P L D 1965 Supreme Court 68 (PLP)

S. A. RAHMAN, J.‑The facts giving rise to these appeals by special leave, are as follows. The dispute between the parties is with regard to transfer of a house described as No. 1454‑A, Wallington Mall, Lahore Cantonment. This property belongs to a non‑Muslim, who is now an evacuee. Prior to the partition, it was partly occupied by the owner, one Kotu Ram, and partly by one, D. T. Miller. After the evacuee owner had migrated to India, the part which was in his occupation, was requisitioned under the Defence of India Rules, by the Military authorities and Ch. Altaf Hussain, the 1st appellant, who was then a Superintendent in the Military Estates Office at Lahore, was allotted this portion of the pro perty, in April 1950. He was transferred from Lahore to Rawalpindi in 1953, where he was apparently allotted another house for residence. His family, however, continued to occupy the Lahore house, though the Military authorities were pressing them to vacate the premises. The son and daughter of Ch. Altaf Hussain approached the Custodian of Evacuee Property for relief. As a result of the proceedings thus started, it was found that the premises were no longer subject to requisition and its allotment rested with the Rehabilitation authorities. The portion previously occupied by the 1st appellant was then allotted to his son, Javed Iqbal Altaf, the 2nd appellant, on 15‑9‑53. It was, however, stated that one of the rooms in the house, which originally contained the house‑hold effects of the evacuee owner, had been lying sealed and it was allotted separately to the 1st appellant by the Rehabilitation authorities on 31‑5‑1950, the contents of the room being removed elsewhere. When Mr. Miller vacated his portion of the house in 1957, the family of Ch. Altaf Hussain attempted to take possession of it, but they were ousted in proceedings started by the Reha bilitation authorities and this portion was eventually allotted to Mr. Shabbir Hussain, Advocate, the 2nd respondent to these appeals. Ch. Altaf Hussain challenged the orders f the Rehabi litation authorities in respect of the portion allotted to Mr. Shabbir Hussain by a writ petition in the High Court, but his petition was dismissed and he was also unsuccessful in a petition for special leave to appeal to this Court. Mr. Shabbir Hussain was thus confirmed in his possession of part of the house, on the 17th of October 1958. Ch. Altaf Hussain filed a C. H. form for the transfer of the whole of this house, No. 1454‑A, to him, on 15‑7‑59, before the Settlement authorities. He based his claim on the fact that his son and other members of the family were occupying part of the house and his son was an allottee of that part. On the 20th of June 1959, a C. H. form in respect of the same house was submitted on behalf of Mr. Shabbir Hussain and his brother, Mr. Munir Hussain, the 2nd and 3rd respondents. The claim was made on the basis of the possession of the house by Mr. Shabbir Hussain, under an allotment order. Mr. Munir Hussain was not in actual possession nor was he an allottee of this house and he seems to have been associated by Mr. Shabbir Hussain with himself for financial reasons. The Deputy Settlement Com missioner, on a recommendation of the Assistant Settlement Commissioner, Lahore Cantonment, by order dated the 10th of November 1959, transferred the whole house to the 1st appellant, holding that he was a claimant in possession from an earlier date and that his son, the 2nd appellant, who was a minor under his guardianship, was a regular allottee of the larger portion of the house. Mr. Shabbir Hussain sent an application to the Minister of Rehabilitation, Government of Pakistan, Rawalpindi, on 14‑11‑59, protesting against the order passed to his prejudice. The Secre tary, Ministry of Rehabilitation, forwarded this application, with his endorsement, to Mr. Riazuddin Ahmad, Settlement Commissioner, West Pakistan, Lahore, pointing out that the transfer made appeared to be in contravention of express instructions issued by the Chief Settlement Commissioner. Mr. Riazuddin directed by order dated 18‑11‑59, that this petition be treated as an appeal as the limitation for appeal had no yet expired and forwarded it for disposal to the Additional Settlement and Rehabilitation Commissioner, Lahore. An objec tion was raised that this was not a properly presented appeal but considering the facts and circumstances, the opinion expressed by the High Court that the objection which amounts to a mere technicality did not merit serious consideration, does not apnea to require review. The Additional Settlement and Rehabilitation Commissioner, Lt: Col. J. D. Malik, allowed the appeal of Mr. Shabbir Hussain on 1‑12‑59, and ordered the transfer of the whole house to him. He was preferred to the first appellant on the ground that he was himself an allottee in possession, whereas the first appellant was only basing his entitlement on the possession of his son who was an allottee. It appears that at the relevant time the first appel lant was practising as an Advocate at Bahawalpur, he having resigned his service earlier. A. P. T. O. was issued in favour of the 2nd and 3rd respondents on 4‑12‑59. Col. Malik in his order had adversely commented on the fact that the C. H. form of Ch. Altaf Hussain did not raise the ground of his personal allotment and held that without a fresh form that ground could not be entertained. On the 1st of December 1959, it appears, after the judgment of Lt.