P L D 1964 Supreme Court 829 (PLP)

HAMOODUR RAHMAN, J. This appeal, by special leave, arises out of the judgment and order of a Division Bench of the High Court of West Pakistan in a Letters Patent Appeal confirming the decision of a learned Single Judge of the said High Court dismiss ing a writ petition filed to challenge the validity of two orders of the Settlement Authorities passed on the 16th of June 1960, and the 16th of September 1960, respectively. The first was an order passed by the Settlement and Rehabili tation Commissioner setting aside in the exercise of his review jurisdiction a previous order made by him on the 7th of April 1960, whereby an evacuee house being No. SW-1I-104-R-50, Sudhama Street, Sant Nagar, Lahore, was held to be divisible and the portions in possession of the appellant and the respondent No. 3 were transferred to them, and transferring the entire house to the respondent No.

3. The second was an order of the Chief Settlement and Rehabilitation Commissioner, Lahore, accepting in second revision the recommendation of the Settlement Commis sioner (Policy), West Pakistan, that the order of the Settlement Commissioner passed in review should be maintained. The Chief Settlement Commissioner accepted this recommendation by merely counter-signing it without assigning any reason of his own. It appears that the house in question was on the 14th of October 1947, requisitioned under the Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1947, for the residence of the respondent No. 3 who was at that time posted as a Medical Officer at Lahore. In 1949 he was transferred to Gujranwala but he, nevertheless, maintained his possession of the upper floor of the house on the basis of the requisition order through his family members. In the same year the appellant obtained an allotment order from a Rehabilitation Officer in respect of three rooms, a kitchen and a bath on the ground floor which constituted a self-contained unit, although the appellant maintains that he had entered into possession of the said portion from about a year before. Both parties dispute the validity of each other's posses sion. The appellant contends that after the respondent No. 3 was transferred from Lahore he could not continue to remain in possession of the house under the requisition order, particularly, since the Act under which the requisition was made itself lapsed sometime in 1949. The respondent No. 3, on the other hand, maintains that the requisition order remained operative and the Rehabilitation Authorities had no power to allot a requisitioned house or any part thereof to any one. Be that as it may, when settlement operations commenced both parties, who were also claimant displaced persons, applied by filing CH forms for the transfer of the house ; the said respondent on the basis of the possession of his mother and sisters and the appellant on the basis of his own possession under the allotment order. It may he mentioned here that the remaining portion of the ground floor and some of the outhouses of the premises in question were also allotted to other displaced persons and, as such, apart from the appellant and the respondent No. 3 there were several other applicants for the transfer of the house or portions thereof in their respective occupations. None of these, however, have been made parties to the present proceedings, but of these it need only be noticed that one was a nephew of the present appellant himself and the other was one Muhammad Iqbal who was in occupation of a garage attached to the house, for, their names will recur in connection with the proceedings before the Settlement Authorities during the course of which one of the orders impugned in the present case came to be made. On receipt of these claims an Assistant Settlement Commis sioner was deputed to inspect the premises. Before him, it is said, the appellant and his nephew Mushtaq Ahmad both gave signed statements on the 29th of November 1959, saying that the house was too big for them and, therefore, they did not press for its transfer but would be content if they were given an alternative suitable house. The house was found on inspection to be a double-storeyed building consisting of a residential portion, garage and some shop rooms. The respondent No. 3 was found to be in occupation of the entire first floor. The ground floor was in occupation of the appellant, Mushtaq Ahmad and some other persons. On the basis of the report of the Assistant Settlement Commissioner the Deputy Settlement Commissioner on the 11th of December 1959, transferred the residential portion to the respondent No. 3, two shops to those in possession thereof and a third shop was directed to be put up to auction. Against this order Muhammad Iqbal, the occupant of the garage, filed an appeal before the Additional Settlement Commis sioner. In this appeal the appellant and his nephew Mushtaq Ahmad made a joint application to be added as parties alleging that the respondent No. 3 had in collusion with the Assistant Settlement Commissioner duped them into surrendering their claims to the house by falsely representing to them that they would be provided with suitable alternative accommodation. They also challenged the entitlement of the respondent No. 3 to claim any portion of the house and further maintained that the house was divisible and capable of being transferred to the claimants according to their respective possessions. The Additional Settlement Commissioner held the residential portion to be indivisible and the garage to be appurtenant to the building itself, and since the respondent No. 3 had a claim of roughly Rs. 23,000 which was much in excess of the verified claims of any of the other persons, he maintained the order of the Deputy Settlement Commissioner on the 14th of January 1960. The claim of the appellant was rejected on merits without going into the question as to whether the surrender was a valid surrender or not. But the claim of Mushtaq Ahmad does not appear to have been pressed before him, as there