P L D 1965 Supreme Court 404 (PLP)

B. Z. KAIKAUS, J.‑This is an appeal by special leave against an order of the High Court of West Pakistan refusing to set aside the order of the Settlement Authorities transferring the whole of house No. P‑148/1, Circular Road, Lyallpur, to Nasir‑ud‑Din Khan, respondent No.

2. The house in dispute is a large one comprising twelve living rooms, two store rooms, four galleries, two verandhas, two kitchens, two bath‑rooms, one motor garage, one barsati, two courtyards, two deorhis and two staircases. It has two entrances one on the Circular Road and the other in a lane. At the time when the question of its transfer arose there were five persons residing m the house with their families, Muhammad Ishaq, Muhammad Tufail, Muhammad Iqbal Khan, Abdul Majid and Nasir‑ud‑Din Khan, respondent No.

2. Muhammad Tufail was in occupation of two rooms on the ground floor. Muhammad Iqbal had one room on the first floor and a barsati while Muhammad Ishaq had one room on the ground floor and two rooms on the first floor. Abdul Majid was occupying only a motor‑garage. Nasir‑ud‑Din Khan who is a Deputy Settlement Commissioner was in possession of the rest of the house. All these persons applied for transfer of the house. The Deputy Settlement Commissioner found Muhammad Ishaq to be a non‑claimant and rejected his application on this ground. Out of the remaining four applicants the Deputy Settlement Commis sioner found Nasir‑ud‑Din Khan to have a prior claim because his date of entering into possession was the earliest. Without going into question as to whether the house consisted of one or more residential units the Deputy Settlement Commissioner ordered its transfer to Nasir‑ud‑Din Khan, respondent. All the four applicants whose applications for transfer had been dismissed filed appeals against the order of the Deputy Settlement Commissioner before the Additional Settle ment Commissioner. The Additional Settlement Commissioner went thoroughly into the question as to whether the house was to be divided. He found that the house consisted of two separate residential units, the entrances of which were on two sides one being on the Circular Road and the other in a lane. On behalf of the respondent it was argued before him that there were other houses also in Lyallpur with two entrances which had been transferred only to one person. It was also urged that the other applicants for transfer of the house did not have "possession" of the house in the sense in which this word is used in the Displaced Persons (Compensation and Rehabilitation) Act, and therefore they could not apply for its transfer at all. So far as the question of "possession" is concerned the Additional Settlement Commissioner found that all the claimants except Muhammad Ishaq had allotment orders with them. Considering that the house was a commodious one and could be conveniently divided into a front portion and a back portion the Additional Settlement Commissioner so divided it "in the larger interests of refugee claimants". Muhammad Ishaq's appeal was rejected because he was not a claimant. Abdul Majid though a claimant allottee was occupying only a garage and he had built his own house on an evacuee plot and his appeal too was therefore rejected. In the end the Additional Settlement Commissioner granted to Nasir‑ud‑Din Khan respondent the whole of the front portion while he divided the back portion into two parts three rooms of which were transferred to Muhammad Iqbal Khan the present appellant and one room, a courtyard and the garage to Muhammad Tufail. Against this order of the Additional Settlement Commissioner Nasir‑ud‑Din Khan, Abdul Majid and Muhammad Ishaq filed revision petitions before the Settlement Commissioner. The Settlement Commissioner dealt in the first place with the merits of the claims of the applicants before him, Muhammad Ishaq he rejected because he was a non‑claimant. Abdul Majid, he said, was in possession of only a garage and as he had built his own house on an evacuee plot he was not entitled to a transfer of the garage. As to Muhammad Iqbal the present appellant he said that he had built his own house in Gulberg No. 1, Lyallpur, and needed no accommodation in this house. There remained Muhammad Tufail and Nasir‑ud‑Din Khan. Muhammad Tufail, he said, was in possession of only two rooms out of this building, and the "lay out and construction of‑ the house" was such that it was not desirable to transfer only two or three rooms out of it to one person. Nasir‑ud‑Din Khan he said was the senior allottee and a person of status and therefore was entitled to the whole house. He accepted the revision petition of Nasir‑ud‑Din Khan and transferred whole house to him. A revision petition was filed against this order by the present appellant before the Chief Settlement Commissioner which was dismissed in limine with the observation : "I find that there is no special reason requiring my interference". Before the learned Judge who heard the writ petition against the order of the