P L D 1969 Lahore 894 (PLP)

MUHAMMAD AKRAM, J.‑This judgment will dispose of the two connected Writ Petitions No. 2900‑R of 1962 by Sheikli Rashid Ahmad and No. 344‑R of 1963 by Dr. Syed Inayatullah Shah, challenging the validity of the order dated 21‑I1‑1962 passed by S. Ijaz Hussain Shah, C. S. P., Settlement and Rehabilitation Commissioner, Lahore Division, Lahore.

2. The dispute in these two cases is confined to the property bearing No. S‑57‑R‑3 (28), which is a part of a bigger state commonly known as "Dr. Maharaj Kishan Estate",3 Temple Road, Lahore. It is comprised of a double‑storey building. The ground floor of the property in dispute is occupied by Sh. Rashid Ahmad, who filed a CH Form of the transfer of the portion in his occupation to him. The first floor is in the possession of Dr. Inayatullah Shah who had put in a CH Form for the transfer of the whole as an indivisible unit.

3. But on 26‑11‑1959, Dr. Inayatullah made an application, in writing, to the Deputy Settlement Commissioner Circle whore (I), Lahore withdrawing his CH Form. The Deputy Settlement Commissioner allowed this form to be withdrawn and cancelled the same.

4. Afterwards, on 19‑2‑1950, the Assistant Settlement Commissioner with powers of the Deputy Settlement Commis sioner transferred the property in dispute as a whole to Sh. Rashid Ahmad as a claimant and regular allottee in possession, and Dr. Inayatullah Shah having withdrawn, there ~N as no contest for the transfer.

5. However, on 27.4‑1960, Dr. Inayatullah Shah moved an application under section 20 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as "the Act"), before the Chief Settlement Commis sioner, Pakistan, against Sh. Rashid Ahmad, with the prayer to summon the record of the case to look into the propriety and correctness of the orders passed by the authorities below and for the restoration of his CH Form and the transfer of the house to him. In the alternative he prayed that Dr. Mehraj Kishan Estate, as a whole, may be ordered to be disposed of as a `big mansion'. In this application he has, inter alia, alleged that he was given to understand and led to withdraw his CH Form, under the erroneous belief that the entire estate, including the portion in dispute, was going to be disposed of as a "big mansion" by public auction and was not available for transfer to the occupants on their entitlement. On this application, the learned Chief Settlement and Rehabilitation Commissioner, on 6‑5‑1961, remarked that an appeal against the original order of transfer of the property was competent before the Additional Settlement Commissioner and a revision lay to the Settlement Commissioner concerned and the applicant should have exhausted his remedies b‑fore the lower authorities before invoking his jurisdiction in the matter. Therefore, without going into the facts of the case the Chief Settlement Commissioner forwarded the application of Dr. Inayatullah Shall to the Additional Settlement Commissioner, Lahore, for disposal in accordance with the law.

6. On this S. Muhammad Azhar, Additional Settlement Commissioner (Judicial), Lahore on 10‑1‑1961 after hearing the parties, was of the opinion that the case of this property in dispute was not properly disposed of by the Deputy Commis sioner and, therefore, he set aside the order transferring the property to Sh. Rashid Ahmad and remanded the case, to him for a fresh decision, with the observations that Dr. Inayatullah Shah had withdrawn his CH Form under a misconception, the mistake was liable to be excused and his CH Form should be restored to be disposed of by the Deputy Settlement Commissioner on the merits. This led to the revision filed by Sh. Rashid Ahmad under section 20(3) of the Act disposed of by S. Ejaz Hussain Shah, C. S. P., Settlement and Rehabilitation Commissioner, by his impugned order dated 21‑11‑1962. After hearing the parties he was of the opinion that the form put in by Dr. Inayat Ullah Shah after it was withdrawn and cancelled could not be revived under any law and his excuse to the effect that he was misled into the erroneous belief that the property was going to be declared as a `big mansion' and there was no possibility of his acquiring the same, was not tenable. At the same time, the learned Settlement and Rehabilitation Commissioner was also of the opinion that Sh. Rashid Ahmad was not in undisputed occupation of the premises and had no valid allotment, his CH Form was not accompanied by the necessary declaration of eligibility and as such he was also not entitled to the transfer. In these circumstances, he directed that the property in dispute should reserved for disposal by public auction. Hence these two separate writ petitions filed by both the parties, in this Court, under Article 98 of the Constitution of Islamic Republic of Pakistan, challenging the validity of this order for reasons of their own.

