P L D 1964 Supreme Court 260 (PLP)

HAMOODUR RAHMAN, J.

‑This appeal, by special leave, is against the judgment and order of a learned Single Judge of the High Court of West Pakistan interfering in his writ jurisdiction with the order of Malik Fateh Khan, a Settlement and Rehabilita tion Commissioner, directing in the exercise of the powers of the Chief Settlement Commissioner the transfer of the house if; dispute situated at Krishna Gali, Gowalmandi, Lahore, to the appellant and the respondent No. 2 here in jointly. The house, it appears, is a three‑storeyed building. It was occupied by various persons. The appellant and the respondent Abdul Rahman occupied the first floor. The respondent Aimna Bibi occupied the second floor and the chaubara above it. The ground floor of the house was in the occupation of Faiz Ahead and Siraj Din, but they did not apply for its transfer. Azmat Ali and Abdur Rahman applied for its transfer and the Assistant Settlement Commissioner, exercising the powers of the Deputy Settlement Commissioner, transferred the whole house to Azmat Ali on the 4th of April 1960. As against this both Abdur Rahman and Aimna Bibi preferred appeals, but the same were dismissed by the Additional Settlement Commissioner. They again went up in revision to the Settlement Commissioner and the latter accepted the revision petition of Mst. Aimna Bibi and transferred the whole house to her, since the house was, in his opinion, indivisible. She was considered to possess a preferential right to the transfer thereof by reason of the prior possession of her deceased husband, namely, from the 1st of January 1950, as against the possessions of the other two claimants commencing from the 1st of January 1951, and the 1st of June 1951, respec tively. Azmat Ali and Abdur Rahman filed second revision petitions before th4 Chief Settlement Commissioner against the above order of the Settlement Commissioner. These were heard and accepted by Malik Fateh Khan exercising the powers of the Chief Settlement Commissioner. He came to the following conclusions :‑ (1) that neither Aimna Bibi nor her husband was an allottee in respect of any portion of the said house, (2) that there was no evidence on the record to prove that either she or her husband had at any stage filed any CH form for the transfer of the said property, (3) that her verified claim was only for Rs. 5,000 whilst that of Azmat Ali was of the value of Rs. 20,000 and of Abdur Rehman of Rs. 10,000 (the transfer price of the house was Rs. 20,000), and (4) that both Azmat Ali and Abdur Rehman were allottees from different dates in 1951. Upon these findings he set aside the transfer order in favour of Aimna Bibi and directed the transfer of the house to Azmat Ali and Abdur Rehman jointly. Both Aimna Bibi and Azmat Ali were dissatisfied with this order and invoked the writ jurisdiction of the High Court by two separate writ petitions and in each of these petitions the other co‑transferee Abdur Rehman was made a respondent. The order of Malik Fetch Khan " as challenged on behalf of Aimna Bibi as being based on wholly irrelevant considerations and as having been made in contravention of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. According to her, the possession of her husband had been estab lished by the production of an attested copy of the Rehabilitation Officer order dated the 29th of June 1950, and the Survey Register (Exh. P. B.). She also claimed that she had filed a CH form and produced before the High Court a receipt dated the 18th of February 196(`, which purported to have been issued by the office of the Deputy Settlement Commissioner acknowledging the receipt of the application for transfer in respect of house No. 11/16, Krishna Bali, Lahore, from Aimna Bibi of the 18tu of February 1960, and registering the same as LHR. III CH/6828. The other consideration relied upon by Malik Fateh Khan, namely, as to the smallness of her verified claim, was said to be wholly irrelevant. Azmat Ali also challenged the joint transfer to himself and Abdur Rehman. According to him also since the house had been held to be indivisible, it could not, in the absence of any agree ment between the claimant applicants, be transferred jointly. On his behalf the entitlement of Aimna Bibi was also challenged on the ground that neither she nor her husband was an allottee in respect of the said house nor had any of them tiled any CH form. Abdur Rehman had no objection to the joint transfer of the house to himself and Azmat Ali, but it was pointed out on his behalf that his possession was of a prior date, as found by the Settlement Commissioner. He also challenged the entitlement of Aimna Bibi on the ground that he was only an indirect claimant whilst he himself was a direct claimant and, therefore, under paragraph 3 of the instructions contained in Memorandum No. Comp.