P L D 1964 (W (PLP)

The last provision which has considerable bearing on the point under consideration is section 31, which deals with the delegation of powers. The said section reads thus:- "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." Even a cursory reading of subsection (2) makes it manifest that the power of delegation by the Chief Settlement Commissioner to any Settlement or Additional Settlement Commissioner or Assistant Settlement Commissioner is subject to the overriding condition, namely, that such delegation is to be done by notification in official Gazette prescribing the condition, if any, under which the delegated powers are to be exercised.

10. The question, therefore, arises whether the power of the Chief Settlement Commissioner has been validly delegated to the Auction Committee under subsection (2) of section

31. The learned counsel for the parties were pointedly asked if they could refer to any Gazette Notification, under which Settlement Commissioner had delegated his powers to the Auction Committee authorising it to accept the bids, but they were constrained to admit that they were not aware of any such notification. Our attention was drawn to Memorandum No. 839‑PI‑Reh. 60 dated the 9th January 1960, and it was stated that in pursuance of the directions contained in that memorandum, the Auction Com mittee had been exercising its functions. Mr. A. Rauf Qureshi was especially directed by us to produce the Gazette Notification if there was any on the subject, but he has so far not done so and we, therefore, presume that there has been no Gazette Notification under which the Chief Settlement Commissioner had delegated his powers to the Auction Committee. Since the question of the validity of the constitution of the Auction Committee goes to the root of the present petitions and this question is likely to be agitated in other writ petitions, in which the Auction Committee have sanctioned the bids, we consider it proper to refer it to a larger Bench. We, therefore, direct that the case be laid before the Chief Justice for the constitution of a larger Bench, the question propounded for reference being:‑ "Whether the constitution of the Auction Committee vide Memorandum No. 839‑PI‑Reh. 60 dated the 9th January 1960, by the Chief Settlement Commissioner delegating to them the power of accepting highest bid is ultra vires of the powers of the Chief Settlement Commissioner?" J. ORTCHESON, J.‑Three Writ Petitions Nos. 253, 255, 257 of 1961 came up for hearing before a Division Bench of which one of us was a member. In all three Mr. Pir Bakhsh Khan appeared for the petitioners, Mr. Abdur Rauf Qureshi for the Settlement Department, and Pir Masoom. Shah for the other contesting respondents. The case of the petitioners is that they were regular allottees of certain shops; that the shops in question were sold be unrestricted public auction in March or April 1960, that the petitioners submitted the highest bids, which were accepted by the Auction Committee which had conducted the sale; that the Additional Settlement and Rehabilitation Commissioner, Peshawar, confirmed the acceptance of the bids, Provisional Transfer Orders being consequently issued to the petitioners; and that respondent No. 4 in each of the petitions (one Abdul Khaliq in Petitions Nos. 255 and 257 and one Haji Dher Wali in Petition No. 253) later offered higher amounts, which were accepted, the orders approving the sale of the shops in favour of the petitioners being cancelled.

2. During the hearing of the above petitions it emerged that a common question of law of considerable importance was involved which to the opinion of the Bench required consideration by a larger Bench. The following question was accordingly propounded for reference:‑ "Whether the constitution of the Auction Committee by Memorandum No. 839‑P.I.‑Reh. 60 dated the 9th January 1960, by the Chief Settlement Commissioner delegating to them the power of accepting the highest bid is ultra vires of the powers of the Chief Settlement Commissioner?" The present Bench was subsequently constituted and arguments were heard.

3. It may be stated at the outset that although the question submitted for reference was based on the allegation made in the petitions that the power of accepting the highest bid had been delegated by the Chief Settlement Commissioner to the Auction Committee. a more correct statement of the position is that the said delegation was in favour of the Additional Settlement Commissioner as Chairman of the Committee, and in this order the matter will be discussed from that point of view.

4. For a full understanding of the position, it is necessary to refer to certain provisions of law and some executive instruc tions issued by the authorities concerned. The first is section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958 (hereinafter to be referred to as "the Act") as amended by the Central Ordinance No. II of 1962. It runs:‑ "

10. Power to transfer property from the compensation pool‑ (1) Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule. (2) Notwithstanding anything contained in subsection (1) the Central Government may order the transfer in public interest of any property out of the compensation pool in such manner as it may deem proper."

5. To the Act is appended a Schedule entitled "Manner of Disposal of Urban Evacuee Property," the second part of which deals with the method of disposal of shops falling within the above category. Paragraph 8 lays down that, subject to certain provisos, a shop in the possession of a claimant or a parent, son, daughter or spouse of the claimant, being a shop which such parent, son, daughter or spouse does not claim under the provisions of the Schedule, shall be transferred to him at a price determined on evaluation basis. Paragraph 9 deals with the case of a non‑claimant displaced person and provides that a shop in the possession of such a person which he desires to retain shall be transferred to him on payment of the prevailing market value. The important paragraph, however, for the purposes of this case is paragraph 11, which runs:‑ "Shops not transferred under paragraphs 8 and 9 shall be sold to the highest bidder in an unrestricted public auction."

