P L D 1969 Lahore 659 (PLP)

3. It appears that during the pendency of the above writ petition, the Chief Settlement Commissioner, vide his order dated the 24th of February 1962, transferred the case for purposes of review to Sh. Muhammad Rafiq, Settlement Commissioner, with delegated powers of the Chief Settlement Commissioner under section 32‑A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) for disposing it of within two months. This order is reproduced below:‑ "This case was the subject‑matter of proceedings before the High Court. On our request, the High Court has permitted us to review the previous order dated 18‑3‑

60. This case is pending before me. Since I am extremely busy, and cannot dispose of it myself personally, I transfer it under section 32‑A of the Displaced Persons (Compensation and Rehabili tation) Act, 1958, to Mr. Muhammad Rafique, Settlement and Rehabilitation Commissioner Lahore, with powers of Chief Settlement Commissioner, who may please decide it within two months." The matter then came up before Mr. Muhammad Rafique who, by order dated the 13th of November 1962, set aside the order of Mr. Hashim Raza, and remanded the case to the Deputy Settlement Commissioner for fresh decision after hearing the parties, with the following observations :‑ "Several notices were reissued to the transferee but he has not cared to appear. I have heard Mr. Munir Ahmad Advocate on behalf of Mistri Hidayat Ullah and also the other appli cants. The order of Syed Hashim Raza is obviously not cor rect the transfer order was passed by him on a miscellaneous application without considering the case of others and their forms not disposed of. I would, accordingly, order that the case be remanded. It shall be sent to the Deputy Settle ment Commissioner concerned for decision after hearing the parties." After the above order was passed, Mistri Hidayat Ullah and others withdrew Writ Petition No. 448/R of 1960. Accordingly it was dismissed by Masud Ahmad, J., as he then was, on the 20th of June 1963. It is in these circumstances that the order of Mr. Muhammad Rafiq dated the 13th of November 1962, is being challenged in the present writ petition.

4. In support of the petition Mr. A. K. Brohi, learned counsel for the petitioner, has attacked the order of Mr. Muhammad Rafique dated the 13th of November 1962, on the grounds :‑ (1) That the Chief Settlement Commissioner transferred the review proceedings on the 24th of February 1962, after the coming into force of Ordinance II of 1962 which came into effect on the 13th of January 1962, by which the powers of review had been withdrawn from the Settlement authorities and the enabling Ordinance XIII of 1952 could not be of any help to the respondents because‑ (a) the case was sub judice and pending in the High Court for decision at that time, and (b) it would not be said that the case was pending for review before respondent No. 1 at that time. (2) That Mr. Muhammad Rafique, the delegatee of the Chief Settlement Commissioner was not competent to review the order of Mr. Hashim Raza, the Chief Settlement Commissioner, as he could not be said to be his predecessor‑in -office.

5. It is unnecessary to discuss point No. 2 as it was conceded on behalf of the contesting respondents that in view of the decision of this Court in Ahmad Din v. Sultan Muhammad Khan (P L D 1967 Lah. 559) and in Writ Petition No. 919/R of 1962, decided by me on the 11th of October 1968, Mr. Muhammad Rafique had no jurisdic tion to review the order of Mr. Hashim Raza, the Chief Settle ment Commissioner, as he could not be deemed to be the successor‑in‑office of the Chief Settlement Commissioner. In the present case also, the Department has relied on Notification dated the 20th of December 1961, which was also the subject- matter of dispute in Writ Petition No. 919/R of 1962. On this point I observed as under :‑ "It seems to me that the effect of the powers of review dele gated to Sheikh Muhammad Rafique was only this much that he could review his own order or the order of any of his predecessor‑in‑office. In the present case, the impugned order before him was not his own order. Therefore, the only point is whether it can be considered to be that of his predecessor- in‑office. It is in this context that it is to be considered whether Mr. S. Hashim Raza whose order was sought to be reviewed, could be called to be his predecessor‑in‑office. Admittedly, Sheikh Muhammad Rafiq was only a Settlement Commissioner. At best, therefore, he was a delegatee of the Chief Settlement Commissioner, or an officer exercising his powers. By no stretch of imagination he can be considered to be the successor‑in‑office of the Chief Settlement Commis sioner, because the latter had not ceased to hold office and was still functioning as such. Had it been the case of review of an order of a delegatee of the Chief Settlement Commissioner who had ceased to hold office, I might have taken a different view. In its absence, it is clear to me that under the delegated powers conferred on Sheikh Muhammad Rafique, he was competent only to review his own order or that of an officer who was his predecessor‑in‑office. In the present case, it is not possible to hold that Mr. S. Hashim Raza, the learned Chief Settlement Commissioner was, in any way, predecessor- in‑office to Sh. Muhammad Rafique who was only a Settlement Commissioner. He was exercising the delegated powers of the Chief Settlement Commissioner and for that reason could not be considered to be the Chief Settlement Commissioner himself. I would, therefore, hold that the impugned order suffers from a patent illegality, and being passed without lawful authority is hereby quashed." The impugned order in the present case, therefore, is liable to be set aside on this ground.

