P L D 1968 Lahore 166 (PLP)

Save as otherwise expressly provided in this Act every order made by any officer appointed under this Act shall be final and shall not be questioned in any Court." "It is clear from the above that finality attached to the order passed on 31‑10‑1959, in favour of the petitioner was subject to the provisions of the Act. The said order was open to suo motu Revision. It would appear from the order of the Additional Settle ment Commissioner dated 25th April 1960, reproduced below that the learned Additional Settlement Commissioner bad suo motu set aside the order of the 31st October 1959. The relevant portions of the order runs as under:‑- "In Settlement cases the property is one and the claimants have been filing their applications at different dates and they are considered at different times. Therefore, I think that in order to have a final decision and effective one it is within the rights of the Appellate Court to re‑open the matter and if considered proper set aside the order either in appeal or revision suo motu for the transfer of the whole property to one person because if the Court comes to the conclusion that the appellant is entitled for the ground‑floor or the first‑floor which has been transferred to another person, the order in appeal cannot be effectual unless the previous order is set aside for transferring the whole property. I, therefore, in this particular case, hold that the order passed for the transfer of the whole building to the respondent vide order 31‑10‑1959, was illegal and ultra vires. There is, therefore, in view of the above finding no force in the contention that the order of 31st October 1959, was a final order." Respectfully following the above law, I hold that the finality attached to the orders dated 1‑10‑1960 (Annexure "C") and dated 11‑31961 (Annexure "F"), of the D. S. C. was subject to the provisions of the Act, and as such was revisable. Merely because for taking further action under the Rules these orders were treated as final, it did not mean that they ceased to remain so subject or revisable. (d) The deletion of Rules 6 and 7 of the Permanent Transfer Rules, 1961, would hardly make any difference so far as the exercise of the revisional jurisdiction over the earlier order involv ed in this case was concerned. This jurisdiction already existed there and just as promulgation of Rules 6 and 7 could not add anything into it, similarly their deletion could not detract anything from the same. (e) That in Abdul Karim's case there are indications to the effect that if any revision be presented by a contesting party (as distinct from the Enforcement Staff under "Order" of the Central Government, dated 1‑9‑1961, usually known as "Informer's Order"), then that could proceed. This is evidence froth page 37 Paragraph 11 of the report, where the learned Judge observed as follows:‑ "In this connection, it may be mentioned that a Settlement Commissioner is authorised to exercise powers of revision against an order of an Additional Settlement Commissioner, as he thinks fit, on calling for a record and this power is much wider than the power which could be exercised under the Order of the Central Government, dated the 1st of September 1961, but the reference in question was made under the order of the Central Government to the Chief Settlement Commissioner for the benefit of an informer, which, it has been shown, was not competent. In the case of exercise of power of revision under subsection (3) of section 20, an informer as a third person, does not come in, and cannot be benefited by the revisional order. It has been so held by the learned Judges of the Supreme Court in the above cited case. The reference to Mr. Muhammad Rafique, as Chief Settlement Commissioner having been made under the order of the Central Government, is not competent and no action can be taken on it." Then further on page 39 in paragraph 13, the learned Judge writes:‑-- "I would like to make it clear that if the Settlement Commis sioner wants to interfere, it should not be on the basis of the report of the Enforcement Staff, which is in particular under the Order of the Central Government." These passages support the view which I have taken and rather suggest that even after the issuance of a P. T. D., a revisional jurisdiction could be exercised at the instance of a contesting party. The authority in Abdul Karim's case in this way does not help the petitioner but rather goes against him. No doubt at page 38, para. 11, a passage occurs that: "It needs also to be mentioned that rule 7 for the Permanent Transfer (Houses and Shops) Rules, 1961, was omitted by the Central Government on the 27th of December 1964, and is no longer available to set aside an irregular transfer." And then at page 39 is a passage in Para. 14 which reads as follows:‑-- "I find that in the Land Settlement Act there are sections 10 and 11, which enable the Chief Settlement Commissioner to cancel an allotment, which has been obtained by means of fraud or false representation, etc., but there are no similar provisions in the Displaced Persons (Compensation and Rehabilitation) Act to deal with cases, in which transfer may have been obtain ed fraudulently or by misrepresentation. Rule 7 of Permanent Transfer (Houses and Shops) Rules, 1961, has even been deleted. In the circumstances, it may be examined by the Central Government, whether it is not necessary to have legislation enabling the cancellation of such transfers by a revision or review of the transfer." But these passages are to be read in the context in which they occur and if read in conformity with the overall circumstances of the case, then the most they mean is that on a reference by an Enforcement Staff no revisional jurisdiction could be exercised because the Informer's Order had come to an end on the 13th of January 1962, and also because the Enforcement Staff could not avail of the provisions of Rules 6 and 7 of the Permanent Transfer (Houses and Shops) Rules, 1961' any longer. If, however, on the other hand, the passages above‑quoted mean something different then with great respect they cannot be followed any longer in view of the law laid down by the Supreme Court and the view of the Division Bench in the case mentioned by me earlier. I may here point out that the power to recall a transfer which may have been obtained by fraud false representation or concealment of any material fact already exists there in the form of Condition No. 6 which is generally contained in the P. T. O. The pro forma of the P. T. O. is printed at page 302 of the Settlement Manual (Old Edition) in the form of Appendix XII. The relevant clause (vi) of the said document reads as follows:‑

