P L D 1983 Lahore 37 (PLP)

FAIL-I-MAHMOOD, J.-This Letters Patent Appeal being No. 315 of 1968, has been filed by fourteen persons who claim to be the temporary allottees of lands within the urban area of Crishtian formerly Town Committee and presently a Municipality, to challenge the order of the learned Single Judge of this Court dated 30-10-68 whereby their Writ Petition No. 1109/R-63 against the order of the Chief Settlement Commissioner in review was dismissed.

2. The brief facts of the case are that the appellants on various dates were temporarily allotted lands within the urban area 'of Chishtian. This is evident from a reading of the order of Mr. M. H. Soofi, Chief Settlement Commissioner particularly its paras Nos. 2, 5 and

6. In para. 2, the names of the present appellants are mentioned together with their respective dates of temporary allotments.

3. Mr. M. H. Soofi, the then Chief Settlement Commissioner in his impugned order dated 28-2-63 has, inter alia, held that the request of the present appellants for retention of urban agricultural land in their possession against their rural claim was reasonable and he accordingly directed the Deputy Settlement Commissioner, Bahawalnagar to examine each case individually in the light of the provisions of the second proviso to clause 24 of Supplementary Scheme No. 11 and to his recommendations to him. This was subject to a further condition that if any piece of land had been allotted to any other urban claimant or restored to such a claimant under the order of the Chief Settlement Commissioner, no recommendation will be made in respect of it.

4. The appellants thereupon rushed up to this Court by way of Writ Petition No. 1109/R of 1963. In this petition, four persons namely, Jamil Akhtar, Sh. Iqbal Din since deceased, Mst. Bilqees Khizar and Mst. Zohra Ashraf were impleaded as respondents who are claimants from urban area and had been accommodated by allotment of land in Chishtian.

5. These urban claimants had been made allotments before December, 1960. In this view of the matter, the learned Single Judge rightly came to the conclusion that the Memorandum of the Chief Settlement Commissioner as incorporated vide Correction Slip No. 1 SS 2 dated 20-2-60 as further amended on 26-6-63 shows that the intention of the Government was not to disturb allotments made to urban claimants before December, 1960. That being the case the allotments in favour of private respondents whose names have already been noticed above, suffer from no infirmity.

6. It may, however, be noticed that the writ petition had been filed on behalf of twenty-one affected persons which included even those persons land under whose allotment had been in the meanwhile allotted to private respondents in the writ petition. Such writ petitioners thus stood ousted from contest against urban allottee claimants.

7. This Letters Patent Appeal had been admitted to hearing to consider the contention whether the Chief Settlement Commissioner was justified in making a remand when all the material was before him, in the circumstances, it was incumbent upon him to himself exercise the jurisdiction vesting in him under the said proviso. The L. P. A. was admitted on 4-11-68 to consider this technicality of law and has now come up before us in the year 1982.

8. The learned counsel appearing in support of this L. P. A. has sought to re-urge the ground which was raised at the time of the admission of the L. P. A. We find no substance in this contention for variety of reasons. The order of remand to which exception is being taken by the appellant relates to a factual enquiry and the Chief Settlement Commissioner deemed it fit to call upon the Deputy Settlement Commissioner, Bahawalnagar to examine each -case individually and then send his recommendations to him. In so doing it cannot be said that the Chief Settlement Commissioner's ' order was without lawful authority and of no legal effect. In the circumstances of the case, the Chief Settlement Commissioner undoubtedly possessed the jurisdiction to decide the matter and the same is not being disputed before us. On the contrary, the appellants are basing their case on the strength of the order of Mr. M. H. Soofi, the then Chief Settlement Commissioner. The question whether the case could have been decided by hi on the material available or it required a further enquiry from the field staff was to be judged by the Chief Settlement Commissioner himself. The High Court when examining the legality of an order or proceedings impugned t before it does not sit as a Court of appeal nor would substitute itself for the lower Tribunal even if another view of the matter was possible. The persons invoking the Constitutional jurisdiction of the High Court in order to succeed must show that the order or proceedings being challenged suffered from such an illegality as rendered them as void. If the prayer be for a direction in the nature of mandamus, then the petitioners must establish a case of failure to exercise jurisdiction. The Chief Settlement Commissioner has exercised the jurisdiction in their case and mere fact that he called for a factual report from a subordinate; Officer to be submitted after scrutiny in each individual case is an order of the kind which could have made by him. Therefore, no valid exception can be taken to this aspect of the order of the Chief Settlement Commissioner.

