1972 PLP 47 (SCMR)

HAMOODUR RAHMAN, C. J.‑The dispute in this case relates to house No. B‑VIII‑7‑S‑13 situated at Gujranwala. This is a double‑storied evacuee house. It is in occupation of both the appellant and the respondent Muhammad Afzal. The appellant occupies the upper portion and the respondent the ground floor. According to the appellant, this house was from 1948 in his occupation and the occupation of one Ismail who are both Police Officers. Later when Ismail was transferred to Pindi Bhattian he gave possession of the portion in his occupation to the respon dent who interfered with the privacy of the appellant's portion. The appellant, therefore, on the 14th of July 1949, applied through the Superintendent of Police for the allotment of the entire house stating all the facts. On this application; the Rehabilitation Department re‑allotted the entire house to the appellant on the 27th of January 1953 ; but before the appellant could obtain possession of the ground floor, the respondent No. 1 obtained possession of the same with the help of his brother who was employed in the Rehabilitation Department. The respondent No. 1, on the other hand, claims that this portion was allotted to him on the 10th of January 1953, but the appellant maintains that the allotment order, in favour, of the respondent, was issued only on the 22nd of May 1956. In this state of affairs, when settlement operations started, they both applied for the transfer of the house on `CH' forms, being claimant‑displaced persons, and each claimed that he was an allottee of the portion in his occupation. The Deputy Settle ment Commissioner, Gujranwala, by his order of the 13th of January 1960, transferred the whole house to the respondent No. 1 on the ground that he was an allottee and the appellant a non allottee. This order was upheld in appeal on the same ground as also on the ground that the appellant had not cleared the arrears of rent. A revision before the Settlement Commissioner also failed ; but on a review, at which stage new documents were produced, the previous order was set aside and the entire house was transferred to the appellant on the 4th of September 1961, on the ground that he was both a prior allottee as well as a person in prior possession of the disputed house. The respondent No. 1 went up in second revision from this order to the Chief Settlement Commissioner but this was dismissed on the 12th of December 1962, on the ground that a second revision was no longer maintainable. The respondent No. 1 then invoke) the Constitutional jurisdiction of the High Court under Article 98 of the Constitution of 1962. It is alleged that in the grounds filed in support of this petition the only question raised was that the review by the Settlement Commissioner was without jurisdiction .no point was taken with regard to the question of prior possession. Neverthe less, a learned Single Judge of the former High Court of West Pakistan, Lahore Seat, went into this pure question of fact and allowed the petition holding that the respondent No. 1 was entitled to the transfer of the house as he was in prior possession thereof. A Letters Patent appeal taken front this by the present appellant failed in the High Court. The Letters Patent Bench took the view that although findings of fact "arrived at on the basis of proper and relevant evidence on the record" could not be interfered with in that special jurisdiction, yet, findings of fact could be disturbed by the High Court under Article 98 of the Constitution in suitable cases, where the findings are vitiated by a misreading of the evidence or non‑consideration of relevant evidence. Leave was granted in this case to consider whether the High Court could properly, after setting aside an order of an executive authority or tribunal, itself decide a disputed question of fact in the writ jurisdiction. There is no doubt that in the present case no Settlement Authority had up to the review stage even considered or decided the question of prior possession. The Deputy Settlement Commissioner had held the respondent No. 1 to be an allottee and the appellant a non‑allottee, and this order was upheld right up to the revision stage by the Settlement Commissioner. It was only in review that the Settlement Commissioner, on the 4th of September 1961, for the first time held that the appellant was a prior allottee and in prior possession. This was the order that was challenged in the High Court solely on the ground that the review was without jurisdiction. The learned Single Judge in the High Court, however, without entering into the question regarding the competency of the review treated the matter as if it was an appeal before him from the order of the Settlement Commissioner, and going into the evidence reversed the finding. The Letters Patent Bench also seems to have taken the view that in the Writ Jurisdiction the scope of the power of the High Court is the same as or similar to its powers in a second appeal. Court exercising this jurisdiction does not sit as a Court of Appeal but merely as a Court for 'correcting a grave illegality. Where an inferior authority has acted contrary to law or to rules of natural justice, the practice is to set aside the order of the inferior authority and send the case back for proper decision by that authority, particularly, where that authority has, as in this case, exclusive jurisdiction in the matter. This was pointed out in the cases of Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner (P L D 1964 S C 260), Begum B. H. Syed v. Mst. Afzal Jahan Begum (P L D 1970 S C 29) and Sh. Khursheed Muhammad v. Settlement and Rehabilitation Commissioner (P L D 1971 S C 498). We see no reason to depart from the principle laid down in the above‑mentioned decisions and are in agreement with the learned counsel that the High Court had exceeded its jurisdiction under Article 98 of the Constitution in reversing a finding of fact arrived at by the Settlement Authorities as if it was a Court of Appeal. The Judgment and order of the High Court must, therefore, in our view, be set aside and the appeal allowed to the extent it purports to decide a question of fact relating to the possession of the disputed house. The quashment of the order passed in review will be maintained but the case will now go back to the Settlement Commissioner to decide these disputed questions of fact, namely, as to which of the two was an allottee and from what date and as to which of the two was in prior possession of the house after giving the parties an opportunity to adduce their evidence. The transfer will be made in accordance with the findings on these points. The costs of this appeal will be costs in the cause before the Settlement Commissioner. Appeal accepted.