1968 SCMR 584 (PLP)

HAMOODUR RAHMAN, J.-This appeal by special leave is directed against the judgment and order of a learned Single Judge of the High Court,of West Pakistan, Karachi Bench, allowing a petition for a writ of certiorari. This petition was filed for the quashment of an order of the Chief Settlement Commissioner, Hyderabad and Khairpur passed on the 29th of September 1961, concerning an 'evacuee property, bearing No. G12152/2/2, Goods Naka Bazar, Hyderabad and for a direction to the Settlement authorities to dispose of the said premises by public auction, after giving notice to the public and all other interested parties. The appellant, who is a claimant displaced person, was in possession of a portion of this building, which consists of three portions. One portion was in possession of the appellant, another in the possession of Mst. Sahran Begum, a displaced person, and the third on the ground-fioor wee in the possession of a local Kadir Bux, who ran a hotel (eating house) therein known as "Baloch Hotel". When Settlement operations started, the appellant put in a C. N. Form for the transfer of the portion in his possession along with .the portion occupied by Kadir Bus. Sahran Begum also applied for the transfer of the entire building treating it as one unit. The Assistant Settlement Commissioner transferred to the appellant and' Mst. Sahran Begum the portions in their respective occupation. Mst. Sahran Begum did not move against this order but the appellant went up in appeal to the Deputy Settlement. Commissioner in this appeal Mst. Sahran Degum also intervened with a cross objection. The Deputy Settlement Commissioner dismissed the cross objection of Mst., Sahran Begum but allowed the appeal of the appellant, giving him both the portion in his possession as well as the portion in the possession of Kadir Bux. During the pendency of the appeal, ho wever, the portion in possession of Kadir Bux was put to auction and was sold to respondentsSyed Mujtaba Ilussain for Rs. 20,000. 'The appellant protested against this auction to the Deputy Settlement Commissioner who stayed its confirmation and ultimately, ignoring the order of the auction, transfer red this portion also to the appellant. Against this order Mujtaba 'Hussaiss went up in revision before the Settlement Commissioner, The latter dismissed the revision, but directed that.in order to pre vent the fragmentation of the property, the hotel portion should a:so be transferred to the appellant as be had agreed to on the amount representing the highest bid. From this order Mujtalsail Hussain as also one Ali Muhammad; it appears, filed Second Revision Petitions before the 'Chief Settlement Commissioners. Ali Muhammad who was a non-claimant displaced person, allagedIrthat he hid filed a N. C. S. Form for the transfer of this iskteflportion as the occupant of a Khokha outside it. These petitions were, Sent by the Chief Settlement Commis sioner for disposal to 1Mian .'' Ghulam Shabbir, Settlement Commissioner, Multan, who purporting to exercise the delegated powers of Chief Settlement Commissioner under oubsection (2) of section 20 of the. Displaced: Persons (Coiripensation and Rehabilitation) Act, 1958, ddisinissed the Revision of Ali Muhammad but accepted the Revision of Syed Muitaba Hussain on the ground that the said hotel, portion could not be transferred to the appellant who had only put in a C. H. Foto. He couid not, therefore, be treated to have claimed the tja.nsfer of the hotel portion as well. The latter being a commerciial premises could, it was held, only bei transferred on the basis of a C. S. Form. It was against this order that the appellant came to the High Court. The High Court rejected his contention that the building was situated in a predominantly residential area or that the hotel 'portion of the-building should also have been.treated as a house. Firstly, because, the finding of the Settlement Commissioner that the building was not situated in a predominantly residential locality was a finding of fact, based upon evidence which appeared to justify the finding, Seelsndly, betause, it was for the Settlement authorities to decide as to which portion of al compo site building should be treated as a house and which as a shot But the contention that the auction was held in disregai- of the rules laid down by the Settlement authorities themselves, vias upheld because in the view of the High Court no public notice to the proposed auction vas shown to have been given. In the view of the High Court, It was "the bounden duty of the Settlement authorities before disposing of premises by public auction to advertise the proposed auction in the press and to give due notice to the public and other interested parties in accordance with Settlement Scheme No. HI or the instructions issued by the Chief Settlement Commissioner for disposal of shop by auction" and since this had not been done, the auction could not be upheld. Leave was granted in this case Co-consider :-(I) (1) whether Mian Gholam Shabbir, Settlement Commissioner Multan, had jurisdiction to revise the order of another Settle ment Commissioner and whether there was, in fact, or could be any delegation to him of.the powers of the . Chief Settlement Commissioner, and (2) whether the High Court could in a writ proceeding apart from quashing the order, also issue a direction for the holding of an auction. So far as the first point is concerned the contention of the learned counsel appearing in support of this appeal is that since section 20 of the Displaced Persons (Compensation' and Rehabili tation) Act, 1958, lays down its own rule of delagation. The A general power of delegation given by subsection (2) of section 31 is not attracted to the case of the delegation of powers dealt with in section 20, because, subsection (2) of section 31 has itself been made applicable only "sujbect to the provisions" of the Act. Section 20 and subsection (2) of section 31, as they stood in September 1961, read as follows: "

