P L D 1960 (W (PLP)

B. Z. KAIKAUS, J.‑

The petitioner in this writ petition is Muhammad Ismail Zabih, a refugee with a verified claim of Rs. 1,05,

000. His wife too has a verified claim of Rs. 72,

480. The only allotment which he held was that of a shop situate in a big mansion which he was using as residence. On the 12th of October 1956, he applied for allotment of house No. 1353‑A, Sadar Road, Peshawar. The ground floor of this house was in the occupation of Waris Jan, respondent No. 3 in this petition, who was a refugee claimant. The first floor was in the possession of Jan Muhammad Babar, respondent No.

4. Both these respondents held allotments in their favour. On the application of the petitioner, the Sub‑Assistant Custodian made a report to the effect that Waris Jan held multiple allotments and Jan Muhammad Babar was a defaulter to the extent of Rs. 1,150 in respect of the rent of the first floor. There was also a sum of Rs. 522 standing against him as arrears of rent of another house. The Deputy Custodian having agreed with this report, notices to show cause why they should not be ejected were issued by the Deputy Rehabilitation Commissioner against both these respon dents. Both respondents filed replies at which the notices were cancelled on the administrative side by the Deputy Rehabilitation Commissioner. The petitioner then moved the Additional Rehabilitation Commissioner who passed an order that the matter should be dealt with on the judicial side and that the Deputy Rehabilitation Commissioner should pass orders only after hearing both the parties. As a result the Deputy Rehabilitation Com missioner decided the matter afresh but again cancelled the show‑cause notices on the 22nd of February 1957. The petitioner filed an appeal against this order before the Additional Rehabilita tion Commissioner who accepted it on the 13th of March 1957 holding that both the respondents were to be ejected. Against the order of the Additional Rehabilitation Commissioner the respondents filed revisions before Muhammad Shafi, J. as Custodian. The Custodian, on the 18th of July 1957, accepted the revisions and set aside the order of the Additional Rehabilita tion Commissioner. Against the order of the Custodian, two writ petitions were filed by the present petitioner on the ground that the Custodian had no jurisdiction to set aside the order. These writ petitions succeeded and the order of the Custodian was quashed, on the 14th of January 1959, as being without jurisdiction.

