P L D 1967 Lahore 633 (PLP)

On the 2nd of January 1960 an Assistant Settlement Commis sioner, exercising the delegated powers of Deputy Se Cement Commissioner under the Displaced Persons Compensation and Rehabilitation) Act, 1958, divided the house No. 6, Street No. 8, Ghandhi Park, Lahore and made an immediate decision about one portion which was in possession of petitioner Iqbal Hussain, a claimant displaced person, and deferred the case for the trans fer of the other portion which was in possession of other non- claimant. By this transfer order the petitioner was given the tenement of Abdul Ghani, non‑claimant, who was also in posses sion of that portion which had fallen to the share of the petitioner. The case of other portion in possession of various other non‑claimants was decided a month later on the 4th of February 1960 and there is no dispute pending about that part of the house.

2. Since the part of the house; which was in possession of Abdul Ghani respondent, was merged into the portion of Iqbal Hussain and it was made into one house, Abdul Ghani, aggrieved of this order of transfer, went in appeal which was dismissed by the Additional Settlement Commissioner on the ground that the form NCH of Abdul Ghani was not traceable. His first revision petition was also dismissed by the Settlement Commissioner on the ground that Abdul Ghani was a non‑claimant and the petitioner was a claimant. Abdul Ghani filed a second revision petition which was dismissed in default by Khan Farzand Ali Khan, Settlement Commissioner, exercising the delegated powers of the Chief Settlement Commissioner on the 4th of November 1961. Abdul Ghani filed an application for its restoration on the 8th of November 1961 and notices on this application were issued by Khan Farzand Ali Khan on the same date calling upon Iqbal Hussain as to why the revision petition of Abdul Ghani should not be restored. Ultimately the revision petition of Abdul Ghani was restored by Mr. Muhammad Rafiq who had succeeded Mr. Farzand Ali Khan, on the 31st of January 1962. This learned Settlement Commissioner, exercising the delegated powers of the Chief Settlement Commissioner, inspected the spot and came to the conclusion that the portion in possession of Abdul Ghani, non‑claimant had a separate entrance and as such it was a distinct entity. He, therefore, modified the order of transfer of the entire portion in favour of lqbal Hussain and both parties were accommodated according to their respective possession. This order of division of the portion of the house in disputer has been challenged on behalf of Iqbal Hussain and the following points were urged in this Court :‑ (i) That there was no form filed on behalf of late Abdul Ghani and as such he was not eligible for the transfer of the house. (ii) That the records in this case were not called for before the 13th of January 1962 and as such Mr. Muhammad Rafiq could not exercise his second revisional powers as the same had been taken away by Displaced Persons (Compensation and Rehabilitation (Second Amendment) Ordinance 11 of 1962 read with Ordinance XIII of 1962. (iii) That there was no power for the restoration of the revision petition and the Chief Settlement Commissioner has acted in excess of his jurisdiction vesting in him by law by restoring it to the file and deciding it on merits.

3. Taking these contentions seriatim I have noticed that the Assistant Settlement Commissioner exercising the delegated powers of Deputy Settlement Commissioner on the 2nd of January 1960 when he passed the order of transfer of the whole portion in favour of Iqbal Hussain, acted in great haste and tried to show by his order that lqbal Hussain, Claimant displaced person, was in possession of that entire portion which he intended to ham transfer in his favour. He did not mention the name of Abdul Ghani, non‑claimant, as one of the occupants of the portions. The Assistant Settlement Commissioner kept the cases of all other non‑claimants, who were in possession of the house, pending for decision and decided them after more than a month on the 4th of February 1960 but he immediately decided the case of the por tion which was in possession of lqbal Hussain and Abdul Ghani. No reasons have been given for this immediate decision as to why he wanted to deal with the portion of Iqbal Hussain and Abdul Ghani, in the first instance. In the first order, the Assistant Settlement Commissioner did not show the names of the various occupants of the house nor he gave the numbers of their forms. In these circumstances it is hardly believable that the Assistant Settlement Commissioner had the full records of the case before him in the first instance. The Additional Settlement Commissioner dismissed the appeal of Abdul Ghani on the short ground that his form was not traceable although it was noticed by him that a second form submitted by Abdul Ghani on the 1st of February 1960 was on the file. He did not enquire whether Abdul Ghani had submitted any form earlier and dismissed the appeal without going into the merits of the case.

4. Learned counsel for the legal representatives of the deceased, respondent Abdul Ghani has placed a copy of the letter of the Chief Postmaster, Lahore, showing that a registered letter No. 167, dated the 17th of November 1959 was delivered in the office of the Deputy Settlement Commissioner, Farid kot House, Lahore, on the 19th of November 1959. The postal receipt of this registered letter is Annexure R/4 and the acknow ledgment due, which was attached with the letter, shows that the form NCH was received in the office of Deputy Settlement Commissioner Circle IV. It is, therefore, clear that Abdul Ghani had already submitted his NCH form sometimes on the 17th of November 1959 which was duly received in the office of the Deputy Settlement Commissioner on the 19th of November 1959. At any rate, the second form of Abdul Ghani which was filed on the Ist of February 1960 was on the file at the time when the appeal was heard by the Additional Settlement Commissioner and there is no dispute that that form is still available on the record of the Settlement Department. In these circumstances I do not think that the first contention raised on behalf of the petitioner that no form was submitted by Abdul Ghani deceased has any force.

