P L D 1967 Lahore 559 (PLP)

Ishaq Muhammad Khan, S. C. (Legal) for Respondents Nos. 1, 3 and

4. Dr. Nasim Hassan Shah and Malik Khalid Mahmood for Respondent No.

2. Dates of hearing: 6th and 7th October 1966. The dispute is in respect of property No. S W‑93‑R‑8, lower Mall, Lahore, Mst. Hameeda Begum (she has since died) was in possession of a part of this property. She was a claimant and applied for its transfer. The other occupants did not apply for the transfer of the property or any part of it. The Assistant Settlement Commissioner with the delegated powers of the Deputy Settlement Commissioner after spot inspection held that the entire property was a single unit and should be transferred fn favour of Mst. Hameeda Begum. She was also issued a Pro visional Transfer Order on the 23rd of November 1959. The Petitioner is a local and is in possession of a part of the property. According to the respondents, he was served with a registered notice on the 22nd of December 1959 and that he had also started paying rent to the respondents, but subsequently a dispute arose in respect of the possession of a room upon which the petitioner moved a miscellaneous petition on the 16th of June 1960 before Col. J. D. Malik, Additional Settlement Commissioner. He after hearing the parties, dismissed the petition on the 14th of July 1960. Subsequently the respondents again received a notice to appear before the Additional Settlement Commissioner and they learnt on their appearance on the 2nd of September 1960 that Mr. J. D. Malik, Additional Settlement Commissioner had decided on a verbal report of the petitioner to scrutinise the order of transfer in favour of the respondents. The respondents raised an objection that the Additional Settle ment Commissioner was not competent to pass an order and that they would move an application for the transfer of the case from him. He stayed the proceedings by his order dated the 2nd of November 1960 (Annexure B) and directed the respon dents to obtain the order of transfer within a fortnight. He also sent copies of his order to the Settlement Commissioner and the Chief Settlement Commissioner. It appears that the petitioner had also submitted some sort of application to the Chief Settlement Commissioner in respect of these very premises because on that representation Mr. Bashir Ahmad, Settlement Commissioner (Policy), submitted a report to the Chief Settle ment Commissioner on the 29th of October 1960. He stated that there was a shop in these premises which was in possession of a doctor before Partition and the petitioner had converted it into a bakery. He suggested that the bakery should be placed on the same footing as a restaurant and be transfer to the petitioner on payment of market value plus fifty per cent. On the report, Pir Ahsan‑ud‑Din, the Chief Settlement Commissioner, ordered on the 11th of November 1960 as: "I agree." (Annexure D). Thus a portion of the pro perty which bad already been transferred to the respondents was transferred to the petitioner. The Chief Settlement Commissioner had not given any notice to the respondents before he passed the order. The respondent challenged his order by a review petition. The Chief Settlement Commissioner transferred the review petition to Ch. Sultan Muhammad, the Settlement Commissioner, who had been delegated the power of the Chief Settlement Commissioner. He accepted the review application on the 9th of December 1962 and by setting aside the order of the Chief Settlement Commis sioner dated the 11th of November 1960 restored the order of the Assistant Settlement Commissioner with the powers of the Deputy Settlement Commissioner transferring the entire building in favour of the respondents. The petitioner has challenged the order of Ch. Sultan Muhammad, learned Settlement Commis sioner, with the prayer that it be declared to be without lawful authority and of no legal effect.

2. It is contended on behalf of the petitioner that the order of Ch. Sultan Muhammad is without jurisdiction because it was not competent for him to review the order of Pir Ahsan‑ud‑Din, the Chief Settlement Commissioner. In exercise of the Powers under clause (2) of section 31 of the Displaced Persons (Compen sation and Rehabilitation) Act of 1958, the Chief Settlement Commissioner delegated by a notification dated the 26th of April ‑1962 his powers under section 21 (1) of the Act to Ch. Sultan Muhammad, the Settlement Commissioner, in respect of such review cases as had been filed before the 13th of January 1962 against orders passed by him "under section 20 (2) of the said Act." By virtue of this notification, Ch. Sultan Muhammad, the Settlement Commissioner, was empowered to decide the review petitions pending against the orders of Pir Ahsan‑ud‑Din, the Chief Settlement Commissioner. The question, therefore, arises whether it was competent for the Chief Settlement Commissioner to delegate his power of review which he had under clause (1) of section

21. It is provided in section 21 (1) that the Chief Settlement Commissioner may either of his own motion at any time or on an application made in this behalf within fifteen days review an order passed by himself or by any of his predecessors in office. He is, therefore, competent to review his own order as well as the one passed by any other Chief Settlement Commissioner who preceded him in his office. Similarly, a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner may review under section 21 an order passed by himself or by his predecessor‑in‑office. Section 21 provides for the review by the Settlement Authorities of their own orders or of any of their predecessors‑in‑office. Before a person can act under section 21, he has, therefore to satisfy himself that he passed the order either himself or it was by any of his predecessors‑in‑office. By the aforesaid notification dated the 26th of April 1962, the Chief Settlement Commissioner delegated to the Settle ment Commissioners his power to review cases against order. passed by him. It is in the exercise of such delegated authority that Ch. Sultan Muhammad passed the impugned order reviewing e the order of Pir Ahsan‑ud‑Din dated the 11th of November 1960 The order of Ch. Sultan Muhammad does not fall under section 21 of the Act because it is neither a review of his own order nor that of his predecessor‑in‑office. If the Chief Settle ment Commissioner delegated to him his power of revision under section 20 (2) or of review under section 2.1 (1), the delegate by virtue of such an authority did not become the holder of the office of the Chief Settlement Commissioner. He remained the Settlement Commissioner but only exercised a particular power which vested in the Chief Settlement Commissioner. Under section 9 of the Act, Central Government is competent to appoint , a Chief Settlement Commissioner or Settlement Commissioner, y etc. It is only a person appointed under section 9 that he can hold the office of the Chief Settlement Commissioner and unless there is an appointment under the said provision, a person cannot be called the Chief Settlement Commissioner or his successor‑in office or predecessor‑in‑office. Ch. Sultan Muhammad was not appointed as Chief Settlement Commissioner under section

