P L D 1961 (W (PLP)

SHABIR AHMAD, J.--‑This appeal, presented under clause 10 of the Letters Patent of this Court, is directed against an order dated the 4th of November 1960, passed by my brother Anwar‑ul‑Haq, J., whereby Writ Petition No. 233/R of 1960, presented by the appellant, Major Amirul‑Ghani Fafooqi, was dismissed with costs.

2. This dispute relates to house No. 275/2/1403 situated in Mohallah Wazirpura of Sialkot City. This evacuee house was allotted in 1948 to Jalal Din who was then a refugee from India. Jalal Din went back to India in 1949, but his wife Mst. Sarwar Begum who is the second of the two respondents in this appeal, the first respondent being the Chief Settlement and Rehabilitation Commissioner, West Pakistan, remained in possession of the house. A notice of ejectment was served on Mst. Sarwar Begum, but the Rehabilitation Commissioner (Miscellaneous), Punjab, allowed her to continue in possession by his order dated the 23rd of January 1950 and she continued in undisturbed possession of the house until the 11th of October 1.958 when the appellant applied for its allotment to him. In his application for allotment of the house in dispute to him the appellant stated that the evacuee house he was occuping may be given to Msr. Sarwar Begum as an alternative accommodation. The application of the appellant was dismissed by the Deputy Rehabilitation Com?missioner, Sialkot on the 18th of December 1958, but he succeeded eventually on the 28th of April 1959 on a revision petition by him to the Rehabilitation Commissioner, Lahore Division. This order in favour of the appellant was passed on the ground that Mst. Sarwar Begum respondent No. 2 in this appeal, was unable to pay the rent of the house in dispute, part of which she had sublet, and that she having a small family the house in question was too big for her. The Rehabilitation Commissioner, Lahore Division, who accepted the revision petition presented by the appellant, directed that the house occupied by the appellant was allotted to Mst. Sarwar Begum and the house in dispute which was occupied by her was allotted to the appellant, Major Farooqi. 3.Mst. Sarwar Begum .did not allow the order passed on the28th of April 1959, in revision by the Rehabilitation Commissioner, Lahore, go unchallenged as she presented a petition (Writ Petition No. 189/R of 1959) in this Court which was dismissed, as was a Letters Patent Appeal presented by her against the decision of the learned Single Judge who had dismissed the writ petition. In spite of her failure before the Rehabilitation Authorities and in this Court, Mst. Sarwar Begum continued in possession of the house in dispute and she 'applied under the Displaced Persons (Compensation & Rehabilitation) Act, (XXVIIIof 1958) for transfer of the house in her favour on the basis of her being a non‑claimant resident of the house. This application of her was' dismissed by the Deputy Settlement Commissioner, Sialkot, by means of an order the date of which cannot be ascertained from the record. She instituted an appeal against the order of the Deputy Settlement Commissioner to the Additional Settlement Commissioner, Lahore Division, but this appeal was dismissed for default of appearance on the 8th of March1960, by Lt. Col. J. D. Malik, the then Additional Settlement Commissioner, Lahore Division. Against the order of Lt. Col. Malik, Mst. Sarwar Begum presented an application for revision before the Settlement Commissioner, Lahore Division, with in a week of the dismissal of her appeal. This revision petition was taken up by Mr. Farzand Ali Khan but, as will be presently shown, he did not dispose of it. 4.On the 23rd of February 1960, Major Farooqi the appellant in this appeal, presented an application before Mr. Hasham Raza C. S. P., the then Rehabilitation& Chief Settlement Commissioner, West Pakistan, with a view to having an order passed that the possession of the house in dispute which had been allotted to him by a valid order passed on the 28th of April 1959,should be handed over to him. On the 7th of April 1960,Mr. Hasham Raza, while dealing with this application of the appellant, passed an order that the house in dispute was transferred to Mst. Sarwar Begum, respondent No. 2 in this appeal as she was a non‑claimant resident, and consequently the application of Major Farooqi was dismissed. It was to have this order of Mr. Hasham Raza vacated that the appellant had 40presentedWrit Petition No. 233/R of 1960 which, as already mentioned was dismissed by my brother Anwar‑ul‑Haq J. on the 4th of November 1960. 