5. About the second contention it was argued on behalf of the petitioner that the revision petition in this case was restored to the file on the 31st of January 1962 and the records were also summoned on that date by the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner but he had no jurisdiction to do so as the powers of hearing a second revision petition had already withdrawn before that date. The original record of the Settlement Department bas been summoned by this Court and the learned counsel for the respondent has drawn my attention to page 15 of the file where notices were issued to the parties by the Chief Settlement Commissioner for hearing the second revision petition for the 4th of November 1961. The office copy of this notice is on page 27 of the file. There is an endorsement on the copy of this notice to the Deputy Settlement Commissioner Centre II, Lahore, with a direction that the records should be sent to the Court of Settlement Commissioner with the powers of Chief Settlement Commissioner before the 4th November 1961. In these circumstances it cannot be urged that the records in the second revision petition of Abdul Ghani were not called for before the 13th of January 1962. 1 have also noticed from the official record that there is an endorsement on the office copy of the notice that the file is lying in the Court of the Assistant Settlement Commissioner, Lahore, and this endorsement bears the date of 2nd of November, 1961. From all this evidence available on the record of the Settlement Department it is established beyond doubt that the records in this case had already been called for by the Chief Settlement Commissioner to hear the second revision petition and the matter was in progress on or before the 4th of November 1961. In these circumstances the order of Mr. Muhammad Rafiq, Settlement Commissioner, exercising the delegated powers of the Chief Settlement Commissioner, cannot be attacked on the ground that he had lost the jurisdiction to hear the second revision of Abdul Ghani.

6. Learned counsel for the petitioner has urged that according to section 23 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, all officers appointed under the Act were to be considered civil Court for the purposes of making enquiry or hearing the appeal under the Act and it was only during enquiry and appeal that the power of restoration of cases dismissed in default could be exercised and this power do not extend to the cases coming up in revision before the Settlement Authorities, therefore, when the revision petition of Abdul Ghani had been dismissed in default by Mr. Farzand Ali Khan, it could not be restored and decided on merits. The contention of the learned counsel for the petitioner is totally misconceived. No doubt under section 23 of the Act the words "inquiry" and "appeal" have been used by the Legislature but this section cannot be said to create a bar for the revisional authority to restore a revision petition, which has been dismissed in default. The Act and the Schemes made thereunder, provide certain limitation and restrictions for the officers making enquiry and hearing the appeals. But so far as the powers of the Chief Settlement Commissioner are concerned it is sufficiently comprehensive and there is no limitation provided by law for the exercise of the revisional powers by the Chief Settlement Commis sioner. Section 20 subsection (2) of the Act, as it existed at the relevant time, reads as under:‑ "The Chief Settlement Commissioner at any time, 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 Commis sioner 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." The language used in the above subsection is in part material with the language of section 435 of the Criminal Procedure Code where the revisional Court has to exercise its jurisdiction for the purposes of satisfying itself to the correctness, legality or pro priety of any order, etc., or as to the irregularity of any proceed ings of an inferior Court and as such there was no necessity for making separate provisions under section 23 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, for the revisional authority to exercise those powers which have been specifically conferred upon the officers making enquiries or hearing appeals. There is no limitation prescribed by law for the Chief Settlement Commissioner to exercise his revisional powers and taking into consideration the vast scope of the powers which were conferred upon the Chief Settlement Commissioner by the above provisions of section 20, subsection (2) of the Act I do not think that it was necessary to give the revisional authority any specified powers for restoration of revision petitions dismissed in default.

7. There are no provisions under the Act for the dismissal of the cases in default but this power can be considered to be inherent in all those Courts or Authorities who exercise quasi- judicial powers as a Civil Court to dismiss a case for want of prosecution and when an order dismissing a case in default is passed, the Court or Authority has inherent jurisdiction to restore it to its file. Under section 23 the officers holding enquiry and hearing appeals have been given power to restore a case dismissed in default when a party is able to make out a case within the meaning of Order IX, rule 9 of the C. P. C. So far as the revisional Court is concerned, its powers are not restricted by any such consideration because it is an accepted principle of the law that when a revision is dismissed on the ground of default, the order of dismissal of default is not a final judgment or order. There was ample power for the review of the orders which were passed by a Chief Settlement Commis sioner according to the then existing provisions of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and although under section 369 of the Criminal Procedure Code there was no power for the review except in cases of clerical errors, arithmetical mistakes, the Lahore High Court has been consistently of the view that an order of dismissal for default was not a judgment within the meaning of section 369, Cr. P. C. and the Courts have inherent powers to restore it for hearing on merits. In this connection reliance can be placed on Kishen Singh v. Girdhari Lai and others (A I R 1924 Lah. 310). Even if I were to bold that there was no power of restoration of a revision dismissed in default with a Chief Settlement Commissioner there was also no such power with him to dismiss the revision in default either and Iqbal as such the revision petition of Abul Ghani has been rightly heard on merits as the records had already been called for on or before the 2nd of November 1961.

8. Mr. Muhammad Rafiq, Settlement Commissioner, exercising the delegated powers of the Chief Settlement Commissioner, passed his order dividing the property after the inspec tion of the house and since he was of the opinion that both portions had separate entrances and were easily divisible, there fore, the portion in possession of Iqbal Hussain petitioner as well as the portion in possession of Abdul Ghani deceased respondent are two different houses and Iqbal Hussain cannot ask for more than one house under the law. Both the parties are displaced persons and substantial justice has been done. I, therefore, see no merit in this writ petition. It is hereby dismissed without there being any order as to costs. K. M. A. Petition dismissed.