P L D 1965 (W (PLP)

WAHIDUDDIN AHMED, J.‑--This writ petition is directed against the order of the Settlement Commissioner dated the 24th April 1962 on a review application filed by M. S, Shaikh respondent No.

2. By this order the learned officer reviewed the order of his predecessor dated 4‑6‑60 and transferred the residential bungalow in dispute to respondent No. 2.

2. The dispute between the parties is in respect of residential bungalow situated at plot No. 105/1 Depot Lines, Karachi Cantt. These premises were in occupation of one Muhammad Aslam, a local. It appears that the occupant of the premises in dispute was found by the Rehabilitation authorities to be in unauthorised occupation and it' was allotted to Imtizaj Hussain the petitioner, a displaced person, under the orders of the Deputy Rehabilitation Commissioner; Cantt. area dated 20‑5‑

58. But in spite of the ejectment proceedings the petitioner was unable to obtain the possession of the premises in dispute. During the pendency of the eviction proceedings Muhammad Aslam arranged with M. S. Shaikh respondent No. 2 for mutual exchange of the premises in dispute with tenement G. R. E. 319/1. G. 2 in Basantsingh Building, Garden East, Karachi. They approached the Rehabilitation Authorities and by an order dated 20‑3‑59 the Assistant Settlement and Rehabilitation Commissioner permitted them to exchange the bunglows. In pursuance of this order respondent No. 2 came in possession of the premises in dispute.

3. This fact came to the knowledge of the petitioner who on 8th April 1959 informed the Deputy Rehabilitation Commissioner, Karachi Cantt. about it and requested him to evict respondent No.

2. On 21st April 1959 respondent No. 2 was informed by the Deputy Rehabilitation Commissioner, Karachi Cantt. that the allotment obtained by him was illegal and he being in illegal occupation of the premises in dispute should evict the premises immediately. On the representations of respondent No. 2 the Deputy Rehabilitation Commissioner, Karachi Cantt. on 13th June 1959 sought advice of the Chief Rehabilitation and Settlement Commissioner in respect of the alleged allotment obtained by respondent No. 2, in reply, on 28th November 1959 the Department informed him as under: "The exchange of the houses allowed by the Asstt. Settlement Commissioner does not amount to the regular allotment order and therefore Mr. M. S. Shaikh will not be entitled to the transfer of the house in his occupation under the provisions of the "Displaced Persons (Compensation and Rehabilitation) Act, 1958 (as amended). Also he cannot be considered His an occupant under the new scheme as he occupied the premises after 21‑12‑

58. You can therefore dispose of the property according to the Provisions of the aforesaid Act." Consequently the Deputy Rehabilitation Commissioner, Cantt. area by his order dated 25‑1‑60 informed respondent No. 2 that he was in unauthorised occupation of the premises in dispute and communicated him the‑following decision: "The Chief Settlement and Rehabilitation Commissioner, Govt. of Pakistan has decided that the exchange of the house allowed by the Assistant Settlement Commissioner in your case does not amount to the Regular allotment order and you are not entitled for the transfer of the houses in your occupation under the provisions of displaced persons (Compensation and Rehabilitation) Act, 1958 (as amended). Also you cannot be considered as an occupant under the new scheme, as you occupied the premises after 21‑12‑1958." It, however, appears that in view of Settlement Scheme all ejectment proceedings were stayed and respondent No. 2 continued to remain in possession of the premises in dispute. The petitioner applied for the transfer of the house under the Settlement Scheme which was granted, but the appendix issued in his favour was withdrawn as he could not be deemed to be in possession of the property within the four corners of the provisions of the Displaced Persons Compensation Act. Respondent No. 2 also applied for the transfer of the premises in dispute but his application was also rejected as mentioned above. Thereupon respondent No. 2 filed an appeal before the Additional Settlement Commissioner, who dismissed it by order dated the 18th May 1960. His revision application was also dismissed by Mr. Hasan A. Shaikh the then Settlement and Rehabilitation Commissioner by order dated the 4th June 1960.