7. We have heard the learned counsel for the parties at length. This is a keenly contested case which has arisen in the peculiar circumstances mentioned above. Before us the counsel for Dr. Inayatullah Shah has strenuously argued that S. Ijaz Husain Shah, the learned Settlement and Rehabilitation Commissioner has laboured under an altogether erroneous assumption that the CH Form `once withdrawn and cancelled could not be revived under any provision of law." According to the learned counsel in the interest of justice between the parties, the authorities have ample powers to allow the form withdrawn by Dr. Inayatullah Shah under a mistake to be revived for its disposal on the merits and the impugned order passed by the learned Settlement and Rehabilitation Commis sioner suffers from this basic error in assuming that he was altogether powerless in the matter. Elaborating his arguments the learned counsel urged before us that quite apart from any express provision in the Statute, the Settlement Authorities always have inherent powers vested in them to review and suitably modify their own orders, with a view to do complete justice between the parties. According to the learned counsel; the Settlement Commissioner, sitting in revision, was not only empowered but bound to satisfy himself about the correctness, legality, and propriety of all orders as passed by his subordi nates; and could have interfered in the matter. It was also stressed before us that Dr. Inayatullah Shah is a ‑displaced person from the occupied territories of Jammu and Kashmir State and therefore the Settlement authorities had no jurisdiction whatever to transfer this property in his possession to anybody else. On the other hand in repelling these contentions the learned counsel for Sh. Rashid Ahmad has asserted before us that the original order dated 9‑2‑1960 passed by the Assistant Settlement Commissioner with powers of the Deputy Settlement Commis sioner, transferring the house to his client had become final an conclusive and the matter could not have been reopened again in this manner oil the miscellaneous application put in by Dr. Inayatullah Shah that the Settlement and Rehabilitation Commissioner, Lahore, in the exercise of the jurisdiction vested in him under the law, found no good reasons for restoring the CH Form already withdrawn by Dr. Inayatullah with open eyes and this Court cannot sit in judgment on that order. As to the writ petition filed by Sh. Rashid Ahmad his learned counsel maintains that he was bound to succeed as he is in undisputed occupation and possession of part of the house in dispute.

8. We shall first deal with the Writ Petition No. 344/R of 1963 filed by Dr. Syed Inayatullah Shah. His learned counsel has drawn our attention to a copy of the verification order dated 1‑8‑1959 passed by the Additional Claims Commissioner, Lahore, On the claim registration No. ROQ‑10/55(Reg.)3179 NZ (Annex. K). It shows that Dr. Inayatullah Shah is a claimant, having abandoned a residential house in. Aligarh City verified under Schedule I and another residential house situated in village Nagrota Sydian, Tehsil Odampur, Jammu and Kashmir State under Schedule III. Taking a clue from this, his learned counsel has argued before us that he was a claimant displaced pennon from the occupied territories of Jammu and Kashmir and admittedly he was in lawful possession of the house in dispute regularly allotted to him. It, was, therefore, urged before us that the Settlement: authorities had no jurisdiction whatever to transfer the house to anybody else and consequently the order dated 19‑2‑1960, passed by the Deputy Settlement Commissioner transferring the house to Sh. Rashid Ahmad was altogether without jurisdiction. In this respect quite recently, in Abdul Aziz Ayub v, Nathu Khan and others (P L D 1968 Lah. 1220) a Division Bench of this Court has held that under para. 19 of the Settlement Scheme No. IV, which is a valid provision of law, any property in possession of a Jammu and Kashmir refugee could not be transferred to a person other than a displaced person from the occupied territories of Jammu and Kashmir. The learned counsel has also invited our attention to an extract from the decision taken by the President of Pakistan, at a conference held on 9‑6‑1961 in order to consider the position. of the displaced persons from Jammu and Kashmir, contained; in Memo. No. 3183‑PL(55)‑Reh./51, dated 16‑8‑1961 (reproduced: at page 560 of the Manual of Settlement Law and Procedure, Second Edition), to interpret these laws and the regulations in favour of the refugees from Jammu and Kashmir. But we find that this objection was not even raised by the petitioner before any of the Settlement authorities. It was not taken by him in his main writ petition and was raised for the first time in this Court by means of a miscellaneous application at a late stage. Even otherwise the petitioner did not file any KCH Form in time for the transfer of the house to him as a displaced person from the occupied territories of Jammu and Kashmir State. He had only filed a CH Form for the transfer. In these circumstances we cannot permit the petitioner to raise this contention, with respect to these disputed questions of fact, for the first time in these proceedings before us.

