1970 PLP 706 (SCMR)

HAMOODUR RAHMAN, C. J.‑The dispute in this case relates to house No. 563, Block No. 1, Maghiana, Jhang. It was in occupation of various displaced persons of whom the respondent No. 1, Mst. Jamila alone was a claimant.. The rest were non claimants. When Settlement operations started Mst. Jamila filed a C. H. Form but the others filed N. C. H. Forms.. On 18‑12‑1959 the Deputy Settlement Commissioner, Jhang transferred the entire property to her. Subsequently a successor Deputy Settlement Commissioner took the view that the house was divisible into three vertical portions and being under the impression that the application forms for the transfer of his house were yet un-disposed of, gave rooms Nos. 1, 2, 3 and 4 with the chaubara above these rooms to Mst. Jamila; rooms Nos. 7, 8, 9 and 10 with the chaubara above them to the petitioner Fajar .Ali, (wrongly described as Faqir Ali), and rooms Nos. 11 and 12 with the chaubara above them to Muhammad Ismail and Muhammad Ramzan sons of Maula Bakhsh. Subsequently when these two conflicting orders were brought to the notice of another successor Deputy Settlement Commissioner, he on the 11th February 1961, sought permission to review both the previous orders. This permission was granted on the 2nd November 1961 but was communicated to the D. S. C. on the 1st February 1962. The Deputy Settlement Commissioner, Jhang, after inspecting the premises came to the conclusion on the 12th May 1962 that the house cannot be divided into independent portions in any way. Hence he transferred the entire house again to Mst. Jamila as she was the only claimant in occupation of this property. The petitioners Fajar Ali and Muhammad Ramzan appealed to the Additional Settlement Commissioner, Sargodha against this order and Mst. Jamila also appealed from the order of the Deputy Settlement Commissioner dated the 28th September 1960, dividing the property into three portions. In view of the subsequent order of 12‑5‑1962, transferring the entire house to Mst. Jamila, her appeal against the previous order of 28th September 1960 was dismissed as having become in fructuous. The appeal of the petitioners was also dismissed as the Additional Settlement Commissioner agreed with the Deputy Settlement Commissioner that the house is indivisible and, therefore, a claimant has a preferential right over non‑claimants. The petitioners went up in revision to the Settlement Commissioner but the revision was also dismissed. The petitioners came to the High Court by a petition under Article 98 of the Constitution where the order passed on the 12th May 1.962 in review was challenged as being without jurisdiction. The learned Chief Justice of the High Court held that even though the powers of review had been taken away by Ordinance II of 1962 on the 13th January 1962, yet the pending proceedings had been saved by section 7 of the Amending Ordinance No. XIII of 1962. In the present case since the permission to review was sought on the 11th February 1961 and it was communicated on the 1st February 1962, the review was pending from the moment the Deputy Settlement Commissioner moved the Additional Settlement Commissioner for permission. The petitioners went up in Letters Patent Appeal but the same was also dismissed in limine. The Division Bench agreed with the learned Chief Justice as to the effect of section 7 of Ordinance No. XIII of 1962. The Division Bench also overruled the contention that the division made by one of the Deputy Settlement Commissioner on the 28th September 1960 could not be revised or reviewed by a successor Deputy Settlement Commissioner in view of the provisions of Ordinance No. XVIII of 1965 which had been enacted to alter the law declared by this Court in Jalal Din's case (P L D 1965 S C 261). The petitioners now seek special leave to appeal to this Court and it is contended on their behalf that the first order passed on the 18th December 1959 was an incomplete order as it had not dealt with the transfer applications of the petitioners. The order passed on the 28th September 1960, however, shows that the Deputy Settlement Commissioner concerned was under a complete misconception in thinking that the case of the transfer of this property was still un-disposed of. He bad completely overlooked and ignored the order of his predecessor, passed on the 18th December 1959, transferring the entire house to Mst. Jamila. The latter order was never specifically set aside. On the other hand, if the order of transfer in favour of Mst. Jamila was sought to be set aside by the subsequent order of 28th. September 1960 then it was an order in review which could not have been passed by the Deputy Settlement Commissioner concerned without obtaining the permission of the Additional Settlement Commissioner. This permission was not obtained. Hence the order of the 28th September 1960 was a nullity in the' eye of law as it had‑been passed wholly without jurisdiction. The subsequent order in review of the 12th May 1962 was passed competently after following the procedure and obtaining the permission of the Additional Settlement Commissioner. The attack on the competency of this order has been adequately met by the High Court by pointing out that section 7 of Ordinance No. XIII of 1962 saved pending proceedings and in this case we agree with the High Court that the proceed ings were pending from the date the permission was sought and not from the date the permission was communicated. Incidentally it may be pointed out that the order granting permission to review was actually signed on the 2nd 8 November 1961 (vide page 30 of paper‑book) before Ordinance No. II of 1962 came into force on the 13th January 1.962. It was, however, communicated later. Thus even the permission was granted earlier. In this view of the matter, we find no substance in this petition, which is, accordingly, dismissed. Petition dismissed,