P L D 1969 Lahore 575 (PLP)

Sr. No. Name of S. C. Area of jurisdiction H. Qrtr. x x x x

4. Muhammad Rafique Lahore City and Lahore Cantonment. Lahore x x x X According to the above jurisdiction and distribution of work, all officers should please ensure that the case relating to Courts other than their own which are pending on these files in accordance with previous distribution of work are imme diately transferred to the respective Courts after preparing detailed lists and under intimation to H. Q. office. The above officers will also hear fresh review petitions and also those petitions pending with Courts of their pre decessors. (Sd.) Ahsanuddin C. S. P., C. S. C." It will be noticed that under this notification, Sh. Muhammad Rafiq was empowered to hear fresh review petitions and also those petitions pending in the Courts of his predecessors‑in‑office. The power of review, however, was exercisable under section 21 (1), as it then stood, which is in the following terms :‑ "

21. Review etc.‑(1) The Chief Settlement Commissioner or a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner may either of his own motion at any time or on an application made in that behalf, within fifteen days, review, and while so reviewing modify, reverse, or confirm an order passed by himself or by any of his predecessors‑in‑office; Provided that‑ (a) (i) a Settlement Commissioner shall not review any order passed by his predecessor‑in‑office without first obtaining the sanction of the Chief Settlement Commissioner . A perusal of this provision of law shows that the Chief Settlement Commissioner can, either of his own motion at any time or on an application made in that behalf, within fifteen days, review his own order or an order passed by his predecessor- in‑office.

8. The contention of the learned counsel for the petitioner that Sheikh Muhammad Rafiq, Settlement Commissioner, with powers of Chief Settlement Commissioner, has decided the revision petition and not the review petition cannot be accepted as good argument because in the impugned order itself it is clearly stated that the learned officer was disposing of the review petition forwarded to him for disposal by the Chief Settlement Commissioner and while allowing the petition he has clearly stated that he was allowing the review petition.

9. The short question in the present case for consideration, therefore, is whether the order reviewed by Sh. Muhammad Rafiq was one passed by himself or by any of the Chief Settlement Commissioner who had preceded him in office. The answer to this question obviously is in the negative. It is, clear to me that neither the order of Mr. Hashim Raza, which Sh. Muhammad Rafiq reviewed, was his own order, nor could it be considered to be an order of a Chief Settlement Commissioner who preceded him in office. This aspect of the question was 9pnsidered by their Lordships of the Supreme Court in Sh. Fazal Ahmad v. Raja Ziaullah Khan etc. (PLD 1964 SC 293). In that case an objection was raised by the appellant that there was no power in the Claims Commissioner to review the order of the Additional Claims Commissioner. The provision of section 7 of the Registration of Claims (Displaced Persons) Act, 1956, was amended by Ordinance No. LXXK of 1962 and in section 7(4) the words "or an order of any of his predecessors -in‑office" were inserted with retrospective effect from the date of the coming into force of the Act. It was on this basis that it was urged before the Supreme Court that there was no power in the Claims Commissioner to review the order of an Additional Claims Commissioner as the latter could not be said to be the predecessor‑in‑office of the former. In this connection, their Lordships have observed as under :‑ "Learned counsel for the appellant contends, however, that in this case the Additional Claims Commissioner was not a "predecessor‑in‑office." He was only an Additional Claims Commissioner who had been delegated enhanced powers, while Raja Ziaullah Khan was a Claims Commissioner who could not be his successor‑in‑office. On a careful consideration of this matter, we have come to the conclusion that the contention of the appellant is bound. The mere fact of the Additional Claims Commissioner was exercising one of the powers of a Claims Commissioner would not make him the holder of the office of a Claims Commissioner. There is further difficulty in accepting the view that a Claims Commissioner would be the successor‑in‑office of an Additional Claims Commissioner to whom powers of a Claims Commis sioner had been delegated. An Additional Claims Commissioner may have powers delegated to him not by name but by office so that if one Additional Claims Commissioner ceases to hold office and is succeeded by another, the new incumbent would be his full successor‑in‑office and would be entitled to exercise the power of review regarding the orders of his predecessor. The Claims Commissioner cannot be granted a concurrent power of review of the order of an Additional Claims Commissioner along with the successor of that Additional Claims Commissioner, for both can pass absolutely inconsistent orders without one order having any preference over the other. Even in a case where powers are delegated by name to an Additional Claims Commissioner who ceases to hold office and is succeeded by another Additional Claims Commissioner to whom also the powers of a Claims Commissioner are delegated the same situation will arise for the new incumbent of the office of the Additional Claims Commissioner would be a successor‑in‑office and entitled to review the order of his predecessor. At the same time, there is no material on the record as to whether on the date on which Raja Ziaullah Khan took proceedings for review in these cases, the Additional Claims Commissioner whose order was the subject of review bad ceased to hold office or if he had ceased to hold office whether some other person had not taken his place as his successor with delegated powers of a Claims Commissioner.

