No. t was entitled to take advantage of the above-mentioned two notifications and that the property should be transferred to her under paragraph 2 of the Schedule of the Displaced Persons (Compensation and Rehabilitation) Act.

9. The appellant challenged the above order of the Letters Patent Bench in petition for Special Leave to Appeal (No. 221 of 1966) in this Court. On the 4th October 1966, a Bench of this Court rejected the plea of the appellant that Malik Fateh Khan had jurisdiction to hear the Second Revision Petition filed by her. It was held that Malik Fateh Khan did not deal with the said revision petition as a delegate of the Chief Settlement Commissioner. The revision petition was simply transferred to him and as such he had no jurisdiction to hear it.

10. Leave was, however, granted to consider two questions. Firstly, whether the High Court was competent to go into the merits of the case itself after setting aside the order of Malik Fateh Khan. Secondly, to consider the question whether the appellant was properly held to be in possession of the property in dispute on the basis of the two notifications reproduced above. It is for consideration of these two points that this matter has come up before us.

11. It is not disputed that the High Court had no jurisdiction to go into the merits of the case in order to consider the question as to which of the parties was entitled to the transfer of the property in dispute. In the present case, the High Court after quashing the order of Malik Fateh Khan, has considered the merits of the case and directed that the property in dispute be transferred to respondent No. 1. By doing so, the High Court has exceeded its jurisdiction. It should have stayed its hands after quashing the order of Malik Fateh Khan and sent back the case to the Deputy Settlement Commissioner as directed by the Settlement Commissioner for decision of the dispute between the parties on merits. The judgment of the High Court, therefore, by which a writ of mandamus has been issued to the Department to transfer the property in dispute to respondent No. 1, is clearly without jurisdiction and liable to be set aside. It will be noticed that on the quashment of order of Malik Fateh Khan, the only valid order in the field was that of the Settlement Commissioner dated the 11th of March 1961, by which the dispute between the parties was remanded for decision to the Deputy Settlement Commissioner. We would, therefore, set aside the order of the High Court transferring the property in dispute to respondent No. 1.

12. In view of the order of the Settlement Commissioner, we would have left the matter about the transfer of the property in dispute to the decision of the Deputy Settlement Commissioner but the High Court has further expressed its opinion that the property in dispute should be transferred to the respondent No. 1 as she should be deemed to be in its possession on the basis of the notifications of the Central Government dated the 11th August 1960, and the 7th March 1960. It therefore, becomes necessary to consider whether the view of the High Court on this aspect of the case is in accordance with law or not.

13. Mr. A. K. Brohi, the learned counsel for the appellant, has contended that the benefit of notification dated the 11th August 1960, could be given only to an allottee and as in the present case, respondent No. 1 is not an allottee she cannot claim any benefit under that notification. He further contended that the benefit of notification dated the 7th March 1960, could not be obtained by respondent No. 1 because it applies only to a wife who is staying physically with the husband in the house which is sought to be transferred while admittedly in the present case neither respondent No. 1 nor her husband was ever in physical possession of the house in dispute. The contentions of the learned counsel have received my anxious consideration. After going through the two notifications referred to above, I am satisfied that the view of the High Court that these two notifications should be read together and respondent No. 1, on the basis of these notifications, should, by double fiction, be deemed to be in possession of the house, does not appear to be sound. It will be noticed that the notification dated the 7th March 1960, was issued much before the notification dated the 11th August 1960. At that time there was no deeming notification like the one dated the 11th August 1960. The notification dated the 7th March 1960, meant only for those persons who were in physical possession of the property in dispute. In such circumstances, there should be very compelling reasons to extend the scope of the notification dated the 7th March 1960, to persons mentioned in the notification dated the 11th August 1960, namely, allottees who are not in possession of the property. The language of the notification dated the 17th March 1960, does not show any such compelling reason. A bare reading of the said notification shows that it applies only to those properties which are in physical possession of the husband in which his wife is also staying with him.

14. Mr. Dilawar Mahmood, the learned counsel for respondent No. 1 has referred us to a number of English and Indian decisions to canvass for his contention that the scope of a deeming clause is very wide. He contended that where a person is deemed to be something the only meaning possible is that whereas he is not in reality that something the Act required him to be treated as he were. There is no quarrel with the contention of the learned counsel for respondent No. 1 that where the statute says that you must imagine the state or affairs; it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. This is the classic observation of Lord Asquith in East End Dwelling Company Ltd. v. Finsbury Borough Council (1952 A C 109). But at the same time it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction. This principle was enunciated by James, L. J. In re: Levy Ex parte Walton (17 Ch. D 756). In this connection the learned Judge observed as under:-

15. "When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to"

16. It is from this angle that the two notifications referred to above are to be considered in the present case. As has already been stated the notification dated the 7th March 1960, clearly applied to those cases where the husband was in physical possession of the property because at that time no such legal fiction as the one introduced by the notification dated the 11 th August 1960, existed. The plain meaning of the notification dated the 7th March 1960, also shows that it is in respect of those properties of which the husband is in physical, possession and if in such properties the wife is staying with him then she is also by fiction deemed to be in possession of that house. The significant words in the notification dated the 7th March 1960 are words "his wife if staying with him". This clearly refers to the house in which the husband is residing and which is in his physical possession. It will be noticed that notification dated the 11th August 1960, is much wider in scope as it applies both to houses and shops. In my opinion, unless the context of notification dated the 7th March 1960, permits to do so, its effect cannot be extended to include the notification dated the 11 th August 1960. Admittedly, neither respondent No. 1 nor her husband is in physical possession of the property in dispute. Respondent No. 1, therefore, cannot resort toy notification dated the 7th March 1960, in order to take the benefit of notification dated the 11 th August 1960. Clearly, the High Court, in this respect, has fallen into an error and its view that the two notifications should be read together so as to entitle respondent No. 1 to take advantage of double fiction, cannot be supported on the language of the notification dated the 7th March 1960. The object of the two notifications under consideration is quite different. The object of the notification dated the 7th March 1960, is to give benefit to a wife by fiction in respect of house in which she is staying with her husband. While the object of the notification dated the 11th August 1960, is to confer benefit on persons who as allottees were unable to obtain possession of the house or shop through no fault of theirs. I would, therefore, hold that respondent No. 1 cannot be deemed to be in possession of the property in dispute and is not entitled to its transfer. In that view of the matter the judgment of the High Court transferring the property in dispute to respondent No. 1 is liable to be set aside.

17. Mr. Dilawar Mahmood contended that the property in dispute cannot be transferred to the appellant because she is neither informant nor the property in dispute is a hidden evacuee property nor has it been transferred illegally to anybody. These are points for consideration on the merits of the case which will be decided by the Deputy Settlement Commissioner who has still to consider the entitlement of the appellant in pursuance of the order of the Settlement Commissioner by which the case was remanded to him. I would, therefore, refrain from expressing any opinion on this aspect of the case.

18. In the result, I would allow the appeal and set aside the order of the High Court transferring the property in dispute to respondent No. 1. The order of the High Court quashing the order of Malik Fateh Khan is maintained. Respondent No. 1 will bear the costs of this appeal.

19. MUHAMMAD YAQUB ALI, J. ------I agree.

20. M. R. KHAN, J.- ---I agree.

21. K. B. A. Appeal accepted.