P L D 1965 Supreme Court 55 (PLP)

S. A. RAHMAN, J.‑This appeal by special leave raises the question whether a Settlement and Rehabilitation Commissioner exercising delegated powers of revision under subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958 (hereinafter referred to as the Act), is also competent, without express delegation, to review his own order passed as such delegate. The question has arisen in the following circumstances: Out of evacuee property No. E‑39‑2848, situate in Fort Area, Hyderabad, a room and a courtyard on the first floor, were transferred, by order of the Settlement authorities, to Mst. Kaneez Fatima, the 2nd respondent. The ground floor of the building in question was in the occupation of Mst. Zainab Khatoon, the appellant in the present case and one, Muhammad Siddiq. A major portion of the first floor was also in the occupation of this appellant. The appellant had claimed transfer not only of the portion of the building in her possession on the ground floor but also for that of the entire first floor and she put in a C. H. form for that purpose on the 22nd of June 1959. A portion of the building was settled on her and a P. T. O. was issued in her favour on the 19th of November 1959. It appears that Mst. Kaneez Fatima, the 2nd respondent had first attempted to obtain some other property to satisfy her claim. She did not meet with any success and on the 5th of January 1960, she filed a C. H. form claiming transfer of the portion of the building in question in her possession, on the first floor. The Deputy Settlement Commissioner rejected her application by order dated the 13th of April 1960. She failed in revision before the Settlement Commissioner and also before the Chief Settlement Commissioner. She then presented a review petition to the Chief Settlement Commissioner. This was allowed by order dated the 8th of November 1961, and the portion of the first floor in her possession was directed to be transferred to her. This order was passed by Mr. Ghulam Shabbir, a Settlement and Rehabilitation Commissioner who had been delegated the powers of revision, by the Chief Settlement Commissioner, under section 20(2) read with section 31(2) of the Act. Mst. Zainab Khatoon challenged the legality of this order by a writ petition in the High Court of West Pakistan. A learned Single Judge of the Karachi Bench of that Court dismissed the petition. It was contended in the High Court and the argument has been repeated before us that Mr. Ghulam Shabbir had no power to review his own order passed as a delegate of the Chief Settlement Commissioner. It is admitted on behalf of the respondents that no notification was issued by the Chief Settle ment Commissioner conferring on him the requisite power. The learned Single Judge took the view that the revisional power delegated to this officer by the Chief Settlement Commis sioner, also carried with it all ancillary powers, including the power of review. In this connection, the learned Judge referred to section 21 of the Act and observed that there was no bar in that section for a delegate to review his own order. This view ,has been assailed as unsound by learned counsel for the appellant. The Chief Settlement Commissioner enjoys several powers under various provisions of the Act. He is authorized by sub section (2) of section 31 to delegate by notification in the official Gazette, any of his powers to a subordinate officer subject to the provisions of the Act and the rules framed thereunder. He has, for instance, powers to declare a building to be a big mansion under paragraph 16 of the Schedule to the Act or to declare a premises to be divisible under section 2(4) of the Act. He has powers under section 10 of the Act, to dispose of property in the compensation pool in certain modes and under sections 16 and 16‑A to frame schemes for payment of compen sation or for transfer of evacuee peoperty as compen sation to persons whose claims have been verified. He has revisional powers under subsection (2) of section 20, of orders passed by all officers below him, including the Settlement and Rehabilitation Commissioners. He has further powers of reviewing his own order, conferred by section 21 of the Act. It is not contended on behalf of the respondent that delegation of powers under any particular provision, arms the delegatee with all the powers of the Chief Settlement Commissioner under the Act. The question, therefore, arises whether express delegation of revisional powers under subsection (2) of section 20 of the Act, would carry with it any power of review, as ancillary to the delegated power. Our attention has been invited in this connection, on behalf of the respondent, to a decision by the High Court, reported as Mst. Zaitoon Begum v. Ghulam Shabbir and another (P L D 1964 Kar. 100). In that case, Mst. Zaitoon Begum claimed transfer of the whole of House No. A/112, 143, . Hyderabad. Till the 1st of July 1961, the view prevailed with the Settlement authorities that the house should be treated as one unit. Mr. Ghulam Shabbir in exercise of his delegated revisional powers as Chief Settlement Commissioner, held by order dated the 1st of July 1961, that the house was indivisible and maintained the transfer in favour of Zaitoon Begum. At the instance of the opposite‑party, he reviewed his order on the 11th of November 1961, on the grounds that the previous order had been passed without the opposite‑party being heard and that inspection of the premises had revealed that it consisted of two separate