P L D 1968 Lahore 363 (PLP)

ATAULLAH SAJJAD, J.‑

The impugned order, dated the 30th of June 1962, (Copy Annexure `M') was passed by Ch. Sultan Muhammad Khan, Settlement and Rehabilitation Commissioner, with powers of Chief Settlement Commissioner in exercise of the powers of review, with regard to House No. 419/H, Arya Mohalla, Rawalpindi City. The petitioner, who has since died and whose legal representatives have been brought on record, and S. M. Zakaria, respondent No. 2, were contestants for the transfer of this house, and had submitted their CH Forms for that purpose. S. M. Zakaria was allotted the ground floor of this property somewhere in April 1956, and had been in occupation of this part since then. According to para. 2 of the writ petition, Syed Muhammad Sharif‑ul‑Hassan, the deceased petitioner was in possession of the first floor of the house since the 22nd of October 1948. A copy of the allottment order, dated the 21st of February 1949 (Annexure `13') also shows that Sharif ul‑Hassan was in possession of the house earlier than tile date of allottment.

2. The Deputy Settlement Commissioner transferred the entire house to Sharif‑ul‑Hassan and issued Appendix X on the 21st of October 1959 (Copy Annexure `C'). Respondent No. 2, S. M. Zakaria filed a petition before the Deputy Settlement Commissioner against the issuance of Appendix X to Sharif‑ul -Hassan. The said Officer, after considering the case upheld his decision in favour of Sharif‑ul‑Hassan, by his order, dated (he 2nd of November 1959 (Copy Annexure `D'). S. M. Zakaria thereupon filed an appeal in the Court of Additional settlement and Rehabilitation Commissioner, which was dismissed by order, dated the 13th of August 1960 (Copy Annexure `F'). A revision petition was taken by respondent No. 2 before the Settlement Commissioner, but the same was rejected by order, dated the 10th of September 1960 (Copy Annexure `H'). As a last resort, the respondent No. 2 preferred a second revision petition under section 20 (2) of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958. Mr. Mir Ajam Khan, Settle ment Commissioner, Peshawar, with powers of Chief settlement Commissioner, Rawalpindi Division, accepted the revision petition and divided the house horizontally between the petitioner and respondent No.

2. Copy of the order is attached as Annexure `J'). Against this order, Sharif‑ul‑Hassan filed a Writ Petition No. 774‑R of 1961 in the High Court, which was dismissed by Sajjad Ahmad Jan, J. by his order, dated the 13th of September 1961. His Lordship, vide order (Copy Annexure `K') observed that the impugned order was based on findings of fact, and did not suffer from lack of jurisdiction, so as to warrant interference by the High Court in exercise of writ jurisdiction. It was, however, observed that if the petitioner felt that the order in question had proceeded on a wrong assumption, he had the remedy to get it reviewed by the same authority.

3. Sharif‑ul‑Hassan thereupon filed a review petition before the Chief Settlement Commissioner, who sent it on to Mr. Sultan Muhammad Khan, who had been invested with the powers of the Chief Settlement Commissioner, and had succeeded Mir Ajam Khan. The learned Settlement Commissioner with the powers of the Chief Settlement Commissioner passed the follow ing order :‑-- " Under the provisions of law (section 7) Ordinance II of 1962, review against the order on matters of facts is not admissible, nor it should be admitted, unless some glaring irregularity has been committed, or some clerical error, or mistake is to be corrected. No such thing exists in the present case demanding my interference in review. The review petition is, therefore, rejected. Parties to be informed."

