P L D 1967 Karachi 311 (PLP)

(3) That it is learnt that somehow or other the defendant, who is keeping the upper portion of the said premises, has been issued a P. T. O. for the whole of the premises. Prayer It is, therefore, prayed that in the face of the applicant's right, the defendant has no case and the P. T. O. wrongfully issued to him is liable to be cancelled and the applicant be kindly issued a P. T. O. for the same." The application was rejected by the Deputy Settlement Com missioner vide his order dated the 27th of April 1962, the copy of which is Annexure 'D‑1'. Against that order Habib filed an appeal before the Additional Settlement Commissioner, who vide his order dated the 20th of July 1962, the copy of which is Annexure 'E' set aside the order of the Deputy Settlement Com missioner transferring the property in dispute to the petitioner on the ground that the Deputy Settlement Commissioner was never delegated the powers of the Additional Settlement Commissioner and as such the N. C. H. form of the petitioner, which was admitted by him on the 23rd of March 1960 was not valid. He ordered that the entire building be put to an open auction. Against that order the petitioner went up in revision before the Settlement Commissioner, who, vide his order dated the 9th of February 1963, modified the order of the Addi tional Settlement Commissioner in so far as the residential flat was concerned. In other words he restored the order of transfer of the flat in favour of the petitioner. With regard to the shop ha upheld the order of the Additional Settlement Commissioner. The petitioner aggrieved by that order has invoked the writ jurisdiction of this Court.

2. This writ petition was admitted at the preliminary hearing on the following two points :‑ (1) That the Deputy Settlement Commissioner having divided the house into three portions, each portion consisting of a residential unit and "a shop, the Additional Settlement Commissioner, as the delegatee of the Chief Settlement Com missioner, could not interfere with that order. (2) That no appeal lay against the order passed in review by the Additional Settlement Commissioner.

3. So far as the first ground is concerned the Supreme Court in more than one pronouncement held that on the exercise of the delegated powers by the Deputy Settlement Commissioner with regard to the division of houses his order became final and was not liable to be interfered with in appeal or revision. This position has now been charged because of the Displaced Persons Laws Amendment Ordinance, 1965 (Ordinance XVIII of 1965). By this Ordinance a new subsection was added to section 31 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This is numbered as subsection (3) and reads as follows :‑ "(3) Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) shall be, and be deemed always to have been subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Com missioner, Additional, Deputy or Assistant Settlement Com missioner, as the case may be, is so subject." It may be noted that Chapter VI of the Act which is mentioned in this subsection relates to appeal, revision and review. In any case I find that there is no order of the Deputy Settlement Commissioner on the file dividing the property into three portions. The learned counsel for the petitioner also admitted that he was not able to trace the said order from the file, otherwise ho would have filed its copy along with the writ petition. In view of this above this ground taken up by the petitioner is no longer available.

4. Ground No.2.‑From the perusal of the application submitted by Habib it is clear that he wanted the Deputy Settle ment Commissioner to review his previous order transferring the property to the petitioner. This application was presented before the Deputy Settlement Commissioner on the 5th of March 1962. By virtue of the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance (II of 1962), which came into force on the 13th of January 1962, section 21, sub sections (1), (1‑A) and (2) were omitted. In other words the power of review was taken away. This Ordinance was, however, amended by Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance (XIII of 1962). Section 2 of this Ordinance reads as follows:‑ "Insertion of section 7, Ordinance II of 1962.‑In the Dis placed Persons (Compensation and Rehabilitation) (Amend ment) Ordinance, 1962 (II of 1962), after section 6, the following new section shall be inserted and shall be deemed always to have been so inserted ; `

7. Savings ‑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), (1‑A) and t2) of section 21 of the said Act shall not affect any case or proceeding, the record 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 im mediately before the commencement of this Ordinance'." As already mentioned above the application was filed by Habib on the 5th of March 1962 when the power of review had been taken away and, therefore, the Deputy Settlement Commissioner had no jurisdiction to entertain that application. If that is so, the appeal against the order of the Deputy Settlement Com missioner also did not lie before the Additional Settlement Commissioner. The learned Additional Settlement Commissioner (Legal), however, argued that the application did not amount to review, but it was only a prayer that the shop in question be transferred to the applicant on his C. S. Form. This contention has no force because in the application it is specifically mentioned that the P. T. O. already issued in favour of the petitioner should be cancelled and instead the P. T. O. be issued in the name of the applicant. In other words, the applicant wanted the D. S. C. to review his previous decision and issue the P. T. O. in his favour.

5. In the result I accept the writ petition with costs, set aside the orders of the Additional Settlement Commissioner and the Settlement Commissioner, and restore the original order of the Deputy Settlement Commissioner transferring the shop to the petitioner. K. B. A. Petition accepted.