units. He consequently directed the transfer of the two units on the basis of possession to both the parties. The validity of the review order was canvassed in the High Court on a ground identical to that raised here. The view found favour with the learned Judges that having passed the order in question as Chief Settlement Commissioner, he could revise (sic) probably review) the same without further delegation from the Chief Settlement Commissioner. The learned Judges, moreover, noted that by notification dated the 20th of December 1961, the Chief Settlement Commissioner had delegated power of review also to various Settlement Commissioners. In consequence, the learned Judges thought that no useful purpose would be served by allowing the petition on the ground that at the time when Mian Guhulam Shabbir passed the order in question, he had no power to review his own orders as a delegatee. Having been subsequently conferred such powers from the 20th of December 1961, he could again pass a similar order if the case was sent back to him, after quashing his first order. A writ or direction, therefore, was held to be ineffective in the circumstances. The case cited presents features which are absent from the instant case. It is conceded by Mr. Abdul Kadir Sheikh, Additional Advocate‑General, that Mian Ghulam Shabbir is no longer working in the Settlement Organisation. He is said to have retired from service and the question of his being able to pass an order in terms identical to those of the impugned order does not arise. There is then no question of a writ being infructuous in the present case. On behalf of the appellant, reliance was placed on a Single Judge's decision of the High Court published as Abdul 1hwiN v. Muhammad Mashooq Ali Khan (P L D 1956 Kar. 509). In that case, the Central Government had delegated powers of revision under subsection (1) of section 20 of the Sind Rent Restriction Act (X of 1947) to the Chief Judge, Small. Causes Court, Karachi. He had not been delegated, and in fact in view of the provisions of that Act, COL! la not have been delegated, powers of review of his own order as such delegate, under subsection (2) of section 20. It was held there fore that an order passed by the Chief Judge, Small Causes Court, reviewing his previous order as a delegate, was without jurisdiction. In that Act, the Provincial Government had been authorized to delegate its own powers under subsection (1) of section 20 only and not its review powers under subsection (2) thereof. It was remarked by the learned Judge that power of review being an additional power given to the deciding authority, the Chief Judge, could not exercise it, unless the Provincial Government lawfully delegated its powers of review to him. As such a delegation of review powers was impossible on the language of the Act, the learned Judge directed the Chief Judge, Small Causes Court, to return the petition for review, for presentation to the Provincial Government. This case too is distinguishable on the facts from the present case. The learned Additional Advocate‑General' referred in the course of his arguments to another notification issued by the Chief Settlement Commissioner dated the 20th of December 1961, which was intended to supersede his previous notifications. By this notification, the learned Chief Settlement Commissioner delegated his powers under subsection (2) of section 20 of the Act to the Settlement Commissioners named therein and in respect of the regions mentioned against their names. Mian Ghulam Shabbir is one of those officers and was empowered to hear revision petitions which would have normally lain to the Chief Settlement Commissioner, in respect of Karachi, Quetta and Kalat Divisions, while having his headquarters at Multan. In the end of the notification it was said that the above officers "would also hear fresh review petitions and also those petitions pending in the Court:, of their predecessor'. It was suggested that this last clause fn the notification conferred power of review of their own orders as delegates, on the Settlement and Rehabilitation Commissioners mentioned in the notification. The clause in question is somewhat vague. But even if it could be construed as conferring power of review of their own orders on the delegates of the Chief Settlement Commissioner, this would land no assistance to the learned Additional Advocate‑General, because the impugned order was passed on the 8th of November 1961, long before this notification was issued. We are then left with the construction of the various provisions of the Act to find out whether a Settlement and Rehabilitation 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 delegate. After giving my anxious consideration to this question I have beers unable to persuade myself that the power of review in this context can be regarded as ancillary to the revisional power conferred on the delegate. 