9. His appointment under the said section was only as Settlement Com missioner. He cannot, under the circumstances, be deemed to be the successor‑in‑office of the Chief Settlement Commissioner because of the delegation of his powers by the letter. In this view of the matter, Ch. Sultan Muhammad had no jurisdiction to review the orders passed by Pir Ahsan‑ud‑Din, the Chief Settlement Commissioner. Since section 21 clearly provided that an officer could review his own order or an order of his predecessor‑in‑office, the Chief Settlement Commissioner by delegating this power to the Settle ment Commissioners enable them to review the orders passed by the Chief Settlement Commissioner. It meant that after such a delegation not only the Chief Settlement Commissioner could review his own orders and those of his predecessors‑in‑office, but that the Settlement Commissioners could also review the orders of the Chief Settlement Commissioner. This is not provided in clause (1) of section 21 and by conferring such an authority the Chief Settlement Commissioner passed an order which is in the nature of a legislation, the same being within the exclusive jurisdic tion, of the Legislature. The Chief Settlement Commissioner has in delegating his powers under section 21, acted in excess of his powers and the notification dated the 26th of April 1962, being ultra vires the provisions of clause (1) of section 21, is without lawful authority and of no legal consequence.

3. The learned counsel for the respondents, however con tended that the order of the Chief Settlement Commissioner dated the 11th of November 1960 was a nullity for the reason that it had been passed without notice to the respondents. It is not denied by the learned counsel for the petitioner that the respon dents had b‑‑en transferred the entire building as a house and by the order of the Chief Settlement Commissioner a certain portion of the building had been transferred to the petitioner. He has also admitted that the Chief Settlement Commissioner did not give any notice to the respondents before passing the said order. I gave my serious consideration to the matter and at one time thought that since the review petition of the respondents had not been disposed of by a competent authority, I should refrain from adjudicating on the validity or otherwise of the order passed by the Chief Settlement Commissioner on the 11th of November 1960, but as the learned counsel for the petitioner and the learned Settlement Commissioner (Legal) admitted that the said order was passed without notice to the respondents, there remained no doubt whatsoever that the order was a nullity in the eye of law for the reason that it had been passed without complying with the provisions of clause (5) of section 20 which says that no order "shall be passed revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard." In fact the learned counsel for the petitioner E and the learned Settlement Commissioner (Legal) themselves stated that the order be declared as a nullity, and that the Chief Settlement Commissioner be directed to dispose of on merits the reference made by Mr. J. D. Malik, learned Additional Settlement Commissioner, on the 2nd of November 1960, and also the application of the petitioner on which the learned Chief Settlement Commissioner passed the order dated the 11th of November 1960.

4. The learned counsel for the respondents next contended that it was not possible for the Chief Settlement Commissioner to pass any order on the application of the petitioner because after the repeal of clause (2) of section 20, he had not been left with any powers of revision. Notwithstanding the repeal of clause (2) of section 20, the Chief Settlement Commissioner has still the powers of revision in cases where the records of the case had been summoned by him before the 12th of January 1962. The Chief Settlement Commissioner had passed the order on the 11th of November 1960, and it was necessarily an order passed by him under section 20(2) of the Act, because there was no other provision enabling him to entertain the application. Since all official acts are presumed under section 114 of the Evidence Act to have been regularly and lawfully done a necessary presumption arises in the case that the Chief Settlement Commissioner passed the order after sending for the records. In Ghulam Mahi‑ud‑Din v. Chief Settlement Commissioner (P L D 1964 S C 829) it was held as:‑ "There can be no bar to his dealing with these petitions in revision even at this stage, as the petitions before him were all filed before Ordinance No. II of 1962, which took away the Chief Settlement Commissioner's power of revision, came into force. These petitions will, therefore, now become pending petitions before him which he will have the power to dispose of in accordance with the provisions of the latter Ordinance No. XIII of 1962, which preserved the power in respect of proceedings pending before the coming into force of the Ordinance No. 11 of 1962. The learned counsel for the respondents says that the records had not at all been called before the impugned order was passed. It will be for him to substantiate this plea before the Chief Settlement Commissioner, and so long as he does not do so, the presumption will remain.

5. The result is that the writ petition is accepted, the order of Ch. Sultan Muhammad dated the 9th of November 1962 and that of the Chief Settlement Commissioner dated the 11th of November 1960 are declared as without lawful authority and the application of the petitioner which he had submitted to the Chief Settlement Commissioner under clause (2) of section 20 will be still pending before him and he shall dispose of those proceedings after giving an opportunity to the parties to be heard, and it shall be open to him to take such pleas and objec tions as may be available to him in law. There shall be no order as to costs. K. M. A Petition accepted.