1968 SCMR 611 (PLP)

FAZLE-AKBAR, J.-This appeal, by special leave, arises out of the judgement and order of a Division Bench of the High Court of West Pakistan at Karachi, dismissing a writ petition filed to challenge the validity of the order of the Chief Settlement Commissioner, Karachi, Hyderabad and Khairpur Divisions, dated the let July 1961, The dispute is with respect to House No. A/112, 143, in the city of Hyderabad, which is an evacuee property. In Novemeber 1949, this house was allotted to Abdul Jabber, husband of the appellant Mst. Zaitun Begum, and there after they occupied the said house. Subsequently, they allowed their friend Ali Gohar Khan, a local, to occupy a portion of the house which was numbered as 14311. During the Settlement operations, i.e., on 154-59, the appellant Mst. Zaitun Begum filed a C. H. Form for transfer of the entire house and on 26-11-59, the Assistant Settlement and Rehabilitation Commissioner transferred the entire house to her by his order dated 14-11-59, and a P. T. O. was issued in her favour. On 15-12-59, Ali Gohar Khan filed a L. H. Form for transfer of the' portion in his occupation. On 16-12-59, the Assistant Settlement and Rehabilitation Commis sioner ordered for transfer of the said portion to him and a P. T. O. was issued in his favour. On appeal by Mst. Zaitun. Begum, the Deputy Settlement and Rehabilitation Commissioner being of the opinion that transfer in favour of Ali Gohar Khan was illegal, cancelled his P.T.O. and ordered "that the entire house should be given to Mst. Zaitoon". Ali Gohar Khan then filed a revision petition, but the same was dismissed by the Additional Settlement and Rehabilitation Commissioner and his order was also upheld in second revision by the Settlement Commissioner. Mr. Ghulam Shabbir, a Settlement and Rehabilitation Commissioner who had been delegated the power of revision by the Chief Settlement Commissioner under section 20 (2) read with section 31 (2)' of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as the Act, while dismissing his third revision petition on 1-7:61 observed:- "The petitioner is a local while the respondent is claimant. The portion in possession of the petitioner is not an indepen dent unit. His revision was rightly rejected." At the instance of Ali Gohar Khan, he reviewed his order dated 1-7-61, 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 accordingly directed the transfer of the two units on the basis of possession of the parties. Mst. Zaitun Begum then challenged the legality of this order by a writ petition before a a Division Bench of the High Court of West Pakistan. It was contended in the High Court that Mr. Ghulam Shabbir bad no power to review the order passed by him as a delegatee of the Chief Settlement Commissioner, The learned Judges took the view that Mr. Ghulam Shabbir having passed the order in revision as a delegatee of the Chief Settlement Commissioner, was competent to review the same order without further delegation from the Chief Settlement Commissioner. The learned Judges also pointed out that no useful purpose would be served by allowing the writ petition because by a subsequent notification dated 20th December 1961, the Chief Settlement Commissioner had delegated power of review also to various -Settlement Commissioners, and that be in exercise of the said power could again pass a similar order if the case was sent back ta, him after quashing his first order. They therefore, held that a writ or direction would be infruatuous in the circumstances of the case. They areordingly dismissed the writ petition. Special leave to appeal was granted to consider whether Mr, Ghulam Shabbir, as delegatee of the Chief Settlement Commie A signer, 'Was competent to review his order. The fact that at the relevant time no notification had been issued by the Chief Settlement Commissioner conferring on Mr. Ghulam Shabbir the requisite power to review his order as delegatee of the Chief Settlement Commissioner, has been challen ged before us. Hence, the only question for determination in this appeal is whether in the absence of such delegation, he could review his own previous order. The learned counsel for the appellant has contended that in the absence of any notification Mr. Ghulam Shabbir was not competent to review his own order passed as a delegatee of the Chief Settlement Commissioner. On the other hand, the learned counsel for the respondent has contended that the power of reivision delegated to Mr. Ghulam Shabbir carried with it all ancillary powers, including the power of review and as such he was quite competent to review his own order. The question, therefore, is whether express delegation of revisional power under section 20(2) of the Act would carret with it the power of review as ancillary to the delegated power. An identical question arose in the case of Mst. Zainab Khatoon v. Mian Ghulam Shabbir and another (P L D 1965 SC 55). In the above core also, prior to issue of notification dated 20th December 1961, Mr. Ghulam Shabbir had reviewed on 8-11-61 his previous order which be had passed in revision as a delegatee of the Chief Settlement Commissioner. The instant case was cited in support of the contention that Mr. Ghulam Shabbir had power to review his own order. This Court, however, did not express any opinion on the correctness of the decision of the High Court but merely observed:-- "The case cited presents features which are absent from the instant case. ft 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." Obviously, the distinguishing feature was that Mr. Ghulam Shabbir was then in service and if the case was sent back to him he could have easily passed a similar order again in exercise of the power which had been subsequently delegated to him under notification of 20th December 1961. In the above case of Mst. Zainab Khatoon, the majority decision was that Mr. Ghulam Shabbir-was not competent to review his previous order, Mr. S. A, Rahman, J., who delivered the majority judgment, observed at page 61:- "After giving my anxious consideration to this question I have been unable to persuade myself that the power of review in this con text 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 j statute and it cannot be said that a delegatee exercising revisional powers under subsection (2) of section 20 of the Act has inherent powers 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 he so, but the remedy lay in the Chief Settle ment Commissioner giving power of review of his own orders as a delegates, to the' Settlement and Rehabilitation Coms missioner, 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 e 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." The question raised in the instant case is therefore concluded by the decision in the above case. Furthermore, as Mr, Ghulam Shabbir is no longer in service there is no question of the writ being infructuous. Thus, this case is fully covered by the above decision. We accordingly allow this appeal and declare the ordeetin question to be a nullity in law. In view of the facts and elm,' stances of the ease, we make no order RS to costs. Appeal accepted