9. It may be observed that the revisional powers of the Chief Settlement Commissioner under section 19 of the Displaced Persons (Land Settlement) Act were very wide and the Legislature had clothed him with the authority? to pass any order which he found fit in the circumstances of the case. The provisions of section 19 of Land Settlement Act were in pari materia with the provisions of section 20 of the Displaced Persons (Compensation & Rehabilitation) Act. The dictum of the Supreme Court In re: Sheikh Rashid Ahmad v. Settlement Commissioner (1970 S C M R 278), would thus apply with full force to the instant case.

10. However, it may further be noticed that this argument is no more available to the appellants for the simple reason that the Repealing Act of 1975, now carries its own Scheme. It provides that all pending proceedings before designated functionaries since before the repeal of the Evacuee Law or the cases remanded by the High Court or the Supreme Court after such repeal are to be disposed of finally by the Notified Officer in accordance with the provisions of the repealed Act as if such law was still in force. In view of this scheme of law, the present case has to be finally disposed of by a Notified Officer whether it be Member Board of Revenue (Settlement & Rehabilitation), or Commissioner or an Additional Commissioner of a Division or any other Officer who is conferred with requisite powers through a notification to exercise the powers of Chief Settlement Commissioner or a Deputy Settlement Commissioner under the relevant provisions of the repealed statute in his capacity as a persona designata. There seems to be a misunderstanding in the mind of the learned. counsel for the appellants as. regards the existence of the office of the Chief Settlement Commissioner. It admits of no doubt that with the repeal of a law, all stipulated functionaries who are creatures of a statute cease to exist and cannot survive the statute except in the manner and to the extent visualised by the saving clause. The General Clauses Act, would have no application because the Displaced Persons and Evacuee Laws (Repealed) Act, 1975, contains its own peculiar saving clause dealing with the manner and method of disposal of pending proceedings. We may advantageously quote the enunciation of law by the Supreme Court of Pakistan In re: K. A. Jalsinghani v. Custodian of Evacuee Property and others (P L D 1965 S C 453) at page 458 of the report it has been held: "It is not necessary however to pursue this matter further as section 6 applies in accordance with its wording only where a different intention does not appear and in the present case there is a saving clause in the repealing enactment which should govern the question as to what proceeding will remain unaffected. According to the saving clause which has been reproduced above review applications pending immediately before the commencement of this Ordinance on which proceedings had started before the commencement of the Ordinance remained unaffected. As only applications for review have been mentioned in the saving clause it is proper to infer that suo motu -reviews were not intended to be saved. From the fact that the Legislature provided a saving clause it is apparent that the question as to what should be saved was considered of the Legislature. If the intention was to save suo motu proceedings also there is no reason why those proceedings should not have been mentioned. Expressio unius exclusio alterius, is not a rule of universal application for the Legislature may mention a matter on account of excessive caution, but if it be clear that the mention of one out of several matters is not on account of excessive caution it is legitimate to regard the provision as exhaustive and exclusive of what is not mentioned in it. In the present case the Legislature appears to have made a distinction for which a good reason existed. It has continued pending proceedings in the case of an application because to submit an application was the right of a party and the right having been exercised the proceedings should not on account of the repeal of th. power of review become infructuous. On the other hand there was no right of any person involved in a suo motu review, the only person aggrieved by the loss of further jurisdiction being the Custodian himself." Under the Scheme of the Repealing Act, the Notified Officer would be exercising the relevant powers at the level of conferment of those powers by the Provincial Government. Therefore, in any view of the matter, the appellants cannot claim any vested right that their matter should b adjudicated upon by any particular functionary. The principal ground which was being urged, therefore, fails and need not detain us any longer.

