P L D 1965 Supreme Court 261 (PLP)

B. Z. KAIKAUS, J.‑This is an appeal by special leave against the order of the High Court of West Pakistan dismissing a writ petition filed by the appellants in respect of the transfer of a house by the Settlement Authorities. The dispute relates to house No. P‑39 in Street No. 7, Montgomery Bazar, Lyallpur, which is a three‑storeyed building consisting of two pucca and one katcha residential portions. This house was being occupied by a large number of persons at the time when the question of its, transfer arose. Applications for its transfer were submitted by‑ (i) Mst. Zainab Bibi who is not a party to these proceedings; (ii) Mst. Jannat Bibi who is respondent No. 3 in this appeal, and (iii) Jalal Din and others, sons of Pir Bakhsh, six persons in all who are appellants in this appeal. The Deputy Settlement Commissioner divided the house into three portions purporting to act on an agreement reached between Mst. Jannat Bibi and the appellants one portion being granted to each applicant. Against the order of the Deputy Settlement Commissioner Mst. Jannat Bibi alone filed an appeal to the Additional Settlement Commissioner complaining that the present appellants had fraudulently secured the portion which was in her possession. The Additional Settlement Commissioner redistributed the property which had been granted to the appellants and Mst. Jannat Bibi. Against the order of the Additional Settlement Commissioner Mst. Jannat Bibi filed a revision petition before the Settlement Commissioner. The Settlement Commissioner found that the present appellants had been given a large area with a large number of rooms and a courtyard while Mst. Jannat Bibi had been given only four rooms without a courtyard which division was not equitable. He re-divided the house .vertically and granted to Mst. Jannat Bibi a portion larger than that given to her by the Additional Settlement Commissioner. Against this order of the Settlement Commissioner the present appellants filed a second revision before the Chief Settlement Commissioner which was dismissed after hearing the parties, but without recording reasons. The appellants then filed the writ petition before the High Court out of which this appeal arises. The only law point which appears to have been argued before the learned Single Judge who heard the petition was that the Settlement Commissioner had not sent for the record. The learned Single Judge was of the opinion that even if he had sent for the record it would have made no difference to the decision given. Accordingly he dismissed the writ petition in limine. Before us, although the objection to the order of the Settlement Commissioner based on the failure to send for the record has not been abandoned, the main point argued is a different one, namely, that in dividing the house into portions the Deputy Settlement Commissioner was exercising not his own power, but a power which belonged exclusively to the Chief Settlement Commissioner and had been delegated to him by the Chief Settlement Commissioner and the exercise of such power was not liable to control in appeal or revision. The order of the Deputy Settlement Commissioner is therefore, it is urged, unaffected by the order of the higher officers and is binding on the parties. For an appreciation of the point raised it is necessary to reproduce the definition of `house' in the Displaced Persons (Compensation and Rehabilitation) Act, as well as section 31 of that Act which provides for the delegation of powers. The original definition of house in the Displaced Persons (Compensation and Rehabilitation) Act appearing in section 2 (4) of the Act was the following:‑ "2 (4) "house" means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out‑houses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or out‑house is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 15 of the First Schedule to be a big mansion or hotel: Provided that where a building not so declared consists of more than one residential premises, and such premises are in the possession of several persons, the premises in the possession of any one of such persons shall be deemed to be a house;" By the Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance, 1959, this definition was amended by substituting for the proviso the following two provisos: "Provided that where any building or premises not so declared consists of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house: Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including out‑houses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house." Section 31 which provides for delegation of powers runs: "

31. Delegation of Powers.‑(1) The Central Government may, by notification in the official Gazette, delegate any of its powers under this Act to such authority or person and subject to such conditions, if any, as may be specified in the notification. (2) Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may, by notification 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." We are concerned in this case with the definition of house as amended, the previous definition being relevant only to the extent to which it may help in the interpretation of this provision. "House" in accordance with this definition means "residential premises". When we take into consideration the fact that the gardens, grounds, garages, etc. which are attached to such premises are to go with the premises as also the fact that according to the provisos such premises may consist of more than one residential unit and may be in the possession of several persons, it becomes clear that in accordance with the main definition of house, that is the definition in the first paragraph of section 2 (4), a house is what would ordinarily be regarded as a house from the structural point of view. In accordance with the original proviso to the definition if a building which from the structural point of view was a house was in the possession of several persons the portion in possession of each of such persons was to be regarded a separate house. The effect of the amendment, however, is that if different portions of a house