6. The second provision requiring mention is para graph 16‑A of the same Schedule, which is in the following terms "16‑A. Notwithstanding anything contained in this Schedule, whenever any property is sold at a public auction‑ (1) The auction shall be subject to such terms and conditions as may be laid down by the Chief Settlement Commissioner; and (2) The Chief Settlement Commissioner may for reasons to be recorded In writing accept a bid other than the highest bid or refuse to accept any bid."

7. Reverting to the Act, clause (b) of section 16 (1) is to the effect that, subject to the provisions of the Act and the rules made thereunder, the Central Government may, by order in writing, require the Chief Settlement Commissioner or any other officer specially empowered by the Central Government in this behalf to prepare, in anticipation of the settlement of claims, one or more schemes for the transfer of immovable property on evaluation basis or otherwise to claimants, non‑claimants or locals in accordance with the provisions of the Schedule.

8. On the 9th of January 1960 a Memorandum No. 839‑PI -Reh‑60, reproduced at page 103 of the Manual of Settlement Law and Procedure issued by the Government of Pakistan (hereinafter to be referred to as "the Manual") was issued in which it is stated that after the observance of certain preliminaries, with which this case has no concern, an auction should be held under the supervision of an Auction Committee consisting of the following:- (1) Additional Settlement Commissioners of the region concerned (Chairman). (2) Deputy Settlement Commissioner of the area concerned (Member). (3) A representative of the Deputy Commissioner (Member). Clause 2 of the above Memorandum directed that the terms and conditions of auction prescribed in the case of industrial concerns might be adopted mutalis mutandis for the auction of shops and might include the following:- "(iii) The Chairman, Auction Committee, may for reasons to be recorded in writing accept a bid other than the highest bid or refuse to accept any bid."

9. Since, as stated in the previous paragraph, the Memo randum above discussed provided that the terms and conditions of auction prescribed in the case of industrial concerns might be adopted for the auction of shops, reference may now usefully be made to Settlement Scheme No. 11, reproduced at page 308 of the Manual. Paragraph I of the said Scheme lays down that the auction will be conducted under the supervision and control of an Auction Committee. Another important Paragraph is No. 8, which provides that the bid accepted by the Auction Committee shall be subject to the approval of the Chief Settlement Commissioner. It will be noticed that the above Paragraph runs directly counter to clause 2(iii) of the Memo randum already referred to, which vests the power of accepting or rejecting a bid in the Additional Settlement Commissioner of the region concerned as Chairman of the Auction Committee. A perusal of the provisions of the Act will show that although section 9 provides for the appointment of such number of Settlement Commissioners, Additional Settlement Commissioners, Deputy Settlement Commissioners and Assistant Settlement Commissioners, as may be necessary for the performance of duties and functions assigned to them by or under the Act, the only functions specifically assigned by the Act itself are those of appeal, revision, and review contained in sections 19, 20 and

21. Prima facie therefore, any other function vested in the Chief Settle ment Commissioner can only be conferred on Settlement Additional, Deputy or Assistant Settlement Commissioners by delegation. The relevant section of the Act is 31, subsection (2) of which provides:- "(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."

10. It is conceded by Major Ishaq Muhammad, who argued the case of the Settlement Department before us that no notifi cation was published in the gazette delegating the power of accepting or rejecting the highest bid at an auction to Additional Settlement Commissioners as Chairmen of the regional Auction Committees. He contends, however, that in the present case there has been no delegation of the Chief Settlement Commissioners powers and relies upon section 9 of the Act, already referred to. That section does not, however, help him. In the first place, the Memorandum in dispute was issued, not by the Central Government, but by the Chief Settlement Commissioner himself. No doubt subsection (3) of section 9 lays down that the Settlement Commissioners etc. appointed under subsection (1) shall perform the duties and discharge the functions assigned to them by order under the Act under the general superintendence and control of the Chief Settlement Commissioner, but under subsection (2) the Chief Settlement Commissioner himself is to discharge his functions and perform his duties under the general superintendence and control of the Central Government. Above all, the only officer empowered in the first instance by the Schedule to the Act to accept or refuse the highest bid is the Chief Settlement Commissioner. Major Ishaq Muhammad has cited Abdur Rashid v. Pakistan etc. (P L D 1962 S C 42) but the facts of that case are by no means on all fours with those of the present. In Abdur Rashid's case the Central Government had issued instructions determining who could be "rightful claimants" from among the category of displaced persons. The argument was raised that this amounted to delegated legislation, but the learned Judges rejected it on the ground that as it was a question purely of granting a benefit or a privilege it was certainly open to the Legislature to determine who were to be the persons to whom it would give such benefit, and that it was not a case of Government's having legislated as to the category of the persons entitled to claim, but one where merely a general direction had been issued laying down the principles upon which Claims Officers were to verify claims and register the same, which Government could legitimately do under the Act. In the present case, on the other band, the Chief Settlement Commissioner invested the Additional Settlement Commissioners of the respective regions with a power conferred by the Schedule to the Act on him alone, a very different matter.