9. In this case the Assistant Settlement Commissioner with powers of the Deputy Settlement Commissioner had transferred the whole of this house to Sh. Rashid Ahmad, on 19‑2‑1960. There was no appeal against the order. But on 27‑4‑1960, Dr. Inayatullah Shah filed the application under section 20 (2) of the Act before the Chief Settlement Commissioner, Pakistan, Lahore for revision. However, Pir Ahsan‑ud‑Din, the learned Chief Settlement and Rehabilitation Commissioner Pakistan. Lahore, was of the opinion that against the order of the Deputy Settlement Commissioner an appeal lay to the Additional Settlement and Rehabilitation Commissioner under section 19 of the Act and a revision to the Settlement Commissioner concerned under section 20 (3) of the Act. As such he was not himself inclined to entertain the revision and on 6‑5‑1961, he forwarded this application to the Additional Settlement Commissioner with the following remarks :‑ "The petitioner (Dr. Syed Inayatullah Shah) should have therefore exhausted his remedies in the lower Courts rather than to invoke the revisional jurisdiction of this Court, which is rather premature. I, therefore, without appraising the respective claims of the parties forward the application to the Additional Settlement Commissioner, Lahore, for disposal according to law. It was in accordance with this direction that Sh. Muhammad Azhar, Additional Settlement and Rehabilitation Commissioner, Lahore, took cognizance of this case before him and passed the order dated 13‑11‑1961 remanding the case to the Deputy, Settlement Commissioner for a fresh decision after going into the respective claims by both the parties.

10. Before us the learned counsel for Sh. Rashid Ahmad has challenged the validity of this order, as in his opinion Sh. Muhammad Azhar, Additional Settlement and Rehabilitation Commissioner, was not at all properly seized of the matter under the law. On the face of it, his order does not speak of the capacity in which he had taken cognizance of the matter. He could have acted either as the appellate authority or in revision against the original order passed by the Deputy Settlement and Rehabilitation commissioner. In the revision subsequently filed by Sh. Rashid Ahmad against this order, the learned Settlement and Rehabilitation Commissioner, has observed that the Chief Settlement and Rehabilitation Commis sioner had transferred the case to the Additional Settlement Commissioner under section 32‑A of the Act for disposal. Also in the comments submitted to this Court, the department has re iterated that the Chief Settlement Commissioner was competent, under section 32‑A of the Act, to refer the case to the Additional Settlement Commissioner for disposal. This section lays down that subject to the provisions .of the Act, and the rules mad there under, the Chief Settlement Commissioner may transfer any case pending before him to any Settlement Commissioner, or to any other officer, for report or disposal. This power, vented in the Chick Settlement Commissioner under this section is expressly subject to the provisions of this Act and the rules made there under. Therefore the Chief Settlement Commissioner have transferred the revision to the Additional Settlement Commissioner, if otherwise he had no such jurisdiction in the matter. Put we find that tinder section 20 (4) of the Act, the Additional Settlement Commissioner was fully competent to entertain the revision against tire order passed by the Deputy Settlement Commissioner. In our opinion, the Chief Settlement Commissioner in sending this case to the Additional Settlement Commissioner must ire considered to have specifically entrusted the same to him for disposal in the exercise of his revisional powers under section 20 (4) of the Act. For these reasons we hold that the Additional Settlement Commissioner was properly seized of the matter when this case was entrusted to him and this objection raised before us for the first time in these proceedings by the learned counsel for Sh: Rashid Ahmad is not tenable. As such the order dated 10‑11‑1961, passed by Sh. Muhammad Azhar, Additional Settlement and Rehabilitation Commissioner (Judicial), Lahore, was open to the further revision before the Settlement and Rehabilitation Commissioner, Lahore Division, Lahore, under section 20 (3) of the Act.