10. This aspect of the question was also considered by Sardar Muhammad Iqbal, J. a learned Judge of this Court, in Ahmad Din v. Ch. Sultan Muhammad Khan (P L D 1967 Lah. 559). In this connection, the following observations of the learned Judge are pertinent:-- "It is provided in section 21 (1) that the Chief Settlement Commissioner may either of his own motion at any time or on any application made in this behalf within fifteen days review an order passed by himself or by any of his predecessors- in‑office. He is, therefore, competent to review his own order as well as the one passed by any other Chief Settlement Commissioner who preceded him in his office . . . Before a person can act under section 21, he has, therefore, to satisfy himself that he passed the order either himself or it was by any of his predecessors‑in‑office. By the aforesaid notification dated the 26th of' April 1962, the Chief Settlement Commissioner delegated to the Settlement Commissioners his power to review cases against orders passed by him. It is in the exercise of such delegated authority that Ch. Sultan Muhammad passed the impugned order reviewing the order of Pir Ahsan‑ud‑Din dated the 11th of November 1960. The order of Ch. Sultan Muhammad does not fall under section 21 of the Act because it is neither a review of his own order nor that of his predecessor‑in‑office. If the Chief Settlement Commissioner delegated to him his power of revision under section 20 (2) or of review under section 21 (1), the delegate by virtue of such authority did not become the holder of the office of the Chief Settlement Commissioner. He remained the Settlement Commissioner but only exercised a particular power which vested in the Chief Settlement Commissioner. Under section 9 of the Act, the Central Government is competent to appoint a Chief Settlement Commissioner or Settlement Commissioner etc. It is only a person appointed, under section 9 that he can hold the office of the,. Chief Settlement Commissioner and unless there is an appointment under the said provision, a person cannot be called the Chief Settlement Commissioner or his successor‑in‑office or predecessor‑in‑office. Ch. Sultan Muhammad was not appointed as Chief Settlement Commissioner under section

9. His appointment under the said section was only as Settlement Commissioner. He cannot, under the circumstances, be deemed to be the successor‑in‑office of the Chief Settlement Commissioner because of the delegation of his powers by the latter. In this view of the matter, Ch. Sultan Muhammad had no jurisdiction to review the orders passed by Pir Ahsan‑ud‑Din, the Chief Settlement Commissioner. Since section 21 clearly provided that an officer could review his own order or of his predecessor‑in‑office, the Chief Settlement Commissioner by delegating this power to the Settlement Commissioners enabled them to review the orders passed by the Chief Settlement Commissioner. It meant that after such a delegation not only the Chief Settlement Commissioner could review his own orders and those of his predecessors‑in‑office, but that the Settlement Commissioners could also review the, orders of the Chief Settlement Commis sioner. This is not provided in clause (1) of section 21 and by conferring such an authority the Chief Settlement Commissioner passed an order which is in the nature of a legislation, the same being within the exclusive jurisdiction, of the Legislature. The Chief Settlement Commissioner has in delegating his powers under section 21, acted in excess of his powers and the notification dated the 26th of April 1962, being ultra vires the provisions of clause (t) of section 21, is without lawful authority and of no legal consequence."

11. Raja Muhammad Anwar, learned counsel for the respondent, referred me to two decisions Mst. Zainab Khatoon v. Mian Ghulam Shabbir (P L D 1965 S C 55) and Ghulam Murtaza v. Malik Fateh Khan, Settlement Commissioner (P L D 1966 Lah. 569) in support of his contention that the review petition having been sent by the Chief Settlement Commissioner and he having delegated his power of review under section 31 (2) of the Act, Sh. Muhammad Rafiq was competent to review the order of' the Chief Settlement Commissioner. These decisions are, however, of no help to the learned counsel. In Mst. Zainab Khatoon v. Mian Ghulam Shabbir the question before the Supreme Court was whether a Settlement. Commissioner, who is delegated revisional powers of the Chief Settlement Commissioner, under subsection (2) of section 20 of the Act could be deemed to be automatically armed with powers of reviewing his own order, as such delegatee. In that case the majority view was that the power of review in this context could not be regarded as ancillary to the revisional powers conferred on the delegatee. The revisional power and the power of review of his own order, conferred on the Chief Settlement Commissioner are contained in two separate sections of the Act. Delegation' of power under one section cannot be construed to carry with it a delegated power under the other section also. A power of review is a creature of the statute and it cannot be said that a delegatee, exercising revisional powers under subsection (2) of section 20 of the Act has inherent power to review orders passed in his capacity as a delegatee. It was urged before their Lordships that this view would invest the order of the delegatee with finality, which perhaps would not be in accord with the intention of the legislative authority. Their Lordships met this objection by observing as under :‑ "But the supposed difficulty would vanish if the power to be so conferred would be that of the Chief Settlement Commissioner himself to review his own order, that was an express power vested in him under section 21 of the Act and could be delegated to a subordinate officer by him in exercising of his powers under subsection (2) of section 31." It will thus be noticed that their Lordships of the Supreme Court in this case, in order to remove the difficulty, had suggested that if the power of review is delegated by the Chief Settlement Commissioner to the delegatee, then the latter might be able to review his own order.