4. The validity of the order, quoted in the preceding para. is questioned on the ground that it was on a wrong assumption of law, that the petition had been dismissed in the absence of the parties. It was contended that the review petition had been filed on the 30th of October 1961, and the subsequent coming into force of Ordinance II of 1962 on the 17th of March 1962, could not divest the Settlement and Rehabilitation Commissioner of the jurisdiction, which he possessed at the time of the institution of the review petition. It is further submitted that section 7 of the Ordinance II of 1962 does not place any fetters on the powers of the reviewing authority with regard to questions of fact. The impugned order, it is contended, is therefore vitiated, because the learned Settlement Commissioner refused to exercise jurisdiction, which vested in him under the law. The provisions for review, as they existed in section 21 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958, and as amended from time to time, empowered the Chief Settlement Commissioner, a Settlement Commissioner, an Additional Settlement Commis sioner, or a Deputy Settlement Commissioner, to review an order passed by himself, or his predecessor in office, and while so reviewing, modify, reverse, or confirm such an order; the only rider being that a Settlement Commissioner or an Additional Settlement Commissioner, could not review an order passed by his predecessors without first obtaining the sanction of his immediate superiors. The Deputy Settlement Commissioner, however, could not review any order, whether passed by himself, or by his predecessors in office, without first obtaining the sanction of the Additional Settlement Commissioner of the area concerned. By Ordinance 11 of 1962, which came into force on the 13th of January 1962, the provisions regarding general power of review in section 21 were omitted, and only sub section (3) was retained, which restricted the powers of review to the correction of clerical, or arithmetical mistakes or any accidental slip, or omission. By Ordinance II of 1962; which came into force on the 17th of March 1962, a further clarification was made by introduction of section 7 in Ordinance II of 1962, wherein it was declared that the omission of subsection (1), (1‑A) and (2) of section 21, from the Displaced persons (Compensation and Rehabilitation) Amendment Act of 1958 shall not affect any proceedings for review under subsection (1) of section 21 thereof, which were pending immediately before the commencement of Ordinance 11 of 1962.

5. As stated above, the present review petition was filed on the 30th of October 1961, and would be deemed in law to be pending for disposal notwithstanding the amendments in law brought about by Ordinance II of 1962. The powers of review under subsection (1) of section 21 were very wide and were, in no manner, restricted by section 6 of Ordinance II OA 1962, in regard to review petitions, which were pending before coming into force of the Ordinance 11 of 1

62. The learned Settlement Commissioner with powers of the Chief Settlement Commissioner was, therefore, wrong in saying that the law, referred to by him, imposed in any way any limitation on his' powers to review questions of fact.

6. Mr. Hamid‑ud‑Din, the learned counsel for respondent No. 2 argued that the review petition, as filed, was time‑barred, and that since no fresh evidence was available to the petitioner, the review petition was not competent. We find from the order that the learned Settlement Commissioner did not advert to the question of limitation at all in his order. It could have been raised, if the parties had been summoned by the Settlement Commissioner for the hearing of the case: The second argument of the learned counsel was based on a passage at page 69 of the report of the case Sahibari v. The Custodian of Evacuee Property, South Zone, West Pakistan, Karachi (P L D 1957 S C 63) wherein it was said: "Although the Ordinance did not state in detail the circum stances in which a review of an order by the Custodian or Additional Custodian should be permissible, recourse could be had to the general law for ascertaining the principles governing the exercise of this power in the relevant respect. For the purposes of the present case, those principles were set out in Order XLVII, rule 1 of the Civil Procedure Code." The counsel maintained on the basis of the above passage that the powers of the Chief Settlement Commissioner to review his order are restricted to the provisions, contained in Order XLVI1, rule I of the C. P. C. Their Lordships were considering in the above case the language of section 36 (5) of Pakistan Administra tion of Evacuee Property Ordinance XV of 1949. With great respect, we do not think that their Lordships were laying down any proposition as argued by the learned counsel for the respon dent. The observation of their Lordships, in our humble opinion, goes only so far as to say that discovery of new and important matters, relevant to the case, after its decision, could be a good ground for review by the Custodian. We also note that the language of section 21, subsection (1) of the Displaced Persons (Compensation anti Rehabilitation) Act of 1958, as amended by Ordinance I of 1959, is vastly different from the language of subsection (5) of section 36 of Pakistan Administration of Evacuee Property Ordinance of 1949. The former gives a much wider power to the reviewing authority for reversing, modifying, or confirming an order under review.

7. The contention of the learned counsel for the petitioner prevails, and we hold that the impugned order of Ch. Sultan Muhammad Khan is vitiated on account of his refusal to exercise jurisdiction, which vested in him under the law, and is of no legal effect.

8. As a result of the above discussion, we allow the writ petition and remand the case to the Chief Settlement Commis sioner for decision of the review petition of Sharif‑ul‑Hassan. Of course, it will be open to the respondent to raise all objections, which he may think proper in regard to the maintainability of the review petition. In the circumstances of the case, we leave the parties to bear their own costs. A.H.