"The President shall be entitled to resume the whole or any part of the said property if the Central Government or any officer authorised by the Central Government in this behalf is at any time satisfied and records a decision in writing to that effect, that the transfer of the said property or any other com pensation in any form whatsoever under the aforesaid Act had been obtained by fraud, false representation or concealment of any material fact on the part of the transferee or his predecessor‑in‑interest." Even, therefore, if rules 6 and 7 were deleted from Permanent Transfer Rules, no much difference took place because a similar provision existed in the document of title issued to the transferees and which provision or condition could always be evoked and which could well‑form the basis of exercising a revisional jurisdic tion in any competent case. Even otherwise, the revisional jurisdiction is not circumscribed by any limitation, because subsection (3) of section 20 confers this power on the Settlement Commissioner for the purpose of satisfying himself as to the correctness; legality or propriety of any order passed by his subordinates. The deletion of Rules 6 and 7, so far as the facts and circumstances of the present case are concerned, would, therefore, hardly make any difference.

7. The second point urged by the learned counsel for the petitioner was that the revision petition of respondent No. 2 before the S. C. was barred by time. The order of the Additional Settlement Commissioner was dated 17‑10‑1964 (Annexure "K") and the revision against it was filed on 11‑1‑1965 (Annexure M). The learned counsel contended that according to section 9 (3) of the Act, a Settlement Commissioner was under the Superin tendence and control of the Chief Settlement Commissioner. This section reads as follows:‑-- "Subject to the provisions of this Act and of such orders as may from time to time be made by the Central Government in this behalf, Settlement Commissioners; Additional Settlement Commissioners; Deputy Settlement Commissioners and Assistant Settlement Commissioners and any other officers shall perform the duties and discharge the functions assigned to them by or under this Act, under the general superintendence and control of the Chief Settlement Commissioner." He also says that according to section 20 (3) only such Settlement Commissioners could exercise a revisional jurisdiction who were specially empowered in this behalf by the Chief Settlement Commissioner. The actual wording of section 20(3) is as follows:‑ "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 proceedings 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, relating to the entitlement of a person to the transfer of a property or to a matter involving title for the purpose of satisfying herself as to the correctness, legality, or propriety of such order and may pass such order, in relation thereto, as he thinks fit." The Notification No. 1226 PL‑Reh. 60, dated 18‑1‑1960, au thoris ing the Settlement Commissioners is printed at page 109 of the Settlement Manual (Old Edition) and runs as follows:‑ "In exercise of the powers conferred upon me by subsection (3) and subsection (4) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. 1, Syed Hashim Raza, Chief Settlement Commissioner, Pakistan, empower the following officers to exercise powers under the aforesaid subsections of the Act, with effect from the date of their appointment in each case:‑ (1) All Settlement Commissioners in West Pakistan and Karachi, in their respective jurisdictions with the exception of the Commissioners of Divisions in West Pakistan. (2) All Additional Settlement Commissioners in West Pakistan and Karachi in their respective jurisdictions with the exception of the Additional Settlement Commissioners in the Headquarters Office, Lahore." Then there are printed a Memo. and Press‑note of the Chief Settlement Commissioner, at pages 146 and 166 of the Settlement Manual (Old Edition). The Memo. Printed at page 146 bears No. 9908‑PL‑dated 9th May 1960 and reads as follows:‑-- "I have observed that the Settlement Commissioners while dealing with revision petitions submitted to them under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, have treated them more or less like second appeals and have dealt with all the petitioners submitted to them as if the petitioner had a right to submit the petition under the law. There is no provision in the law for the revision of a case on application made in this behalf. Settle ment Authorities who have been empowered to revise the orders passed by lower Courts can exercise this power only suo motu. (2) In the interest of the speedy disposal of work, the Settle ment Commissioners should not go beyond the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. They should not admit and hear all the revision petitions as a matter of course. The petition against an order, which prima facie appears to be correct and which the Settlement Commissioner does not purpose to revise, should be summarily rejected without calling the parties. Only in case where the Settlement Commissioner feels that he would revise the order passed by the Lower Court, the petition should be admitted and notice served on the parties to appear. In such cases also the petitions should be disposed of within a fortnight. (3) The revision petitions pending with the Settlement Commissioner at present, may please be disposed of by 15th July 1960, at the latest and a report submitted to me. The petitions received in future, should not be delayed beyond 15 days." The Press‑note printed at page 166 is, dated the 7th of September 1960 and reads as follows:‑-- "Under subsection (2) and subsection (3) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner and the Settlement Commissioners concerned are not required to call for the record of a case in which an order has been passed by a Lower Settlement Authority or which is pending before such Authority on an application made in this behalf by the aggrieved parties. They can, however, call for the record of a case under their suo motu powers in order to satisfy themselves about the correct ness, legality or propriety of the order passed by a Lower Authority." "A large number of petitions for revision are being submitted by the aggrieved parties to the Chief Settlement Commissioner and Settlement Commissioners concerned under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and in appropriate cases such petitions are entertain ed by them. The record of the case is, however, not called in such cases nor are the parties given a hearing unless the Chief Settlement Commissioner or the Settlement Commissioners concerned considered it to be necessary. The aggrieved parties, have in a number of cases, considerably delayed the submission of revision petitions. The Chief Settlement Commissioner had decided that if