P L D 1969 Lahore 545 (PLP)

Sh. Aftab Hussain for Respondents. Dale of hearing: 14th November 1968. In this matter the dispute between the parties relates to House No. 563, Block No. 1, Maghiana, Jhang. Petitioners are non‑claimant displaced persons, while Mst. Jamila, respondent No. 1, is a claimant. On the 18th of December 1959, the Deputy Settlement Commissioner, Jhang, transferred the house in dispute to respondent No.

1. On the 28th of September 1960, the matter was further considered by another Deputy Settlement Commissioner, who divided the property into three independent portions and transferred them to the parties. This irregularity was noticed by another Deputy Settlement Commissioner, Jhang, who, on the 11th of February 1961, moved the Additional= Settlement Commissioner for permission to review both the previous orders. Permission was accorded on the 22nd of January 1962. By order dated the 12th of May 1962, the Deputy Settlement Commissioner concerned, in review proceedings, held the property to be indivisible and transferred the entire property to Mst. Jamila, respondent No.

1. The appeal filed by the petitioners was dismissed by the Additional Settlement Commissioner on the 21st of December 1962. He upheld the order of the Deputy Settlement Commissioner dated the 12th of May 1962. The matter was then taken in revision before the Settlement Commissioner who, by order dated the 18th of June 1965, dismissed it on the ground that in the face of the first order dated the 18th of December 1959, no subsequent order could be passed and that being a final order could not be reopened by another Deputy Settlement Commissioner on the 28th of September 1960. It is these orders which are being challenged in the present writ petition before me.

2. In support of the petition, the learned counsel for the petitioners has urged that the order of the Deputy Settlement Commissioner dated the 12th of May 1962, is illegal and without jurisdiction as he was not competent on that date to review the order of his predecessor in view of Ordinance II of 1962. According to the learned counsel, the insertion of section has no application to the facts of the present case. It was further urged on behalf of the learned counsel for the petitioners that the property is divisible and, therefore, the order of the Deputy Settlement Commissioner dated the 28th of September 1960, should be upheld.

3. After hearing the learned counsel for the parties I am satisfied that none of the points urged on behalf of the petitioners has any force. It will be noticed that on the 18th of December 1959, the learned Deputy Settlement Commissioner had transferred the entire property to respondent No.

1. This order having not been challenged in appeal or revision became final and. another Deputy Settlement Commissioner could not take up the matter and decide the dispute between the parties afresh by order dated the 28th of September 1960. In my opinion, therefore, the order of the Deputy Settlement Commissioner dated the 28th of September 1960 being in the nature of review has no validity in the eye of law.

4. It was for this reason that another Deputy Settlement: Commissioner, later on, sought the permission of the Additional Settlement Commissioner for the review of the previous two orders, namely, those dated the 18th of December 1959 and the 28th of September 1960. It was, however, urged on behalf or the petitioners that the order of the Deputy Settlement Commissioner, Jhang, dated the 12th of May 1962, is without jurisdiction because by that time the power of review had been taken away and he could not review the order of his learned predecessor. This question has received my anxious consideration. In this connection, it will be noticed that the learned Deputy Settlement Commissioner sought permission to review the orders of his learned predecessor on the 11th of February 1961, from the Additional Settlement Commissioner. The permission to review was granted on the 22nd of January 1962. It is quite correct that under Ordinance II of 1962, the power of review had been taken away on the 13th of January 1962, but by the enabling Ordinance XIII of 1962, pending proceedings were saved by insertion of section 7 which is in the following terms:

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 (2) 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 immediately before the commencement of this Ordinance: Provided that no revision or review under any of the provisions omitted by this Ordinance shall lie against any order made in any such case or proceeding."

5. The most important question, therefore, that emerges out for consideration in this matter is whether any review proceedings were pending immediately before the commencement's of the Ordinance, namely, before the 13th of January 1962. The answer to this question depends on the interpretation of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it stood when the power of review was intact. A perusal of this provision of law makes it abundantly clear that the Deputy Settlement Commissioner was competent to review the order of his predecessor on his own motion at any time provided that he was not so competent to review an order, whether passed by himself or his predecessor‑in -office, without first obtaining the sanction of the Additional Settlement Commissioner of the area concerned. It was, therefore, necessary for the Deputy Settlement Commissioner before reviewing the order of his learned predecessor or himself to obtain the permission of the Additional Settlement. Commissioner. In the present case, such a permission was sought on 11th of February 1961 and it was accorded on the 22nd of January 1962. It seems to me that the moment the Deputy Settlement Commissioner moved the Additional Settlement Commissioner for permission to review the order of his learned predecessor, the review proceedings commenced. In order to review the order of his learned predecessor it was necessary for him to take certain steps. One of the steps was to take the permission of the Additional Settlement Commissioner. This was started or commenced much before Ordinance II of 1962. It is needless to point out that "pending" means nothings more than "undecided" or "awaiting decision or settlement". In law action is considered as pending from the time of its e commencement of proceedings. As in the present case the proceedings for review started on the 11th of February 1961, much before the 13th of January 1962, the present case is clearly saved by the provisions of Ordinance XIII of 1962. I am, therefore, satisfied that the learned Deputy Settlement Commissioner was competent and had jurisdiction to review the order of his learned predecessor by order dated the 12th of May 1962.

6. It will be noticed that the Deputy Settlement Commissioner by order dated the 12th of May 1962, held the property to be indivisible. This is also the view of the Additional Settlement Commissioner and the Settlement Commissioner. In these circumstances, respondent No. 1 being a claimant displaced person had a preferential right to the transfer of the property in dispute. The petitioners are only non‑claimant displaced persons and cannot claim preference over her. I am, therefore, satisfied that the property has been rightly transferred to respondent No.

1. In the circumstances, I find no force in this petition which is hereby dismissed, with no order as to e costs. K. B. A. Petition dismissed.