‑Col. J. D. Malik had been pronounced, the first appellant approached the Settlement and Rehabilitation Commissioner, with an application, praying for permission to withdraw his previous C. H. form and to substitute it by a new form, in which he claimed on the twin grounds that he was himself an allottee of one room in the house and that his son, who was in possession of part of the house, was allottee of that part. Mr. Bashir Ahmad who was then Settlement and Rehabilitation Com1nis sioner (Policy), passed an order on it, to the effect that the new form may be entertained and decided on the merits. This way forwarded, in consequence, to the Deputy Settlement and Rehabilitation Commissioner, Lahore Cantonment, for disposal and that officer formally admitted it. The first appellant challenged the order of Lt.‑Col. J. D. Malik on 7‑12‑59, by a revision petition preferred to Mr. Riaz uddin Ahmad, Settlement and Rehabilitation Commissioner. In this petition, he took his stand also on the fact that he was himself an allottee of one room in the house and mentioned that he had since been permitted to file a fresh C. H. form, in his own right, if it was so required. Mr. Riazuddin Ahmad in the course of his order dated 17‑12‑59, dismissing the revision petition, referred to this fact but did not consider the legal consequences flowing from it. The first appellant then submitted a review petition on 22‑12‑59, to Mr. Riazuddin Ahmad but before the petition could be taken up, Mr. Riazuddin Ahmad had left for England. In this petition the claim was pressed on the two grounds of Ch. Altaf Hussain and his son being both allottees in possession. On the 30th of December 1959, the 2nd and 3rd appellants, who are the son and wife of the first appellant, respectively, also submitted a C. H. form in respect of this very property, requesting that in case the property could not be transferred in favour of the first appellant, it may be transferred to them, by virtue of the 2nd appellant being an allottee in possession. On this also an endorsement was recorded by Mr. Bashir Ahmad, Settlement and Rehabilitation Commissioner (Policy), headquar ters office, on the 30th of December 1959, to the effect that the delay in submitting this C. H. form may be condoned on condition that the property was not on the earmarking list and otherwise not disposed of. This C. H. form was also forwarded to the Deputy Settlement Commissioner, Lahore Cantonment and to the Assistant Settlement Commissioner, for disposal after notice to the parties. It is curious to find however that on the date that this C. H. form was put in, neither the second nor the third appellant was a claimant with a verified claim. For the first time on 29‑4‑60, the Additional Claims Commissioner, Karachi, held in the appeal of one Hafiz Ghulam Rabbani of Jullundur, on the basis of a mere oral statement of the latter that Javed Iqbal who was described as a "cousin", was entitled to th of his property as a donee. The first appellant preferred a further revision petition on 2‑1‑60, before the Chief Settlement and Rehabilitation Commis sioner, Mr. Hashim Raza, from the order of the Settlement and Rehabilitation Commissioner, Mr. Riazuddin Ahmad. He made a grievance therein of the fact that his independent claim on the basis of the allotment of a room in his favour had not been adjudicated upon. He also raised the question of divisibility of the house into 2 units. The second appellant applied to be made a party to these proceedings before the Chief Settlement Commissioner. During the hearing of the revision petition, it was brought to the notice of the Chief Settlement Commissioner that a review petition filed earlier by the first appellant, against the order of Mr. Riazuddin Ahmad, had not yet been disposed of. The Chief Settlement Commissioner therefore directed by order dated the 30th of January 1960, that the review petition in question should be heard by Mr. Riazuddin Ahmad's successor, Mr. Muhammad Aslam. This officer too was transferred to Multan and was succeeded by Mr. Farzand Ali Khan who heard the review petition on 5‑6‑60, but affirmed the order passed by Mr. Riazuddin Ahmad. He failed to give effect to the new C. H. form of the first appellant and held that he had not claimed the house in dispute on the basis of his own allotment. This was despite the fact that in written arguments submitted to him, the first appellant had specifically invited attention to the fact that he had substituted his original C. H. form with a