P L D 1964 (W (PLP)

This is a writ petition under Article 98 of the Constitution of the Republic of Pakistan for a declaration that the order of Mr. M. H. Sufi, learned Chief Settlement Commissioner, dated the 4th of December 1962, and that of the Deputy Settlement Commissioner, dated the 31st of December 1962, are without lawful authority and have no legal effect.

2. In this case the final order was passed by Pir Ahsan‑ud -Din, the then Chief Settlement Commissioner, on the 19th of November 1960. dividing the property end transferring it so the petitioner and respondent No.

2. This order was challenged in the High Court and lastly in the Supreme Court, but the order of the, Chief Settlement Commissioner was not disturbed.

3. The petitioner thereafter, on the 15th of March 1962, ap plied to the Chief Settlement Commissioner with the prayer that the Deputy Settlement Commissioner be directed to demarcate respective portions of the petitioner and the respondent No. 2 in accordance with his order dated the 19th of November 1960. He marked this application on the 15th of March 1962 to the Deputy Settlement Commissioner. The Deputy Settlement Commissioner submitted a report, dated the 15th of August 1962, to the Additional Settlement Commissioner along with the file and sought his instructions as to the division, which was to be effected on the, premises. The Additional Settlement Commis sioner, by his order dated the 22nd of August 1962, directed him to exercise his own judgment and pass orders. It was claimed by the petitioner before the Deputy Settlement Commissioner that he was entitled to the open space on the first‑floor which covered the portion transferred to him. Ch. Bahar Muhammad, respondent No. 2, controverted this claim In order to enable him to make the demarcation on the spot, the Deputy Settlement Commissioner addressed a letter to the Chief Settlement Commissioner for clarification of his order dated the 19th of November 1960. The question which needed clearifcation was in respect of the order of Pir Ahsan‑ud‑Din, which reads: "My predecessor's order says, inter alla, that the respondent, Ch. Bahar Muhammad, shall be allowed to have the first‑floor as well." Mr. M. H. Sufi, learned Chief Settlement Commissioner, inspected the spot in the presence of the parties. (This fact is admitted by the parties before me). He thereafter observed as follows:‑ "I am convinced that Ch. Bahar Muhammad cannot use the two rooms on the first‑floor if the open space in front is divided between the two parties." I, therefore, hold that the words 'first‑floor' used in my predecessor's order include the built portion as well as the open space which should go to Ch. Bahar Muhammad." The petitioner challenged this order through this writ petition.

4. The Deputy Settlement Commissioner on receiving the clarification from the Chief Settlement Commissioner passed an order dated the 31st of December 1962. The petitioner did not feel satisfied. He claimed that the verandah and the porch should have been given to him. The petitioner preferred an appeal against that order which was filed after he had filed the writ petition. The Additional Settlement Commissioner, by his order dated the 21st of May 1963 refused to assume jurisdiction in the matter on the ground that the writ petition was pending in the High Court. The questions which arise for determination in the case are: (a) Whether the Chief Settlement Commissioner was compe tent to pass the impugned order dated the 4th of December 1962 ? (Annexure 'H') (6) Whether the Deputy Settlement Commissioner was com petent to pass the order dated the 31st of December 1962 ? and (c) Was the Additional Settlement Commissioner justified in refusing to exercise the jurisdiction in the case ?

5. So far as the first point is concerned, the case of the petitioner is that Psr Ahsan ud‑Din passed the final order of transfer on the 19th of November 1960, and the respondent had been given only two morns on the first‑floor, but by virtue of the order of Mr. Sufi, dated the 4th of December 1962, he has also been given the open space on the first‑floor which forms the proof of the portion transferred to the petitioner. This, according to the petitioner, was tantamount to the reviewing of an earlier order of his predecessor which he was not competent to do after the 13th of January 1962. The contention is untenable. Mr. Sufi had not passed the impugned order in exercise of review jurisdiction under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act. A dispute arose between the parties as to the interpretation of the order of Pir Ahsan‑ud‑Din, whereby he allowed Ch. Bahar Muhammad to have the "first‑floor as well." It was with a view to determining as to what the Chief Settlement Com missioner meant by the words "first‑floor as well" that Mr. Sufi went to the spot and observed that it included the built up portion as well as the open space. The Chief Settle ment Commissioner has not transferred any additional portion to the respondent nor did he set aside the order of his predecessor. All that he did was that he explained and declared what was the precise nature of the order. The impugned order is only a clarification regarding the demarcation of the property in dispute under section 21 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, the Chief Settlement Commissioner was competent to pass an order correcting clerical or arithmetical mistakes in any order passed by himself or by his predecessor -in‑office and to rectify errors arising therein from any accidental slip or omission. Clause (3) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act corresponds with section 152 of the Civil Procedure Code. The marginal heading of the section mentions it as `Review', but it is field by the Judicial Committee in Balraj Kanwar v. Jagatpal Singh (31 I A 132) that a "marginal heading" is not to be referred to for the purposes of construing an Act. In the context of things the provision contained in section 21 (3) is not one in the nature of "review" but is an independent one for correcting clerical errors or supply ing some accidental omissions. The order of Pir Ahsan‑ud‑Din was quite clear, but a dispute had arisen only because he had omitted to say specifically if the "first‑floor" transferred to the respondent included the portion over the roofs of the petitioner's portion. Under section 152 of the Civil Procedure Code a Civil Court can supply such an omission at any time and it has never been held that an order of this type under section 152, C. P. C. is a variation of the original order.

