P L D 1964 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑It is not necessary to give a detailed account of the facts leading to this reference by our learned brother Sardar Muhammad Iqbal, J. since the Writ Petition in which the reference has been made is not before the Full Bench for decision. Suffice it to say, that in support of the Writ Petition No. 87/R of 1961, Abdul Ghani, applicant, maintained that the division of the composite evacuee property bearing No. 45 Mananwala Bazar Shah Kot, District Sheikhupura, by the Deputy Settlement Commissioner in exercise of the powers delegated to him by the Chief Settlement Commissioner under section 2 (12) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act), was not open to scrutiny in revision by the Settlement Commissioner. Reliance in support of this contention was placed on the following observations of the Supreme Court dismissing Civil Petition for Special Leave to Appeal (No. 58 of 1962) from the order of this Court in Ch. Bahar Muhammad v. Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore etc. (P L D 1962 Lah. 209) :‑ "The next point urged is that the power to declare a house divisible or indivisible resides only In the Chief Settlement Commissioner and the other Settlement Officers exercise this power as a delegatee of the Chief Settlement Commissioner and therefore the Chief Settlement Commissioner had no power to interfere with the order of the Settlement Commissioner or the Additional Settlement Commissioner who had found the house to be indivisible. The argument is correct in so far as it is urged that the Chief Settlement Commissioner could not interfere with his own delegated powers." The learned Single Judge was inclined to adopt the view that in making these observations the Supreme Court had decided that the Chief Settlement Commissioner could not interfere with his own delegated power, but in view of the decision of this Court in aforementioned case and Mst. Mahmooda Begum v. Chief Settlement Commissioner, West Pakistan (P L D 1962 Lah. 911), he considered it expedient to refer the following questions to a larger Bench for deter mination :‑ (i) Whether orders made by the Settlement Authorities as delegate of the Chief Settlement Commissioner under section 31 (2) of the Act are open to scrutiny in appeal or revision under sections 19 and 20 of the Act; and (ii) Whether the decision of the Supreme Court in Bahar Muhammad's case precluded this Court under Article 63 of the Constitution from recording a contrary conclusion. Reply to the first question depends on whether delegation of powers by competent authority results in parting with that power completely and, therefore, no conditions can be imposed on the exercise of those powers by the competent authority or by statute. Before proceeding further, it will be advantageous to make a brief survey of the relevant provisions of the Act to ascertain whether delegation of powers of the Chief Settlement Commis sioner under sections 2 (4) and 2 (12) of the Act to the Deputy Settlement Commissioner, Additional Settlement Commissioners and Settlement Commissioners etc., is subject to any condition or not.

2. A "house" is defined in section 2 (4) of the Act, Proviso to subsection lays down that where any building or premises not declared under paragraph 16 of the Schedule to the Act to be a big mansion or a hotel consists of more than one residential unit, and such units are in the possession of several persons, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house. It follows that if the Deputy Settlement Commissioner transfers the whole house, he has acted in pursuance of his normal power under the Act and not as a delegate of the Chief Settlement Commis sioner. The same result follows from the definition of the "shop" in section 2 (12) of the Act. The second proviso which is more pertinent to the facts of the present case lays down that where any such building or premises consists of both residential and business units, the Chief Settlement Commissioner may order that the whole of such building or premises or such part or parts thereof, as may be specified in the order, shall be deemed to be a shop or a house.

3. Section 9 of the Act confers on the Central Government power to appoint a Chief Settlement Commissioner and such num ber of Settlement Commissioners, Additional Settlement Commis sioners, Deputy Settlement Commissioners and Assistant Settlement Commissioners and any other officer as may be necessary for the performance of duties and functions assigned to them by or under this Act. Under subsection (2) the Chief Settlement Commissioner is to discharge his functions and perform his duties under the general superintendence and control of the Central Government and under subsection (3) the other officers mentioned above are to discharge the functions assigned to them by or under the Act under the general superintendence and control of the Chief Settle ment Commissioner. Section 19 of the Act provides that any person aggrieved by an order under this Act may prefer an appeal to: (a) the Deputy Settlement Commissioner where an order has been passed by an Assistant Settlement Commissioner; (b) the Additional Settlement Commissioner, where an order, not being an order passed in appeal under clause (a) has been passed by a Deputy Settlement Commissioner; (c) the Settlement Commissioner where an order not being an order passed in appeal under clause (b) or in revision under subsection (3) of section 20 has been passed by an Additional Settlement Commissioner. Section 20 of the Act confers revisional jurisdiction on the Chief Settlement Commissioner, Settlement Commissioners and Additional Settlement Commissioners for the purpose of satisfying themselves as to the correctness, legality and proprietary of orders passed by the Subordinate Settlement Authorities and passing such orders in relation thereto.