4. On 3rd August 1960 the following notification was published in order to bring certain other classes of persons within the definition of `possession' under the Displaced Persons Compensation Act. It runs as under:-- "In exercise of the power conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to direct that a claimant, a non‑claimant displaced person or a local who has not obtained possession of a house in pursuance of an order referred to in the said clause but is in possession of a house in pursuance of an order passed by a competent authority after the twentieth day of December 1958 but not later than the date of this Order shall, for the purposes of the aforesaid Act, be deemed to be in possession thereof if such claimant, non -claimant displaced person or local is in undisputed occupation of the house and no other person is otherwise entitled to the transfer of such house in pursuance of a final order passed by a competent authority." In view of this notification, the respondent No. 2 on 17th August 1960 moved an application for review under section 21. of the Displaced Persons Compensation Act. In para. 4 of this petition he admitted that he had filed a revision application against the order before the learned Chief Settlement Commissioner, which is pending, but in view of the changed position of the law he thought that the matter may be further reviewed and a suitable order may be passed. This application came up for hearing before Mr. A. Rauf Chaudhry who on 16th February, 1961 passed the following order: "Need not be forwarded to C. S. C. for his permission to review." But the learned Settlement Commissioner at the request of the petitioner later on changed his mind and on 7th March 1961, referred the matter to the Chief Settlement Commissioner for permission to review the order passed by Mr. Hassan A. Shaikh. On 18th April 1961, the Secretary to the Chief Settlement and Rehabilitation Commissioner, Government of Pakistan by a letter communicated the following decision of the Chief Settlement Commissioner to the Settlement Commissioner, Karachi: "

2. As required by proviso (s) (i) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner has been pleased to grant you the permission to review the order of your predecessor in this case. From para. 4 of the review application it however appears that the petitioner has already filed a revision application before the Chief Settlement Commissioner against the order sought to be reviewed. The above permission to review the order of your predecessor has therefore been granted subject to the condition that the applicant Mr. M. S. Shaikh first withdraws his revision petition preferred before the Chief Settlement Commissioner. The Chief Settlement Commissioned has further ordered that you should please examine and find out if the order dated 20‑3‑59 passed by the Deputy Settlement Commissioner was competent.

3. It would be appropriate if Mr. Imtizaj Hussain is also made party in this case . who in his application dated 7‑9‑60 already on your record alleges that he is the regular allottee and has submitted C. H. Form in respect of the bungalow in question." Having armed himself with this permission the learned Settlement Commissioner proceeded to review the order passed by Mr. Hassan A. Shaikh, and, as already observed, has directed that the premises in dispute be transferred to respondent No.

2. This order has been challenged in this writ petition on numerous grounds.

5. In support of the petition Mr. Syed Mohd. Sadiq the learned counsel for the petitioner has urged that the learned Settlement Commissioner had no jurisdiction to entertain the review application and pass the impugned order in his review jurisdiction. He further contended that the learned Settlement Commissioner was not justified to transfer the premises in dispute to respondent No. 2 in view of the provisions of Displaced Persons Compensation Act, we will discuss these points separately.

6. The question whether the learned Settlement Commissioner had jurisdiction to review the order of his predecessor is to be determined on consideration of section 21 of the Displaced Persons Compensation Act, which was operative at the relevant time and is reproduced below: (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 reasonable 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." In clause (c) of section 21 it is provided that an order against which an appeal or a petition or revision has been preferred shall not be reviewed. Mr. Sadiq therefore contended that on the admission of respondent No. 2 himself he had already filed the revision petition to the Chief Settlement Commissioner and under the law in such circumstances no application for review was maintainable. The contention of the learned counsel is not without force. It will be noticed that the learned Settlement Commissioner had already declined to seek permission of the Chief Settlement Commissioner which was a condition precedent to the review of an order passed by a predecessor of the Settlement Commissioner on the ground that the revision petition had already been filed, but later on he changed his mind and sought the permission of the Chief Settlement Commissioner to review the order of his predecessor. This, as already observed, was granted. On the plain reading of section 21 (c) it cannot be doubted that no review petition was maintainable if the impugned order was A the subject‑matter of an appeal or a petition for revision] Mr. Nusrat, the learned counsel for the respondent, however, urged that since the revision petition had been withdrawn it could not be said that the petitioner had preferred any revision petition and, therefore, there was no bar to the maintainability of the review petition and the impugned order is a perfectly valid one.