2. The effect of the decision of the writ petitions was that the order of the Additional Rehabilitation Commissioner dated the 13th of March 1957 stood. On the 26th of January 1959, the petitioner applied to the Deputy Rehabilitation Commissioner to implement the order of the 13th of March 1957. The Deputy Rehabilitation Commissioner forwarded this application to the Additional Rehabilitation Commissioner with a request that permission be granted for ejectment of Waris Jan and Jan Muhammad Babar. The Additional Rehabilitation Commissioner passed the following order on the 12th of March 1959 (this is not a 'verbatim copy but gives the substance of the order):‑-- "As Waris Jan has filed a review petition before me I shall decide his case later on but as Jan Muhammad Babar has not put in any petition before me orders of ejectment against Jan Muhammad Babar be issued and possession be handed over to Ismail Zabih". As appears from this order, Waris Jan had filed a petition for review of the order passed on the 13th of March 1957. Orders for ejectment of Jan Muhammad Babar were actually issued by the Deputy Rehabilitation Commissioner on the 13th of March 1959 and the first floor of the house in dispute, which was in possession of Jan Muhammad Babar was sealed on the 27th of March 1959. Before the sealing, Jan Muhammad Babar had appealed to the Additional Rehabilitation Commissioner against the order of the Deputy Rehabilitation Commissioner by which 4e was being ejected. On the 24th of March 1959, the Additional Rehabilitation Commissioner refused to entertain this appeal on the ground that the Deputy Rehabilitation Commissioner had in fact acted only under his directions. On the 26th of March 1959. Jan Muhammad Babar filed a revision petition before the Rehabilitation Commissioner against the order of the Additional Rehabilitation Commissioner refusing to entertain the appeal. The Rehabilitation Commissioner, in the first instance, granted a stay order to Jan Muhammad Babar and subsequently, on the 6th of April 1959, restored possession of the first floor to Jan Muhammad Babar. On the 23rd of May 1959 the Rehabili tation Commissioner decided this revision petition. For the first time before him a person, Atiq by name, had been joined as a respondent. This Atiq was what is named a rent allottee i.e., he was entitled to a portion of the rent which was being paid by Jan Muhammad Babar to the Rehabilitation authorities. The Rehabilitation Commissioner was of the opinion that Atiq should also have been made a party to the proceedings for ejectment. He said:‑- "As Atiq was not a party when the Additional Rehabilitation Commissioner gave his decision or when the case went before the High Court, Lahore, it appears necessary that his position should be determined by the Additional Rehabilitation Commissioner. In the circumstances, I accept the revision and remand the case to the Additional Rehabilitation Commissioner for de novo hearing and decision": Now, there were two proceedings before the Additional Rehabilita tion Commissioner, one the review application of Waris Jan, and the other the case remanded to him for decision by the Rehabilitation Commissioner. On the 11th of July 1959, the Additional Rehabilitation Commissioner accepted the review petition of Waris Jan his reasons for his acceptance will appear from the following passage in this order:‑-- "The ejectment order passed by my predecessor was based on the fact that the petitioner Waris Jan Khan was holding multiple allotments. I have consulted the records and find that the petitioner is an authorised allottee and is in possession of this building since 1953. He is also a verified claim‑holder and has cleared up all his dues and is not a rent defaulter". In the case remanded by the Rehabilitation Commissioner, he held, on the same day, that Jan Muhammad should not be ejected. He said with respect to the arrears that Jan Muhammad Babar's rent had been enhanced at one stage from Rs. 50 to Rs. 100; that according to his allegations Jan Muhammad Babar was not aware of this enhancement, and that he had expressed his willingness to pay the arrears in instalments. The Additional Rehabilitation Commissioner said that soon permanent rights in evacuee property were to be granted and it was not proper to order an ejectment at this stage on the ground of non‑payment of arrears of rent specially when the defaulter was prepared to pay in instalments. Against the orders of the Additional Rehabilita tion Commissioner in both these cases, the petitioner filed revision petitions before the Rehabilitation Commissioner. With respect to the review petition of Waris Jan it was contended before the Rehabilitation Commissioner that the Additional Rehabilitation Commissioner had no jurisdiction at all, in view of the judgment of their Lordships of the Supreme Court, to review his predecessor s order. The learned Rehabilitation Commissioner refused to give effect to this contention on the ground that he himself had, on a representation by the present petitioner, authorised the Additional Rehabilitation Commissioner to review his predecessor's order. With respect to Jan Muhammad Babar, the learned Rehabilitation Commissioner said that he found no reason to differ with the view taken by the Additional Rehabilitation Commissioner which was based on the fact that the evacuee property was going to be disposed of permanently very shortly.

3. The contention of the petitioner before us is that the orders passed by the Additional Rehabilitation Commissioner on the 11th of July 1959, one in the review petition of Waris Jan and the other in the case remanded by the Rehabilitation Commissioner relating to Jan Muhammad Babar, are without jurisdiction. The order passed on review is challenged on the ground that there was no jurisdiction at all to review a predecessor's order. The other order is challenged on the ground that the order of the Additional Rehabilitation Commissioner dated the 13th of March 1957 stood and as long as that order was not set aside by appropriate proceedings, it was final, and no order inconsistent with it could be passed. The substance of the petitioner's con tention is that the situation is as it stood on the 13th of March 1957, when the Additional Rehabilitation Commissioner accepted his appeals against both the respondents.

4. So far as the review petition of Waris Jan is concerned, it has not been contended before us that the Additional Rehabilitation Commissioner had power to review his predecessor's order. It is even apparent that had he a power to review his predecessor's order, this case could not fall within the purview of section 13 of the Pakistan Rehabilitation Act (XVII of 1956), the scope of which is very limited. There is no ground apparent on the face of the record. The Additional Rehabilitation Com missioner had started by saying that the order of his predecessor was based on Waris Jan having multiple allotments, but he did not even state in his order that he found the assumption of his predecessor as to multiple allotments to be incorrect. So far as the order of the Additional Rehabilitation Commissioner relating to Jan Muhammad Babar is concerned, it is obvious that he had no jurisdiction to pass this order as long as the order of the 13th of March 1957 was not set aside. In fact the case had been remanded to him only to determine the position of Atiq. That was the only point on which the Rehabilitation Commissioner had remanded the case. In his order, however, there is no mention even of Atiq and the order is really a reconsideration of the question whether Jan Muhammad Babar should or should not be ejected. A matter which had once been decided could not be re‑opened in this manner.