11. The next objection raised before us by the learned counsel for Sh. Rashid Ahmad deserves a serious consideration. He has vehemently contended that S. Ijaz Hussain Shah, the learned Settlement sand Rehabilitation Commissioner, Lahore in the exercise of the jurisdiction vested in him under the law has declined to restore the CH Form voluntarily withdrawn by Dr. Inayat Ullah Shah and he was least impressed by the explanation given by him for the revival of his form. Therefore, it was asserted before us that, in these circumstances, and in these proceedings we cannot sit in judgment on that order. In order to appreciate this contention the operative part of the impugned order passed by respondent No. 1, the learned Settlement Commissioner, is reproduced below :‑ "With his (Dr. Inayatullah Shah's) withdrawal of the CH Form he severed his connection with the transfer of the property in all respects. His excuse, which appears to have also appealed to the learned Additional Settlement Commis sioner that he (respondent) was genuinely under a belief that the property was to be declared a `big mansion' and there was no possibility of his acquiring it, is not to gable. After withdrawal of his CH Form the respondent seems to have made efforts to acquire evacuee property elsewhere in earmarking, and only thought of reverting his activities to the property in dispute, after it bad been transferred to the petitioner. To all intents and purposes, the case for the respondent was dead and could not be revived at that stage. The respondent cannot disown the application of withdrawal of the CH Form and the argument of his learned counsel that his statement should have been recorded in support of the application has no force. Since there was no regular application on behalf of Dr. Inayatullah Shah before the Deputy Settlement Commissioner when he considered the transfer of the property, he was justified in not considering the doctor at all. Dr. Inayatullah Shah is obviously not entitled to the transfer of this building and I am unable to agree with the direction, of the Additional Settlement and Rehabilitation Commissioner to the Deputy Settlement Commissioner in the impugned order that the CH Form of the doctor be considered as revived. The form once withdrawn and cancelled could not be revived under any provision of law." It is evident from the above that the main, if not the only, consideration which had weighed with respondent No. 1, in arriving at this conclusion was that the case of Dr. Inayatullah Shah was already dead and could not be revived under any circumstances and his `form once withdrawn and cancelled could not be revived under any provision of the `law.'

12. But, learned counsel for Dr. Inayat Ullah Shah has a great stress before us against this view of the law entertained by respondent No.