11. Major Ishaq Muhammad also placed reliance on Paragraph 16‑A of the Schedule cited in Paragraph 6 above and contended that in empowering the Additional Settlement Commissioner as Chairman of the Auction Committee to accept or reject the highest bid the Chief Settlement Commissioner was only laying down terms and conditions of the auction. He has, however, omitted to notice that Paragraph 16‑A contains two separate sub‑paragraphs, the first dealing with the laying down of terms and conditions of the auction and the second empowering the Chief Settlement Commissioner to accept or refuse any bid. This clearly shows that, in the view of the Legislature, the power of fixing the terms and conditions of the auction was separate and distinct from that of accepting or rejecting bids. I, therefore, hold that in conferring the power in dispute on the Additional Settlement Commissioners the Chief Settlement Commissioner was not laying down one of the terms and conditions of the auction, but delegating to them one of his own functions.

12. Major Ishaq Muhammad next cited two authorities Hamidullah v. Rai Khurshid Ahmad Khan, etc. (P L D 1958 S C (Pak.) 516) and Ram Labhaya v. Dhani Ram (A I R 1947 Lah. 296). In the former it was held that the expression "allottee" is not a term of art in law, and that for its proper construction reliance may properly be placed upon the practice of the Rehabilitation Department to which the operation of the relevant law has been entrusted, while Ram Lahbaya's case lays down the general principle of which Hamidullah's case provides one instance, namely, that as a general rule, executive and administrative officers will be called upon to interpret certain statutes long before the Courts may have an occasion to construe them, and that where a certain contempo raneous construction has been placed upon an ambiguous statute by the executive or administrative officers concerned, and especially if such construction had been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it was not to be disregarded by the Courts except for the most satisfactory, cogent or impelling reasons. With the utmost respect, I fully agree with the above principle, but hold that it has no application to the present case. It can be invoked only where the language of the statute concerned is ambiguous and, as pointed out at page 4 of "Maxwell on The Interpretation of Statutes", 11th Edition, when the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise, it being in fact not allowable to interpret what has no need of interpretation. In the present case the power of accepting or refusing any bid was vested by the Act in the Chief Settlement Commissioner alone, and his action in con ferring that power on a subordinate authority clearly amounts to delegation. 1t is further well settled that when a statute requires something to be done in a certain manner, it must be done in that manner and in no other. Section 31 (2) of the Act unambiguously provides that any delegation by the Chief Settlement Commissioner is to be by notification in the Official Gazette. and I have no hesitation in holding that a delegation made without a notification is invalid. Major Ishaq Muhammad did not in fact challenged this principle, his case being that the action of the Chief Settlement Commissioner did not amount to delegation.

13. In conclusion Major Ishaq Muhammad called our attention to an authority of the Karachi Bench of this Court Haji Ghulam Nabi v. Settlement and Rehabilitation Department (P L D 1962 Kar. 786), in which it was held that where the jurisdiction of a Tribunal is challenged in a writ petition the objection must have been taken before the Tribunal itself. The reasoning adopted, based on the English case Reg. v. Williams (A I R 1954 Born. 202) is that there is a basic distinction between an ordinary suit and the exercise of writ jurisdiction, and that while in the former a defendant may not raise the question of jurisdiction either in the Court of first instance or in the appellate Court, and may indeed postpone it up to the stage of the Privy Council or the Supreme Court, when a petitioner comes to the High Court for a writ, the Court must tell him: "it was open to you to raise that point before the Tribunal whose order you are challenging. You have sat on the fence, you have taken a chance of the Tribunal deciding in your favour, and it is not open to you now to come to us and ask for a writ." With great respect, I again entirely agree with the above dictum, but it has no application to the present case. In the first pace, this order does not purport to settle the fate of the three connected petitions out of which the reference arose, or of the other writ petitions in which the same point may arise, but only to decide the important common question of law involved. Secondly in the writ petitions concerned the petitioners do not challenge the jurisdiction of the Additional Settlement Commissioner, as Chairman of the Auction Committee, to accept or reject the final bid. On the contrary, their case is that he was fully empowered to do so and that the matter could not subsequently be re-agitated. It is also open to question (though I give no final decision on this point) whether a principle governing proceedings before a Tribunal is applicable to the action of an executive authority exercising neither judicial nor quasi‑judicial functions.

14. For the above reasons, I would hold that as there has been no valid delegation by the Chief Settlement Commissioner to the Additional Settlement Commissioner of the power of accepting or rejecting a bid the latter's exercise of that power is illegal and ultra vires of the Act. ANWARUL HAQ, J.‑

I agree. MUHAMMAD DAUD KHAN, J.--‑I agree. A. H. Reference answered.