6. The Chief Settlement Commissioner, like a civil Court; has inherent power to interpret his own order or to carry out its own meaning. On behalf of the petitioner it is argued that there was no provision like section 151, C. P. C. in the Displaced Persons (Compensation and Rehabilitation) Act, but it may be noticed that section 151, C. P. C. does not confer any jurisdiction upon the Court, but merely declares that nothing is to limit or otherwise affect the Court's inherent power. The power given by clause (3) of section 21 of the Displaced Persons (Compensa tion and Rehabilitation Act besides being a reproduction of section 152, C. P. C. is also a legislative recognition of the Court's inherent power. It is thus clear that under clause (3) of section 21 of the Displaced Persons (Compensation and Rehabi litation) Act, the Chief Settlement Commissioner can exercise jurisdiction to interpret the order so as to conform to its intention. The order of the Chief Settlement Commissioner, in my opinion, was passed with a lawful authority and is not open to any exception.

7. It may, moreover, be noted that the petitioner is pre cluded from raising the objection as to the competence of the Chief Settlement Commissioner to pass this order. He himself applied to the Chief Settlement Commissioner for demarcation of the property in accordance with the order of the Chief Settle ment Commissioner dated the 19th of November 1960. The Chief Settlement Commissioner ordered the Deputy Settlement Commissioner to demarcate the property. We bad presumably acted in exercise of his powers under section 32‑A of the Displaced Persons (Compensation and Rehabilitation) Act, whereby he can transfer any case pending before him to any Settlement Commissioner or any Additional or Deputy Settlement Commissioner. The peti tioner did not object to the jurisdiction of the Deputy Settlement Commissioner either. He, in fact, took part in proceedings before him. It was, however, on his objection as to the interpretation of the word "first‑floor" that the Deputy Settlement Commissioner referred the matter for clarification to the Chief Settlement Com missioner. The petitioner again appeared before him and presented his view point. The Chief Settlement Commissioner, in order to enable him to determine as to what was precisely meant by his predecessor by the word "first‑floor", inspected the spot in the presence of the parties. The petitioner had all along participated in the proceedings and never objected at any stage as to the competence of the Chief Settlement Commissioner to interpret or clarify the order of his predecessor. He, there fore, took a chance of the decision being given in his favour. It does not under the circumstances lie in his mouth to object to the jurisdiction of the Chief Settlement Commissioner which he had in fact himself invoked. I am, therefore, of the view that even if the petitioner had been able to make out some case in his favour, I would not have been inclined to grant him any relief under Article 98 of the Constitution, which besides being dis cretionary is granted only in cases of extraordinary nature.

8. As regards the order of the Deputy Settlement Commis sioner, dated the 31st of December 1962, no exception can be taken to the exercise of jurisdiction by him. The petitioner himself had applied to the Chief Settlement Commissioner for demarcation of the property. The Deputy Settlement Commis sioner was performing the duty of doing so under the orders of the Chief Settlement Commissioner. All that he did was to domacrate the property. If the petitioner is in any way aggrieved by the actual demarcation and be has, in fact, a genuine cause to complain that any portion of his property has wrongly been demarcate on the side of the respondent No. 2, he can have his grievance remedied in appeal. Against this order the peti tioner has preferred an appeal to the Additional Settlement Commissioner who, on an erroneous ground that the writ petition was pending in the High Court, refused to exercise the juris diction vested in him by law. The refusal is patently wrong. The matter is still pending before him, and the Additional Settle ment Commissioner will have to decide it on merits. Since the petitioner has already resorted to an alternative remedy by way of an appeal, the petition under Article 98 of the Constitution of the Republic of Pakistan against the order of the Deputy Settlement Commissioner is not competent. It is for the Addi tional Settlement Commissioner to decide the matter. He will, of course, have no jurisdiction to give any finding about the "first‑floor" as the decision of the Chief Settlement Commissioner in this behalf is final and conclusive. The petition is dismissed, but there shall be no order as to costs. K. B. A. Petition dismissed.