new one with requisite permission. The C. H. form of the 2nd and 3rd appellants was also apparently not adjudicated upon, after hearing them. It was merely observed that it could not be enter tained as the house already stood disposed of. Another revision petition was filed before Mr. Ahsan‑ud‑Din, Chief Settlement Commissioner, on behalf of the three appellants from the order in review proceedings passed by Mr. Farzand Ali Khan. In this petition the previous pleas of the first appellant were reiterated that he was claiming the transfer of the house in two capacities, namely, as the father of one allottee and as an allottee in his own right, on the strength of a new C. H. form which he had put in. He complained that the authorities below had paid no attention to this aspect of the case. He also con tended that the house in question could have been regarded as two separate houses, in the alternative. On this revision petition, a note was recorded by Mr. Ihsan‑ul‑Haq, Deputy Settlement Commissioner (Policy) in which he gave the impression that the petitioners appeared to be convinced of the correctness of the orders they challenged but that a point was now raised about the divisibility of the house. He gave it as his opinion that the petition was liable to rejection but added that it was for consideration if the Settlement Commissioner (Policy) would like to inspect the premises first. It appears that the Settlement Commissioner, Mr. Bashir Ahmad, did visit the premises on 13‑9‑60, in the presence of the parties and recorded a short note saying that the house was not divisible and that the petition ought to be rejected. Below this, Mr. Ahsan‑ud‑Din, Chief Settlement and Rehabilita tion Commissioner, signed in token of approval of the proposed order. The appellants then challenged the order passed by the Chief Settlement Commissioner before the High Court of West Pakistan, invoking its writ jurisdiction. They asked for a writ of certiorari for quashing the order in question. A learned Single Judge of the High Court by order dated the 10th of March 1961, granted a writ of certiorari quashing the order dated the 16th September 1960, passed by the Chief Settlement Commis sioner. At the same time, although no separate prayer had been made for quashing the order passed by the Settlement and Rehabilitation Commissioner, Lahore, on the 5th June 1960 declining to interfere in review with his predecessor's order, that order too was directed to be quashed on the ground that it had been affirmed by the Chief Settlement and Rehabilitation Commissioner. The result according to the learned Judge that the review petition dated the 17th December 1957 (sic. should be 22‑12‑59), and disposed of on 5‑6‑1960, should be deemed to be still pending and would have to be disposed of on merits in the light of the observations made in the judgment. There were two Letters Patent appeals from the order of the learned Single Judge, one filed on behalf of Mr. Shabbir Hussain and the other on that of the Chief Settlement Commissioner. Objection was taken to the competency of a subordinate officer of the Chief Settlement Commissioner, signing the appeal on his behalf. The learned Judges of the Letters Patent Bench observed that the same questions could be decided in the appeal of Mr. Shabbir Hussain. After discussing the hole case they allowed the appeals and recalled the writs issued by the learned Single Judge. They differed from the opinion of the learned Single Judge that the question of divisibility or otherwise of the disputed house, could be agitated in writ jurisdiction and the finding thereon, of the Settlement authorities, set aside. It was held that the matter was entirely within the discretion of the departmental authorities to decide. Discussing the effect of the first paragraph of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (hereinafter red to as the Act) the learned Judges expressed‑ the view that the proviso contained in that paragraph went in favour of the respondent as he was claiming as an allottee in his own right against the first appellant who was basing his claim on the allotment of his son. On the point whether the first appellant could have claimed the house on the strength of his own allotment of one room, the learned Judges contended themselves by saying that the decision of the point might require taking of evidence as to whether such an allotment still existed in the name of Mr. Altaf Hussain or not and the Court should not into such a disputed question of fact. It was also found that the second C. H. form of the first appellant was presented at a time when no valid order existed allowing extension of time for such presentation. The finding was also recorded by the learned Judges that Mr. Altaf Hussain had not disclosed to Mr. BashirAhmad, Settlement Commissioner (Policy) when presenting this second form, that an order of transfer of the house in dispute passed in his favour by the Deputy Additional Commissioner had already been set aside in