is no reference to it in the order of the Additional Settlement Commissioner. From this order the appellant alone went up in revision before the Settlement and Rehabilitation Commissioner and the latter took the view that the requisition order in favour of respondent No. 3 lapsed when he was transferred from Lahore and in the circumstances he could not be treated as an allottee. His claim on the basis of the occupation of his relations was also considered to be invalid, as the relations were considered to be occupying the house unauthorisedly. The Settlement Com missioner was also of the view that the house was easily divisible into two portions, as it had two separate entrances. He was also of the view that according to the relevant departmental instruc tions the appellant could claim the entire house, but since this would cause hardship to the respondent's family and would be against the policy of accommodating as many displaced persons as possible, he on such humanitarian grounds transferred the house to both the appellant and the said respondent, by dividing it vertically. The portion in the occupation of the appellant on the ground floor and the portion immediately above it on the first floor were given to the appellant and the other portion of the premises to the respondent. The courtyard was also divided in accordance with this line of division. It appears that when this order was passed on the 7th of April 1960, another revision petition filed by Muhammad Iqbal was still pending for disposal before the same Settlement Com missioner. This petition should have been heard along with the appellant's petition but it came up for hearing subsequently and in this the Settlement Commissioner on the 6th of May 1960, decided to inspect the property in dispute. The inspection was made on the 16th of May 1960, and thereupon the Settlement Commissioner was inclined to the view that the property was indivisible, hence he decided to suo motu review his previous order of the 7th of April 1960, and issued notices to all parties to appear before him on the 8th of June 1960. In the meantime, Muhammad Iqbal had, presumably under the impression that his petition too had been disposed of by the transfer of the house to the appellant and respondent No. 3, filed a second revision petition before the Chief Settlement Commis sioner on the 29th of April 1960, but it was not entertained, as his revision petition before the Settlement Commissioner was treated as being still pending for disposal. The appellant also on the 3rd of June 1960, filed a second revision petition before the Chief Settlement Commissioner challenging the order passed by the Settlement Commissioner on the 7th of April 1960. Notwith standing this, he appeared in response to the notice of suo motu review on the 8th of June 1960, before the Settlement Commis sioner, but did not disclose to him that he had already filed a second revision petition against the order of the 7th of April 1960, before the Chief Settlement Commissioner. The Settlement Commissioner in the absence of any objection to his jurisdiction to entertain the review heard the same and came to the conclusion that his previous order should be set aside, since on inspection he had found the house to be indivisible. Furthermore, he held that the respondent No. 3, who had a larger verified claim and was in physical possession of the major portion of the house, should be given preference over the appellant, particularly, since the appellant had at one stage surrendered his claim in favour of the said respondent and a son of the appellant had already obtained the transfer of another house as a non-claimant displaced person. The order of the 7th of April 1960, was accordingly, set aside and the whole house including the garage was transferred to the respondent No. 3 by the first impugned order of the 16th of June 1960. Against this order also the appellant filed a second revision petition on the 30th of June 1960, before the Chief Settlement Commissioner. On this last petition of the appellant before the Chief Settlement Commissioner at first the Deputy Settlement Commissioner (Policy) examined the case and put up a note in which it was pointed out that the status of respondent No. 3 was not quite clear, as it was extremely doubtful whether he could, on the basis of the unauthorised occupation of some of his relatives, at all apply on the CH form. It was also noted that on the 7th of April 1960, the Settlement Commissioner had himself held in revision that the house was divisible. In the circumstances, the Deputy Settlement Commissioner (Policy) opined that it was not clear if the transfer made in favour of the respondent No. 3 was regular or in conformity with the procedure laid down by the Department. He also along with this note, put up all the con nected applications with regard to the transfer of the house in question, namely, the one filed by Muhammad Iqbal on the 29th of April 1960, and the two filed by the appellant on the 3rd of June 1960, and the 30th of June 1960, respectively pointing out that the last application of the appellant sought to challenge the order passed in review in which the status of the respondent No. 3, which had been earlier criticised by the Settlement Com missioner himself in his order of the 7th of April 1960, appeared to have improved in the subsequent order of the 16th of June 1960. The Deputy Settlement Commissioner (Policy) accordingly suggested that the house be got inspected again by the Settlement Commissioner (Policy) before passing any order. This was evidently directed and the Settlement Commissioner (Policy) after inspecting the house on the 20th of August 1960, reported that the house was indivisible and, therefore, the order of the Settlement Commissioner transferring the whole house to the respondent No. 3 should be allowed to stand and all the petitions dismissed. The Chief Settlement Commissioner as already stated, without giving any reason of his own simply countersigned the report of the Settlement, Commissioner (Policy) on the 16th of September 1960. It may be pointed out here that in the revision petition filed on the 30th of June 1960, the appellant had also clearly asserted that the Settlement Commissioner was duly informed that a second revision petition being No. 6154/C had been filed before the Chief Settlement Commissioner on the 3rd of June 1960, and, as such, the Settlement Commissioner had absolutely no jurisdic tion to review his own order of the 7th of April 1960. But this question was neither dealt with by the Settlement Commissioner (Policy) nor by the Chief Settlement Commissioner himself, although the Deputy Settlement Commissioner (Policy) had in his note pointed out that the last petition of the appellant sought to challenge the order of review passed on the 16th of June 1960, by the Settlement Commissioner as being illegal. In these circumstances, the appellant invoked the writ jurisdiction of the High Court. The question of the jurisdiction of the Settlement Commissioner to review his own order during the pendency of the second revision before the Chief Settlement Commissioner was raised in the writ petition but it was not averred therein that the pendency of the second revision petition before the Chief Settlement Commissioner had been brought to the notice of the Settlement Commissioner concerned. In the written statement filed by the said Settlement Commissioner in the High Court and in an affidavit filed in support thereof by the respondent it was, however, stated that this fact was not brought to the notice of the Settlement Commissioner but the appellant did not file any counter-affidavit controverting this fact. The learned Single Judge of the High Court, accordingly, took the view that in the absence of any such denial on affidavit and of anything else on the record of the Settlement Commissioner to show that this fact was brought to his notice it would be unsafe to rely only upon the statement of the appellant in the revision petition filed on the 30th of June 1960, before the Chief Settle ment Commissioner and hence conclusion that the appellant had suppressed this material information from the reviewing authority. Having come to this conclusion the learned Single Judge of the High Court took the view that "even on the assumption that he (the appellant) had concurred in the reviewing authority assuming jurisdiction the point will still remain that there can be no conferment of jurisdiction by consent", but went on to hold, after reviewing a number of authorities cited before him, that the jurisdiction in certiorari being a discretionary jurisdiction should not be granted in the present case since the appellant had "suffered the proceedings to the end and never brought to the notice of the Settlement Commissioner that he had gone in revi sion against his order before the Chief Settlement Commissioner". This conduct was held to have disentitled him to that relief. The writ was also refused on the ground that the issuance of a writ in the circumstances of this case would be futile, for, it would still be open to the Chief Settlement Commissioner, who had already taken a decision, to repeat what he had done and thereby render infructuous any order that may be made in the writ jurisdiction. In the Letters Patent Appeal the Division Bench upheld the view that the order passed by the Settlement Commissioner in review was without jurisdiction and repelled the contention that under the provisions of proviso (c) to section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (hereinafter referred to as the Act), the jurisdiction to review was excluded only when the reviewing authority had knowledge of the fact that an appeal or revision had already been preferred against the order sought to be reviewed. The learned Chief Justice, who delivered the judgment of the Court, observed as follows : "It seems clear to me, however, that a command by law that a certain thing shall not be done in certain circumstances, must mean that if it were done in those circumstances, it would not have any legal effect. Knowledge or lack of knowledge of the existence of these circumstances would make no difference for this purpose. It would be relevant only in an action to penalise the person who had disobeyed the command of law if such action could be taken. It would have no effect on the legality or illegality of a prohibited act, unless it were made one of the circumstances of the prohibition itself." Notwithstanding this the Division Bench also was of the opinion that the appellant had, by his failure to inform the Settlement Commissioner of the pendency of the second revisional applica tion before the Chief Settlement Commissioner, disentitled himself to the relief he sought. Hence this appeal. In support of this appeal learned counsel for the appellant has contended that the High Court, after coming to the conclusion that the review was heard clearly without jurisdiction, should have set aside the order of the Settlement Commissioner and of the Chief Settlement Commissioner confirming that order ex debito justitiae. Jurisdiction, it is urged, cannot be conferred by consent or waiver where the Tribunal inherently lacks such jurisdic tion. The appellant, it is said, had made no false representation to the Chief Settlement Commissioner which could possibly have induced him to make such an illegal order. Mere silence does not amount to misrepresentation and unless the conduct is such as could be said to amount to practising fraud upon the Tribunal it cannot be treated as sufficient to disentitle the appellant to the relief he sought. Learned counsel also contends that where an order is manifestly without jurisdiction the writ of certiorari should issue ex debito justitiae when the applicant for the writ is the person aggrieved himself and no question of discretion comes into the matter at all. On behalf of the respondent, on the other hand, it is con-tended that the orders of the Settlement Authorities were valid and proper orders, firstly, because under the proviso (c) to sub-section (1) of section 21 of the Act knowledge of the reviewing authority as to the pendency of the appeal or revision was necessary, for the prohibition therein contained is not a total prohibition but merely an exclusion conditioned by the pendency of an appeal or revision. In any event, it is said, since this order had been upheld in revision by the Chief Settlement Commissioner who had the discretion to interfere or not to interfere even in a case where there was a patent illegality, no relief can be granted to the appellant. It is also maintained that the writ sought was a discretionary writ and the High Court was right in holding that the appellant had by his conduct disentitled himself to the relief by way of a writ of certiorari. So far as the order passed by the Settlement Commissioner in his review jurisdiction on the 16th of June 1960, is concerned, there can be no doubt that the order was without jurisdiction. Section 21 of the Act, as it then stood, provided that the "Chief Settlement Commissioner, or a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner may, either of his own motion at any time or on an application made in that behalf, within 15 days, review, and while so reviewing modify, reverse, or confirm an order passed by himself or by any of his predecessors in office ; Provided that:

(a) (b) . (c) an order against which an appeal or a petition for revision has been preferred shall not be reviewed." The proviso quoted above is in the nature of an exception to the general power of review given by the opening words of the section and it clearly not only excludes the jurisdiction to review where an appeal or a petition for revision has already been preferred but also by the use of the mandatory word "shall" prohibits the authorities concerned from reviewing their own orders or the orders of their predecessors in such circumstances. This proviso does not say that where an appeal or a revision has been filed to the knowledge of the authority concerned he shall not exercise his review jurisdiction. Knowledge of the tiling of the appeal or the revision is wholly irrelevant, for, the mere pendency of such an appeal or revision is sufficient to create a bar upon the power of review. The words used in the statute, we are in agreement with the learned Chief Justice of the High Court, constitute "a command by law that a certain thing shall not be done in certain circumstances". The result of such a prohibition, as pointed out by the High Court, must, therefore, be that if it is done, notwithstanding the existence of those circumstances, then it will have no legal validity. The contention put forward on behalf of the respondent No. 3 that this section does not contain a total prohibition cannot be accepted. The bar is a complete bar which effectively takes away the jurisdiction to review, if the circumstances mentioned in the proviso be present. The order passed by the Settlement Commissioner, therefore, was a nullity in the eye of the law but it does not follow from this that a writ of certiorari must issue as a matter of course to quash such an order. The petition from which the present appeal arises was filed under. Article 2 (4) of the Laws (Continuance in Force) Order, 1958, which gave jurisdiction to the High Court to issue only the writs specified in the said Order. A writ of certiorari was one of such writs and so far as a writ of this nature is concerned the principle, as stated in Halsbury's Laws of England, Volume II, (Third Edition.), page 140, is as follows : "Although the order is not of course it will though dis cretionary nevertheless be granted ex debito justitiae, to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted with-out jurisdiction or in excess of jurisdiction if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief ; and this is the case even though certiorari is taken away by statute, and although there is an alternative remedy." Similarly Ferris in his book on Extraordinary Legal Remedies states at page 181 as follows : "The issuance of the writ, in the exercise of superintending control over inferior Courts, is not a matter of right, but one of the discretion largely. It will be granted or denied according to all the circumstances of each particular case, as the ends of justice may require, and in accordance with sound Public Policy." This principle was further elucidated by Sir Wilfred Greene M. R. in the case of Rex v. Stafford Justices (L R 1940, 2 K B 33) in the following terms :-‑ "Now, in my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess of jurisdiction, then a person aggrieved by that is 'entitled ex debito justitiae to his order. That merely means this, in my judgment, that the Court in such circumstances will exercise its discretion by granting the relief. In all dis cretionary remedies it is well known and settled that in certain circumstances I will not say in all of them, but in a great many of them the Court, although nominally it has a dis cretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a judge at a trial refuses to do so, then the Court of Appeal will set the matter right. But when once it is established that in deciding whether or not a particular remedy shall be granted the Court is entitled to inquire into the conduct of the applicant, and the circum stances of the case, in order to ascertain whether it is proper or not proper to grant the remedy sought, the case must in my judgment be one of discretion." Against one of the grounds upon which the Courts England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise. (Vide The King v. Williams and others Ex parte Philips (L R 1914, 1 K B 608)). In the present case there can be no doubt that the appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circumstance which prevented the Settlement Commissioner in law from, exercising his power of review. Notwithstanding this he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. In the writ petition also the appellant did not assert that he was un aware that the filing of the second revision petition debarred the Settlement Commissioner in law from reviewing his previous order. The appellant, therefore, knowing the true legal position deliberately allowed the Settlement Commissioner to commit an illegality. In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent the commission of the illegality. If he had succeeded in the review in getting the entire house transferred to himself he would, we feel certain, have made no grievance on account of that illegality. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself. If the appellant had only challenged the order of the Settle ment Commissioner, this would have been a sufficient ground for disposing of this appeal by affirming the decision of the High Court, but since he had preferred another revision petition challenging the order in review itself before the Chief Settlement Commissioner he has also sought for the quashing of the latter order of the Chief Settlement Commissioner not only on the ground that it was an order confirming the order made without jurisdiction by the Settlement Commissioner but also on the ground that the Chief Settlement Commissioner himself had arbitrarily dismissed his revision petition without applying his mind to the points raised in his revision or considering the relevant facts and circumstances of his case. As already stated, on the filing of the second revision petition challenging the order passed by the Settlement Commissioner in review, the Deputy Settlement Commissioner (Policy) had put up a detailed note pointing out that not only the question of the divisibility of the house was in dispute but that the entitlement of the respondent No. 3 was also being challenged by the con-testing parties. All the connected applications concerning the transfer of this house were also put up and attention of the Chief Settlement Commissioner was drawn to the fact that respondent No. 3's entitlement appeared to have somehow under-gone an improvement at the review stage, although in the previous order the same Settlement Commissioner had himself doubted the validity of the said respondent's claim and transferred a portion of the house to him purely on humanitarian grounds. A second inspection of the premises was, in the circumstances, suggested. This was done by the Settlement Commissioner (Policy), but the latter in his note only dealt with the question of the divisibility of the house and proposed that all the petitions should be rejected. In these circumstances, we are of the opinion that it behaved the Chief Settlement Commissioner to apply his own independent mind to the questions raised before him and to deal with the three revision petitions put up before him in accor dance with law. By merely countersigning on the note of the Settlement Commissioner (Policy), we are clearly of the view, the Chief Settlement Commissioner had not exercised the jurisdiction vested in him in accordance with law and that there was no proper disposal of the revision petitions filed before him. This aspect of the matter does not unfortunately appear to have been dealt with in either of the judgments of the High Court. The learned Single Judge refused to set aside this order merely on the ground that if the "Chief Settlement Commissioner is directed to take a fresh decision, there will be nothing to preclude him from reaffirming his previous decision." The Letters Patent Bench did not at all examine the question of the validity of the order of the Chief Settlement Commissioner. In our view, the Chief Settlement Commissioner had clearly failed to exercise the jurisdiction vested in him. The reason given by the learned Single Judge for refusing to interfere with the Chief Settlement Commissioner's order does not appear to us to be a valid reason for not quashing his order and directing him to deal with the petitions pending before him in accordance with law. Even if the Chief Settlement Commissioner after dealing with these petitions in accordance with law comes to the same conclusion and reaffirms his previous decision that would not render the order made in the writ jurisdiction infruc tuous, for, the superior Court in its writ jurisdiction does not presume to tell the inferior Tribunal what it should decide but merely directs it to decide according to law. If this is done, no matter what the decision, the order of the superior Court is complied with and no question of rendering it infructuous arises. For these reasons we would, even though the appellant is not entitled in these proceedings to have the order of the Settlement Commissioner quashed, allow this appeal to this extent that the appellant will be entitled to have his second revision petitions filed before the Chief Settlement Commissioner heard and 6 disposed of in accordance with law. The result, therefore, is that the order of the High Court is set aside and the order of the Chief Settlement Commissioner, if any, passed on the 16th of September 1960, by his countersignature is hereby quashed and a writ of mandamus is directed to be issued to him to hear and dispose of the three revision petitions mentioned in the note of the Deputy Settlement Commissioner (Policy) in accordance with law. There can be no bar to his dealing with these petitions revision even at this stage, as the petitions before him were al filed before Ordinance No. II of 1962, which took away the Chief Settlement Commissioner's power of revision, came into force. These petitions will, therefore, now become pending petitions before him which he will have the power to dispose of in accordance with the provisions of the latter Ordinance No. XIII of 1962, which preserved the power in respect of pro ceedings pending before the coming into force of the Ordinance No. II of 1962. This appeal is, accordingly, allowed in part, but having regard to the conduct of the appellant in not raising any objection at the appropriate stage to the jurisdiction of the Settlement Commissioner, we will make no order as to costs in this case. A. H. Appeal allowed in part.