‑Reh./59/5242, dated the 22nd of October 1959, he was to be preferred over a claimant who applied on the basis of the occupation of his or her parent, son, daughter or spouse. The High Court came to the conclusion that Malik Fateh Khan had, in accepting the revision, acted upon considerations which were outside the purview of the Act of 1958, for, under the second proviso to paragraph 1 of the Schedule to the Act of 1958 "if a house or a part thereof is in possession of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession." The house was thro ughout considered to be indivisible by all the Settlement Authorities and it is upon that basis that each of the lower Settlement Authorities had dealt with the claims of the respective claimants. It was also admittedly in occupation of all the three, namely, Aimna Bibi, Azmat Ali and Abdur Rehman. The question, therefore, was as to who was in prior possession? The Settle ment Commissioner Khan Farzand Ali Khan had come to the clear finding that Aimna Bibi was in prior possession. Malik Fateh Khan, exercising the powers of the Chief Settlement Com missioner, did not specifically reverse this finding. But he took the view that the Rehabilitation Authority's order was not sufficient to establish possession. According to him since Aimna Bibi had not been able to produce a proper allotment order either in her favour or in favour of her husband, she could not claim to be in such possession as would entitle her to ask for the transfer of the house. He overlooked that under the extended definition of `possession' the Central Government had permitted claimants, non‑claimant displaced persons and locals, who did not hold any valid allotment orders but were in undisputed occupation of houses or shops since before 21st of December 1958, to apply for the transfer of such houses or shops, and furthermore that even under the relevant statute it was not necessary that there must be an allotment order. The definition of `possession' as given in subsection (6) of section 2 of the Act of 1958, is as follows :‑ "Possession means possession obtained in pursuance of an order passed on or before the twentieth day of December 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government." It would thus seem that possession even under the order of a Rehabilitation Officer would be a valid possession under the above definition. As regards the contention that she was not an applicant for the house, the High Court accepted the receipt produced for the first time before it to show that she had actually put in an applica tion, even though the receipt showed that the application had been filed long after the last date fixed for the filing of such applications, namely, the 10th of November 1959. (Vide Notifica tion No. 6566‑P‑Reh./59, dated the 28th of October 1959). In the view of the High Court the mere fact that it was filed out .of tin3e did not make the form inadmissible, for the Settlement Authorities had the power to condone the delay. In any event, since no objection had been raised either before the Additional Settlement Commissioner or the Settlement Commissioner as to the non‑entitlement of Aimna Bibi on the ground that she had filed no CH form and Malik Fateh Khan had himself not recorded any clear finding that no CH form had been filed, the objection was not tenable. As for the contention of Abdur Rahman that he had a preferential right being a direct claimant, it was pointed out that under the Central Government Notification No. 3223 PI‑Reb.‑60, dated the 7th March 1960, which is subsequent to the Notification of the 22nd of October 1959, relied upon on behalf of Abdur Rehman, Aimna Bibi was herself to be deemed to be in possession if the house was in possession of her husband in pursuance of an order passed on or before the 20th of December 1958, by a competent authority, as it was in the present case. For these reasons the High Court set aside the order of Malik Fateh Khan as being contrary to the provisions of the Act and, therefore, illegal and incompetent. As a result of this the order of the Settlement and Rehabilitation Commissioner Khan Farzand Ali Khan, whereby the house had been transferred to Aimna Bibi, stood restored. Azmat Ali, the appellant before us, now seeks to challenge this order of the High Court on the ground that the High Court had interfered with a finding of fact arrived at by the Chief Settlement Commissioner on the basis of fresh evidence admitted for the first time in the High Court. The contention appears to be Settlement Commissioner Malik Fateh Khan, exercising the powers of the 'Chief Settlement Commissioner, had come to clear finding that no CH form had been submitted by Aimna Bibi. Actually no CH form was found on the file of the case. But in the High Court for the first time a receipt was produced to show that a CH form had been submitted on her behalf in the office and had been registered. The High Court, it is said, could not