P L D 1975 Lahore 904 (PLP)

To avoid the lengthy details of the stages through which this matter had been passing it will be sufficient to state that in a mutation proceedings which were going on under the Pakistan Rehabilitation Act pertaining to the inheri tance of one Abdul Hafeez Khan‑(claimant displaced person)‑an order was passed by Additional Deputy Commissioner, Sargodga describing, himself as Deputy Settlement Commissioner on 1‑2‑1968 whereby he held that Mst. Sakina was not the daughter of the propositus, namely, Abdul Hafiz Khan. This order was passed by him in appellate proceedings under the Pakistan Rehabilitation Act read with West Pakistan Rehabilitation Scheme. The heirs of Mst. Sakina filed an appeal which was accepted by Capt. Jamshed Burki who was Deputy Commissioner of Sargodha District and who described him self as Additional Settlement Commissioner. The order of Capt. Jamshed Burki is dated 17‑61969 (Annexure `F'). He held that Mst. Sakina was the daughter of the propositus. After recording this finding he sent the file to the subordinate authorities to attend to the question of inheritance in accordance therewith. While accepting the appeal he, however, wrote that he was accepting the `revision'.

2. The other contestants, namely, Niaz Muhammad etc. filed a revision which was accepted by Ch. Ali Muhammad Settlement Commissioner on 30‑10‑1.970 on technical ground without adverting to the merits of the contro versy regarding the paternity of Mst. Sakina. The learned Settlement Commissioner was of the view that Capt. Jamshed Burki could not have passed the order dated 17‑6‑1969 inasmuch as the proceedings before him were in the form of a second appeal. He was of the view that the order dated 1‑2‑1968 passed by the Deputy Settlement and Rehabilitation Commis sioner (Land) was itself an appellate order and against the same the second appeal could not have been heard by Capt. Jamshed Burki. The petitioners have come up in writ petition against the aforesaid proceedings and orders to this Court.