appeal, by the Additional Settlement Commissioner. The first appellant was therefore said to have come into Court with unclean hands and to be disentitled to any relief on this ground. In the end one of the learned Judges who wrote the main judgment in the case, made the following observations:- "It should be borne in mind that Mr. Altaf Hussain, his wife and their son, Javed Altaf, invoked the revisional juris diction of the Chief Settlement Commissioner by means of an application. If they did not press into service Mr. Altaf Hussain's application dated the 1st of December 1959, they were to thank themselves if it remained unconsidered by the Chief Settlement Commissioner, and if they did press into service that application it has to be deemed to have been disposed of by the Chief Settlement Commissioner and found to be of no avail to Mr. Altaf Hussain, his wife or their son Javed Altaf. At any rate, issuing of a writ is discretionary ‑and I am clear in my mind that the circumstances of the case did not call for the exercise of the power the exercise of which is not obligatory." This sounds very much like an attempt to invest the Chief Settle ment Commissioner's order with an almost esoteric efficacy. The order allowing the two appeals in the High Court led to two petitions for special leave in this Court on behalf of the appellants and leave was granted to them to consider the legal points raised. The first point argued by Mr. Mahmud Ali on behalf of the appellants is that the appeal on behalf of the Chief Settlement Commissioner in the High Court was not a properly represented appeal and without deciding the question of its competency, the High Court had allowed that appeal along with the appeal of Mr. Shabbir Hussain. The High Court were, however, of the opinion, as observed above, that the relief claimed on behalf of the Chief Settlement Commissioner could also be granted in the appeal of Mr. Shabbir Hussain, as common grounds had been e raised in the two appeals. On reference to the several grounds in Mr. Shabbir Hussain's appeal, we are satisfied that the view that prevailed in the High Court was substantially correct. The objection, therefore, amounts to a mere technicality and would not affect the substance of the dispute between the parties. The relevant provision of law whose interpretation is contest ed between the parties is paragraph 1 of the Schedule to the Act. This is reproduced below:‑ "I‑Houses. (1) A house in possession of a claimant or a parent, son, daughter or spouse of the claimant being a house which such parent, son, daughter or spouse does not claim under the provisions of the Schedule, and if there is more than one such house, then anyone of the houses which the claimant desires to retain, shall be transferred to him at a price determined on evaluation basis: Provided that if a house or a part thereof is in possession of more than one person and one of them is a claimant, then the house shall be so transferred to the claimant; Provided further that if a house or a part thereof is in posses sion of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession." A departmental construction of the first proviso to this para graph exists in the shape of a Memorandum dated the 22nd of October 1959, which will be found printed at pages 68‑70 of the Manual of Settlement Law and Procedure. The material part of it reads as follows:‑ "A claimant in occupation of a house or shop, who is entitled to the transfer of the property will, however, have preference over a claimant who applies on the basis of the occupation of such house or shop by his parent, son, daughter or spouse." This construction was accepted as correct by the High Court, though it was suggested on behalf of the appellants that it really was not an interpretation of the relevant provision but the Chief Settlement Commissioner's own view of what should be done. This suggestion appears to be without force. The opening part of paragraph 1 no doubt lays down that if a house is in [lie "possession" of a parent, son, daughter or spouse of the claimant, the latter could obtain its transfer, provided the actual occupants had not claimed under the provisions of the Schedule. The first proviso, however, qualifies this right of a claimant who is not in actual possession but bases his claim on the ` possession" of one of the relatives mentioned above, and in that case if the premises in question happen to be partly occupied by a claimant, the latter would be preferred to the claimant (Alt of actual possession. "Possession" in this context has to be under stood in the sense of the definition of that term, as even in section 2 (6) of the Act. This is expressed in these terms:‑ "Possession means possession obtained in pursuance of an order passed on or before the twentieth day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government Provided that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final: Provided further that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the