1980 PLP 882 (SCMR)

DORAB PATEL J--‑By this application the petitioner seeks a review of this Court's judgment dated 25‑10‑1976 by which the respondents' appeal was allowed, and the order of the Chief Settlement Commissioner dated 3‑12‑1962 restored. The dispute in the appeal related to a house on Canal Park, Lahore and a portion of the house was allotted to the petitioner in 1951. The other portion of the house was allotted to other persons, and for the purpose of this petition it is sufficient to state that the Muhammad Ali, a non‑claimant, obtained in allotment for this other portion on 3‑8‑1956. However, his wife and father, who are the first two respondents in this petition and to whom we will refer as the respondents, were claimants; therefore, when Settlement operations began, by his order dated 6‑1‑1960, the Deputy Settlement Commis sioner transferred to the petitioner the portion of the house in his' occupation and to the respondents the portion which had been allotted to Muhammad Ali. The petitioner filed an appeal against this order and after inspecting the house in a well‑considered order dated 27‑2‑1960, the Additional Settlement Commissioner held that the house was not divisible, therefore, he allowed the appeal and transferred the entire house to the petitioner. The respondents challenged this order in a revision, but it is not surprising that the Settlement Commissioner agreed with the well‑considered order of the Additional Settlement Commissioner, therefore, he dismissed the revision. The respondents then filed a second revision under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the said Act), and by his order dated 3‑12‑1962, the Chief Settlement Commissioner restored the Deputy Settlement Commissioner's order of 6‑1‑1960 and it was this order which was restored by this Court by this judgment dated 25‑10‑1976. However, this second revision of the respondents had a very chequered history, because section 20 of the said Act was amended on 13‑1‑1962 by Ordinance of 1962; and again by Ordinance XIII of 1962. The result of these amendments was that the Chief Settlement Commissioner 'was competent to entertain only those second revisions in which he had sent for the record before 13‑1‑1962. Therefore, the petitioner's contention was that this second revision was not competent and he had filed a writ petition on 10‑11‑1962 in the Lahore Seat of the West Pakistan High Court to challenge the maintainability of this revision. Further, on 3‑12‑1962 the petitioner had obtained from the High Court a stay order restraining the Chief Settlement Commissioner from disposing of the revision of the respondents. Now, this revision was fixed before the Chief Settlement Commissioner on that very day, therefore, the learned counsel for the petitioner informed the Chief Settlement Commissioner of the stay order passed by the High Court. The Chief Settle ment Commissioner directed the petitioner to produce the stay order on the same day and adjourned the case for a few hours. As neither the petitioner nor his learned counsel were capable of performing miracles they were unable to obtain the stay order from the High Court on the very day on which the order had been pronounced orally and so the petitioner's learned counsel again asked the Chief Settlement Commissioner for an adjournment only in order to produce the High Court's order. But, although this eminently reasonable request was supported by the learned counsel for the respon dents, the Chief Settlement Commissioner rejected the request and heard and allowed the revision of the respondents. As the Chief Settlement Commis sioner had flouted the High Court's order, the petitioner filed a contempt application against the Chief Settlement Commissioner in the High Court, and he also filed an application for the amendment of his writ petition in view of the fact that the second revision of the respondents had been allowed. This amendment application was allowed and we were informed that the contempt application, was disposed of by censuring the Chief Settlement Commissioner. The writ petition was contested by the respondents, but it was allowed by a Division Bench of the High Court on 8‑8‑1968 on the ground that the Chief Settlement Commissioner was not competent to entertain the revision, because the record had not been received by him before the target date, namely, 13‑1‑1962. Therefore, the learned Judges set aside the Chief Settlement Commissioner's order of 3‑12‑1962 without examining the question of the divisibility of the house in dispute. The respondents filed a petition for leave in this Court against the judgment of the High Court. Leave was granted and the appeal was heard by us on 20‑3‑1976. .I was a member of the Bench which heard this appeal, and my learned brothers and I were agreed that the Chief Settlement Commissioner was competent to entertain the second revision of the respondents, because the record had been received before the target date. However, I pointed out in my judgment that the Chief