P L D 1969 Lahore 1075 (PLP)

The dispute in this case is about House No. S. W. III/67‑S. 2‑A/B Krishan Nagar, Lahore. The Deputy Settlement Com missioner by his order dated 2nd of January 1960 (Annexure `C') transferred the whole of this house to Ghulam Nabi, respondent No. 1 Ch. Muhammad Shafi who was the other contestant in the case filed an appeal but without any success, as the same was dismissed by the Additional Settlement Commissioner on the 9th of April 1960 (Annexure `D'). Ch. Muhammad Shad then filed a revision which was, however, accepted by Malik Fateh Khan Settlement 8r Rehabilitation Commissioner, on the 25th of October 1960 (Annexure `E'). The learned Settlement Commissioner divided the house into two parts on the basis of the possession of the parties and directed that it should be accordingly transferred to them. Against the order of Malik Fateh Khan, Settlement Commissioner, two revision petitions were filed by this rival claimant. Khan Farzand Ali Khan heard those revision petitions as a delegatee of the revisional jurisdiction of the Chief Settlement Commissioner under subsection (2) of section 20 of the Displaced Parsons (Compensation and Rehabilitation) Act (XXVIII of 1958) (hereinafter called the Act) and finding no force in them dismissed the same by the means of his order dated the 26th of August, 1961 (Annexure `F'). Ghulam Nabi (respondent No. 1) then filed a review petition which was decided by Sh. Muhammad Rafiq Settlement and Rehabilitation Commissioner; allegedly delegatee of the review jurisdiction of the Chief Settlement Commissioner, under section 21 of the Act. Sh. Muhammad Rafiq, by means of his order dated the 12th of June. 1962 (Annexure `G'), accepted the said review and transferred the whole of the house to Ghulam Nabi. Ch. Muhammad Shad has challenged the aforesaid orders off the Settlement and Rehabilitation Authorities by means of the present writ petition and claims the whole of the house. Ch. Muhammad Shafi died after the institution of the writ petition and is now being represented by his legal represen tatives.

2. The first point argued by the learned counsel for the petitioner was that Sh. Muhammad Rafiq had no jurisdiction to review the order of Khan Farzand Ali Khan. The contention has force. The point of review can be examined in two aspects. The first aspect is that under subsection (1) of section 21 of they Act the Chief Settlement Commissioner could review an order passed by himself or by any of his predecessor‑in‑office. In the instant case the order which was passed by Khan Farzand Ali Khan could not be said to be an order passed by the Chief Settlement Commissioner himself. Equally it was not an order passed by any of his predecessor‑in‑office. This means that the Chief Settlement Commissioner possessed no jurisdiction to review the order of Khan Farzand Ali Khan. In that view of the matter, if he himself possessed no jurisdiction, he could not delegate any to Sh. Muhammad Rafiq. The second aspect is that according to the Displaced Persons (Laws Amendment) Ordinance (XVIII) of 1965, "Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) of section 31 shall be, and be deemed always to have been subject to the provisions of Chapter VI (of the Act) in the same manner and to the same extent as any other order passed by a settlement Commissioner, Additional, Deputy or Assistant A Settlement Commissioner, as the case may be, is so subject". According to this provision of law even if Sh. Muhammad Rafiq could be held competent to review an order passed by Khan Farzand Ali Khan (who for the sake of argument may be assumed to be his predecessor‑in‑office) then according to proviso (a) attached to subsection (1) of section 21 of the Act, a Settlement Commissioner could not review any order passed by his predecessor‑in‑office without first obtaining the sanction of the Chief Settlement Commissioner. This sanction was necessary because in subsection (3) of section 31 as added by Ordinance XVIII of 1965 the provisions of Chapter VI of the Act were to be applied in the same manner and to the same extent as they were applicable to any other order passed by a Settlement Com missioner. In section 21 it is clearly laid down that if a Settlement Commissioner is to review an order passed by his predecessor‑in‑office then he must obtain the sanction of the Chief Settlement Commissioner. It is a common ground between the parties that no such sanction was granted by or obtained from the‑Chief Settlement Commissioner. In that view of the matter the order passes by Sh. Muhammad Rafiq was without lawful authority and of no legal consequence against the petitioner. I hold accordingly.

3. The next point argued by the learned counsel for the petitioner was that even the orders passed by Khan Farzand Ali Khan on the 26th of August, 1961 and Malik Fateh Khan on the 25th of October 1960, whereby the property had been divided into two parts were illegal. The contention cannot be given any serious consideration. The question whether a house is divisible or not cannot ordinarily form the subject‑matter of a controversy in writ petition. It was laid down in Muhammad Yusuf v. The Settlement and Rehabilitation Commissioner, Lahore and Haji Ahmad Din (P L D 1968 S C 101.), that divisibility or otherwise of a house could not be challenged under Article 98 of the Constitution of Pakistan. When confronted with this situation learned counsel for the petitioner argued that it was not his stand that from a structural point of view the house could not be said to consist of two units, and that it could not have been divided as such. But his grouse was that notwithstanding the fact that the house was divisible, the other unit should not have been given to the contesting respondent because he bad not filed a valid form to claim it, and that in these circumstances, the whole house should be given to the petitioner and be treated as one unit. The argument has not convinced me. If the division of the building into two houses is not challenged from its structural point of view, then the petitioner having got one house in the form of the portion transferred to him, it is not his concern to see to whom the other house is given the petitioner could get only one house which has been given to him in the form of the portion in his own occupation. He has not locus stands to get the other house and as such, no right challenge its transfer in the name of the contesting respondent. Moreove, the argument is based on a mistaken assumption, viz. that the respondent had not filed a valid form

a point which does not appear to have been pressed before the Settlement Chief Settlement Commissioner and to challenge which even otherwise no arguments were addressed before me by the learned counsel for the petitioner. I have gone through the orders of Malik Fateh Khan, learned Settlement Commissioner and Khan Farzand Ali Khan, the delegatee of Chief Settlement Commissioner. They appear to me to be just, equitable and proper. They do substantial justice between the parties inasmuch as they tried to settle two refugee families on the portions which were in their previous occupation. I am not prepared to exercise my discretionary jurisdiction in a case of this type so as to make any interference in the division adopted by the Settlement Autho rities.

4. The upshot of the above discussion is that the order passed by Sh. Muhammad Rafiq is quashed and the writ petition is accepted to that extent only, with the result that the operative orders which now remain in the field are those of Malik Fateh Khan and Khan Farzand Ali Khan dated the 23rd of October 1960 and 26th of August 1961, respectively, which should be given affect to and acted upon. There will be no order as to the costs. A. B./s. A. H. Petition partly accepted.