Chief Settlement Commissioner it was urged (i) The Settlement Commissioner had no power to interfere with the discretion exercised by the Additional Settlement Commissioner in declaring the house to be divisible ; (ii) The present appellant had in any case a better claim to transfer of the house as his possession of the house commenced in 1948 before that of respondent No. 2 which commenced in 1953. As regards the power of the Settlement Commissioner to interfere with the order of the Additional Settlement Commissioner declaring the house to be divisible the learned Single Judge who heard the writ petition said that there was a Division Bench judgment of the West Pakistan High Court wherein this power of the Settlement Commissioner to act in revision had been recognized. On the second point the factual position was that the appellant had obtained possession in January 1948, but a valid allotment order had been passed in his favour only on 7th of December 1958. Nasir‑ud‑Din Khan respondent was on the other hand in possession from 1953 by virtue of an allotment order. On behalf of the appellant it was contended that by the allotment order the possession of the appellant had been regularized and therefore the position should be the some as if he had obtained "possession" within the meaning of the Displaced Persons (Compensation and Rehabilitation) Act in January 1948. In this contention the learned Judge of the High Court found no force. It was then urged that on account of a notification by the Central Government even unauthorised possession would be "posses sion" under the Displaced Persons (Compensation and Rehabilita tion) Act. This contention was rejected on an interpretation of the wording of the notification because the notification applied to person who had not obtained any order of allotment before 21st December 1958, and the appellant had obtained an order of allotment on 7th December 1958. A further argument against the appellant which was accepted was that the notification of the Government was of 13th October 1959, and as on the coming into force in 1958 of the Displaced Persons (Compensation and Rehabilitation) Act, Nasir‑ud‑Din Khan respondent had already acquired a right to a transfer that right could not be taken away by the notification. Nasir‑ud‑Din Khan was held by the learned Judge to be an allottee with a prior claim to transfer and the writ petition was dismissed. The only point urged before us on behalf of the appellant is that the Settlement Commissioner could not while hearing a revision petition against the order of the Additional Settlement Commissioner interfere with the order of the division of the house in dispute because that order was passed in the exercise of the delegated power of the Chief Settlement Commissioner and was not subject to appeal or revision. In support of this contention learned counsel relies upon the recent judgment of this Court ini Jalal Din, etc. v. Sh. Muhammad Rafiq, etc. (Civil Appeal No. 71 of.1963) decided on 2nd November 1964, (P L D 1965 S C 261), which supports him. We had held in that case disagreeing with the view taken by the! High Court in Abdul Ghani v. Chief Settlement Commissioner (P L V 1964 Lah. 214) that an order passed in exercise of the delegated power of the Chief Settlement Commissioner with respect to the division of a house was not subject to appeal or revision, though we at the same time held that the power which the Chief Settlement Commissioner possessed under the first proviso to section 2(4) and which was the subject of delegation was not a power of a division of the house, but a power of simply directing that the house was not to be regarded as one but was to be divided. The High Court had taken the view in Abdul Ghani v. Chief Settlement Commissioner that though ordinarily an order passed in the exercise of delegated authority would be subject to the same remedies by way of appeal and revision as would have been available if the order was passed by the delegator himself, in the case of authority delegated under section 31 (2) of the Displaced Persons (Compensation and Rehabilitation) Act this principle was not applicable because of the opening words of this section, that is, "subject to the provisions of this Act". We took the view in Jalal Din v. Sh. Muhammad Rafiq that these words were not intended to affect the general principle relating to incidence of appeal and revision in respect of an order passed in the exercise of delegated authority. We pointed out that these words were conveyed an intention to place a restriction on the power given to the Chief Settlement Commissioner to delegate his authority. It was the effect of these words that if there was some thing in the Act or the Rules restricting or abridging the power of the Chief Settlement Commissioner to delegate his authority in respect of a particular matter then the authority could not to that extent be exercised. Mr. S. M. Zafar who appears for the respondent does not accept the correctness of the view taken in Jalal