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, in my judgment, 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. The argument ab inconvenienti is raised, however, and it is contended that this view would invest the order of the delegate with finality, which perhaps would not be in accord with the intention of the legislative authority. It is said that an order passed by a delegatee of revisional powers under subsection (2) of section 20 of the Act, not being reviewable by him, would also not be amenable to review by the Chief Settlement Commissioner himself. That may be so, but the remedy lay in the Chief Settlement Commissioner giving power of review of his own orders as a delegate, to the Settlement and Rehabilitation Commis sioners, along with the revisional powers mentioned. The suggestion was made that such a step was not open to the Chief Settlement Commissioner as the Act gave no power of review of a delegate's order, to the Chief Settlement Commissioner and he would, therefore, be not in a position to confer power on a delegate to review the latter's own order. I think the supposed difficulty would vanish if we consider that 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 exercise of his powers under subsection (2) of section 31. I have therefore arrived at the conclusion that the impugned order purporting to have been passed in review jurisdiction, by Mr. Ghulam Shabbir, was illegal as, on the relevant date, he possessed no such powers. I would therefore allow the <~j~pc<~l and declare the order in question to be a nullity in law. 1 itt,: Settlement authorities would be directed to ignore it and to give effect to the previous order of Mr. Ghulam Shabbir passed in revisional jurisdiction as a delegate of the Chief Settlement Commissioner, unless it is in the meantime set aside by due process of law. I would leave the parties to bear their own costs in this Court, in the circumstances of the case. HAMOODUR RAHMAN, J.‑I agree and have nothing further to add B. Z. KAIKAUS, J.‑The only question involved in this appeal by special leave is as to who can review an order passed in the exercise of delegated authority. The case arises in respect of proceedings under the Displaced Persons (Compensation and Rehabilitation) Act. Officers who act under the provisions of this Act are the Assistant Settlement Commissioner, the Deputy Settlement Commissioner, the Additional Settlement Commis sioner, the Settlement Commissioner and the Chief Settlement Commissioner, the last named officer being the highest in rank. By virtue of section 20(1) the Chief Settlement Commissioner has power to revise orders passed by any of his subordinates. By section 31(2) he can delegate his powers to any of his subordinates. The provision is in the following words:‑ "31. Delegation of powers.‑(1) . . . . (2) Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may, by notifi cation in the official Gazette, delegate all or any of his powers under this Act to any Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner subject to such conditions, if any, as may be specified in the notification." By section 21 all the above‑mentioned officers are empowered to review their orders. This section runs: "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; (ii) an Additional Settlement Commissioner shall not review an order passed by his predecessor in office without first obtaining the sanction of the Settlement Commissioner of the area concerned; (iii) a Deputy Settlement Commissioner shall not review an order whether passed by himself or by his predecessor in office without first obtaining the sanction of the Additional Settlement Commissioner of the area concerned; (b) an order shall not be modified or reversed unless reason able notice has been given to the parties affected thereby to appear and be heard; and (c) an order against which an appeal or a petition for revision has been preferred shall not be reviewed. (1‑A) The provision of sections 5 and 12 of the Limitation Act, 1908 (IX of 1908), shall apply in computing the aforesaid period of fifteen days. (2) An appeal shall not lie from an order refusing to review or confirming on review a previous order. (3) Clerical or arithmetical mistakes in any order passed by an officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority or his successor‑in -office." Mr. Ghulam Shabbir was a Settlement Commissioner and by an order dated 25‑4‑1961 the Chief Settlement Commissioner delegated to him the power of hearing revisions in respect of cases arising in a particular area. In exercise of these powers Mr. Ghulam Shabbir passed an order on the 29th August 1961, rejecting a revision petition filed by Mst. Kaneez Fatima, respondent in this appeal, in respect of the transfer of evacuee property. On 8‑11‑1961 he reviewed this order and accepting the revision petition of Mst. Kaneez Fatima directed that the property be transferred to her. Mst. Zainab Khatoon, appellant in this appeal by special leave then filed a writ petition in the High Court challenging the order of Mr. Ghulam Shabbir on the ground, inter alia that he had no power to review the order which he had passed as delegatee of the revisional power of the Chief Settlement Commissioner because the power of review had not been delegated to him. The High Court dismissed the petition on the ground that the power of review was ancillary to the power of hearing revision petitions. Apart from a general or inherent power of review (with which I am not dealing at present) any power of review for an, officer acting under the Displaced Persons (Compensation ands Rehabilitation) Act must be found within section 21 (already reproduced) which is the only section in the Act authorizing a review. Even if the power is to come into existence with the aid of some delegation it must in the first instance be found mj section 21. The contention on behalf of the respondent is that the order passed in review is the order of a Settlement Commissioner though he possessed also the revisional powers of a Chief Settlement Commissioner in respect of a particular area and therefore it is the Settlement Commissioner Mr. Ghulam