any aggrieved party desires to invoke the suo motu powers of the Chief Settlement Commissioner or the Settlement Commissioners concerned under section 20 of the Act he must do so within 15 days of the order against which the petition is preferred. Any petition recorded after this period will not be entertained in future." The learned counsel with reference to the aforesaid provisions contended that since the Settlement Commissioners are to perform duties and discharge functions assigned to them by or under this Act, under the general superintendence and control of the Chief Settlement Commissioner (as laid down in section 9 (3) of the Act), and since a Settlement Commissioner cannot exercise the revisional jurisdiction unless he is specially empowered by the Chief Settlement Commissioner in that behalf, the limitation imposed in the memo, dated the 9th of May 1960, and Press‑note dated the 7th of September 1960, were binding on the Settlement Commissioners both from the point of view of control and superintendence" and also as being limitations in the special power conferred under section 20 (3) which power, it is contended, could be conferred conditionally or in a restricted manner of could be given in a wide manner without any limitation in this way, it was contended that the Settlement Commissioner in this case, and no jurisdiction to entertain a revision petition which was filed beyond a period of fifteen days from the date of the order it impugned and nor could he accept the same beyond that time. In my opinion, the point raised by the learned counsel has no force:‑-(a) firstly, because the memo. and the Press‑note in spite of the language employed in them, are merely directory and not mandatory in nature. Their aim is merely to finish work of Settlement speedily rather than to place limitations otherwise on the revisional jurisdiction of a Settlement Commissioner. I am fortified in this view by a ruling of a Division Bench of this Court reported in Najmuddin Ahmad Mulla v. The Chief Settlement Commissioner, Karachi and 3 others (P L D 1964 Kar. 425) where with regard to similar instructions on other subjects they were held to be directory and not mandatory, (b) Secondly, a careful study of section 9(3) shows that the Settlement Commissioners, Additional Settlement Commissioners and Deputy Settlement Commissioners, etc., are to perform those duties and discharge such functions which are assigned to them by or under the Act, subject to only two things, namely, (a) subject to the provisions of the Act and (b) subject to such orders as may from time to time be made by the Central Government. In addition to this, while performing those duties and functions they shall remain under the general superintendence and control of the Chief Settlement Com missioner. The supervision and control of Chief Settlement Commissioner itself is again subject to the provisions of the Act, which means that duties and functions assigned by the Act to a Settlement Commissioner cannot be abridged by the Chief Settlement Commissioner. In other words, a jurisdiction which " the Act conferred on a Settlement Commissioner could not be taken away by the Chief Settlement Commissioner in the garb of his acting in any supervisory or controlling capacity. Both the Settlement Commissioner and the Chief Settlement Commissioner are to act subject to the provisions of the Act. A Settlement Commissioner, for example while exercising a revisional jurisdic tion, will not subject to the provisions of the Act and cannot decide a case otherwise then in accordance with that Act or give properties to those who are not eligible. Similarly, the Chief Settlement Commissioner, while exercising supervision and control will also remain within the Act. The Act in section 20 (3) says that a Settlement Commissioner may call for the record of any case or proceedings at any tee, as the Chief Settlement Commis sioner cannot say that the Settlement Commissioner should not call for the record beyond a period of fifteen days. If this power is conceded to the Chief Settlement Commissioner, then it mean that he is prohibiting that which the law allowed a Settlement Commissioner to do. The instructions of the kind in hand, if given any other meaning, would not remain instructions of a supervisory or controlling nature but would then become of a prohibitory character. Supervision and control is of the type of a managerial or regulatory character and cannot assume the character of legislation so as to control the provisions of the statute under which it is exercised. (c) Thirdly, the Notification, specially empowering the [Settlement Commissioners to exercise revisional jurisdiction is dated 18‑1‑1960 (printed at page 109 of the Settlement Manual (Old Edition). In that Notification, no such limitation of restriction is contained and from that point of view the General Memo. and the Press‑note aforesaid cannot be read into the case. (d) Fourthly, in the Memo. dated 9‑5‑60, the emphasis is on the fact that revision petitions should be disposed of within fifteen days and not that they should not be entertained beyond fifteen days. In the Press‑note, dated the 7th of September 1960, no doubt, there is a direction that no petition should be entertained beyond fifteen days, but in my opinion, the intention therein again is not to place absolute restriction on the exercise of suo motu revisional jurisdiction in appropriate cases. (e) Fifthly, in the instant case, the Settlement Commissioner was conscious of the fact that the revision petition of the opposite‑party was belated, but in spite of that he felt inclined to exercise him suo motu revisional jurisdiction. This is evident from the following passage occurring in his judgment "In suo motu revision even if the application of the person meaning revision has been put in after great amount of delay, I can still go into the record suo motu to see whether any illegality has been committed or not. I find from the record that a clear illegality was committed when the D. S. ordered the transfer of the whole of the portion 2278 to 80‑83 in favour of respondent No. 1 although his application was only in respect of the residential flat bearing the No. 2281, respondent No. 1 was not an applicant for the shop No. 2278‑79, and, therefore, he was not entitled to the transfer of this shop to him." In my opinion, the Memo. and the Press‑note were never intended to shut out the exercise of the revisional jurisdiction in cases in which a Settlement Commissioner was of the view which has been expressed in the above‑quoted passage. The Memo. and the D Press‑note did not absolutely close the doors of revisional jurisdic tion after a period of fifteen days and if it could be exercised in some cases then the present was eminently a fit case for the same and the Settlement Commissioner has simply justified his interference in it.