5. Prima facie then both the orders are illegal and without jurisdiction. Learned counsel for respondents 3 and 4 has, however tried to justify these orders on the basis of some con tentions which we will now discuss. The first contention is that the Additional Rehabilitation Commissioner happened to be not only the Additional Rehabilitation Commissioner but also the Additional Settlement Commissioner, and that in the latter capacity he was entitled to set aside any previous order passed by any Rehabilitation authority. It may be stated before proceeding that it is not a case of the Additional Rehabilitation Commissioner himself who is represented before us that he was acting as an Additional Settlement Commissioner. The orders passed by him do describe him as Additional Settlement Rehabilitation Commis sioner, but that is only his designation. There cannot be the slightest doubt on reading the orders or on considering the circumstances that Sardar Muhammad Alam Khan was acting only as Additional Rehabilitation Commissioner. So far as the case of Waris Jan is concerned, he was hearing an application for review. He says in the order ; "This is a review petition against the order of my predecessor dated the 13th of March 1957." Then, after referring to the facts, he says : "The present review petition is the outcome of these orders." He then gives the ground of review saying that the order was based on the fact of Waris Jan holding multiple allotments and his order gives the impression that he is not, inclined to agree with reasons which moved his predecessor. At the end he says : "I accept the revision petition and set aside the ejectment order." The word "revision" here is only a mistake because the petition was for review. So far as the order in the case of Jan Muhammad Babar was concerned, it was a case remanded by the Rehabilitation Commissioner, and the Additional Rehabilitation Commissioner was exercising his powers in accordance with the directions given in the remand order. He says : "This case on revision was remanded to this Court by the Commissioner, Peshawar, for de novo hearing and decision vide his order dated 23rd May 1959." Another reply to this contention of the learned counsel is that the Central Government acquired evacuee property only on the 28th of August 1959, and it is only after such an acquisition that settlement operations began. This order was surely not passed as a part of the settlement operations and cannot be said to have been passed as a Settlement Com missioner. Next contention of learned counsel for respondents 3 and 4 is that the Additional Rehabilitation Commissioner had also power to revise an order of his predecessor because he was not only an Additional Rehabilitation Commissioner but also a Rehabilitation Commissioner in view of the notification of the Government dated the 15th of December 1956, according to which all Additional Rehabilitation Commissioners in West Pakistan were also to be Rehabilitation Commissioners for disposal of applications under section 11 (2) against the order of any' Additional Rehabilitation Commissioner other than themselves. Now, in the first place, this notification will only apply to a person who was Additional Rehabilitation Commissioner on the 15th of December 1956. The notification cannot be interpreted to meal that whoever becomes an Additional Rehabilitation Commissioner in future will also have powers in accordance with this notification. There is no allegation that Sardar Muhammad Alam Khan ha; already been appointed Additional Rehabilitation Commissioner on the 15th of December 1956. Even apart from this the argument is without any force. In one case the Additional Rehabilitation Commissioner was expressly reviewing the order of his predecessor. 1n the other case he was expressly deciding only a case remanded to him by the Rehabilitation Commissioner. It is too much to say that in either of these cases he was exercising any powers of revision.

6. The next contention is that so far as Waris Jan is con cerned, the Rehabilitation Commissioner had transferred to the Additional Rehabilitation Commissioner an application for revision and although the Additional Rehabilitation Commissioner said he was deciding a review petition in fact he had decided the pro ceedings transferred to him by the Rehabilitation Commissioner. The basis for this argument is this. The petitioner had applied to the Rehabilitation Commissioner in revision against the determination of the review petition of Waris Jan by the Additional Rehabilitation Commissioner. He had alleged that in fact the petition for review was incompetent and that he had also no faith in the Additional Rehabilitation Commissioner. The Rehabilitation Commissioner rejected this application and said that the Additional Rehabilitation Commissioner would proceed to hear the review petition. The contention of learned counsel for the respondents is that when the Rehabilitation Commissioner said the Additional Rehabilitation Commissioner should hear the review petition, he was actually transferring the revision petition before him to the Additional Rehabilitation Commissioner. This is a hopeless argument. Even the order of the Rehabilitation Commissioner has not been produced before us by which, it is contended he transferred the revision petition, and quite obviously the Additional Rehabilitation Commissioner was also not hearing any proceedings transferred to him. He was just deciding the review petition of Waris Jan.