1. In dilating upon this part of the case he has argued that in the exercise of their inherent powers the Settlement authorities could have permitted his client to apply for the restoration and revival of his form, which he had himself withdrawn. It was asserted before us that in this respect they had the inherent jurisdiction to review, recall and modify the orders passed by them, in the interest of justice between the parties. But the learned counsel was unable to cite before us any general principle of law or authority in support of this proposition. It must be remembered that like an appeal, review is a substantive right conferred by a statute and it does not exist independently of the statute. The right to review, in a way militates against .the finality of the orders passed under the law. After a final order is passed by the functionary vested with the jurisdiction, it becomes functus officio under the law and ceases to have any jurisdiction to alter, amend or modify its order, unless expressly authorised to do so by the statute or the rules having the force of law. In this connection Halsbury's Laws of England, Third Edn, Vol.. 22, p. 785, para. 1665, says :‑ "As a general rule, except by way of appeal; no Court, Judge, or master has power to rehear, review, alter of vary any judgment or order after it has been entered or drawn up, respectively, either in an application made in the original action or matter, or in a fresh action brought to review such judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions." Halsbury has also enumerated certain well recognised exceptions to‑this general rule: In certain cases an Act of Parliament which alters the law retrospectively gives express power to the Court to rescind, vary or grant relief against Previous judgments or orders given or made before the alterations. Similarly a Court will also treat as a nullity and set aside, of its own motion if necessary, a judgment entered against a person who was‑ dead. Also when there has been some procedural irregularity in the proceedings leading up to a judgment or order which: is so serious that the judgment or order in question ought to be treated as a nullity, then the Court will also set it aside, as for, instance where the irregularity has caused a failure of natural justice. Likewise, the Court has power to correct clerical or accidental mistakes in judgments or orders, to set aside certain judgments in default; or obtained by fraud, to rescind a judgment on discovery of new and material evidence, and by consent under certain circumstances. In Drew an another v. Wills ((1891) 1 W B 450) Lord Esher M. R., in this connection, has observed :‑ "No Court has such a power of setting aside an order which has been properly made, unless it is given by statute .. . . . Then it is suggested that there is inherent power in the Court, either at common law or under its equitable jurisdiction. Certainly there is no such power at common law,‑and that there is none in a Court of Equity was shown by the fact that, when asked to formulate an application to a Court of Equity, the learned counsel omitted, and rightly omitted, from his prayer any request that the charging order should be set aside." The same view was expressed in Hesston v. Jones ((1914) 2 K B 421) and by the Privy Council in Baijnath Ram Goenka v. Nand Kumar Singh (40 IA 54). Also in Lala Pryag Lal and others v. Jai Narayan Singh and another (I L R 22 Cal. 419) a Division Bench of that Court in connection with the power .of review observed :

I cannot admit that such a power is inherent in every Judicial or Revenue Officer. It is a power expressly given by law to Judicial Officers under certain conditions; and therefore it cannot be assumed that when not so given it is inherent in every officer. If this had been so, there need not have been any legislation on the subject. We cannot hold that all this legislation was unnecessary. These observations were quoted with appoval in Baijnath Ram Goenka v. Nand Kumar Singh (ILR 34 Cal. 677) and the decision in this latter case was upheld by the Privy Council in Baijnath Ram Goenka v. Nand Kumar Singh. In this connection Seshagiri Aiyar; J. in Anantharaju Shetty v. Appu Hegade (AIR 1919 Mad. 244) has observed :‑-- The last argument related to the inherent power of a: judicial officer to review his own judgment. It is settled, law that a case is not open to appeal unless the statute gives such aright. The power to review must also be given by the statute. Prima facie a party who has obtained a decision is entitled to keep it unassailed, unless the Legislatures has indicated the mode by which it can be set, aside. A review is practically the hearing of any appeal by the same officer who decided the case. There is at least as good reason for saying that such power should not be exercised unless, the statute gives it, as for saying that another tribunal should not hear an appeal from the trial Court unless such a power is given to it by the statute. Following this decision in M. .T. Kutinha v. Mrs. Nathal Pinto Bat and another (AIR 1941 Mad. 272) it was held that unless a statute provides a remedy by way of review; the Court cannot review its own judgment except in very exceptional circumstances. Similarly in Ramchandra Maradaraj Deo Garu v. Beero Pollai and others (A I R 1936 Mad. 531) a Full Bench of the Madras High Court has held that generally no Court has the power to review unless specially conferred on it by the statute. In recent years, in the Full Bench decision in Jalal Din and another v. Major Mohammad Akram Khan and others (PLD 1963 Lab. 596 ) in the context of Article 98 of the. Constitution, this Court has taken the view that no Court has an inherent power, of review and that the said power, like the power of appeal; must be expressly conferred by Statute. Also; in this connection, our learned brother Sardar Mohammad Iqbal, J. in Mst. Maqsoodan Bibi v. Mst. Bhano (P L D 1965 Lab. 183) has in another context observed that : the right of review is like a right of an appeal ‑