Shabbi who can review it. The contention of the appellant is that being the order of a delegatee of the Chief Settlement Commissioner i should be regarded as an order passed by the Chief Settlement Commissioner which he alone can review. A third alternative suggested is that it is neither the order of a Settlement Commis sioner not that of a Chief Settlement Commissioner, but of a, delegatee of the Chief Settlement Commissioner with respect to whom there is no provision in section 21 and therefore this order is not liable to be reviewed at all. These three it will be observed are all the alternations that are possible. The third of these alternatives I would rule out without much hesitation. It could not be the intention of the Legislature that the orders passed by a delegatee of the Chief ,, Settlement Commissioner should not be liable to be t" Vie ed at all and should become final while the same order passed by the Chief Settlement Commissioner himself would be open to review,1 Orders of subordinates of the Chief Settlement Commissioner (which include even an Assistant Settlement Commissioner) are not to be placed on a higher footing than the order of the Chief Settlement Commissioner. It can be urged that the Legislature may have committed a mistake and there may be a casus omissus, But a lacuna can be accepted only when the words are so intractable , that they cannot be interpreted so as to give effect to the intention'' of the Legislature and lacunas are to be avoided as far as possible.1 I may refer to Mersay Docks and Harbour v. Henderson Brothers (13 A C 595), where the question was whether a ship was liable to a charge while entering or leaving the docks. It had been urged that there was a lacuna in the statute for it did not specifically provide for the situation. Lord Fitzgerald said: "We ought not to create a casus omissus by interpretation save in some case: of strong necessity". Lord Halsbury agreeing with the Court of appeal said: "No casus omissus can be admitted where section declares that all vessels entering or leaving the docks are charged". In the present case on the wording of section 21 it is hardly arguable that the words are not capable of being interpreted as to avoid a lacuna. Both the appellant and the respondent accept that review is possible. Only they are not agreed as to who has the power of review. I now take up the second alternative, namely, that the Cheif Settlement Commissioner can review the order. The words used in section 21 are "order passed by himself or by any of his predecessor‑in‑office". Can it be said that the order was passed by "himself"? The order was passed not by "himself" but by ;.a. delegatee from him. The word is not capable of conveying the sense that the order is passed by a person other than the Chief Settlement Commissioner. It is to be observed that even a predecessor‑in‑office is not included in the word "himself". If the intention was to grant a power of review in respect of an order passed by the delegatee there is no reason why the. Legislature should not have mentioned the delegatee also in addition to the predecessor‑in‑office. Surely the Legislature could not be assuming that the inclusion of the delegatee within the word "himself" is so clear as not to require any express mention. Neither in any decided case nor in any law lexicon will the v: of "himself" be found to include a delegatee. We have to take the words in their ordinary sense unless they have acquired .: technical sense and there is no plea even that the word himself has any technical sense. In tact there already exists on this point a judgment of this Court where a similar provision was interpreted so as to negative any authority in the delegator to review a decision by a delegates. I am referring to Fazal Ahmad v. Ziaullah Khan (P L D 1964 S C 293), where revisional powers of the Claims Commissioner had been delegated to the Additional Claims Commissioner and a question arose whether the order of the Additional Claims Commissioner passed in the exercise of delegated powers could be revised by the Claims Commissioner According to section 7 of the Registration of Claims (Displaced Persons) Act the Claims Commissioner could review his own order, it was held that the order passed by the delegates could. not be reviewed by the Claims Commissioner. Although the words used in that case were "his own order" and here the words used are "order passed by himself". I do not think this makes a difference. Following is the relevant passage: "So far as the power to review is concerned the grounds taken by the appellant are: (i) that there was no power in the Claims Commissioner to review the order of the Additional Claims Commissioner; and (ii) that the order was passed beyond the time allowed by law for review. So far as the first objection is concerned it has to be stated that section 7 was amended by Ordinance LXXX 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. 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 sound. The mere fact that 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 Commis sioner. 