Din v. Sh. Muhammad Rafiq, but as against it he has only been able to repeat the argument put forward in that case, and which succeeded before the High Court in Abdul Ghani v. Chief Settlement Commissioner, as to the effect of the words "subject to the provisions of this Act and the rules made thereunder". He draws our attention to the fact that the example which we cited in Jalal Din v. Sh. Muhammad Rafiq of the power of delegation granted by section 31 (2) being affected by a provision in the Act was an example which arose out of a subsequent amendment of the Act because in the Act as it originally stood section 29 to which we referred did not provide for any power of delegation. This is true but does not affect the argument. Learned counsel accepts that the opening words referred to above, on which he relies, do place a limitation on the power of the Chief Settlement Commissioner and that if there be any provision in the Act or the rules to the contrary the Chief Settlement Commissioner will not be able to exercise the power granted by section 31 in violation of that provision. Once it is accepted that these words place a limitation on the power of the Chief Settlement Commissioner to make a delegation the argument that the general principle as to incidence of appeals, revisions, etc. in respect of orders passed in the exercise of delegated authority is affected by these words loses force. If these words were needed to place a limitation on the power of the Chief Settlement Commissioner to make a delegation it cannot be urged that they necessarily imply an intention to affect the general principle as to incidence of appeal and revision against orders passed in the exercise of delegated authority. On the other hand it would be very unusual that the Legislature should be using the words "subject to the provisions of this Act and the rules" in a double sense as is contended by learned counsel for the appellant, the first sense being that the power cannot be exercised if there be anything in the Act or the rules to the contrary and the second that the exercise of delegated power is to be in accordance with the provisions of the Act. In any case the words used are words which it is usual to find in a legislative provision of the kind with which we are concerned and do not necessarily carry with them the significance attributed to them by learned counsel for the respondent. If the intention of the law was to interfere with the ordinary rule relating to' appeal and revision against orders passed in the exercise of delegated authority the matter would have been provided in clear manner and not by use of words of more or less formal character. While learned counsel for the respondent did not accept the correctness of the decision in Jalal Din Y. Sh. Muhammad Rafiq, his main argument before us was different. He contended that the order passed by the Additional Settlement Commissioner directing that the house be divided was void, because the order was passed in the absence of circumstances mentioned in the proviso to section 2 (4) of the Displaced Persons (Compensation and Rehabilitation) Act which alone could empower the Additional Settlement Commissioner to pass it. This proviso runs : "Provided that where any building or premises not so declared consists of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house." The argument put forward is that the Chief Settlement Commissioner can only "order otherwise" if any building or premises consists of more than one residential unit. In this case, learned counsel for the respondent contends, the house consists of only one residential unit and therefore there was no power at all in the Chief Settlement Commissioner to declare that it was not one house. According to learned counsel it is for the Courts to determine whether more than one unit exists and if the Court finds that more than one unit did not exist the order of the Chief Settlement Commissioner would be without jurisdiction. The order passed in this case therefore by the Additional Settlement Commissioner exercising delegated power of the Chief Settlement Commissioner was void. As the order was void the Settlement Commissioner could treat it as a nullity and proceed to decide the revision petition before him on the merits. This contention would fail even if we are ourselves to determine whether more than one unit existed. Learned counsel for the respondent appears to be contending that residential unit only means a place where all or most of the amenities needed for a comfortable residence are provided. If this contention were accepted a very large number of persons in this country would not be residing in any residential unit. It is not necessary to determine for the purpose of the present proceedings as to what exactly is involved in a residential unit. It is sufficient to say that the house in dispute could not be said to consist of one residential unit only. It has two entrances one on the road and one in a lane. It has two kitchens, two courtyards, two deorhis, two