P L D 1977 Supreme Court 503 (PLP)

MUHAMMAD HALEEM, J.-This appeal is by special leave of this Court against the judgment dated 8-10-1973 of a learned Single Judge of the Lahore High Court by which Writ Petition No. 165-R of 1965 was dismissed. The dispute relates to the transfer of Shop No. 57 and the residential portion bearing Nos. 54 and 55 of a building situated in the locality called Mareer Hassan at Mayo Road, Rawalpindi Cant . I has another shop bearing No. 56 which was transferred to Umer Fayyaz Warsi about which there is no dispute. Shop No. 57 was in possession of A. W. Khan, the husband of the appellant and a refugee, The wife being a claimant displaced person filed C. S. form for the transfer of shop. However, by an order signed by the Assistant Settlement Commissioner on 12-3-1960 and countersigned by the Deputy Settlement Commissioner on 1?r3-1960 not only the shop but the residential portion bearing Nos. 54 and 55 were also transferred to her. Umer Fayyaz Warm having applied for the transfer of the entire building as being one unit filed an appeal before the Additional Settlement Commissioner, Rawalpindi who dismissed it by order dated 7-11-1960 holding that it was hopelessly time-barred. The revision also failed as the Settlement Commissioner held that both Umar Fayyaz Warsi and the appellant were claimants and none of them could claim preference over the other for the transfer of the entire building. Accordingly a P. T. D. was issued on 27-8-1963 in favour of the appellant who thereupon served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on the respondent and later filed an ejectment application for his eviction on 29-8-1964. The respondent is a local and had not applied for the transfer of the residential portion bearing Nos. 54, 55, but he filed a revision before the Settlement Commissioner under section 20(3) of the said Act on the 16th June 1965, in which he assailed the transfer of the residential portion bearing Nos. 54, 55 to the appellant on the ground that she had only applied for the transfer of the shop bearing No. 57 and not the residential portion and that to this extent the transfer was invalid. The Settlement Commissioner by order dated 9-11-1965 held that the Assistant Settlement Commissioner was not competent to transfer under the Settlement Scheme No. I as that power was expressly conferred on the Deputy Settlement Commissioner who merely countersigned the order without applying his mind to the entitlement of the appellant and, therefore, it was not a legal order of transfer. The Settlement Commissioner further bald that the appellant had applied for the transfer of the shop only and not the residential portion which too was illegally transferred to her and therefore, he canceled the transfer documents and remanded the case to the Deputy Settlement Commissioner for fresh disposal of the C. S. form filed by the appellant. Aggrieved by this order the appellant assailed it in writ jurisdiction. A learned Single Judge in the High Court dismissed the petition. It was contended before the learned Single Judge that tea order dated 8-3-1960 passed by the Assistant Settlement Commissioner was a note which was duly approved by the Deputy Settlement Commissioner and hence it operated as an order of transfer. This contention was repelled by the learned Single Judge who held that the order as it was worded amounted to an actual order of transfer which the Assistant Settlement Commissioner was not competent to pass and therefore, it had no validity. He was next contended that the question of transfer of the residential portion having been dealt with previously by the Settlement Commissioner, hr could not review the previous order on the application of the respondent. This contention was also held to be without substance as the learned Judge was of the opinion that the appellant who was tee respondent in those proceedings did not object to his jurisdiction to review the order, hence the previous litigation initiated by Umer Fayyaz Warsi did not debar the Settlement Commissioner from exercising his sue mote revisional jurisdiction, particularly when the initial order of transfer was not passed by a competent authority. Leave to appeal was granted to consider the following questions of law ; (i) As to whether the High Court failed to notice that the Assistant Settlement Commissioners (Validation of Order) Act, 1975 had validated the order of transfer dated 8-3-1960 much before the High Court became seized of the dispute and (ii) As to whether the appellant could be said to be estopped from raising the question of jurisdiction of the revisional authority in setting aside the order of transfer in the capacity of a respondent before it in the High Court. Mr. Akhlaque Hussain. learned counsel for the appellant raised the same argument as was raised before the High Court that the order should be taken to be a note and that as it was countersigned by the Deputy Settlement Commissioner, it operated as a valid order of transfer. As will be presently seen, this contention is without substance. Paragraph 7 of Settlement Scheme No. I authorises the Deputy Settlement Commissioner to scrutinize the applications for the transfer of shops and houses, paragraph 8 of the said Scheme empowers him to determine the entitlement of a claimant and para. 16 authorises him to pass an order for the transfer of shops or houses. Accordingly he was legally bound to apply his mind to the case of the claimant seeking transfer. This function could not be abdicated to the , Assistant Settlement Commissioner. Hence mere countersigning the order could not be taken to be an exercise of jurisdiction vested in him in accordance with law as held by this Court in Ghulam Mohyuddin v. Chief Settlement Commissioner P L D 1964 S C 829 and Sh. Khurshid Ahmad v. Settlement and Rehabilitation Commissioner and another P L D 1971 S C