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 Commissioner 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 (1) 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 had 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." It will be observed that the last paragraph suggests the competence of review by the delegatee. I would, therefore, exclude the second alternative too so that by the simple process of elimination we should be constrained to hold that the order is to be reviewed by the delegates, the words used by the Legislature being quite capable of this interpretation for it can be easily said that the order is passed by himself particularly when there is neither a change in the person who had passed the order nor there is any change in his powers. If he continues to be a delegates in addition to being a Settlement Commissioner the word "himself" quite appropriately describes him. But it should not be assumed that it is only by this process of elimination that I am deciding the point. There are other considerations and not weak ones which point to the power of review residing in the person who passed the order. The view has been taken in a number of cases that there is an inherent power of review, that is, whoever has the authority to pass an order has also the authority to review it, without there being any specific provision. There are also a number of cases ., here the view was held in respect of a Civil Court that could be no review apart from the provisions of Order XLVII, rule 1, C. P. C., but these cases can be distinguished on the ground that when there is a specific provision the inherent power is to that extent curtailed. I will not refer to the decisions favouring an inherent power of review in any detail because of a judgment of the Federal Court of Pakistan in Shahbaz v. The Crown (P L D 1956 F C 46). A question arose in this case as to whether the Provincial Government could modify an order passed by it under section 401, Cr. P. C. The High Court had held relying upon section 21 of the General Clauses Act that the Provincial Government could do so. The Federal Court did not consider it necessary to decide the question whether the word "order" in section 21 referred also to orders passed in particular cases, but it held that apart from section 21 there was power in every authority which passed an order to vary, modify or rescind the order. Following the relevant passage: "Similarly it does not seem to us necessary in this case to decide whether section 21 of the General Clauses Act applies to orders passed under section 401, Cr. P. C., for apart from rovision, Government must, in the nature of things, possess power to recall its own orders. In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation and that is apparently the reason why in order to give finally to judicial orders provisions greatly restricting the use of this power had to be introduced in the Civil and Criminal Procedure Codes. Whenever there is no such restriction imposed on Governments there is no reason to deny them the power of correcting even the errors of judgments." As I am at present only interpreting section 21, I am using this judgment just to show that the interpretation I am placing on section 21 is in accord with the general notion that the power to review an order toes with the power to pass the order whether we call it an ancillary power or a power that accompanies or is inherent in the power to pass an order. That the authority that passed the order is the proper authority for reviewing it is also recognised in Order XLVII, rule 2, which provides that apart from clerical mistake, or error apparent or discovery of new matter or evidence an application for review can be made "only to the judge who passed the decree or order". Some observations as to inherent power of review that is, a power that arises without any statutory provision from the simple fact of having made an order will not be out of place. Even if there be no statutory provision for review it will be difficult to deny that clerical or arithmetical mistake may be corrected. The power to correct such mistakes is regarded as a part of the power of review in Order XLVII, rule 2, C. P. C., M and in some other enactments of which. I may mention section 43 of the Administration of Evacuee Property Act as it now stands. Accidental slips or omissions are also like clerical and arithmetical mistakes and an inherent power of review to correct them will also have to be conceded unless we are to put up with absurdities and grave injustice. Next come errors apparent on the face of the record. The line between errors apparent and slips or omissions is really thin. The attention of a tribunal may not have been drawn to a statute at all or an order may have been passed by overlooking an admitted fact. I think in the circumstances stated above an inherent power of review has to be conceded. In what other circumstances it should exist it is not necessary to consider here. I just want to show that at least to some extent the authority that passes the order will have inherent jurisdiction to review it. The contention of the appellant throughout has been that Mr. Ghulam Shabbir could not have reviewed his own order without a delegation of power by the Chief Settlement Commis sioner as to review of an order passed by Mr. Ghulam Shabbir as delegatee of the power of revision. This contention assumes that the Chief Settlement Commissioner would have power to review an order passed by Mr. Ghulam Shabbir as delegatee. I have found that the Chief Settlement Commissioner had no such power. I hold that Mr. Ghulam Shabbir had authority to pass the impugned order and I would dismiss this appeal, but would leave the parties to bear their own costs. ORDER OF THE COURT In accordance with the view of the majority we allow this appeal and direct the parties to bear their own costs in this Court, in the circumstances of the case. A. H. Appeal allowed.