1970 PLP 278 (SCMR)

WAHIDUDDIN AHMAD, J.‑The dispute in this petition for special leave to appeal is in respect of .property bearing No. S‑57‑R‑3 (28), which is part of a big estate known as Dr. Mehraj Kishan Estate' 3‑Temple Road, Lahore. It is a double storey building. The ground floor is occupied by the petitioner. The first floor is in possession of respondent Dr. Inayatullah Shah. Both the petitioner and respondent No. 3 filed C. H. Form for the transfer of the property in dispute. On the 26th November 1959, Dr. Inayatullah Shah moved the Deputy Settlement Commissioner for the withdrawal of his C. H. Form which was allowed and cancelled. On the 19th February 1960, the Assistant Settlement Commissioner with the powers of the Deputy Settlement Commissioner transferred the entire property to petitioner Sh. Rashid Ahmed as a claimant and regular allottee in possession. On the 27th April 1960, Dr. Inayatullah Shah moved an application under section 20 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, before the Chief Settlement Commissioner of Pakistan and challenged the transfer of the property in dispute in favour of Sh. Rashid Ahmad. He prayed that the record of the case be summoned and propriety of the order of transfer be examined. He further prayed for the restoration of his C. H. Form and the transfer of the house to him. In the alternative he prayed that Dr. Mehraj Kishan Estate may be ordered to be disposed of as a big mansion. In respect of the restoration of his C. H. Form he alleged that he withdrew the same under miss‑apprehension that the entire estate including the portion in dispute was going to be disposed of as a big mansion by public auction and he was not likely to get it on the basis of his C. H. Form. The Chief Settlement Commissioner on the 6th May 1961, forwarded this application for disposal to the Additional Settlement Commissioner in accordance with law. On the 10th November 1961, Mr. S. M. Azhar, Additional Settlement Commissioner, after hearing the parties came to the conclusion that the property in dispute was not properly disposed of by the Deputy Settlement Commissioner. He, therefore, set aside the transfer of the property in favour of Sh. Rashid Ahmad and remanded the case to the Deputy Settlement Commissioner for a fresh decision. He further held that Dr. Inayatullah has withdrawn his C. H. Form under misconception, which was an excusable mistake and restored the C. H. Form filed by him. This order was challenged before the Settlement Commissioner, who by order, dated the 21st November 1962, came to the conclusion that the C. H. Form once withdrawn and cancelled could not be revived under any law and the excuse that respondent No. 3 was misled in withdrawing his form was not tenable. He further came to the conclusion that Sh. Rashid Ahmad, the petitioner, was not in undisputed occupation of the property in dispute and was not entitled to its transfer. He therefore, directed that the property in dispute should be disposed of by public auction or in any other manner permitted by law. This order was challenged by both the parties under Article 98 of the Constitution in the High Court of West Pakistan. The learned Judges of the High Court have come to the conclusion that the view of the Settlement Commissioner that the C. H. Form of Dr. Inayatullah Shah could not be revived and restored under any provision of law is erroneous. They held that the Additional Settlement Commissioner in revisional jurisdiction under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was fully competent to call for the record of any case or proceedings in order to satisfy himself about the proprietary and validity of any order of his subordinates, and could pass such orders as he seems fit. The powers of the Revisional authority in this respect was held to be very wide and extensive. On this view they further held that the Additional Settlement Commissioner could in exercise of his power restore the C. H. Form withdrawn by Dr. Inayatullah Shah to the file and there was nothing in the law to prevent him from doing so. They further came to the conclusion that though the excuse given by Dr. Inayatullah Shah about the withdrawal of the C. H. Form did not appeal to the Settlement Commissioner but his decision is mainly based on the ground that the Settlement authorities have no power to restore the form once withdrawn. They, therefore, observed that they could not start dissecting the impugned order for finding as to which of the arguments, one relevant and the other irrelevant, had swayed the mind of the learned Settlement Commissioner against the petitioner in writ petition No. 344‑R of 1963 and set aside the impugned order and remanded the case to the Settlement and Rehabilitation Commissioner to hear the revision petition in accordance with law. As far as the claim of the petitioner is concerned they held that it was not possible to decide in the writ petition that he was entitled to the transfer of the property in dispute. They found that there were disputed questions of facts for determination and remanded his case also to the Settlement Commissioner for disposal on merits after hearing both the parties. The petitioner has challenged the judgment of the High Court, dated the 6th December 1968, in this petition for special leave to appeal. Mr. Ghulam Mujaddid Mirza, the learned counsel for the petitioner, contended that the High Court view that the Addi tional Settlement Commissioner was competent to pass an order for restoration of the C. H. Form of respondent Dr. Inayatullah Shah is erroneous. According to the learned counsel there was no inherent power vested in the officer concerned in his revisional jurisdiction and, therefore, the learned Additional Settlement Commissioner was not competent to restore the C. H. Form. He further contended that the excuse given by the respondent Dr. Inayatullah Shah was not found tenable by the Settlement Commissioner. Therefore in the face of a clear finding that this excuse was not a valid one, the High Court was not competent to interfere with the order of the Settlement Commissioner. The contention of the learned counsel has not impressed us. It seems to us that the view of the High Court that the power of the Revisional authority under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, is very wide is A based on proper appreciation of the said provision of law. Under this provision of law a Revisional authority is entitled to consider the propriety and the legality of the order of the Subordinate authorities. This power, in our view, is very wide and the Revisional authority is competent to pass any order which it finds fit in the circumstances of the case. It is, therefore, quite clear that the learned Additional Settlement Commissioner had ample jurisdiction in the matter and was competent to restore the C. H. Form of respondent Dr. Inayatullah Shah. Unfortunately in the present case the learned Settlement Commissioner had passed the impugned order on two grounds. In the first place he held that there was no provision of law under which the Settlement authorities were competent to restore the C. H. Form of respondent Dr. Inayatullah Shah. Secondly, he held that the excuse given by the respondent was not such as should have been accepted. It will thus be noticed that the order of the Settlement Commissioner is based on two consideration. In these circumstances the observation of the High Court that the mind of the Settlement Commissioner was influenced by irrelevant consideration cannot be said to be an erroneous view. On this view of the matter the only course open to the High Court was to quash the impugned order and to remand the case to Settlement Commissioner for decision on merits. We are satisfied that the decision of the High Court in this respect is un‑exceptional. It was further urged by the ‑learned counsel for the petitioner that respondent Dr. Inayatullah Shah had submitted B' Form and the moment he did so, his C. H. Form stood cancelled. In this connection the learned counsel has referred us to a decision of this Court in 1968 S C M R

475. It was held in this case at page 479 of the report that "mere making of an application in Form `E' to join in a lottery of earmarked houses operate3 by itself as cancellation of any application made in Forth C. H." We are not inclined to interfere in this matter on this ground because the question whether respondent Dr. Inayatullah Shah made any application in earmarking proceedings is a disputed question of fact and cannot be effectively decided in these proceedings. Besides it will also be for consideration whether after he was unsuccessful it was not open to him to ask for the restoration of his form. In our opinion the petitioner should raise this point before the Settlement Commissioner in the revision and it will be for him to decide it. We are further satisfied that the High Court was perfectly justified in remanding the case of the petitioner to the Settlement Commissioner because the point raised by him involved disputed question of facts. We find much force in the observation of the High Court that as the final decision of the transfer of the property in dispute rests on the case of respondent Dr. Inayatullah Shah the proper course in the circumstances was to remand the case of the petitioner to the Settlement Commissioner. We, therefore, find no force in the petition. The petition is dismissed. Leave refused.