4. Finally, section 31 (2) of the Act authorizes the Chief Settlement Commissioner to delegate all or any of his powers subject to the provisions of the Act and the rules made thereunder to any Settlement Commissioner, Additional Settlement Commis sioner, Deputy Settlement Commissioner, Assistant Settlement Commissioner, subject to such conditions, if any, as may be specified in the notification. In pursuance of the aforesaid provisions of section 31 (2) of the Act the Chief Settlement Commissioner on the 14th of October 1959, issued the following Notification:‑ "In exercise of the powers conferred upon me by sub section (2) of section 31 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958, I, Syed Hashim Raza, Chief Settlement Commissioner, Pakistan, hereby delegate to all Settlement Commissioners, Additional Settlement Commis sioners and Deputy Settlement Commissioners in West Pakistan and Karachi the powers of the Chief Settlement Commissioner under proviso to subsections (4) and (12) of section 2 of the aforesaid Act." Similar notifications have also been issued in respect of other powers of the Chief Settlement Commissioner under the Act, but it is not necessary to refer to them for the purposes of this order.

5. There is a basic difference in the incidence of delegation of power by a competent authority to another authority and investment of the powers of the competent authority on another authority whether subordinate to it or not. It is an accepted rule that while delegating its powers to another authority the competent authority does not part with those powers altogether and may, therefore, impose such conditions on the exercise of those powers by its delegate as it may deem fit. In the Notification under section 31 (2), reproduced above, the Chief Settlement Commissioner has not imposed any conditions on the exercise of his powers by the delegates. But apart from the, statutory conditions contained in sections 9, 19 and 20 of the Act a number of other conditions are to be found in the Settle ment Scheme, the Rules framed under the Act and the instructions issued by the Chief Settlement Commissioner from time to time in pursuance of his powers under section

9. See for example instructions as to how a house, a shop or a composite building may be divided under sections 2 (4) and 2 (12) of the Act. Similarly, a detailed procedure has been laid down in the Settlement Scheme for disposal of applications for transfer of houses and shops etc. If there is any defect in the C H or C S Form, as the case nay be, the form cannot be rejected bin the applicant is to be asked to make the necessary correction, In case of more than one applicant for transfer of a house as a shop they are to be given opportunity to lead evidence in support of their respective entitlements. The division of houses and shops into more than one unit is also regulated by comprehensive r instructions. Surely, the Legislature cannot be credited with the intention that however flagrantly these instructions were violated by the delegates their orders were not open to correction in an appeal or revision by the competent authority under sections 19 and 20 of the Act, or in pursuance to the general powers of the superintendence and control vesting in the Chief Settlement Commissioner under section 9 of the Act. The clause in section 31 (2) that the Chief Settlement Commissioner may, subject to the provisions of the Act and the rules framed there under, delegate all or any of his powers . . . . must, therefore, be construed as subjecting the orders made by the delegates to the incidence of an appeal or revision under sections 19 and 20 of the Act.

6. Another aspect of the case is that there is a basic difference between the status of a delegate and an authority or officer invested with the powers of a competent authority. The former remains subordinate to the superintendence and control of the delegator according to the conditions imposed on the delegation of powers, while the latter has the status of the competent authority itself. No conditions can, therefore, be imposed on the exercise of his powers by the competent authority as in the case of a delegate.

7. A common place incidence is to be found under almost all the evacuee laws. For example, Additional Rehabilitation Commissioners were invested with the powers of the Rehabilitation Commissioners to dispose of revision petitions from the orders of the Additional Rehabilitation Commissioners. Similarly, the Additional Claims Commissioners were invested with the powers of the Claims Commissioners and Settlement Commissioners were invested with the powers of the Chief Settlement Commis sioner to dispose of second revision petitions under section 23 of the Act. It is obvious that in exercising these powers the subordinate authorities acted as the competent authority and not as delegates. A Rehabilitation Commissioner could not, there fore, entertain a third revision petition from the order of the Additional Rehabilitation Commissioner for which there is no provision in the Rehabilitation Act.