5.Learned counsel for the appellant urged that Mr. Hashana Raza, the then Chief Settlement Commissioner, West Pakistan, was incompetent to pass the impugned order transferring the house to1st. Sarwar Begum in the proceedings with which lie was dealing on the date that he passed it. Entries in a certified copy of the impugned order passed by Mr. Hasham Raza on the 7th of April 1960 which is on the record show that the orderrelated to the application of the appellant for getting? possession of the house which had been temporarily allotted to him by the Rehabilitation Authorities and the inference that anyone would draw would be that the matter relating to t;ie transferof the house was not before Mr. Hasham Raza. It was however urged by Mr: Ghulam Mujtaba, learned counsel for respondent No. 2, that the matter arising out of the application of Mst. Sarwar Begum for the transfer of the house in dispute to her was also before Mr. Hasham Raza, and the first question to determine is whether this was so. I have already indicated that the petition for revision against the order refusing to transfer the house to her had been presented by Mst. Sarwar Begum in the Court of the Settlement Commissioner, Lahore Division. This application was taken up by Mr. Farzand Ali Khan, the then Settlement Commissioner, Lahore Division, on the 13th of October1960 and was dismissed on the counsel for Mst. Sarwar Begum matting a statement that it was not pressed because the Chief Settlement Commissioner having passed an order transferring the house to her, her application for revision had become infructuous. In order to determine the question under consideration it is necessary to have a clear picture of some provisions of the law which were applicable at the relevant time. One of these provisions is section 20 of the Displaced Persons (Compensation& Rehabilitation) Act, (XXVII of 1958), to be referred to hereinafter as the Act, as modified by Ordinance I and LIIIof 1959. At the relevant time this 'section read as follows :? "(1) Omitted. (2) The Chief Settlement Commissioner at any time may, and shall on being directed by the Central Government, call for the record of any case or proceeding under this Act in which a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner has passed an order for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation there to as he thinks fit. (3)A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may, at any time, call for the record of any case or proceeding under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or, an Assistant Settlement Commis?sioner under his jurisdiction has passed an order for the purpose of satisfying and himself as to the correctness, legality or propriety of such order may pass such order in relation thereto as he thinks fit. (4) An Additional Settlement Commissioner specially em?powered in this behalf by the Chief Settlement Commissioner may at any time call for the record of any case or proceeding under this Act in which a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order and may pass such order in relation thereto as he thinks fit. (5) No order under this section shall be passed revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard." Another such provision is section 31 of the Act, of which only the second subsection i's relevant for the present purposes. This subsection read as follows :‑ "(2) Subject to the provisions of this Act and the rules made there under, the Chief Settlement Commissioner may, by notification in the Official Gazette, delegate all or any of his powers under this Act to any Settlement Commissioner or an Additional, Deputy or‑Assistant Settlement Commissioner subject to such conditions, if any, as may be specified in the notification." By Notification No. 1226‑Pb‑Reh‑60 dated the 18th January 1960 the Chief Settlement Commissioner had authorised all Settlement Commissioners in the Province to exercise powers of revision under subsection (3) of section 20, of the Act and it was because of this authorisation by the Chief Settlement Commissioner, that the petition for revision against the order of Lt. Col.'J. D. Malik dated the 8th of March 1960 was presented before Mr. Farzand Ali Khan. An order passed by Mr. Farzand Ali Khan in this regard would have been final unless set aside by the Chief Settlement Commissioner in exercise of the powers conferred on him by subsection (2) of section 20 of the Act. It is undeniable that the Chief Settlement Commissioner could have set aside the order dated the 8th of March 1960 of Lt. Col. J. D. Malik, Additional Settlement Commissioner, under subsection (2) of section 20 of the Act. Before, however, the Chief Settlement Commissioner passed such an order he had to comply with the provisions contained in subsection (2) of section 20 of the Act, and one of them is that he had to call for the record. In the present case, there is no allegation in any of the written replies or affidavits put in by Mst. Sarwar Begum respondent No. 2, that the Chief Settlement Commissioner had sent for the record of the case relating to her application for the transfer of the house in dispute to her. Or the other hand, the circumstances indicate that Mr. Hasham Raza passed his order dated the 7th of April 1960, whereby he transferred the house in dispute to Mst. Sarwar Begum without the record relating to the transfer of the house being before him. If Mr. Hasham Raza had sent for the record, it is by no means unlikely that on learning that the matter was pending before the Settlement Commissioner, Lahore Division, who was fully competent to deal with it, Mr. Hasham Raza would have refrained from passing an order in favour of respondent No. 2 which resulted in depriving the appellant in this case of the opportunity of showing Mr. Farzand Ali Khan that his case called for grant of relief to him and for refusal of the one claimed by respondent No. 2.

