ALI MUHAMMAD vs HUSSAIN BAKHSH AND Other

1. MUHAMMAD YAQUB ALI, J.-The dispute in this appeal, from an order of a Division Bench of the erstwhile High Court of West Pakistan, pertains to disposal under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, of property No. 7/656-A, known as Haveli Dewan Ram Chand Milkhi Ram, situated in the city of Sialkot.

2. The property in dispute comprises of 15 rooms and a spacious courtyard inside the Haveli. Out of them 3 rooms are in possession of Ali Muhammad, appellant, a claimant displaced person and he applied for transfer of these rooms to him. The remaining 12 rooms are in possession of respondents 1 to 14 who happen to be displaced persons from the occupied portion of Jammu & Kashmir State.

3. By order dated 22nd December 1959, the Deputy Settlement Commis--sioner transferred the entire Haveli to the appellant notwithstanding that he had applied for only the portion in his possession and there was a complete bar under section 30(5) of the Act against transfer of properties occupied by refugees from Jammu & Kashmir State.

4. The respondents filed an appeal against the order of transfer in favour of the appellant which was dismissed by the Additional Settlement Commissioner on 25th October 1960. They did not farther agitate against the appellate order, but the Deputy Settlement Commissioner, suo motu, made a reference on 2nd May 1962, to the Additional Settlement Commissioner pointing out that 12 out of the 15 rooms were in occupation of refugees from Jummu & Kashmir State which could not be transferred to Ali Muhammad under section 30 (5) of the Displaced Persons (Compensation and Rehabili--tation) Act, but this aspect of the case had been omitted from consideration due to rush of work. It was further mentioned that a part of the Haveli had already been auctioned but the transfer bad not been confirmed till then. The Additional Settlement Commissioner did not agree with the report as the appeal preferred against the order of transfer filed by the respondents bad been dismissed by his predecessor. It was at the same time observed that the aggrieved party should seek their legal remedy. This was followed by another report on similar lines by the Deputy Settlement Commissioner but it was also turned down by the Additional Settlement Commissioner as by then a P. T. D. Had been issued in the name of the appellant.

5. In compliance with the direction given by the Additional Settlement Commissioner that the aggrieved party should seek their legal remedy, the respondents filed an appeal against the order of transfer passed by the Deputy Settlement Commissioner which was dismissed by the Additional Settlement Commissioner on 26th February 1965, as barred by time and on the ground that a P. T.

6. D. Had already been issued m favour of the appellant. A further revision petition filed by them was dismissed by the Settlement Commissioner on 31st January 1966, affirming the view adopted by the Additional Settlement Commissioner.

7. Having exhausted the `legal remedy' under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the respondents filed a writ petition in the High Court impugning the legality of the order of transfer passed by the Deputy Settlement Commissioner on the ground that it was void being in excess of jurisdiction conferred by the Displaced Persons (Compensation and Rehabilitation) Act. The petition was dismissed by a learned Single Judge in limine for the reason that the appeal filed against the transfer in favour of the appellant was barred by time and the orders passed by the Additional Settlement Commissioner and the Settlement Commissioner were with jurisdiction. On a further appeal filed by the respondents a Division Bench of the High Court, however, set aside the order of transfer in favour of the appellant as without lawful authority. It was held that the conditions on which an appeal lay to the Additional Settlement Commissioner from an order of transfer passed with jurisdiction did not apply to the order in question. The present appeal is directed against the order of the Division Bench passed on 9-4-1969.

8. It is not necessary to examine in detail the reasons on which the findings of the Division Bench are based. In brief it is held that notwith--standing the subequent deletion of subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, the bar against permanent transfer of properties in occupation of refugees from Jammu & Kashmir State continued to apply, and that the failure of the respondents to appeal from the order of transfer passed by the Deputy Settlement Commissioner in time did not preclude them from challenging its legality in the High Court inasmuch as the impugned order was void being without jurisdiction.