a substantive right, and it is not available unless it is expressly conferred by a statute." In our opinion there is no inherent power of review vested in the Settlement authorities. Not only this, the power of review under section 21 of the Act, vesting in the Settlement authorities, was expressly taken away from them, by the operation of section 6 of the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance II of 1962.

13. Even otherwise, we find that this argument advanced by the learned counsel for Dr. Inayat Ullah Shah is wholly besides the point. Indeed he did not even apply for the review. Actually he had applied to the Chief Settlement Commissioner, on 27‑4‑1960, invoking his much wider powers for revision, under section 20 (2) of the Act for the transfer of the property to him by the restoration of his form. However, the Chief Settlement Commissioner had entrusted the case to the Additional Settlement Commissioner, presumably for revision under section 20 (4) of the Act. He had in restoring the CH Form filed by him remanded the case to the Deputy Settlement Commissioner for a fresh decision. But this order was set aside by the learned Settlement Commissioner, on 21‑I1‑1962, in revision under section 20 (3) of the Act. All these officers at their respective levels, were fully authorised in revision to call for the record of any case or proceedings under the Act, for the purpose of satisfying them as to the correctness, legality or propriety of the order passed by their subordinates, and could pass such order in relation thereto as they may think fit. These are very wide and extensive powers. They could have, in the exercise of their discretion, allowed the CH Form withdrawn by Dr. Inayat Ullah Shah to be restored to the file and there was nothing in the law to prevent them from doing so. Therefore, in our opinion, Syed Ijaz Hussain Shah, the learned Settlement and Rehabilitation Commissioner was quite wrong in observing in his impugned order that the case of Dr. Inayat Ullah Shah was dead, it could not be revived and that his form after it was cancelled and withdrawn could not be restored under any provision of law.

14. In his impugned order dated 21‑11‑1962 tile learned Settlement and Rehabilitation Commissioner, was also not impressed by the explanation tendered by Dr. Inayat Ullah Shah to the effect that he was genuinely misled into withdrawing his CH Form under the erroneous belief that this property was declared as a big mansion and was Ho longer available for transfer to the eligible person in possession on their entitlement. It was, therefore, contended that this finding alone was sufficient to seal the fate of his case once for all and as such this Court cannot interfere with the order under Article 98 of the Constitution. But there is no force in this contention. A Division Bench of this Court in Sardar Sher Muhammad v. Rao Bashir Ali Khan and another (1) has held as under :‑ Mr. A. S. Salam did not deny that the Custodian had wrongly assumed that sanction for the exchange was necessary, (1) P L D 1962 Lah. 172 but urged that even if the Custodian had not been under the wrong impression that sanction was necessary, his order would have been precisely the same that it was. I cannot bring myself to look at the matter in the way that Mr. A. S. Salam would have it viewed by the Court, because as I have said already, the jurisdiction to issue writs differs vastly from the jurisdiction to hear appeals. If this were a case of an appeal against the order of the Custodian, it would have been open to this Court to come to the conclusion that the finding was justified by the material on the record which could be properly considered, but as the case has not come before this Court in the exercise of appellate or revisional jurisdiction, the method in which Mr. A. S. Salam wanted the case to be dealt with cannot be adopted. It may be that the Custodian would have given precisely the same finding even if he had not been under the impression that sanction of the Custodian was necessary with regard to the alleged sale, but it is equally possible that his finding would not have been same as it was. I am clear in my mind that if the Tribunal of special jurisdiction, whose order is sought to be declared inoperative, has taken into consideration a matter which could not at all be taken into consideration, occasion for exercise of writ jurisdiction arises. This authority was followed with approval in Muhammad Anwar v. M. A. Bajwa and another (P L D 1962 Lah. 935) and this Court observed that :‑‑ while hearing a writ petition this Court does not act as an appellate or a revisional authority with regard to an impugned order. It may be open to an appellate or a revisional authority to hold that even if the material which could not have been taken into consideration but was taken into consideration be excluded from consideration, the order against which the appeal or revision was presented would be justified, but it is not within the province of an authority which can only issue a writ to refuse to issue one on the ground that even if some material which had been taken into consideration be excluded from consideration the impugned order would be justified. For somewhat similar reasons a Full Bench of this Court in Rehmat Elahi v. Government of West Pakistan (P L D 1965 Lah. 112) has held that if there are more than one grounds on which the order passed by the authority for preventive detention is based, then each ground has contributed to the satisfaction of the detaining authority and one could be excluded from consideration, so that the wrongful inclusion of even one of these grounds into consideration by the detaining authority, was sufficient to invalidate his order as a whole. In the exercise of our jurisdiction under Article 98 of the Constitution we cannot substitute our own judgment in the matter and we cannot start dissenting the impugned order for the 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. Therefore, we have no alternative but to accept this writ petition and to declare that the impugned order is against law. This case shall now be sent back to the Settlement and Rehabilitation Commissioner competent to hear the revision afresh for , disposal in accordance with law.