order, be deemed to be possession for the purpose of this Act." The provisos to this definition are not material in the presen case. It will be seen that it is not mere physical possession which entitles a person to claim transfer of the premises in question under the Schedule. The possession must be under the authority of a regular allotment. Clearly if the second C. H. form put in by Mr. Altaf Hussain is to be disregarded and only his first C.H. form taken into account, then Mr. Shabbir Hussain was a preferential claimant, he being in possession of part of the house under a regular allotment order, whereas Mr. Altaf Hussain was basing his claim on the allotment of his son who was in actual possession of another part of the same house. The Memoran dum printed at page 17 of the Manual does not introduce a new element in the situation but only embodies a direction in the sense of the first proviso to paragraph 1 of the Schedule. If no other claimant was in actual possession of any part of the premises under a regular allotment, then, of course, a claimant out of possession, would be entitled under the opening part of the paragraph, to transfer of the premises, on the strength of the "possession" of one of his relatives mentioned therein. But if the dispute lies between him and a claimant in possession as defined in the Act, then the latter would be able to defeat his claim. We find no ground for differing from the opinion of learned Single Judge of the High Court in this respect, which was concurred in by the learned Judges of the Letters Patent Bench. The question, therefore, arises whether the second form put in by Mr. Altaf Hussain dated the 1st of December 1959, was a valid form which required adjudication by the Settlement authorities or not. The contention was raised in the High Court that this form had been accepted by an officer who was not authorised to admit it and that in any event it was presented at a time when no orders existed allowing extension of time for its presentation. The learned Single Judge repudiated this contention as incorrect and held that the form in question had been validly accepted and there was no infirmity in its presentation. The Letters Patent Bench reversed that finding. The contention that this form was submitted out of time grounded on paragraph 2, Chapter II, of Settlement Scheme No. 1 prepared by the Chief Settlement Commissioner under direction of the Central Government by virtue of powers conferred by section 16 (1) (b) and (c) of the Act. This paragraph 2 of Chapter II prescribes that the Chief Settlement Commissioner "shall from time to time by notification in the official Gazette, invite applications for the transfer of property under this Scheme from such persons as may be specified in the notification". The argument was advanced in the High Court and has been repeated before us that only two notifications were issued by the Chief Settlement Commissioner under this provision, which are printed at pages 305 and 73 of the Manual. By the first notification dated the 19th of May 1959, the last date fixed for applications under paragraph 2 of Settlement Scheme No. I was the 15th day of July 1959. Under the second notification dated the 28th of October 1959, this limiting date was extended up to the 10th of November 1959. Subsequent to these two notifications it appears that Press‑notes and Memoranda were being issued from time to time by the Chief Settlement Commissioner granting further extensions for such applications but it is true that at the time when Mr. Bashir Ahmad accepted the second form of Mr. Altaf Hussain, no such extension Memorandum or Press‑note existed. Subsequent to that date, however Press‑notes or Memoranda were issued from tie to time and applications of this character admitted by the relevant authorities. The contention therefore raised on behalf of the Settlement Depart ment as well as on behalf of Mr. Shabbir Hussain that the only legal mode of extension possible, of the time limit for such applications, being by a notification in the Gazette, all subsequent extensions of time allowed under orders of the Chief Settlement Commissioner were invalid, appears to be contrary to the practice that has undoubtedly prevailed in this respect in the Department. If such a contention is accused to, all these forms which had been accepted by the Department under subsequent Press‑notes or Memoranda, would have to be treate as without legal sanction. The true view, however, of the provi sions of paragraph 2 of Settlement Scheme No. I seems to be that this is a mere enabling provision which empowers the Chief Settlement Commissioner to invite applications for the transfer of property under the Scheme, from relevant persons, from time to time. The paragraph does not in terms authorize him to lay down a limiting date for the purpose and construing this paragraph strictly, it would not be right to import any such limiting factor into the situation. In this connection, however, reliance was placed