6. It was suggested during arguments that even if the record relating to the transfer of the house in dispute had not been sent for by Mr. Hasham Raza, his impugned order could not be held to be a nullity on that ground, because subsection (2) of section 20 of the Act did not enjoin on the Chief Settlement Commissioner the duty to call for the record before passing an order in the exercise of his powers of revision. Reliance for this argument was placed on the word "may" that occurs for the first time in subsection (2) of section 20 which has been reproduced in the last paragraph. It appears to me that the word "may" I relied upon by learned counsel for respondent No. 2 has not the: significance which he would have the Court attach to that word. Subsection (2) of section 20 of the Act deals with the powers of the Chief Settlement Commissioner to pass orders in revision. The subsection means that the Chief Settlement Commissioner can send for the records of any case decided by a Settlement Commissioner, an Additional Settlement Commissioner, a Deputy Settlement Commissioner, or an Assistant Settlement Commis?sioner, for the purpose of satisfying himself as to the correctness, legality or propriety of orders passed therein and can pass such order, in relation thereto, as he thinks fit. If, however, the Central Government directs him to consider whether an order passed by one of his subordinates was correct, legal or proper, the Chief Settlement Commissioner will have no option but to send for the records and consider the question raised by they Central Government. It is inconceivable that the law is that if the Chief Settlement Commissioner were to be asked by the Central Government to act in the matter, it would be absolutely necessary for him to call for the record before passing an order, but if he chose to look into the matter on his own, it would not be necessary for him to send for the record and yet be able to pass any order which he might think fit. I am clear in my mind that subsection (2) of section 20 of the Act means only this that, unless the Central Government moves him in that behalf it is discretionary with the Chief Settlement Commissioner to call for the record of a case decided by one of the Settlement Authorities subordinate to him for purposes of determining whether or not to exercise his powers of revision. If, however, he chooses to exercise those powers, he cannot do so unless and until the record of the case, in which the order which he chooses to set aside or modify in exercise of his powers of revision, had been passed is sent for. It is not necessary for the purposes of this case to determine whether the Chief Settlement Commissioner can transfer any proceeding pending before a Settlement Authority subordinate to him either to another subordinate Settlement Authority or to himself, but I will assume that he has those powers and Mr. Hasham Raza was, therefore, competent to transfer the proceeding pending before Mr. Farzand Ali Khan to his own file and then pass an order setting aside that passed by Lt. Col. J. D. Malik, Additional Settlement Commissioner, Lahore, on the 8th of March 1960. There is however, nothing on the record to show that an order of transfer to the revision petition pending before Mr. Farzand Ali Khan to his own file was passed by the Chief Settlement Commissioner, and I cannot but presume that Mr. Hasham Raza passed the impugned order in favour of respondent No. 2 without the record of the case being before him. The impugned order does not say even a single word about the proceedings which had taken place before the Settlement Authorities with regard to the transfer of the house in dispute on the application which Mst. Sarwar Begum respondent No. 2 had put in for the transfer of the house to her, and the inference is irresistible that Mr. Hasham Raza was not even aware what proceedings had been taken on the application presented by Mst. Sarwar Begum with regard to the transfer of the house in dispute to her. If for the purposes of holding a provision of law to be valid it were necessary to give a finding that it was reasonable, subsection (2) of section 20 of the Act would have had to be declared invaild if it did not contain a provision that before the Chief Settlement Commissioner can pass an order modifying or setting aside an order passed by any other Settlement Authority, he should have before him the record of the case in which the order was to be passed because no officer howsoever highly placed he may be can have an insight which enables him to see what is not before him or to determine whether a certain order was justified without knowing on what material it was based. But even if these considerations did not arise, subsection (2) of section 20 of the Act is ‑not open to the interpretation that the Chief Settlement Commissioner could reverse or modify an order passed in a case without the record o$ the case being before him though the position would be entirely different if the order which the Chief Settlement Commissioner passes be one of refusal to interfere with the order passed by one of his subordinates because in an order of this latter type which is to be passed the con?siderations that arise are entirely different from those which arises where the order of a subordinate authority is modified or set aside. That it is not necessary for the records of the case to be called for if a petition for revision is dismissed is the view taken by a Division Bench of this Court in Amir Begum v. Umar Din (P L D 1961 Lah. 360) and nothing said during arguments has made me change the views I expressed in that case. The question whether an order passed by a Subordinate Settlement Authority could be revised or modified in exercise of powers of revision under section 20 of the Act without calling for the records did not arise in Amir Begum v. Umar Din and no remarks in that case can consequently, have any application to the present case. A careful reading of that case will, however, make it clear that it was by implication held that no order could be revised or modified under section 20 of the Act if the record of the case were not before the officer passing the order in the exercise of his revisional jurisdiction.