8. In Huth v. Clarke ((1890) 25 Q B D 391, 395) of the Report in construing the incidence of delegation of powers Wills, J., observed as follows:‑ "The case really turns on the meaning of the word `delegate', a word which has appeared on the statute book for the last thirty years, occurring, as it does, at least as far back as 24 & 25 Viet. c. 133, sched., part II (6). Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority, to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afford by the maxim, Delegatus non potest delegare, as to the meaning of which it is significant that it is dealt with in Broom's Legal Maxims under the law of contracts, it is never used by legal writers, so far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights. If it is correct to use the word in the way in which it is used in the maxim, as generally understood, the word `delegate' means little more than an agent." Dealing with this aspect at page 394, Lord Coleridge, C. J., observed as follows:‑ "But delegation does not imply a denudation of power and authority the 6th Schedule of the Act provides that the dele gation may be revoked or altered and the powers resumed by the executive committee. The word `delegation' implies powers are committed to another person or body which are as a rule always subject to resumption by the power delegating, and many examples of this might be given. Unless, therefore, it is controlled by statute, the delegating power can at any time resume its authority."

9. Mr. Fazl‑e‑Mahmood, learned counsel for the petitioner, drew our attention to the following judgment of Evershed, L. J., in Blackpool Corporation v. Locker ((1948) 117 L J R (K P) 847, 870) and maintained that the definition by Wills, J., of a `delegate' no longer holds good:‑ "Without attempting any precise definition, I greatly doubt whether one to whom, under the regulation, the statutory power of requisition has been delegated by a competent authority. If it be true, in accordance with the terms of the Emergency Powers (Defence) Act, 1939, that such a delegate (no less than the competent authority) acts `on behalf of His Majesty' it does not seem to me to follow that he acts on behalf, in the sense of being the agent, of the competent authority. I need not, however, further pursue the matter since, as already stated, I am satisfied . . . . ." We are unable to accept the view of the learned counsel because Evershed, L. J., did not give any considered opinion on the subject and the question whether a delegate is an agent or not is not so much in point as the fact that whether delegation of power denudes and divests the competent authority of that power or not and Evershed, L. J., has not expressed any disagreement on this point with the views of Wills, J. and Lord Coleridge, C. J.

10. Some Indian authorities on the incidence of delegation of powers were brought to our notice, including the decision of the Supreme Court in Roop Chand v. State of Punjab (A I R 1963 S C 1503), in which Sardar, J. delivering the majority judgment of the Court, relied on the observations of Wills, J., referred to above, in holding that an order passed by an officer on delegation to him under section 41 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, of powers of the Government under section 21 (4) is for the purpose of the Act an order of the Government and as such not open to further scrutiny by way of appeal or revision Kapur and Hidayatullah, JJ., took a contrary view which, for the reasons mentioned in their judgment has appealed to us more than the majority judgment. Firstly, in defining "delegate" as a little more than an agent Wills, J., did not imply that there was no difference between the competent authority and the delegate. Of course, if the agent has exercised the powers assigned to him by his principal, the latter is as much bound by it as if he had exercised those powers himself, but certainly the delegation or assignment of power in favour of an agent can be subjected to conditions, such as prior or subsequent approval of the acts performed by the agent. This is brought out both by Wills, J. and Lord Coleridge, C. J., in observing that delegation of powers does not result in parting with those powers and that 41, does not imply a denudation of powers and authority. In this view, the order made by the officer who had exercised the powers of the Government delegated to him under section 41 of the East Punjab Holdings (Consoli dation and Prevention of Fragmentation) Act, 1948, was not an order made by the Government as held by Kapur and Hidayatullah, JJ.

11. For the foregoing reasons, we hold that orders made by the Assistant Settlement Commissioners, Deputy Settlement Commissioners. Additional Settlement Commissioners and Settle ment Commissioners in exercise of the powers delegated to them by the Chief Settlement Commissioner are as much subject to his general superintendence and control under section 9 of the Act and open to scrutiny in an appeal or revision under sections 19 and 20 of the Act as the orders made by them in exercise of their normal functions under the Act.