on section 11 of the Act by Mr. Shabbir Hussain and on section 23 of the Act by Mr. M. Anwar on behalf of the Department. Section 23 of the Act merely confers certain powers enjoyed by a Civil Court under the Code of Civil Procedure, on officers appointed under the Act for the purpose of making an inquiry or hearing an appeal under the Act. These provisions appear to have no relation to the question that calls for determination in respect of limitation for claim forms. The language of section 11 of the Act too does not appear to afford any assistance to the argu ment advanced by Mr. Shabbir Hussain that this provision arms the Chief Settlement Commissioner with power to lay down point of limitation for such forms. In terms, section 11 is confined to the power of the Chief Settlement Commissioner to invite applications for the payment of compensation under the Act, from such claimants as may be specified in a notification, from time to time. But an application claiming compensation is to be distinguished from a claim form requesting for transfer of a particular property in lieu of the assessed compensation for a verified claim. None of the provisions referred to, therefore, can be invoked to import a limitation of time for such claim forms though for reasons of convenience a Chief Settlement Commissioner may call for applications by a certain date. This would not, however, imply that a claim form accepted after such a date would necessarily be illegal. On this score, there fore, the second claim form of Mr. Altar Hussain could not be declared as invalid as the learned Letters Patent Bench of the High Court seems to have done. To do so, would amount to making a fetish of a technicality. At the relevant point of time no order extending the period of so‑called limitation existed hilt subsequently the door was repeatedly opened for letting in such forms. Much of the argument in the High Court and before us has been directed towards the impropriety of quashing the order passed in review jurisdiction by Mr. Farzand Ali Khan, Settlement and Rehabilitation Commissioner, without there being and express prayer to that effect in the petition of Mr. Altar Hussain preferred to the High Court. The point seems to have escaped notice in the High Court that Mr. Farzand Ali Khan's order in review was really one without jurisdiction. Section 21 of the Act, as it existed at the relevant time, empowered a Chief Settle ment Commissioner or a Settlement Commissioner, etc., "to review an order passed by himself or by any of his predecessors in office, either of his own motion at any time or on an applica tion made in that behalf within 15 days". This power was how ever subject to the proviso that a Settlement Commissioner shall not review any order passed by his predecessor‑in‑office without first obtaining the sanction of the Chief Settlement Commissioner and further to clause (c) of the proviso, which clearly laid down that "an order against which an appeal or a petition for revision has been preferred, shall not be reviewed". In the first place. Mr. Hashim Raza, while hearing the revision petition from the order of Mr. Riazuddin Ahmad, Settlement and Rehabilitation Commissioner, had merely directed that the review petition already filed from that officer's order, should be disposed of by Malik Muhammad Aslam, Settlement Commissioner. By the time the order reached the officer below, Mr. Muhammad Aslam had been transferred and had been succeeded by Mr. Farzand Ali Khan. It is open to question whether Mr. Farzand Ali Khan, could under such an order passed by the Chief Settlement Commissioner, have reviewed his predecessor's order considering that only Mr. Muhammad Aslam by name, had been authorised to do so. Be that as it may, however, it is hardly open to doubt that with the preferment of the petition for revision, to the Chief Settlement Commissioner, from the order of Mr. Riazuddin Ahmad, the jurisdiction to review that order had been entirely taken away by clause (c) of the proviso to subsection (1) of section 21 of the Act. The Chief Settlement Commissioner, it would appear, had misconceived the position in law when he directed that the review petition already filed, should be disposed of by the successor of Mr. Riazuddin Ahmad. He could no confer any such jurisdiction against the plain provisions of the Act. The order of Mr. Farzand Ali Khan passed in review therefore was one without jurisdiction and a nullity in law. It, did not require to be set aside formally. If the appellant had however asked for quashing of the review order by the High Court on the plea of illegality, in certiorari jurisdiction, he could have been met with the plea that a writ of certiorari does not issue as of course but that though discretionary, it could be granted ex debito justitiae provided that the conduct of the aggrieved party who seeks to challenge it, has not been such as to disentitle him to relief. This Court has already held in some what similar circumstances in Ghulam Mohyuddin