7. There is another aspect of the matter and this emanates from subsection (5) of section 20 of the Act: This subsection lays down that no order could be passed revising or modifying any order to the prejudice of any person without giving such person a reasonable opportunity of being heard. If sub?section (5) of section 20 is applicable to the facts of the present case it becomes manifest that it was incumbent on the Chief Settlement Commissioner to afford the appellant in this appeal an opportunity of showing cause why the house in dispute should not be transferred permanently to Mst. Sarwar Begum. In my view, this opportunity was necessary because the result of the order contemplated would undoubtedly be that the allotment which was made in favour of the appellant by a competent Rehabilitation Authority would automatically come to an end and this order would clearly be adverse to the interests of the appellant who had, on his own application, been impleaded by Lt. Col. J. D. Malik, Additional Settlement Commissioner, Lahore Division, as a party to the proceedings relating to the transfer of the house. The mere fact that by the time the Chief Settlement Commissioner passed his impugned order the appellant had not made an application for the transfer of the house to him would not make subsection (5) of section 20 of the Act inapplicable to the case. If the house in dispute had not been allotted to the appellant and there were no applicant other than Mst. Sarwar Begum, respondent No. 2, for its purchase, the impugned order of Mr. Hasham Raza may not have offended against sub?section (5) of section 20 of the Act, but as in the circumstances of the present case the house in dispute was not free from other claims of all sorts the powers of the Chief Settlement Commis?sioner did not enjoy immunity from the trammels set up by that) provision of law.

8. In view of what I have said above, I have arrived at the conclusion that Mr. Hasham Raza, the then Chief' Settlement Commissioner, passed his impugned order dated the 7th of April 1960 transferring the house in dispute in favour of Mst. Sarwar Begum without calling for the record and that this omission on his part would clearly offend against the provisions of sub?section (2) of section 20 of the Act and therefore, the order was i avalid on that ground. Another conclusion which I have arrived at is that before passing his impugned order dated the 7th of April 1960, Mr. Hasham Raza did not comply with subsection (5) of section 20 of the Act for which reason also the impugned order was Invalid. Consequently, I would accept the appeal and vacating the order of Anwar‑ul‑Haq, J. substitute in its place one to the effect that the impugned order of Mr. Hasham Raza was a nullity and would restore the proceedings relating to the transfer of the house in dispute to the file of the Settlement Commissioner, Lahore Division, to be dealt with as they stood " on the date on which Mr. Hasham Raza passed his impugned order. I need hardly add that as respondent No. 2 withdrew her petition for revision which was pending before Mr. Farzand Ali Khan, Settlement Commissioner, Lahore Division, because of the impugned order of the Chief Settlement Commissioner the withdrawal of the petition will have no effect now that the order of the Chief Settlement Commissioner has been held to be invalid. If the powers of transferring proceedings pending before any other Settlement Authority to his. own file vest in the Chief Settlement Commissioner a point on which I am not expressing any opinion‑it would be open to him to transfer the proceedings from the file of the Settlement Commissioner, Lahore Division, to his own file and pass thereon such order as be thinks fit with regard to the order passed by Lt. Col. J. D. Malik on the 8th of March 1960. In the circumstances of the case, I would direct that the appellant shall have his costs before the learned Judge in Chambers and this Bench from respondent No.

1. K. B. A. ????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.