7. In support of his contention the learned counsel for the respondent has referred us to certain decisions of the Indian Courts given in connection with the provisions of O. XLVII, r. 1 of the Code of Civil Procedure. In that provision of law also any person considering himself aggrieved is permitted to file a review petition from a decree or order from which an appeal is allowed, but from which no appeal has been preferred. The Indian Courts, while interpreting the words `no appeal has been preferred' have considered the affect of the withdrawal of an appeal by an aggrieved party. In Ramappa Bin Dareppa and another v. Bharma Bin Rama (I L R 30 Dom, 625) a case under sections 551 and 623 of C. P. C. 1882 it was held as under:-- "It is open to the person aggrieved, after an appeal has been preferred, to apply for a review, provided his appeal is withdrawn. As by the cancellation of the order for admission of an appeal it is to be taken that no appeal was admitted, so by withdrawal of the appeal it must be treated as though no appeal was preferred. But when an appeal is actually dismissed, it was m fact preferred and cannot be regarded as not having been preferred." Similarly in Ram Prasad and another v. Asa Ram and others (I L R 43 All. 288) it was held that: "An appeal which has been withdrawn must be treated as if it had never been "presented" within the meaning of Order XLVII, rule 1 of the Code of Civil Procedure. It was further held that: "the fact of an appeal having been filed and withdrawn was no bar to the hearing of the application for review." In Thakur Singh v. Dinanath Shah (A I R 1937 Pat. 528) following these decisions it was held that: "An appeal which has been withdrawn must be treated as if it had never been preferred within the meaning of Order XLVII, rule 1, C. P. C."

8. On the other hand Mr. Sadiq the learned counsel for the petitioner has referred us to Raja Indrajit Pratap Bahadur Sahi v. Amar Singh and others (AIR 1923 P C 128). In this case it was held by their Lordships that: "Under Order XLVII, rule 1 which reproduces section 623 of the Civil P. C. 1882, a party has a right to apply for a review of judgment to the Court that has decided the case before an appeal has been preferred." Their Lordships further observed that: "Where an appeal has been preferred, a review is out of question and the party's proper course is to apply to the appellate Court, which is in possession of the case, to admit the additional evidence either under the general principles of law or under the specific provisions of Rule 27, which lays down that the appellate Court may for any other substantial cause, viz. other than those particularly specified, allow such evidence or documents to be produced or witnesses to be examined. Rules of procedure are not made for the purpose of hindering justice." Reliance was also placed on behalf of the petitioner on Balling Vithaling Sakharpekar v. Shri Devasthan Fund, Gondhale (A I R 1931 Bom. 232). In that case it was held that: "An application for review is not competent if on the date when the review application if filed, appeal from the decree sought to be reviewed is pending, nor can subsequent withdrawal of the appeal before application for review comes on for hearing amount to non‑preferring of appeal within the meaning of Order XLVII, rule 12." In Gulab Khan and others v. Muniruddin and others (A I R 1935 Nag. 174) Niyogi A.J.C. observed as under: "It is transparent that there are only two conditions which ought to exist before a person is entitled to apply for a review of judgment: (1) that no appeal has been preferred, and (2) that the new matter was not within the person's knowledge at the time when the decree was passed. The clear terms of the law do not lay down any distinction between a case when the evidence is discovered before the appeal or a case when it is discovered after the appeal is preferred. The essential condition is indisputably this: that a person applying for a review of judgment should not have preferred an appeal. The competency of the person applying for a review must be determined with reference to the date on which he files the application. His very right to apply is made dependent on his not having preferred an appeal. It cannot therefore be gainsaid that on the day on which the applicant filed his application for review he had no right to do so as he had already appealed from the decree. If initially the application was untenable so that the Court would have no jurisdiction to deal with it, I fail to see how the subsequent withdrawal of the appeal would regularise the application for a review. Rule. 1, Order XLVII does not speak of the person's right to be heard on his review application but speaks of his right to apply for a review."