v. Chief Settle ment Commissioner and others Civil Appeal No. 151 of 1964, decided on the 24th June 1964, that, as the appellant had delibe rately allowed the Settlement and Rehabilitation Commissioner to proceed with the hearing of the review petition without raising the objection that his jurisdiction to do so had been taken away by a second revision petition having been filed before the Chief Settlement Commissioner, the discretionary relief of certiorari) should be refused to a party who actively assisted in the commission of the illegality. The High Court would have been therefore, well within its rights in refusing such a writ. However, no such disability could attach to the appellant when arguing the) revision from the review order before the Chief Settlement Commissioner and indeed in view of the clear and mandatory provisions of the relevant law it was incumbent on the Chief Settlement Commissioner to treat the review order as of no legal effect. The result would have been that the order that held the field was the one that had been passed by Mr. Riazuddin Ahmad as Settlement and Rehabilitation Commissioner, in revision and from which a second revision petition was pending before Mr. Hashim Raza, Chief Settlement Commissioner. What happened to the latter revision petition is not known, as they appears no reference to it in the final order passed by Mr. Ahsan‑ud‑Din, based on his subordinates, reports, on the revision petition challenging the order passed in review by Mr. Farzand Ali Khan. The only appropriate order on that revision petition should have been to the effect that the review order itself was illegal and then the original revision petition from the order of Mr. Riazuddin Ahmad should have been adjudicated upon. The position was however entirely misconceived in this respect in the office of the Chief Settlement Commissioner. None of the parties was called before Mr. Ahsan‑ud‑Din prior to his passing the impugned order. He relied merely on the reports by his subordinates. The argument may therefore be valid that the learned Chief Settlement Commissioner did not apply his own mind to the facts of the case in disposing of the revision petition in question. This view is fortified by the fact that although the appellants had consistently taken their stand at all relevant stages of the case, on the second C. H. form submitted by Mr. Altaf Hussain (in which the claim to transfer was grounded, not merely on the possession of Javed Altaf as allottee of the house but also on the possession of one room as allotted in his own right by Ch. Altaf Hussain), the contention was not at all adverted to in the notes by the subordinates of the Chief Settlement Commissioner. The only question that seems to have engaged the attention of these officers was that of divisibility which was only a plea in the alternative taken in the petition. The main contention that Ch. Altaf Hussain was entitled to the whole house in preference to Mr. Shabbir Hussain on the strength of his own allotment was completely ignored and to that extent we agree with the learned Single Judge that the Chief Settlement Commissioner had failed to exercise the jurisdiction vested in him by law. If the claim of Ch. Altaf Hussain that he was an allottee of the house in his own right was correct, then he had a vested right to have that claim adjudicated upon under the Schedule to the Act. In this context, a suggestion was put forward on behalf of the( respondents that the Chief Settlement Commissioner had merely declined to entertain a revision petition from the order passed in review by Mr. Farzand Ali Khan and as he had complete discretion to do so under subsection (2) of section 20 of the Act, as it then existed, the propriety of his action could not be canvassed by a petition under Article 98 of the Constitution. Reliance in this connection was placed on a decision of this Court reported as Fateh Muhammad v. Moula Bakhsh (PLD1963SC311). On the facts of that case it had been ruled that a Settlement Commissioner was not bound to hear parties in second revision and if he declined to interfere in such a revision, his action was not liable to be impeached in the special jurisdiction conferred by Article 98 of the Constitution or in writ jurisdiction. That principle is hardly applicable in the present case because the Chief Settlement Commissioner in so far as he may be said to have applied his mind at all to the facts set out in the revision petition, had not declined to entertain the revision petition but had merely confined himself to one point raised in the alternative in that petition, viz., the question of divisibility of the house. He did therefore purport to go into the merits of the case, though he did so partially. In the circumstances, it cannot be said that he had declined to exercise his discretionary powers in this respect. On the contrary, while purporting to exercise revisional powers, he ignored the illegal character of the impugned order and further disregarded