3. It has been argued by the learned counsel for the petitioners that the view of Ch. Ali Muhammad that Capt. Jamshed Burki could not have heard the matter is incorrect inasmuch as the said officer had indicated in paragraph 8 of his order that he was treating the case as a `revision' and it was in that respect that he accepted the same. He submitted that the case was being proceeded under the Pakistan Rehabilitation Act and should have been examined from that point of view. If so examined, be submitted, it will be evident that despite the description of the designations adopted by the various officers the order dated 1‑2‑1968 had been passed by the Deputy Settlement Commissioner in his capacity as a Deputy Rehabilitation Commissioner (Land) in his appellate jurisdiction and the same could, therefore, be attended to in revisional jurisdiction‑by an Additional Rehabilitation Commissioner act ing as a Rehabilitation Commissioner. For the proposition that it is the jurisdiction and power exercised by an officer which is to be seen and not his designation see Pio Gut v. The State P L D 1960 S C 307 where it was held that misdescription in such cases is of no effect, the principle being that falsa demonstratio non ` nocet (a false description does not vitiate a document).' Learned counsel submits that Capt. Jamshed Burki who was the Additional Rehabilitation Commissioner, had been delegated the powers of a Rehabilitation Commissioner for hearing revisions as well, and for this purpose, he specifically relies on the recitals con tained in the order of Capt. Jamshed Burki that he was accepting the "revi sion". The contention raised has merit. Notification No. F 2(6)/56‑R/I, dated 15‑12‑1956 printed on page 152 of the Evacuee and Rehabilitation Laws (1957 Edition) shows that all Additional Rehabilitation Commissioners had been delegated the powers of a Rehabilitation Commissioner. This notification reads as follows :‑ "No. F 2(6)/56‑R/I, 15th December, 1956 (Gazette, Extraordinary, 15th December, 1956).‑In exercise of the powers conferred by section 3 of the Pakistan Rehabilitation Act, 1956 (XIII of 1956), the Central Government is pleased to appoint, with effect from the 22nd Septem ber 1956 the Additional Rehabilitation Commissioners in the Province of West Pakistan as Rehabilitation Commissioners for the respective areas for the purpose of disposal of applications under section 11 (4) of the said Act against the orders of Assistant, Deputy and Additional Rehabilitation Commissioners (other than themselves)." This notification is all embracing. See Iqbal Muhammad v. Muhammad Siddiq and others P L D 1960 Lah. 846, where it was held that it conferred revisional jurisdiction on Additional Rehabilitation Commissioners whether they were appointed before or after the date of the Notification. Capt. Jamshed Burei, it is not disputed, was Additional Settlement Commissioner. .See Notification No. F.1(1)/64SEI dated 12‑2‑1964 printed on page 50 of the Displaced Persons Land Settlement Act by M. A. Latif (1973 Edition) which reads as follows :‑ "Under Notification No. F. 1(1)/64, SEI, dated 12th February, 1964, the following officers have been appointed by the Central Government to be the Settlement Commissioners, Additional Settlement and Deputy Settlement Commissioners, as shown against each for the performance of the duties and functions assigned ,to them under section 9 of the Act. (i) All Additional Commissioners (Revenue) Settlement Commis sioners. (ii) All Additional Commissioners (Consolidation). (iii) All Deputy Commissioners All Colonization Officers Additional Settle ment Commissioners All Additional Deputy Commissioners. (iv) All Revenue Assistants All Extra Assistant Settlement Officers. All Extra Colonization Officers. Deputy Settlement Commissioners. All Sub‑Divisional Magistrates. All Deputy Collectors. All Tehsildars and Additional Tehsildars have been invested with the powers of Assistant Settlement Commissioner for the disposal of mutation work under clause 7‑A of the Displaced Persons (Land Settlement) Rules, 1959 vide Notification No. 218/F‑5 (143)/59‑A‑111 dated 12th January, 1960, issued by the Central Government." (Note.‑Clause 7‑A or to be more precise Rule 7‑A deals with different types of mutations and not with mutations of inheritance of, the kind involved in this case). By virtue of Notification No. U‑3/66‑58‑1887, dated 1‑6‑1969 (copy placed on record) he was also Additional Rehabilitation Commissioner. This Notification reads as follows :‑ "No. U‑3/66‑58‑1887.‑In exercise of the powers conferred upon him by section 3 of the Pakistan Rehabilitation Act; 1956 (XIII of 1956) as delegated by the Central Government, the Governor of West Pakistan is pleased to declare all the Additional/Deputy and Assistant Settlement Commissioners as ex‑officio Additional/ Deputy and Assistant Rehabili tation Commissioners, respectively within their respective Jurisdiction." . The case in hand, it has not been disputed before me by the respondents, ,had been going on, on the rehabilitation side and from that point of view against the appellate order dated 1‑2‑1968 of Additional Rehabilitation Commissioner a revision could b‑, heard by Capt. Jamshed Burki as a Rehabi litation Commissioner. If the case is examined from the aforesaid perspective the order of Capt. Jamshed Burki seems to be perfectly in order and the view ,of Ch. Ali Muhammad to the contrary is without lawful authority. Ch. Ali Muhammad, to say with respect, had not exhausted all the field pertaining to the appointment and powers of the Rehabilitation Commissioners or Addi tional Rehabilitation Commissioners and it was probably for this reason that the mistake crept into his order. It was laid down by their Lordships of the Supreme Court in Lahore Improvement Trust Lahore v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others P L D 1971 S C 81 that before striking down, an order of an authority the entire field of his jurisdiction should be examined and exhausted and only thereafter a final conclusion should be reached. This exercise, however, was not done by Ch. Ali Muhammad. Going a step further I may observe that it has not been shown to me that if the order of Capt. Jamshed Burki was in his capacity as a Rehabilitation Commissioner how could Ch. Ali Muhammad upset the same inasmuch as on Rehabilitation side one Rehabilitation Commissioner could not hear revision against the order of another Rehabilitation Commissioner. If the original .history of the case is traced out it will transpire that the basic proceedings were initiated when mutations Nos. 32 and 91 pertaining to the inheritance of .a deceased "right‑holder" were attested in the earlier wake of Rehabilitation work on 10‑2‑1956 under the Pakistan Rehabilitation Act read with West Pakistan Rehabilitation Scheme. (To decide such matters, as laid down in Muhammad Hassan v. Syed Mumtaz Hussain P L D 1965 Lah. 35, was the exclusive jurisdiction of the Rehabilitation Authorities). The respondent filed an appeal against the orders passed in the said mutation which was rejected by the Deputy Rehabilitation Commissioner on 10‑1‑1959‑(sometimes described as 10‑11‑1959). The respondents then filed a revision which was accepted by the Additional Settlement and Rehabilitation Commissioner in his capacity as a Rehabilitation Commissioner on 11‑12‑1959, when he remanded the case to the Deputy Rehabilitation Commissioner (i.e. for deciding the appeal after recording some evidence as indicated therein). The Deputy Rehabilitation Commissioner instead of himself deciding it remitted the case to an Assistant Rehabilitation Commissioner who passed an order on 8‑12‑1950. An appeal was filed against that order which was dismissed by the Deputy Rehabilitation Commissioner on 20‑6‑1961. The matter was then taken in revision where again an order was passed on 8‑6‑1964 directing the Deputy Rehabilitation Commissioner to himself decide the case as earlier remanded to him. It was at this stage and in that appellate capacity that the Deputy Rehabilitation Commissioner passed an order dated 1‑2‑1968 onward history whereof has been stated in earlier paragraphs of this judgment. Section 11 of the Pakistan Rehabilitation Act reads as follows :‑ "Section