interfere in its writ jurisdiction upon the basis of such fresh evidence. It is argued that if it was felt that fresh evidence was available and the party seeking to utilise it had not had sufficient opportunity to do so, the case should have been sent back to the authority concerned to admit such evidence and then decide the case after taking that evidence into account. It is further urged that even if this evidence is accepted, it only shows that a belated CH form was filed on the 18th of February 1960. But there is no evidence to show whether the delay .was ever condoned and the form accepted. Since it was not on the file of the case, no notice was issued, even by the Deputy Settlement Commis sioner, to Aimna Bibi to appear at the hearing before him. Her appeal before the Additional Settlement Commissioner was dismissed only on the ground that it was barred by limita tion. But this question of limitation was not even noticed by Khan Farzand Ali Khan in the revision filed against the appellate order. So far, however, as the order of Malik Fateh Khan is concerned, it appears to us that there existed other grounds upon which the High Court did rightly interfere in its writ jurisdiction. As already pointed out, some of the considerations, which induced him to interfere with the order of Khan Farzand Ali Khan, were wholly irrelevant and so far as Possession was concerned, he had clearly committed a patent error of law. The definition of `possession' given in the Act itself clearly indicated that possession Under the orders of a Rehabilitation Officer, who is a competent officer under the Act, would be sufficient for the purposes of the Act. His finding that Azmat Ali and Abdul Rehman were allottees from different dates in 1951 was also based upon manifest misreading of the evidence. The Additional Settlement Commissioner's order records that the date of Azmat Ali's allot ment order in respect of one gallery was 9‑11‑53 and in respect of two rooms and a kitchen it was 1‑3‑

55. On the other hand, Abdur Rehman's allotment order was dated 22‑2‑58 and showed his possession since 1‑1‑

50. Again the allotment to Azmat Ali and Abdur Rehman was contrary to the provisions of the Schedule to the Act. Such joint transfer could only have been ma a where the applicants by mutual agreement asked for such joint transfer. (Vide Memorandum No. 7616‑Comp‑Reh./59., dated 30‑11‑59). The order quashing the order of Malik Fateh Khan was thus fully justified. . Having decided, however, to set aside the order of Malik Fateh Khan the question is as to what should the High Court have done 7 Should it have remanded the case for a proper decision in accordance with law. In the present case, the question whether Aimna Bibi bad, in fact, filed a CH form or not was a question which clearly required investigation. Malik Fateh Khan merely said that there was no evidence on the record to prove that she had filed such a CH form. He did not come to any clear finding that no CH form was in fact filed. Aimna Bibi produced a receipt which showed that a CH form was submitted to thee office but after the notified date. The question, therefore, arose as to whether the delay in the filing of the CH form had been condoned and the same admitted. A further question the arose for consideration was as to whether Khan Farzand Ali Khan himself had acted in the proper exercise of his jurisdiction in dealing with the revision on merits without considering as to whether the order dismissing the appeal on the ground that it was barred by limitation was proper or not. There was nothing in the order of Khan Farzand Ali Khan to show that he was even conscious that any question of limitation arose. In the circumstances, we unable to appreciate how the High Court thought it fit to restore the order of the Settlement Commissioner which itself was liable to be quashed in the writ jurisdiction. In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi‑judicial author ities or Tribunals, which are not subject to its appellant jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision for the decision of the inferior authority or Tribunal. Where it is felt that question have been left undecided by such Tribuna1 or authority or a question has to be decided after the taking of fresh evidence, it is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against. For these reasons, we dismiss this appeal so far as it relates to the setting aside of the order of Malik Fateh Khan, but in modification of the latter portion of the High Court's order remand the case to the Deputy Settlement Commissioner to be disposed of in accordance with law after giving due notice to each of the rival claimants. He will decide as to whether Aimna Bibi had in fact, filed any CH form and whether the delay in the filing of the same should be condoned ? Since the success is divided, we leave the bear their own costs. A. H. Order accordingly.