the principal points urged on behalf of the first appellant that concerned his vested rights and thus failed to exercise the jurisdiction vested in him by law. This would be a sufficient circumstance to vitiate his order. It was contended on behalf of the respondents that the claim of Mr. Altaf Hussain to be an allottee of one room in this house was not cogently established on the record. They suggested that the room in question may have been one of the outhouses of House No. 1454 which was a contiguous premises belonging to the same evacuee owner. This question does not appear to have been gone into by the Settlement authorities at all. But so far as their orders go, they seem to have assumed the correctness of the allegation that the first appellant was an allottee of one room in the House in dispute, namely, House No. 1454‑A, without question. It being a question of fact, it may still be open to the Settlement Commissioner to call for evidence on the point if so advised as to whether the claim of Ch. Altaf Hussain in this respect could be sustained or not. The second form of Ch. Altaf Hussain however having been validly presented, it had to be disposed of on the merits and not just ignored as appears to have been done by the Settlement Department. The learned Letters Patent Bench of the High Court seems to have been impressed with the allegations against Ch. Alta Hussain that he had not come into Court with clean hands. This allegation rests' on the conduct of the first appellant in not having brought to the notice of Mr. Bashir Ahmad, Settlement Commissioner, when presenting his second form to him, that the Additional Settlement Commissioner, Col. J. D. Malik, had already, in appeal, ordered the transfer of the house to Mr. Shabbir Hussain. It appears to us, however, that this controversy too, in the circumstances of the case, is of an unreal character. It was not that the first appellant invented a new ground for his claim at the stage when he presented his second C. H. form. Initially, it appears, he had based his claim in the first form on the possession of his son under an allotment. Later, he seems to have realized that he might fail on that ground in competition with an actual allottee in possession, unless he could show an equally good title in himself. He then by means of this second C. H. form merely tried to comply with a formality in order to be able to draw attention to the fact that not only his son was in possession as an allottee but that he himself occupied a similar position in respect of a room in the same house. If that fact was in existence at all relevant times, it had to be taken notice of before the contentions of the parties could be placed in their proper prospective. It is not shown that the settlement authorities were precluded from allowing the first appellant even to amend his first C. H. form so as to let him claim on the basis of two alternative grounds. In the circumstances, the argument that the first appellant's hands were tainted, loses a good deal of force. The matter was still open to revision or review by the higher authorities and such an additional ground could have been allowed to be raised at any stage of the litigation before the departmental authorities. In fact it had been taken before Lt: Col. Malik, the Additional Settlement Commissioner, though he rejected it on the technical ground of its absence from the first C. H. form. The C. H. form submitted by the second and third appellants was apparently intended as a second string to their bow if the first appellant's second C. H. form was not considered valid. It was admitted only conditionally and was rejected, it seems rightly, when it was found that the house had already been transferred. Its basis‑ the belated gift by a Karachi party‑is also open to grave suspicion. In any event, it would not be pressed if the first appellant's claim is entertained. As a result of the above discussion we find, that the impugned order of the Chief Settlement Commissioner dated the 16th of September 1960, was liable to be quashed in certiorari as it suffered from several infirmities on the legal plane. We, therefore, allow these appeals, quash the above‑mentioned order of the Chief Settlement Commissioner and direct that the record be remitted back to him for dealing with the case in accordance with law in the light of the observations made above. The question of divisibility of the house would only fall for consideration in case none of the parties is found deserving of transfer of the house as a whole. We may add however that the view taken by the Letters Patent Bench of the High Court that a building will be treated as one house even though occupied by more than one person, unless the Settlement authorities, in H their discretion, order it to be divided, is in accord with the language of the first proviso to the definition of "house" in section 2 (4) of the Act. The parties will be left to bear their own costs in this Court. A. H. Appeal allowed: Case remitted.