9. On the question of limitation, the learned Judges referred to a number of decisions of this Court and held that if an order is without jurisdiction and void, then it need not be formally set aside. In Yousaf Ali v. Muhammad Aslam Zia and others (PLD 1958 SC (Pak.) 104) it was said by this Court, "where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it. In the eye of the law such order being void and non-existent". In Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (PLD 1965 SC 68), it was said that an order without jurisdiction is a nullity in A law and it does not require to be set aside formally. Again in Syed Ali Abbas and others v. Vishan Singh and others (PLD 1967 SC 294), it was observed that where an authority has passed an order in excess of jurisdiction, the petitioner cannot be refused relief and penalized for not throwing himself again by way of revision or review, on the mercy of authorities who were responsible for such excess. This being the rule firmly established, the dismissal of the writ petition by the learned Single Judge on the finding that the appeal before the Additional Settlement Commissioner was barred by time and in dismissing it he had acted with jurisdiction, was not warranted in law.

10. The conclusion reached by the Division Bench on the second point is also well-founded. The deletion of subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was not intended to remove the bar against transfer of houses and shops in possession of the refugees from Jammu & Kashmir State and to make teem available for transfer to displaced persons from other parts of India. In the first instance, section 16-B was amended in pursuance to the observations of late Chief Justice M. R. Kayani in Mst. Zainab Bibi v. Government of Pakistan and others (PLD 1962 Pesh.101). By comparing the provisions of section 80(5) and section 16-B, the learned Chief Justice said, "the provisions of paragraphs 19 and 21 of Settlement Scheme No. IV framed under section 16-B could operate only after sub--section (5) of section 30 of the Act has been suitably amended". In compliance with these observations, the Legislature omitted from section 16-B the clause `subject to the provisions of subsection (5) of section 30' and added to subsection (5) of section 30 the clause, `except for the purpose of implementing any scheme prepared under section 16-B.'. This was calculated to validate Settlement Scheme No. IV and remove the defect found in it by Chief Justice Kayani. Finally, Ordinance XIII of 1964 removed altogether subsection (5) of section 30 with retrospective effect. But this did not affect the provisions of section 16-B under which the Chief Settlement Commissioner was directed to prepare a scheme for the temporary rehabilitation of refugees from Jammu & Kashmir State. Subsection

(3) empowered the Central Government to confer upon the said refugees such rights in respect of the properties transferred to them under the scheme prepared and approved under that section as may be specified in the order. Necessary directions were given by the Central Government under the subsection.

11. Settlement Scheme No. IV was prepared under section 16-B. The relevant paras. Are 19, 20 and 21.

12. Para. 19 contains bar similar to section 30(5) against transfer of houses and shops in possession of refugees from Jammu & Kashmir State to displaced persons from other parts of India. Paras. 20 and 21 contain provisions for inviting applications and transferring temprarily houses and shops to refugees from occupied Jammu & Kashmir State. From the provisions of section 16-B and Settlement Scheme No. IV, the learned Judges of the High Court inferred that the deletion of subsec--tion (5) of section 30 was intended to operate in favour of the refugees from the Jammu & Kashmir State and it was at no stage envisaged or intended to transfer houses and shops in their possession to displaced persons from other parts of India. Our own examination of the provisions of section 16- B, section 30 (5) and Settlement Scheme No. IV inclines us to the view adopted by the learned Judges of the High Court. The deletion of sub--section (5) of section 30 did not, in any way, detract from the provisions of section 16-B and the Settlement Scheme framed under it. If the two are read together, the intention of the Legislature becomes manifest that D houses and shops in possession of refugees from Jammu & Kashmir State were excluded from the compensation pool out of which evacuee properties were transferred to displaced persons from other parts of India.

13. These houses and shops were reserved for transfer to their occupants on temporary basis till their repatriation. We further find that subsection (5) of section 30 was an inapt provision of the Act. The section deals with protection of certain rights in properties transferred under the Act. By subsection (1), occupants of the transferred properties become statutory tenants under the transferees etc. Etc. Subsections (2), (3) and (4) deal with the same subject. Thus there was no nexus between subsection (5) and other provisions of section 30. Its deletion was, therefore, quite proper.

14. In the light of the above discussion, it follows that portions of the property in possession of the respondents were not available for transfer to the appellant. The transfer of the entire Haveli in his favour by the Deputy Settlement Commissioner was, therefore, in violation of the provisions of subsection (5) of section 30 which was in force when the order of transfer was made also in violation of the provisions of section 16-B and Settlement Scheme No. IV framed thereunder. The order of transfer dated 22nd December 1959, was thus void and rightly set aside by the High Court.