9. In our opinion there could be a possibility of conflict of view on the language and scope of Order XLVII, rule 1, C. P. C., on the question under consideration for there is no express prohibition in it, but the same cannot be said of Proviso (c) to section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It specifically provides that "an order against which an appeal or petition for revision has been preferred shall not be reviewed". There is a total bar to exercise the power of review if an appeal or revision has been preferred from the impugned order. There being no ambiguity in the language, it is not possible in such cases to confer jurisdiction by contrivances or artificial means namely by allowing to withdraw the appeal or revision as the case may be. The argument that the effect of withdrawal of the revision petition afterwards would be as if no revision has been preferred has not impressed us. The fact that it was withdrawn later on or was not withdrawn is of no material consequence. Therefore, it appears to us that the learned Settlement Commissioner had no jurisdiction to review the order passed by his learned predecessor and the impugned order is ultra vires and illegal for this reason.

10. On merits also we have not been able to find out any case for respondent No. 2 for the transfer of the house in dispute. It will be noticed that the order of exchange obtained by him was in respect of the premises which was in the occupation of a local, who could not possibly obtain its transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as its value is much more than Rupees ten thousand. His occupation was already found to be unauthorised and on that basis the premises in dispute was allotted to the petitioner in May 1958 by the Deputy Settlement Commissioner, Karachi Cantt. Ejectment proceedings had started and the occupant of the house was threatened to be thrown out from the premises in dispute. It is admitted that respondent No. 2 is a very close friend of Muhammad Aslam and in such circumstances there is not the slightest doubt that the exchange in question was a device to defeat the claim of the petitioner. The order of the Assistant Settlement Commissioner was obtained without notice to the petitioner and without apprising him that the local had been ordered to be ejected and any possession obtained under it cannot be considered to be bona fide but tainted with fraud. It was admitted at the Bar that the Assistant Settlement Commissioner, who allowed the exchange in question, was not competent to deal with the property situated in Cantonment Area. He had, therefore, no jurisdiction to permit the exchange in respect of a property situated in an area which was outside his jurisdiction. He cannot be considered under any circumstance, to be at competent authority within section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In fact when the petitioner brought this fact to the notice of the Deputy Rehabilitation Commissioner, Karachi Cantt. the matter was referred to the Chief Settlement Commissioner and the Officer concerned was informed that the allotment of the property on the basis of the mutual exchange in favour of respondent No. 2 was illegal and could not be accepted as valid one. Mr. Nusrat contended that there is nothing on the record to establish that the Chief Settlement Commissioner ever applied his mind to this aspect of the case or gave his decision on it. Mr. Wasim, who appeared on behalf of the Department was called upon to produce the file which contained the original letter of the Deputy Rehabilitation Commissioner, Karachi Cantt. a copy of which is produced on our record, and the order passed on it. The learned representative of the Department was unable to produce it. We are, therefore, left with the certified copies of the documents produced on the record. The petitioner has produced a certified copy of the letter issued by the Deputy Settlement Commissioner, Karachi Cantonment, Annexure `F' dated the 25th January 1960. In this letter it is clearly stated that: "The Chief Settlement and Rehabilitation Commissioner Govt. of Pakistan has decided that the exchange of the house allowed by the Assistant Settlement Commissioner in your case does not amount to the Regular allotment order and you are not entitled for the transfer of the houses in your occupation under the provisions of Displaced Persons' (Compensation and Rehabilitation) Act, 1958 (as amended)." In the face of this document it was for the contesting respondent to prove that this statement of fact is not correct, but no such attempt was made. At no stage this fact was in dispute or challenged. On the other hand, the contesting respondent in ground No. V before the Additional Settlement Commissioner made the following submission:‑-- "The Chief Settlement Commissioner's opinion intimated to the appellant under the Deputy Settlement Commissioner's letter of the 25th January, 1960 is confined to the regularity or otherwise of the allotment‑it says nothing regarding the possession of the property in question by the appellant." In view of this it is not possible to hold that the opinion conveyed was not that of the Chief Settlement Commissioner, but of somebody else in the Department. In law it shall have to be presumed that all official acts were regularly performed.