are in possession of different persons then ordinarily the whole premises remain one house, but a power is granted to the Chief Settlement Commissioner to "order otherwise". Acting in exercise of the power of delegation which the Chief Settlement Commissioner possessed under section 31, he had by a notification of 14th October 1959, delegated the power which he possessed under the first proviso to section 2 (4) to all Deputy Settlement Commissioners, Additional Settlement Commissioners and Settlement Commissioners. It should be proper to state here that the word possession has been used in the definition of a house in the technical sense attaching to it in the Displaced Persons (Compensation and Rehabilitation) Act. In that Act it means possession obtained in pursuance of an order passed on or before the 20th day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government. The Central Government has also been authorised to direct "that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order be deemed to be in possession for the purposes of this Act." The Central Government has in fact added to the definition and directed that persons who were in undisputed possession "since before 21‑12‑1958" or who were entitled to possession by, a valid order, but for no fault of their own were unable to obtain possession shall also be deemed to be in possession. To revert to the question under discussion the contention put forward on behalf of the appellant is that by the provisos the Chief Settlement Commissioner alone had the power to divide a house into different, portions which portions were henceforth to be regarded as, separate' houses and to be transferable as such, and when the Deputy Settlement Commissioner divided the house in dispute, he was exercising a delegated power which was not subject to appeal or revision as the ordinary power of the Deputy Settlement Commissioner would be. In the present case this point has not been argued before the High Court, but the point had arisen in a large number of cases and was decided by a Full Bench of the High Court of West Pakistan in Abdul Ghani v. Chief Settlement Commissioner (P L D1964 Lah. 214). The view taken by the learned Judges was that although the power of division of a house was a delegated power it was subject to appeal and revision. We will presently deal with the question whether the exercise of delegated power by a Settlement Authority should be subject to appeal or revision, but the first question to be determined is the extent of power which is granted to the Chief Settlement Commissioner by the first proviso to section 2 (4). It appears to have been assumed in the Full Bench case and the same assumption has been made by learned counsel who appeared before us in the present case that the power granted by the proviso to the Chief Settlement Commissioner and which was exercised as his delegate by the Deputy Settlement Commissioner was the full and complete power of first pronouncing a house to be divisible and then dividing it into portions. It appears to us on a consideration of this proviso that another construction of the extent of power granted by it to the Chief Settlement Commissioner was not only possible but the more reasonable one under the circumstances. All that the proviso says is that the house shall be regarded as one unless the Chief Settlement Commissioner otherwise orders. These words may be granting to the Chief Settlement Commissioner only the authority to pronounce the house to be not one but divisible. It is not necessary to read into the words "otherwise orders" a power of actual division of a house into separate portions. The intention of the proviso could be that the Chief Settlement Commissioner will determine whether a house should be transferred only as a single unit or shall be capable of being converted into different units, but that once he decides that the house is divisible the Deputy Settlement Commissioner and other Settlement Authorities will in the exercise of the ordinary powers which they have determined the particular portions into which a house was to be divided. The interpretation that the power of actual division too belongs wholly to the Chief Settlement Commissioner will lead to the undesirable result that any division howsoever defective once made by the lowest Settlement Authority cannot be interfered with by any appellate or a revisional authority for we are not inclined to accept, as we will presently explain, that the exercise of delegated power is subject to appeal or revision. In the absence of anything to the contrary in the relevant enactment, rights which accrue to parties to a proceeding from an order and the remedies to which they are entitled as against the order, cannot be allowed to be affected by the circumstance that the order is passed not by the authority in whom a power originally vests but by a delegatee of that authority. The remedies which the parties have for challenging an order should remain the same though the order is passed by a delegatee. In the present case orders passed by the officer who is delegating the power are not liable to appeal or revision while the ordinary orders passed by the delegatee are subject to appeal or revision, but a case is conceivable where the orders of the delegator are subject to appeal or revision but the orders passed by the delegatee are not so subject. In such a case it could hardly be contended that although a party had a right of appeal if the order was passed by the authority in whom a power vested that right was lost because the order was passed by a delegatee whose orders were not under the law subject to appeal. Of course, it is not impossible for the Legislature to provide that even the exercise of delegated power would be subject to the same kind of control as. other orders passed by the delegatee, but that would be a special provision overriding the general implications of the exercise of delegated power. The learned Judges who held in Abduct Ghani v. Chief Settlement Commissioner that the order of the Deputy Settlement Commissioner holding a house to be divisible was subject to J appeal and revision, accepted