15. Now coming to Writ Petition No. 2990/R of 1962 filed by Sh. Rashid Ahmad Khan, we find that he had filed the CH Form dated 13‑7‑1959 for the transfer of the ground floor of the house only. However, after Dr. Syed Inayatullah Shah had withdrawn his form on 18‑12‑1960, the D. S. C. recorded his statement, and he expressed his willingness to take the whole of the house which was accordingly transferred to him as an indivisible unit. The copy of Memo. No. 333‑RO‑56/1449 dated 26‑5,1956 (Annexure D) shows that the Estate Officer, West Pakistan, Lahore, had allotted the lower portion of this house to Mr. Rashid Ahmad. But afterwards on 14‑2‑1957 the whole of this house was allotted to Dr. Syed Inayatullah Shah by the Rehabilitation authorities. According to Memo. No. 3338‑RO‑57/dated 16‑7‑1957, from the Estate Officer, West Pakistan Government, Lahore, to the Secretary (Urban) to the Rehabilitation Commissioner, West Pakistan, Lahore, copy to Dr. S. Inayatullah Shah, the possession of the upper portion of the house was delivered to him on 29‑6‑1957 and it was observed with regret that they were not able to `hand over the possession of the whole of the house to him'. However, he was assured that the remaining portion of the house shall be made available to the allottee after it was no longer required by the Government. A copy of the order of allotment dated 21‑9‑1957 (Annexure A to Writ Petition No. 344‑R of 1963) also shows that the allotment of the whole of this house was confirmed in the name of Dr. Inayatullah Shah, but only the possession of the upper portion could be delivered to him and in this it is further mentioned that the possession of the remaining portion shall be delivered to him later on. But according to Memo. No. 1900‑AI‑Reh.‑58/27 dated 19‑4‑1958 from the Secretary (Urban) to the Rehabilitation Commissioner, West Pakistan, Lahore, to the District Rehabilitation Officer Civil Lines, Lahore (Annexure R), it was eventually decided that "the present arrangement should continue." A copy of this letter was also endorsed to Mr. Rashid Ahmad for information with reference to his application dated 3‑8‑1958. In the report dated 15‑12‑1965, submitted to this Court by the department in Writ Petition No. 2900‑R of 1962, it is stated that the Rehabilitation file of the property in dispute shows that continuous efforts were made by the Rehabilitation authority by correspondence with the Estate Officer to have the house vacated, so that its possession could be delivered to Dr. Inayatullah Shah. But ultimately when it was found that the possession of the lower portion of the house could not be given to him, it was decided by the Rehabilitation Commissioner on 19‑4‑1958 to maintain the status quo. From the record it does not appear that this last order was passed, by the Rehabilitation Commissioner after any notice to Dr. Inayatullah Shah.