6. It was, however, urged on behalf of the petitioner that there were no review proceedings pending before the Chief Settlement Commissioner on the 24th of February 1962, and as the power of review had been taken away by Ordinance II of 1962, the order of Mr. Hashim Raza dated the 18th of March 1960, cannot be subjected to any review proceedings. The important point, therefore, that emerges out for consideration in this case is whether, on the facts of the present case, it can be said that any review proceedings were pending before the Chief Settle ment Commissioner which can be said to have been saved by the enabling Ordinance XIII of 1962. It will be noticed that in the written statement filed on behalf of the Chief Settlement Commissioner in Writ Petition No. 448/R of 1960, on the 15th of December 1960, the Chief Settlement Commissioner has expressed, in unequivocal terms, that he had examined the case afresh and while examining it, reports received from the sub ordinate Settlement authorities had also been kept in view. He had come to the conclusion that the order dated the 18th of March 1960, passed by his predecessor merited to be suo motu reviewed by him on various grounds mentioned in the written statement. He further stated that he intended to exercise his power of review suo motu and the writ petition was premature because he desired to review the order of his predecessor suo motu. On these assertions in the written statement it can be safely said that the Chief Settlement Commissioner had made up his mind to exercise his suo morn power of review in order to review the order of Mr. Hashim Raza. The very fact that he examined the case afresh, had also considered the reports received from the subordinate Settlement authorities and had come to the conclusion that the order passed by his predecessor merited to be suo mono reviewed on various grounds mentioned in the written statement clearly indicate that the review pro ceedings had commenced before him and that they were pending further adjudication.

7. It is quite true that under section 6 of Ordinance II of 1962, section 21, subsections (1), (1‑A) and 2 of the Act were omitted and the power of review given to the Settlement autho rities in this way had been taken away, but under section 2 of Ordinance XIII of 1962, the following saving clause was inserted after section 6 which was deemed always to have been so inserted. It reads as under:‑ "

7. Saving.‑For the removal of doubts it is hereby declared that omission by this Ordinance of subsections (2) and (4) of section 20 and subsections (1), (I‑A) and (2) of section 21 of the said Act shall not affect any case or proceeding the records of which was called for under subsection (2) of section 20 of the said Act, or any review proceeding under subsection (1) of section 21 thereof, which was pending immediately before the commencement of this Ordinance: Provided that no revision or review under any of the pro visions omitted by this Ordinance shall lie against any order made in any such case or proceedings." The crux of the matter, therefore, is whether in the present case any review proceeding under subsection (1) of section 21 of the Act was pending before the Chief Settlement Commissioner immediately before the commencement of this Ordinance which camp into force immediately before Ordinance II of 1962 came into force. Ordinarily, "pending" means "waiting to be decided or settled." It means "nothing more than undecided". An action is considered as pending from the time of the commencement of its proceedings. Judging the facts of this case from this angle, is quite obvious that when the Chief Settlement Commissioner tiled his written statement on the 15th of December 1960, in Writ Petition No. 448/R of 1960, he had decided to review the order of Mr. Hashim Raza and from the time he examined the case the review proceedings were pending before him. Thus, the review proceedings were pending before him. Thus, the review proceedings were pending before the learned Chief Settlement Commissioner much before the 15th of December 1960, and they are protected and saved by the enabling Ordinance XIII of 1962.

8. It was contended by Mr. Brohi that the learned Chief Settlement Commissioner bad no jurisdiction to transfer the case to Mr. Muhammad Rafique for purposes of review during the pendency of Writ Petition No. 448/R of 1960. This point had not impressed me because no prohibitory order was issued in the above writ petition. I may mention here that it was conceded on behalf of the Department‑and that also appears to be a fact‑that the High Court had given no permission to the Chief Settlement Commissioner to review the previous order dated the 18th of March 1960. The assertion to this effect in the order dated the 24th of February 1962, appears to be based on mistaken view. In its absence, all the functionaries of the Settlement Authorities were entitled to discharge their duties in accordance with law applicable to them; but this point has no material bearing on the decision of this case because on the concession made on behalf of the respondent the order of Mr. Muhammad Rafique, Settlement Commissioner, who exercised the powers of the Chief Settlement Commissioner, is liable to be set aside.

9. In that view of the matter, I will set aside the order of Mr. Muhammad Rafique, Settlement and Rehabilitation Com missioner with powers of Chief Settlement Commissioner, Lahore, dated the 13th of November 1962, and the case is sent back to the Chief Settlement and Rehabilitation Commissioner, Lahore, for such action as he considers necessary or is advised to take.

10. In the result, subject to the remarks made above, the writ petition is allowed, with no order as to costs. K. B. A. Petition allowed. Case remanded.