staircases, two store rooms and twelve living rooms. A number of families had been residing in this house at the time when a question of its transfer arose and all of them excepting B Muhammad Ishaq were holding allotment orders in their favour. If this house was not held to consist of more than one residential unit very few houses with which the Settlement Authorities had to deal with could be divided and granted to more than one person. However we should not be understood to be accepting that an order like the one passed by‑ the Additional Settlement Commissioner would always be liable to attack on the ground that more than one residential unit did not exist. If the decision of the question whether one or more units existed depended on belief or disbelief of witnesses, or appreciation of evidence a finding by the Additional Settlement Commissioner could not be ignored even by a Court being an order passed in the exercise of a quasi‑judicial jurisdiction. It would have first to be set aside in proceeding by way of certiorari. It may be different if there was no dispute about facts and the Additional Settlement Commis sioner assumed jurisdiction on a misinterpretation of the law that granted him jurisdiction. It has also to be pointed in connection with this contention of the respondent that under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act orders made by officers under that Act are final "save as otherwise expressly provided" and are not liable to be "questioned in any Court". An order passed under the Act can therefore be challenged either in accordance with the Act or under Article 98 of the Constitution. It may be observed here that the Settlement Commissioner who set aside in revision the order of the Additional Settlement Commissioner never said that the Additional Settlement Com missioner had no authority to pronounce the house to be divisible and therefore his order was void. He was not conscious of the fact that an order passed' in the exercise of delegated authority was not subject to revision and he treated it as an ordinary case of revision. It has also been urged that the power of the Chief Settlement Commissioner having been delegated not only to Deputy Settlement Commissioner, but also to the Additional Settlement Commissioner and the Settlement Commissioner, the orders passed in the exercise of this delegated power could be interfered with because the Chief Settlement Commissioner can review his own order and the order of a Deputy Settlement Commissioner which is to be regarded as an order of the Chief Settlement Commissioner can be reviewed by the Additional Settlement Commissioner who too acts as the Chief Settlement Commissioner and so on. On this basis interference by higher officers with the orders of the lower officers is sought to be justified. For an acceptance of this argument every appeal or revision has first to be assumed to be a proceeding in review, then it has to be assumed that an order passed by a lower officer can be reviewed by every higher officer. It is not possible for us to introduce into appeals or revisions, the conception of review which is a proceeding of an entirely different kind and which by its nature is competent only on limited grounds. Nor is there any good ground for holding that an order passed by one officer can be reviewed by another officer because he too is a delegatee of the power of the Chief Settlement Commissioner. In accordance with section 21 of the Displaced Persons (Compensation and Rehabilitation) Act an officer can review only an order passed by "himself or a predecessor‑in‑office". There could be only two possible interpretations of this provision in relation to order passed in the exercise of delegated powers, one that the order can be reviewed by the very officer who passed it and the other that it can be reviewed by the Chief Settlement Commis sioner because the order was passed as his delegate. The order of a Deputy Settlement Commissioner could not be reviewed by the Additional Settlement Commissioner nor an order of the Additional Settlement Commissioner by the Settlement Commissioner. We hold that the order of the Settlement Commissioner interfering with the order of the Additional Settlement Commissioner pronouncing the house to be divisible was without any jurisdiction and we set it aside. The case will have to go back now to the Settlement Commissioner for a disposal of' the revision petitions before him which on account of his order being set aside are to be regarded as pending. He will decide the revisions afresh on the basis that he cannot interfere with the order of the Additional Settlement Commissioner pronouncing the house to be divisible though he can divide the house III ~t different manner. This appeal is allowed and setting aside the order of the High Court a writ is granted quashing the order passed by the Settlement Commissioner. The subsequent order of the Chief Settlement Commissioner automatically fails. There is no order as to costs. A. H. Order accordingly.