11. Appeal, revision and review.‑(1) Any person aggrieved by an order under this Act, may prefer an appeal‑ (a) to the Deputy Rehabilitation Commissioner, where the order has been passed by an Assistant Rehabilitation Commissioner ; (b) to the Rehabilitation Commissioner, where the order, not being an order passed in appeal under clause (a), has been passed by a Deputy Rehabilitation Commissioner. (2) The appeal shall be presented in such manner and within such time as may be prescribed. (3) The Rehabilitation Commissioner to whom an appeal is preferred under clause (b) of subsection (1) may dispose it of himself, or make it over for disposal to an Additional Rehabilitation Commissioner. (4) The Rehabilitation Commissioner may, at any time, either of his own motion or on perusal of an application made to him in this behalf, call for the record of any proceedings relating to any of the purposes of this Act, which is pending before, or has been disposed of by an Addi tional, Deputy, or Assistant Rehabilitation Commissioner, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may after perusal of the record and without hearing any person or his counsel or authorised agent pass such order in relation thereto as he thinks fit Provided that the Rehabilitation Commissioner shall not under this subsection pass an order revising or modifying an order affecting any person without giving such person an opportunity of being heard. (5) The Rehabilitation Commissioner or Additional, Deputy or Assistant Rehabilitation Commissioner may, after giving notice to the parties concerned, review his own order, so far as justice may require, to cor rect errors or supply omissions which are apparent upon the face of the record. (6) An order in appeal or revision under this section may, if the Authority making the order is of opinion that the appeal or applica tion in revision is frivolous or vexatious, award special costs against the appellant or applicant and in favour of the respondent or the other party, to the extent of one hundred rupees in the case of an order by the Rehabilitation or Additional Rehabilitation Commissioner, and to the extent of fifty rupees in the case of an order by a Deputy Rehabili tation Commissioner." If this provision of law is kept in mind it will transpire that an Addi tional Rehabilitation Commissioner as such has no jurisdiction to directly hear an appeal or revision. He can hear a revision only when he is bestowed powers, as for example was done by Notification dated 15‑12‑1956 reproduced above. It was in that context that Capt. Jamshed Burki decided the matter before him in revision. He acted quite within his competence and there was no excess of authority on his part. The view of Ch. Ali Mohammed to the contrary is thus not correct. If the matter is examined by keeping in view the Pakistan Rehabilitation Act, the West Pakistan Rehabilitation Scheme and the various Notifications reproduced above, it would clearly appear that all these proceedings pertaining to mutation of inheritance of a deceased "right holder" bad originated and were going on under the Pakistan Rehabilitation Act and, therefore, they could be carried to their final destination thereunder by the Rehabilitation authorities within whose exclusive jurisdiction they fell as laid down in Muhammad Hasson v. Syed Mumtaz Hussain followed in Qutob‑ud‑Din v. Muhammad Siddique and others PLD1969Lah.418. Any attempt on the part of Ch. Ali Muhammad to give a different perspective or colour to those proceedings was, therefore, clearly without lawful authority.

4. The upshot of the above discussion is that the present writ petition is accepted, the order of Ch. Ali Muhammad dated the 30th October, 1970, is declared to be without lawful authority and of no legal consequence against the petitioners and is hereby quashed. The petitioners shall get their costs. K. B. A. Petition accepted.