16. In this connection, the Assistant Settlement Commis sioner with the powers of the Deputy Settlement Commissioner, in his order dated 19‑3‑1960, in transferring the house to Sh. Rashid Ahmad, has observed that he was a regular allottee and a claimant residing on the ground floor. But S. Ejaz Hussain Shah, Settlement and rehabilitation Commissioner,. Lahore Division, Lahore, in his impugned order dated 21‑11‑1962 has in this respect observed :‑ The petition got possession of the ground floor only as a Government servant by an order of the Estate Officer. When the whole house was allotted and transferred to Dr. Inayat ullah Shah, the petitioner was asked to leave the building and it was on a representation from him that the arrangement of his continuing to stay in the building was permitted. His possession, therefore, could not be described as undisputed. No regular allotment was ever issued to him. In the absence of a regular allotment order and on account of the fact that his possession was not undisputed, coupled with the fact that his CH Form was not accompanied by a declaration of eligibility, his form should not have been considered. Before us, relying on Memo. No. 1600‑Comp‑Reh./59 dated 1‑8‑1959 (Printed at page 41 of the Manual of Settlement Law and Procedure; First Edition), the learned counsel for Sh. Rashid Ahmad has asserted that he was entitled to the transfer of the house allotted to him as a Government servant before 20‑12‑1958. Recently in Asghar Hussain and another v. Dr. A. R. Hamid Musa and another (1968 SCMR 475) it was held that in the case of a house allotted to a Government Department Officer occupying such house under the authority of allottee Department was entitled to its transfer if otherwise he was eligible for it. Also according to the learned counsel the possession of Sh. Rashid Ahmad on the ground floor of this house was regularized by the Rehabilitation Com missioner, West Pakistan when he had ordered the status quo to con tinue as mentioned in the Memorandum No. 1900 AI Reh./38/2731 dated 19‑4‑1958 from the Secretary (Urban) to the Rehabilitation Commissioner, West Pakistan, Lahore, to the District Rehabili tation Officer, Civil Lines, Lahore (Annexure E). As a last resort the learned counsel has further contended that he was in undisputed occupation of the house on the material date and as such he was entitled to its transfer in pursuance to the Notification No. F. 3 (3)/60/SI dated 6‑9‑1960, after Dr. Syed Inayatullah Shah had withdrawn his form which was cancelled. On the other hand the learned counsel for Dr. Syed Inayatullah Shah asserted before us that with the allotment of the whole of the house to him by the Rehabilitation authorities on 14‑2‑957, the allotment of the portion thereof to Sh. Abdur Rashid by the Estate Officer, was cancelled and had come to an end and thereafter he was liable to surrender the vacant possession of the portion in his occupation to the rightful allottee. In our opinion the learned Settlement Commissioner did not fully go into these respective contentions raised before us. We are not quite aware of the circumstances under which the Rehabilitation Commissioner had, on 19‑4‑58 ordered the existing arrangement between the parties to continue. Even otherwise the fate of this writ petition defends upon the result of the case of Dr. S. Inayatullah Shah which is being remanded by us. These two cases have got to be disposed of together and we have, therefore, no hesitation in quashing the impugned order against the petitioner in this petition as well.

17. For the foregoing reasons we accept these two writ petitions and declare that the impugned order dated 21‑12‑1962 passed by the learned Settlement and Rehabilitation Commis sioner, Lahore Division, Lahore, is against law and has no legal effect. These two cases are sent back to him for a decision afresh in accordance with the law. The parties are left to bear their own costs in these circumstances. A. B. Petition accepted. Case remanded.