7. One contention put forward is that after all the matter had gone to the Rehabilitation Commissioner when the present petitioner filed revisions against the orders passed on the 11th of July 1959 by the Additional Rehabilitation Commissioner, and as the Rehabilitation Commissioner had upheld the orders of the Additional Rehabilitation Commissioner, therefore, he should be deemed to have exercised his powers and set aside the order of the 13th of March 1957 on which the claim of the present petitioner rests. We are unable to hold that the Rehabilitation Commissioner, when he decided the revision petitions of the petitioner, was determining the question whether the order of the 13th of March 1957 should or should not be upheld. In the case of Waris Jan what he found was that the Additional Rehabilita tion Commissioner had authority to review his predecessor's order because he (Rehabilitation Commissioner) had himself given directions to the Additional Rehabilitation Commissioner to decide the review petition. The reference is to the above mentioned application for revision submitted by the present petitioner to the Rehabilitation Commissioner complaining against the Additional Rehabilitation Commissioner with respect to the review petition. As already stated, the Rehabilitation Commis sioner had refused to give effect to the submissions of the petitioner and had ordered that the Additional Rehabilitation Commissioner should decide the review petition. Obviously, this order of the Rehabilitation Commissioner could not grant juris diction to the Additional Rehabilitation Commissioner which he did not possess. The learned Rehabilitation Commissioner having proceeded on the assumption that the Additional Rehabilitation Commissioner had jurisdiction to review his predecessor's order did not concern himself with the question whether he would himself set aside the order dated the 13th of March 1957. The considerations in a case where a Rehabilitation Commissioner has just to affirm an order passed on review with jurisdiction may be wholly different from considerations where he has to set aside an order passed 2J years before. Similar considerations apply to the case of Jan Muhammad Babar. The Rehabilitation Commissioner was only deciding the question whether he should set aside an order passed by the Additional Rehabilitation Commissioner with jurisdiction. It was never brought to his notice that in view of the earlier order of the 13th of March 1957 the order could not have been passed at all. He may have held the second order barred in view of the earlier order. In any case, we cannot assume an implied setting aside of the order dated the 13th of March 1957. It is only when an appellate or revisional authorities applies its mind to the correctness of an order and decides that it should be set aside that we can regard the order as having been set aside. Whether it would be set aside may depend upon the reasons contained in the order. The order dated the 13th of March 1957 was not before the Rehabilitation Commissioner at all.

8. An objection, which was rather preliminary in form, was taken to this writ petition on the ground that whereas the orders of the Additional Rehabilitation Commissioner had been challenged, the orders of the Rehabilitation Commissioner dated the 12th of September 1959 in the revision petitions filed by the petitioner were not formally challenged in this petition. Now, in the firs instance, if the orders passed by the Additional Rehabilitation Commissioner were without jurisdiction and we set them aside, the subsequent orders of the Rehabilitation Commissioner, which 1 were only in confirmation of those orders, automatically fall. In the second place, the petitioner should be deemed to be attacking the orders of the Rehabilitation Commissioner in revision also. He had attached copies of those orders along with the petition. At the same time, in order to meet this technical objection, we gave notice at the hearing to all parties that we were considering whether we should set aside the orders passed in revision by the Rehabilitation Commissioner.

9. The next point to consider is the order which we should pass. The orders of the Additional Rehabilitation Commissioner dated the 11th of July 1959 are quashed, and the orders of the Rehabilitation Commissioner dated the 12th of September 1959 automatically fall. As a result the situation is the same as it was on the 13th of March 1957 when the appeals of the petitioner were accepted by the Additional Rehabilitation Com missioner. It has been contended on behalf of the petitioner that we should also grant him a mandamus directing the Rehabilitation Authorities to put him in possession of the house in dispute, but we are not inclined to go into the question as to what is the further relief to which the petitioner may be entitled. In order that effect may be given to the order dated the 13th of March 1957, the petitioner should approach the Rehabilitation or Resettlement authorities. It is only if they do not grant him some relief to which he is entitled that he can come to this Court and apply for a writ. The result of this petition is that the Rehabilitation authorities are apprised of the fact that the order dated the 13th of March 1957 still stands. There is no order as to costs. A.H. Order accordingly.