1973 PLP 398 (SCMR)

The learned Judges of the High Court found that the notification by which the power of review was delegated to Mr. Muhammad Rafiq, Settlement Commissioner was not publish ed in the official Gazette as required by section 31 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and, as such, there was no valid delegation in favour of Mr. Muhammad Rafiq. They, however, took the view that the review matter not having been disposed of by a person competent to review, was still then pending. In the above view of the matter, the learned Judges set aside the order of Mr. Muhammad Rafiq passed on the 5th February, 1963 in the purported exercise of the delegated power of review and remanded the case to the Chief Settlement Commissioner for disposing of the review matter himself. Leave was granted to consider if the view taken by the learned Judges of the High Court was legally correct. Mr. Ghulam Mujaddid Mirza, learned counsel for the appel lant produced a copy of the Notification, dated the 26th April, 1962, which purported to have delegated the power of review of the Chief Settlement Commissioner to certain officers including Mr. Muhammad Rafiq, Settlement Commissioner. The said noti fication is reproduced below: No. 1313‑Admn‑Reh. 62

‑In partial modification of the previous Notification issued from time to time in relation to delegation of my power under section 20 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, I, Ahsan -ud‑din, C. S. P., Chief Settlement Commissioner, Pakistan by virtue of the powers vested in me by section 31 (2) of the said Act, do hereby delegate my powers under section 21 (1) ibid as amended uptodate to the following Settlement Commissioners in their respective jurisdiction, in respect of such review cases as had been filed before 10-1‑1962 against orders passed by me under section 20 (2) of the said Act. Sr. No. Name of Settlement Commissioner H. Qrs

1. Raja Muhammad Zia Ullah Khan, P. C. S. Lahore

2. Ch. Sultan Muhammad, P. C. S. Lahore

3. Sh. Muhammad Rafique Lahore

4. Syed Ijaz Hussain Shah Lahore

5. Mian Ghulam Shabbir Multan

6. Ch. Ali Ahmad, P. C. S. Lahore

2. These officers will also dispose of such review cases as may be entrusted to them from time to time. Dated Lahore, the (Sd.) Ahsan‑ud‑Din, 26th April 1962. Chief Settlement and Rehabilitation Commissioner, Pakistan." Admittedly, this notification was not published in the official Gazette as required by section 31(2) of the Act. Without entering into any discussion as to the effect of non‑publication of the noti fication in the official Gazette, it may be safely said that the notification quoted hereinbefore conferred no jurisdiction on Mr. Muhammad Rafiq, Settlement Commissioner to review the earlier order of the Chief Settlement Commissioner dated the 18th May 1960. The reasons for this are more than one. Firstly, the notification was issued on the 26th April 1962, whereas the very power of review was taken away on the 13th January 1962 by Ordinance No. II of 1962. The notification in question was thus unauthorised. Secondly, the notification itself did not delegate the power of suo motu review. Lastly, no review, as conceded by the learned counsel for the appellant, was pending from before the 13th January 1962, the target date mentioned in the notifica tion itself. For these reasons, while the learned Judges of the High Court were right in holding that Mr. Muhammad Rafiq had not been validly invested with the power of review, they were not right in remanding the case with the direction to dispose of the review matter by the Chief Settlement Commissioner himself. When no review petition was ever filed and the intention of the Chief Settlement Commissioner as expressed in his written state ment in the appellant's Writ Petition No. 224‑R of 1961 was only a wish to review suo motu and when the power of review was taken away by law with effect from the 13th January 1962, there was no point in remanding the case to the Chief Settlement Commissioner for review of his earlier order made in respect of the disputed property on the 18th May 1960. The learned counsel for the appellant realised the legal posi tion as stated above, but made a serious grievance that his client is going to suffer for no fault of his. He allowed his Writ Petition. No. 224‑R of 1961 to be dismissed and, on the legal plane, he is; going to lose this appeal also. It is true that the appellant allo wed his writ petition to be dismissed as the review order had been made in his favour, but he may make a prayer in the High Court for restoration of his writ: petition on the ground that it was allowed to be dismissed on the grounds of its having become infructuous because of the favourable order of review. So far as the present appeal is concerned, it is liable to be dismissed, but the order of dismissal of the appeal does not mean that the High Court's order remanding the case to the Chief Settlement Commissioner holds good. As the power of review ceased to be available, the High Court's order remanding the case is vacated, but the order of that Court quashing the order of Mr. Muhammad Rafiq passed in review on the 5th February 1963, is upheld. With the above observations, we dismiss the appeal without any order as to costs. Appeal dismissed.