Settlement Commissioner had, in allowing the revision of the respondents, flouted the stay order granted by the High Court. Therefore, I was of the view that his order of 3‑12‑1962 was void and had to be struck down and because I declared that it was without lawful authority, I directed that the case should be remanded to the competent authority to dispose of the second revision of the respondents according to law. My learned brother Salahuddin, J., as he then was, did not agree with my view that the order of 3‑12‑1962 was void, because it had been passed in wilful disregard of the stay order granted by the High Court. Accordingly, he proceeded to examine the merits of the case, as he was of the view that a remand of the case after more than a decade of litigation would lead "to waste of public time and money." Then after examining the site plan of the house, and this was admitted by Mr. Muhammad Aslam, who was present at the hearing of this review, Salahuddin J., observed that essential "justice has been done to both the parties by giving them the portions which they have been occupying for several years." Accordingly, he allowed the appeal and restored the order of the Chief Settlement Commissioner dated 3‑12‑1962, and as Cheema, agreed with the view of Salahuddin, the appeal was allowed in accordance with the majority view. Hence this review petition. The question of the effect of a violation of a stay order was examined by this Court in Abdul. Rashid Khan and 2 others v. Mst. Nasim Akhtar (1974SCMR509), and Mr. Ghias Muhammad submitted that the law declared by this Court was that an order passed by a Tribunal or a subordinate Court in violation of a stay order granted by a superior Court or a higher Court was void ab initio. But, in disagreeing with me on the effect of the stay order granted by the High Court on 3‑12‑1962. Salahuddin, had preferred the view of the Madras High Court that an order passed in violation of a stay order was only an invalid order and not a void order. As the Madras view is inconsistent with the law declared by this Court, learned counsel submitted that the majority view contained an error apparent, because it was contrary to the law declared by this Court. ' Now, although Madras view, on which my learned brother relied, is inconsistent with the law declared by this Court, this submission does not help the petitioner's case, because the alternative contention of Mr. Anwar before us was that even if the order of 3‑12‑1962 was void, it was both just and equitable and in accordance, with the objects of the said Act, namely, the settlement of refugees, therefore, the further submission was that as writ was a discretionary remedy, it should not be issued to strike down the Chief Settlement Commissioner's order of 3‑12‑1962, whatever be the infirmities in it. And, in support of this contention, he had relied on this Court's judgment in Syed Raunaq Ali v. The Chief Settlement Commissioner (PLD1973SC237). Mr. Anwar repeated this submission before us and it has force, because although I rejected this plea my learned brothers were of the view that the Chief Settlement Commissioner's order was eminently just and fair and on the view thus taken by them, the case would fall under the rule laid down in Syed Raunaq Ali's case. Therefore, nothing turns on the fact that Salahuddin, erred in relying on the Madras judgment. Learned counsel's next submission, and this was the main ground on which the review was pressed, was that the learned Judges had allowed the appeal of the respondents without applying their minds to the question of the divisibility of the house in dispute, and in support of this plea, learned counsel took us through the order of the learned Additional Settlement Commissioner to which we referred earlier. Now, it is true that this order was a well-considered order, but it would not be reasonable to contend that a different view was perverse or impossible, because two families had in fact lived in the property for more than two decades, therefore, it was open to this Court to hold that the property in dispute was divisible and the submission, that this finding has been given without giving proper reasons or without examining the circumstances relevant to the question of the divisibility of a house is not correct. Mr. Aslam sought our permission to advance a further submission. This was that the order of 3‑12‑1962 was mala fide. Now, even though I was myself shocked by the wilful disregard by the Chief Settlement Commis sioner of the stay order passed by the High Court;. I did not accept learned counsel's submission that the order 'was mala fide, nor did my learned brothers. I see no error in this finding but even if it is assumed for the sake of argument that the view taken by us was erroneous, there is no patent error in our judgment, and, therefore, no grounds whatever have been made out for a review. I have to state with regret that the petition is an attempt to reargue the appeal and I have no hesitation in dismissing it. Petition dismissed.