11. The learned Settlement Commissioner has transferred the property in dispute to the contesting respondent on the following grounds: (1) that the respondent No. 2 came into possession of the premises in dispute in pursuance of an order passed by a competent authority after 20th December 1958 and before 3rd August 1960 the date of publication of the relevant notification. As such he should be deemed to be in possession of the said house for the purposes of the aforesaid Act under the aforesaid notification. (2) that the allotment made by the Deputy Rehabilitation Commissioner, Karachi Cantt. was ab initio null and void. We have already discussed the first ground. In the circumstances of the present case the finding of the learned Settlement Commissioner that respondent No. 2 was holding possession of the premises in dispute by a Rehabilitation Authority authorised or permitted by the Central or Provincial Government cannot be sustained. In respect of the second ground he observed as under: "The copy of the letter dated 13‑5‑58, addressed to the Assistant Secretary to the Chief Commissioner, Karachi, filed by the applicant also shows clearly that all allotments had been stopped at that time. The allotment made by Deputy Rehabilitation Commissioner (Cantt.) in favour of the respondent in respect of the said property was, therefore, in violation and contravention of the instructions issued by the Rehabilitation Commissioner who had ordered, on 16‑4‑58 that proceedings under the Pakistan Rehabilitation Act, 1956, be stayed until further orders and all cases except those relating to houses and shops, which were lying vacant, be assigned to record. The issuance of allotment being a proceeding under the Rehabilitation Act, 1956, was no exception to the general directive. The allotment made by Deputy Rehabilitation Commissioner (Cantt.) in violation of the said instructions was, therefore, ab initio null and void." There is much force in the petitioner's contention that the learned officer did not apply the same yard stick to test the validity of the allotment in question. It is amazing that on the one hand he had held that the allotment in favour of the petitioner as void on the ground that all allotments were banned but in the case of respondent No. 2 he has taken absolutely a contradictory view. If all the allotments were banned, the allotment in favour of respondent No. 2 by the Assistant Settlement Commissioner would also be void.

12. In any case the view expressed in the impugned order that the petitioner's allotment was void on account of the ban is not based on any clear instructions of a competent authority. The letter relied upon contain no direction that future allotments are banned. It is doubtful that the Rehabilitation Commissioner had any such power.

13. In the present case, however, the question of banning of future allotments after a particular date has no material bearing. The petitioner has placed reliance for the transfer of the premises in dispute on the notification of the Central Government dated 11th August 1960 which is reproduced below: "In exercise of the powers conferred by the second proviso to clause (b) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) the Central Government is pleased to order that the allottees of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation Authority and who, through no fault or negligence of their own, have so far been unable to obtain physical possession of the house or the shop in question shall be deemed to be in possession thereof for the purpose of the said Act." Thus under this notification the allottees of a house or shop for whose benefit the ejectment proceedings have been ordered and who through no fault or negligence of their own have not been able to obtain physical possession of the house or the shop are to be deemed to be in possession of the premises allotted to them. In pursuance of this notification the Chief Settlement Commissioner on 6th September 1960 invited applications from such persons subject to the following conditions: (1) the house or shop applied was allotted to the applicant on or before 20th December 1958 by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government; (2) the applicant has not been able to obtain the physical possession of the house or the shop in question through no fault or negligence of his own on or before 11th August 1960; (3) ejectment proceedings had been ordered by a Court or a Rehabilitation Commissioner for the benefit of the applicant and such proceedings were pending on 11th August 1960. It is, therefore, quite obvious that any allotment obtained by a person before the 20th December 1958 from a Rehabilitation Authority has to be considered as valid and good and no exception about its validity can be made on other outside considerations. On that view of the matter the consideration that weighed with the learned Settlement Commissioner for rejecting the claim of the petitioner has no legal basis and cannot be upheld. Moreover, even if both the allotments are held to be good, the petitioner's possession would be prior as his allotment is of May 1958,

14. After careful consideration of the points raised in this writ petition we are satisfied that the learned Settlement Commissioner had no jurisdiction to review the order passed by his learned predecessor. We are further satisfied that respondent No. 2 surreptitiously obtained the possession of the house in dispute and his claim cannot be considered to be valid in view of the provisions of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the notification dated the 3rd August 1960, reproduced in the earlier part of the judgment. Neither respondent No. 2 is in possession of the premises in dispute on the basis of an order passed by a competent authority after the 20th day of December 1958, nor can he be considered to be in its undisputed occupation. It is quite obvious that throughout the occupation of the house in question his possession was disputed both by the Department and by the petitioner. In these circumstances, we would allow the writ petition and direct the Deputy Settlement Commissioner to examine the case of the petitioner for the transfer of the house in dispute in the light of the notification dated the 11th August 1960, and 6th September 1960 referred to above. The parties are ordered to bear their own costs. K.B.A. Petition accepted,