8. No other point was argued before me.

9. Before concluding, however, I may observe that the learned counsel for the petitioners never challenged the finding on the divisibility of the portion or the house in dispute. The natural effect of this is that the petitioners concede that the portion which has been given to them in the final analysis constitutes one house or a separate house by itself and the other portion given to respondent No. 2 constituted another independent house. In that view of the matter, since the petitioners have obtained one house, they have no right, justification or locus standi to claim another house or extend their arms to claim portions of another house because it is well‑settled that under the Settlement Laws, al person can get only one house.

10. Another thing to be noticed is that so long as the claim of the contesting respondent was pending, the Deputy Settlement Commissioner had no jurisdiction to decide the case against him or reject his form much less to take away a transfer already order ed to be made to him. In the instant case, the Deputy Settlement Commissioner acted in a high‑handed manner after the case had been remanded to him (to pass a legible order) to still cancel or maintain the cancellation of the transfer from the name of respon dent No. 2 in spite of the fact that his office by means of a clear note dated 7‑12‑1959 pointed out to him that the claim of the said respondent had duly been verified. Without conceding, however, but assuming just for the sake of argument, that even if there was any force in the two contentions raised by the learned counsel for the petitioners in Paras. 6 and 7 of the judgment, I am not prepared to give any effect to them because their obvious result would be to perpetuate the illegal order of the Deputy Settlement Commissioner and to deprive a well‑deserving claimant from his right merely on technicalities. It is well‑settled that the High Court in its discretion under Article 98 of the Constitution can refuse to interfere where an obvious result of giving effect to an objection will be to perpetuate an illegal order or otherwise result is in injustice.

11. The upshot of the above discussion is that the writ petition has no merits and is hereby dismissed with costs. K. M. A.