that "as a general rule if delegation of powers is not subjected to any conditions the exercise of those powers by the delegatee cannot be interfered with by the competent authority". They were of the opinion, however, that the words "subject to the provisions of this Act and the rules made threunder," occurring in section 31 (2) "must be construed as subjecting the orders by the delegatee to the incidence of an appeal or revision under sections 19 and 20 of the Act". The first observation to be made while considering the correctness of this argument is that the words "subject to the provisions of this Act and the rules made thereunder" go with the words "may delegate". They mean that the power of the Chief Settlement Commissioner to delegate is not absolute but is subject to any provision in the Act or the rules. If any provision B in the Act or the rules expressly or impliedly forbids the delegation of power vesting in the Chief Settlement Commissioner, then to that extent, in spite of section 31(2) the power cannot be delegated. As an instance of a provision in the Act which prevents a particular delegation of power reference may be made to section 29 of the Act which runs "

29. Ejectments.‑(1) The Chief Settlement Commissioner may eject or cause to be ejected any person in possession or occupation of any evacuee property or any property acquired under section 3 whose possession or occupation is not authorised by any of the provisions of this Act or who contravenes or may have contravened any of the terms and conditions under which the property is held by him, or who, when called upon, has failed to pay public dues or has wilfully caused damage to any such property allotted to or occupied by him and for the purpose of such ejectment use or cause to be used such force as may be considered necessary. (2) The Chief Settlement Commissioner may delegate the powers under subsection (1) to any Settlement Commissioner, Additional or Deputy Settlement Commissioner.". The power granted to the Chief Settlement Commissioner by section 29(1) can by virtue of section 29(2) be delegated to a Settlement Commissioner, or Additional or Deputy Settlement Commissioner. Assistant Settlement Commissioner is not mentioned in section 29(2) with the result that in spite of section 31(2) the Chief Settlement Commissioner cannot delegate his power under section 29(1) to an Assistant Settlement Commissioner. This is an instance of the power under section 31(2) being "subject to the provisions of the Act" The intention obviously was that even by rules this power may be curtailed and that is why the words "or rules made thereunder were added. In the face of these words it is clear that a provision in the rules curtailing the power granted by section 31(2) would be binding. The words "subject etc . . . ." were needed therefore to give effect to the intention that the Chief Settlement Commissioner could not delegate his power in cases where it was not permitted by the Act or the rules and their existence cannot be the basis of any further inference. These words apparently relate only to the power of the Chief Settlement Commissioner to delegate and not to the exercise of delegated power by the delegatee, but assuming that they did relate even to the exercise of delegated power they could not create a right of appeal or revision which otherwise did not exist. It is nobody's contention that the exercise of delegated power is not subject to the provisions of the Act. The contention is that the Act does not contain any provision negativing the ordinary rule that the exercise of delegated power remains subject to the same control as it would be if exercised by the delegator. The mere use of "words subject to the provisions of the Act . . . . . ", assuming as already observed that these words relate to the exercise of delegated power, is not sufficient to convey such an intention., These are words which are generally used in respect of grant D of statutory powers. There is no instance of their ever having been used for conveying the intention that a delegated power will be subject to appeal and revision like the ordinary orders of the delegatee. The framer of section 31(2), if his intention was to depart from the ordinary rule relating to the exercise of delegated power and to provide that the orders passed in the exercise of delegated power would be subject to appeal and revision as if they were passed in the exercise of ordinary power, would have used clear words giving effect to that intention. Our conclusions are: (i) That the power granted to the Chief Settlement Commissioner by the first proviso to section 2(4) is only a power of pronouncing a house to be divisible; and (ii) that the exercise of this power by a delegate is not subject to appeal or revision. In the present case the Deputy Settlement Commissioner had found the house to be divisible. With this finding of his there was no interference in appeal or revision all that happened is that the mode of division was changed. There is no defect therefore in the orders passed by the appellate or revisional authorities. The half‑hearted argument as to the order of the Settlement Commissioner being void because he did not call for the record has to be noticed. It is true that in accordance with section 20 of the Displaced Persons (Compensation and Rehabilitation) Ac the revisional authority should send for the record, 'but that does not mean that in every case in which records are not sent for the order of the revisional authority is necessarily without jurisdiction. To illustrate the matter, only a question of law may have been raised, the facts being undisputed between the parties or being apparent from the order under revision. No purpose would in such a case be served by sending for the record. In order to succeed in an attack on the revisional order on this ground it has to be shown that there was prejudice by not calling for the records or at least there were reasonable chances of prejudice having occurred. No question of prejudice has been raised at all before us. The appeal is dismissed but there is no order as to costs. A. H. Appeal dismissed.