1969 PLP 928 (SCMR)

HAMOODUR RAHMAN, J.‑The dispute in this case relates to premises No. 214/B. III situated in Sabzi Mandi, Montgomery. This is a double‑storeyed building comprising of a shop and a residential portion. The premises were in possession of several persons including the petitioner herein, who occupied a shop and four rooms in the ground floor and one room with a bath room on the first floor. He is a claimant displaced person. So he filed two separate forms, namely, a CH form and a CS form, for the transfer of the entire premises to him. The Deputy Settlement Commissioner transferred the entire property as one unit to the respondent Muhammad Sharif treating him to be a prior allottee. The petitioner appealed against this order without any success but in revision the Settle ment and Rehabilitation Commissioner declared the property to be divisible and divided it into two units, namely, a shop and a house. The shop was transferred to the petitioner but the residential portion was given to the respondent Sharif. Against this order both the parties went up in further revision. The revision of the petitioner was dismissed. He then invoked the writ jurisdiction of the High Court. This writ petition was admitted for regular hearing and 'notices were directed to be issued. The Chief Settlement Commis sioner in his written statement filed in these proceedings expressed a desire to suo motu review the case. The writ petition was kept pending in 'the High Court to allow the Chief Settlement Commissioner to review the case. The review was heard by Mr. S. Muhammad Rafiq, a delegatee of the Chief Settlement and Rehabilitation Commis sioner. He accepted the review, set aside the earlier order, declared the property as indivisible and transferred the whole of it to the petitioner. The revision petition of the respondent Sharif, which had not yet been disposed of was also heard along with this' review and was dismissed. After getting this relief the petitioner did not press his writ petition which was accordingly dismissed on the 15th of February 1963. The respondent Sharif, however, moved the High Court against the order of the delegatee passed in the review petition and urged that the review was without jurisdiction, as Mr. S. Muhammad Rafiq had not been validly delegated the review powers of the Chief Settlement Commissioner under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The precise ground urged was that the delegation could only have been made by means of a notification in the official Gazette and since no such notification was issued the delegation was not valid and, therefore, Mr. S. Muhammad Rafiq was not competent to deal with the review matter. The order was, accordingly, set aside and the Chief Settlement Commissioner was directed to dispose of the review himself. The petitioner now seeks special leave to appeal and it is contended on his behalf that the High Court was wrong in taking the view that the provision in section 31(2) of the Displaced Persons (.Compensation and Rehabilitation) Act, 1958, requiring delegation to be made by notification in the official Gazette was Of a mandatory character. It is argued that since' this was a case of a public duty being imposed by a statute requiring a thing to be performed in a certain manner without providing for the consequence of the failure to follow the procedure prescribed by the statute it should have been construed as a directory provision particularly in cases where injustice or inconvenience to others, who have no control over those exercising the duty, would result if such requirements were held to be mandatory. The next contention urged is that the High Court has, in any event, failed to notice that even if the review was incompetent the order of Mr. S. Muhammad Rafiq in the revision of the respondent 1, which was also disposed of by the same order; could not have been held to be ineffective or incompetent. The points of law raised are of substantial general importance and, in our opinion, require examination. Leave is, accordingly, granted as prayed for. Security Rs. 1,

600. During the pendency of the appeal in this Court the further proceedings before the Chief Settlement Commissioner directed to ‑be taken by the High Court will remain stayed. Leave granted.