12. In Ghulam Murtaza v. Malik Fateh Khan, Settlement Commissioner the position was entirely different. In this case, a Division Bench of this Court propounded the view that a Settlement Commissioner, as delegatee under section 31 (2) of the Act, invested with merely revisional powers of Chief Settlement Commissioner cannot be deemed automatically to have been invested with the powers of review as well. But while considering the change in law introduced by the Displaced Persons Laws Amendment Ordinance XVIII of 1965, their Lordships observed that where a delegatee passes an order, the same shall be subject to the provisions of Chapter VI of the Act. This is not the same question as is involved in the present case. Formerly, a delegatee was not competent to review his own order. Now under the amended provision of law the delegatee has also been given the same power as has been conferred on the principal. Raja Muhammad Anwar also drew my attention to an unreported decision of the Supreme Court in C f'. S. L. A. No. 146 of 1966, decided on 13th April 1966; but this also is of no avail to him because it only upheld the view taken by the High Court in Ghulam Murtaza v. Malik Fateh Khan, Settlement Commissioner as would appear from the following observations:‑ "The second point urged is that the review order, in any event, was not competent, as powers of review had not been delegated to him by the Chief Settlement Commissioner under section 31 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The defect, if any, was cured by Ordinance XVIII of 1965, which was brought into force on the 2nd of June 1965, with retrospective effect. By this Ordinance a new subsection (3) was added to section 31 of the Act, providing that 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 Commissioner, Additional, Deputy or Assistant Settlement Commissioner, as the can, may be, is so subject. Section 3 of the Ordinance further validated all the previous orders passed in the purported exercise of such a power. The High Court, therefore, rightly held that the impugned order, passed by Malik Fateh Khan was not open to exception on the legal plane. Mr. Muhammad Anwar then tried to suggest that the power of review under the Act was confined to correction of clerical errors only. This contention is plainly unsustain able on the language of section 21 of the Act, as it stood at the relevant time. The petition fails and is hereby dismissed."

13. It seems to me that the effect of the powers of review delegated to Sh. Muhammad Rafiq was only this much that he could review his own order or the order of any of his pre decessors‑in ‑office. In the present case, the impugned order before him was not his own order. Therefore, the only point is whether it can be considered to be that of his predecessor‑in -office. It is in this context that it is to be considered whether Mr. S. Hashim Raza, whose order was sought to be reviewed, could be called to be his predecessor‑in‑office. Admittedly, Sheikh Muhammad Rafiq was only a Settlement Commissioner. At best, therefore, he was a delegatee of the Chief Settlement Commissioner, or an officer exercising his powers. By no stretch of imagination he can be considered to be the successor‑in‑office of the Chief Settlement Commissioner, because the latter had not ceased to hold office and was still functioning as such. Had it been the case of review of an order of a delegatee of the Chief Settlement Commissioner who had ceased to hold office, I might have taken a different view.

14. In its absence, it is clear to me that under the delegated powers conferred on Sheikh Muhammad Rafiq, he was competent only to review his own order or that of an officer who was his predecessor‑in‑office. In the present case, it is not possible to hold that Mr. S. Hashim Raza, the learned Chief Settlement Commissioner was, in any way, predecessor‑in‑office to Sh. Muhammad Rafiq who was only a Settlement Commissioner. He was exercising the delegated powers of the Chief Settlement Commissioner and for that reason could not be considered to be the Chief Settlement Commissioner himself. I would, therefore, hold that the impugned order suffers from a patent illegality and being passed without lawful authority is hereby quashed.

15. In that view of the matter, it is unnecessary for me to decide whether the appeal of the respondent is still pending before the Additional Settlement Commissioner or whether the petitioner can be deemed to be in possession of the property in dispute as he was an allottee in May 1956. In fact, the definition of "possession" by virtue of an amendment to section 2 (6) of the Act has undergone a vast change. At the same time it will be open to the Chief Settlement Commissioner, if he so desires, to hear the review petition himself or dispose it of on merits.

16. In the result, subject to the remarks made by me above, this writ petition is allowed. In the special circumstances of the case, however, the parties are left to bear their own costs. A. E. Petition allowed.