12. The answer to the second question does not present much difficulty. The aforesaid Bahar Muhammad sought leave to appeal from the order of this Court, referred to above, inter alia on the ground that the order of the Additional Settlement Commissioner by which the house in dispute was held to be indivisible and transferred to him was not open to revision by the Chief Settlement Commissioner under section 20 (3) of the Act, In refuting this contention, their Lordships of the Supreme Court observed: "The next point urged is that the power to declare a house divisible or indivisible resides only in the Chief Settlement Commissioner and the other Settlement Officers exercise this power as a delegate of the Chief Settlement Commissioner and therefore the Chief Settlement Commissioner had no power to interfere with the order of the Settlement Commissioner or the Additional Settlement Commissioner who had found the house to be indivisible. The argument is correct in so far as it is urged that the Chief Settlement Commissioner could not interfere with his own delegated power. Learned counsel for the petitioner has overlooked that this argument in fact goes against the petitioner. The D. S. C. had pronounced the house to be divisible. This he had done in exercise of a power delegated by the Chief Settlement Commis sioner. His decision, therefore, could not have been interfered with by the Additional Settlement Commissioner." As a general rule, if delegation of powers is not subjected to any conditions, the exercise of those powers by the delegate cannot be interfered with by the competent authority. In the present case, the position is, however, different. As seen, the authority vested in the Chief Settlement Commissioner to delegate any or more of his powers under the Act to the Subordinate Settlement Authorities is, itself, subject to the provisions of the Act. including those under sections 9, 19 and

20. Further, as brought out above, a delegate does not acquire the status of a delegator. It, therefore, follows that a Deputy Settlement Commissioner while exercising powers under section 2 (4) or 2 (12) of the Act does not acquire the status of the Chief Settlement Commis sioner. None of these considerations was before their Lordships of the Supreme Court when they made the observations that the Chief Settlement Commissioner could not interfere with his own delegated powers. Indeed, it was not necessary for them to examine the incidence of exercise of delegated powers by the Deputy Settlement Commissioner in that case because the argument in fact went against the petitioner. We, therefore, feel justified in construing the observations of the Supreme Court relied upon by the petitioner as a general statement of law without deciding that an order made by Deputy Settlement Commissioner as a delegate of the Chief Settlement Commissioner was not open to correction under sections 9, 19 and 20 of the Act.

13. Our attention was next drawn by the learned counsel for the petitioner to a later decision of the Supreme Court in Fateh Muhammad v. Maula Bakhsh (P L D 1963 S C 311) and it was urged that their Lordships have impliedly held in this case that the Chief Settle ment Commissioner was not competent to interfere with the exercise of powers of his delegate under section 31 (2) of the Act. The inference drawn by the counsel is wholly unwarranted because in each case the Deputy Settlement Commissioner had acted in the exercise of his normal powers and not as a delegate of the Chief Settlement Commissioner. The question whether an order made by a delegate of the Chief Settlement Commissioner under sections 2 (4) and 2 (12) of the Act could be interfered with under sections 9, 19 and 20 of the Act, therefore, did not come under consideration of their Lordships. In dealing with Fateh Muhammad's case at page 317 of the report their Lordships observed as follows:‑ "The powers exercisable by the subordinate officers in pursuance of those principles could not be said to be delegated powers. The Chief Settlement Commissioner could obviously not be expected to personally pass orders in each individual case of converted property. The number of such properties within his jurisdiction would be very large. The only practical course open to him therefore, was to issue general directions to be followed by his subordinates and this was actually what he did. The orders passed by the subordinate officers in pursuance of those guiding principles laid down by the Chief Settlement Commissioner, would attract all the incidents of appeal, revision and review under the Act." Similarly, in dealing with Amir Begum's case at page 319 of the report their Lordships said:‑ "The building in this appeal Is obviously a compositive one as it contains two shops besides the residential portion. So far as the two shops are concerned, the Deputy Settlement Commissioner as well as all the higher authorities treated them as separate units and even if the Deputy Settlement Commis sioner could be said to have exercised his powers as a delegate, in this respect, there has in fact been no interference by the higher officers with his decision in this regard. The Deputy Settlement Commissioner further, could not be said to have exercised the delegate's power in declining to divide the residential portion itself under clause (12) of section 2 of the Act. The delegate's power was under this provision to order a division. In so far as he passed no such order it could not be said that he had exercised any but his normal powers under the Act. Such an order was subject to all the incidents of appeal and revision and no exception could be taken to the modifications of such an order by the higher authorities in the Settlement hierarchy. It may be mentioned that the Deputy Settlement Commissioner did not expressly say that he was exercising any powers as a delegate of the Chief Settlement Commissioner and there is no other indication to point to such a conclusion." Similar observations were made by their Lordships in respect of the other two matters before them. It will, thus, be seen that there is no implied decision in this case that the Chief Settlement Commissioner could not interfere with his delegated powers.

14. For the foregoing reasons, our answer to question No. 1 is in the affirmative and to question No. 2 in the negative. The Writ Petition No. 87/11 of 1961, will now go back to the learned Single Judge for disposal in accordance with law. A. H. Reference answered.