11. The next contention of the learned counsel for the appellants is that the learned single Judge has not correctly appreciated the factual position because relief could have been refused to the extent of thess petitioners whose area had been found to be allotted before December, 1960, to four urban claimants who were private respondents to the writ petition. We have examined the matter and find that the learned Single Judge was conscious of the fact that Mr. M. H. Soofi, the then Chief Settlement Commissioner, had recognised the right of the present appellants to retain the land under their temporary allotment provided the same had not been allotted to an urban claim holder before the target date or the same was not restored in allotment to such claimants by the impugned order of the Chief Settlement Commissioner. In respect of the appellants the Chief Settlement Commissioner had directed the Deputy Settlement Commissioner (Lands), Bahawalnagar to examine each case individually and then report the matter to him. The fate of the appellants thus hinged on the factual finding being given after scrutiny and verification. It is thus difficult to appreciate as to' how after reaching the conclusion that allotments in favour of the four private respondents to the writ petition were rightly made, he deemed it fit to dismiss the writ petition in respect of all the petitioners before him i. e. even those appellants in respect of whom a determinative finding had yet to be recorded in this respect under the very order of the Chief Settlement Commissioner. The grievance of the appellants it appears, has not been properly construed nor attended to. It was urged before the learned Single Judge and it has been re-asserted before us that in the case of the present appellants no area under their allotment bad ever been allotted to any urban claimant. If that be correct, the learned Single Judge was not right in dismissing the writ petition in respect of all the petitioners before him including the present appellants. The learned counsel rightly does not take exception. to the order of the learned Single Judge in so far as it pertains to the allotments made in favour of those claimants namely, Jamil Akhtar, Sh. lqbal Din, Mst. Bilqees Khizar and Mst. Zohra Ashraf, i. e. private respondents in the writ petition. It is further explained by . the learned counsel that it is for this reason that those urban claimants had not been impleaded as respondents in the L. P. A. and the petitioners affected by those allotment have not appealed. The Settlement Department despite service has not put in appearance to oppose this L. P. A.

12. We find substance in the contention of the learned counsel for the appellants that they could be non-suited only in case it was found as a fact that the land under their temporary allotment had either been allotted to the urban claimants before the target date or restored in favour of such claimants by the. order of this Officer. The Chief Settlement Commissioner after having recognized their right in principle to retain their temporary allotments had referred the matter to the Deputy Settlement Commissioner, Bahawalnagar for a factual enquiry and report. It shows that there was nil determinative adjudication by any functionary in so far as this aspect of the case is concerned. The Chief Settlement Commissioner has been cautious enough to further direct that should it be found by the Deputy Settlement Commissioner, Bahawalnagar that any piece of land in the temporary allotment of the appellants had been allotted to any other urban claimant or restored to such claimants under his order, no recommendation would be made in respect of it. This, in other words, means that the moment it is found as a fact that the land under temporary allotment of the appellants had either been allotted to urban claimants before December, 1960, or their allotment had been restored under the order of the Chief Settlement Commissioner, the appellants would stand ousted. This aspect of the matter no doubt appears to have escaped notice of the learned Single Judge who, speaking with due defence, acted under the impression . as if the appellants were hit by the allotment made in favour of the four respondents. This being a wrong assumption as to a material fact it would vitiate the impugned judgment of the learned Single Judge to the extent of the case of the appellants.

13. We, with regret observe that the appellants are themselves to blame for having indulged in unnecessary litigation on the basis of a mere technicality with the result that they have been thrown back by a period of 19 years. In the circumstances of the case, this appeal partly succeeds and we set aside the order of the learned Single Judge dated 30-10-68 to the extent of the appellants entitlement. The impugned order to the extent of allotment of respondents 1 to 4 in the writ petition is maintained. We would accordingly remand the case for the factual enquiry and decision in the light of the direction contained in the order of the Chief Settlement Commissioner dated 28-2-63. The Member, Board of Revenue (Settlement & Rehab.) may either himself dispose of this matter or entrust it to any other competent Notified Officer for final disposal. The net result of our order of remand would be that if it is found as a fact that the lands in appellants' temporary allotments to the extent that these were allotted to any urban claimant before the specified date, the appellants would have no claim to retain the land in question. Similarly; if it is found that the land in their temporary allotments had been restored in favour of some urban claimants by the impugned orders of Chief Settlement Commissioner, even then the appellants would stand precluded. In case, however, the assertion of the appellants is found to be correct that they are still the allottees of these lands and no one else was ever allotted the same, as has been asserted before us, then their cases shall be disposed of by the Notified Officer in the light of the directions contained in the order of Mr. M. H. Soofi, the then Chief Settlement Commissioner, as well as in accordance with the law governing the case. Since no body has appeared to oppose this L. P. A., there shall be no order as to costs. Order accordingly.