20. Revision-(l) [Omitted]. (2) The Chief Settlement Commissioner at any time may, and shall on being directed by the Central Government, call for the record of any case or, proceeding under this Act in which a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Cnmmissioner or an Assistant Settlement Commissioner has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order, andipiay, pass such order in relation thereto as he thinks fit. (3) A Settlement Commissioner specially empowered in this behalf by the Chief Settlement. Commissioner may; at any time, call for the record of any case or proceeding under the Act in. which an Additional ' Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order and may pass such order, in 'relation thereto, as he thinks fit. (4) An Additional Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may at any time call for the record of any case, or proceeding under this Act in which a Deputy Settlement Commissioner or an Assistant Settlement Commissioner tinder his jurisdiction has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order and may pass such order in relation thereto, as he thinks fit. (5) No order under This section shall be passed revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard." "31(2) Subject to the provisions of this Act and the titles made thereunder, the Chief Settlement Commissioner may, by notification in the official Gazette, delegate all or any of his powers under this Act to any Settlement Commissioner or an Additional, Deputy or Assistant Settlement. Commissioner subject to such conditions if any, as may be specified in the notification." The point raised is, no doubt, an interesting one partaining to the jurisdiction of Mian Ghulam Shabbir but unfortunately it is a point which necessitates an investigation into facts. It cannot, therefore, be allowed to be raised for the first time in this. Court. It was not raised either before Mian Ghulam Shabbir himself or before the High Court or even in the petition for special leave. If it had been raised at an earlier stage the Settlement authorities may have been in a position to produce evidence to show that a .proper delegation of power had been made even under section 20 of the Act of 1958. At present there is nothing before .us to show that Mian Ghulam Shabbir had usurped a jurisdiction which he did not possess. In the circumstances the presumption of regularity of official acts fully attaches to his order and 'we must assume that he acted in the lawful exercise of powers duly vested in him. As regards the second point, it is, no doubt, true that in the Writ jurisdiction, the High Court does not as a rule direct the Settlement authorities to take any specific kind of action or substitute its own decision for the decision of the authorities, after quashing the impugned order, but in the present case we are unable to agree that the High Court's order has prescribed any particular mode of action. Substantially what the High Court c has done is' to set aside the order and to direct the Settlement authorities to hold the auction in accordance with law, that is to say, to act as prescribed under the Settlement Scheme No. III and the instructions of the Chief Settlement Commissioner relating to the disposal of shops by auction. This was what the authority was bound to do under the relevant law. No just exception can,-therefore, be taken to even this part of the order of the High Court. Having examined the facts of the case we, have ourselves also come to the conclusion that the appellant has not been able to make out that he has any legal right to the transfer of the hotel portion in dispute. It was clearly found by the Settlement authorities that the building concerned was not situated in a predominantly residential area as there were several other shops and commercial houses in the same area. In the circumstances it was open to the Settlement authorities under subsection (12) of section 2 of the Act of 1958 to decide as to whether they should 'teat this portion as a house or as a shop. It cannot, in the facts of the present case; be said that they have done so either arbitrarily or unreasonably. We see no sufficient reason, therefore, to interfere with the order of the High Court. This appeal is accordingly dismissed with costs. The appellant if he is really anxious to obtain the said hotel portion of the building, can still participate in the auction which is to be held in pursuance of order of the High Court. Appeal dismissed.