498. As such there was no proper disposal of the C. S. Form. No attempt appears to have been made to show that the Deputy Settlement Commissioner had independently applied his mind to the entitlement of the d claimant apart from countersigning the note and, therefore, the Settlement Commissioner was justified in holding that there was no valid order of transfer in favour of the appellant. The learned counsel in the alternate contended that even if the signature of the Assistant Settlement Commissioner be regarded as invalid, yet that infirmity will not render the order invalid. But again the Deputy Settlement Commissioner not having applied his mind to the entitlement of the claimant, it-cannot have the colour of a valid order. The learned counsel neat contended that the Settlement Commissioner had no jurisdiction to cancel the P. T. D. as he had become functus officio and for this proposition he relied on Muhammad Shafi v. Maul Din Khan and 3 others P L D 1976 Lah. 17 and Syed Murid Hussain Shah v. Mufti Muhammad Yousaf and others 1974 S C M R

8. Examining the implication of the words 'final order' as defined in paragraph 2(b) of the Permanent Transfer Rules, it becomes obvious that such order should be in respect of the entitlement of the proposed or provisional transferee passed by a competent Settlement Authority or Court. A P. T. D. can only he issued if there was a final order of the nature mentioned above. However in the instant case the order transferring she shop and the residential premises was not an order passed by a competent authority in accordance with law and, therefore, its consequence would be that the C. S. form would c still be pending for disposal. It is difficult to accept that such order being otherwise inoperative could confer any right on the appellant merely by the Issuance of the P. T. D. which is issued on the passing of the final order and accordingly gives to the transfer the incidence of finality. It can have no such effect if there is no valid order of transfer. The principle of finality laid down in the cases relied on by the counsel can have no application as they are distinguishable on facts. Accordingly the Settlement Commissioner was competent to exercise his revisional powers to set aside any illegal order of transfer as the subject-matter was still within his domain. The learned counsel neat contended that section 2 of Assistant Settlement Commissioners (Validation of Orders) Act, 1973 gave validity to the order of the Assistant Settlement Commissioner dated 8-3-1960. Section 2 of this Act reads as under ; "Validation.-Notwithstanding anything contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1358), or in any Scheme made thereunder, and notwithstanding any decree or order of any Court or other authority, any order made by an Assistant Settlement Commissioner under clause (4) or, as the case may be clause (12) of section 2 of the said Act shall, notwithstanding the fact that the said powers had not been delegated to such Assistant Settlement Commissioner, be deemed to have been validly made and shall have, and shall be deemed always to have had, effect accordingly." The acts in regard to which validation is given by this section were delegated by the Chief Settlement Commissioner to the Deputy Settlement Commissioner under the provisos to subsections (4) and (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by Notification dated 14-10-1959. The validation contemplated by section 2 of this Act is confined to those provisos which relate to declaring a residential building or a business premises into more than one unit. If the order of transfer dated 8-3-1960 is looked into all that is stated therein is that the building is reported to be one unit which does not amount to a declaration as envisaged by the provisos to subsection (4) or (12) of section 2 of the Act. Section 2 of Act XLIV of 1973 in no case can be pressed into service D for validating the order of transfer passed by the Assistant Settlement Commissioner as there is no provision for it in the section. Accordingly the order of transfer is not saved. It is only a Deputy Settlement Commissioner who is competent to determine the entitlement under Scheme No. I framed under section 16 of the Displaced Parsons (Compensation and Rehabilitation) Act, 1958 and it is he who can competently transfer either a house or a shop. Lastly the appellant had applied for the transfer of Shop No. 57 against C. S. form and she had not applied for the transfer of the residential premises bearing Nos. 54 and

55. Even on this basis the order suffered from serious defect. For the foregoing reasons we find no substance in this appeal and dismiss it but with no order as to costs. S. A. H. Appeal dismissed.