P L D 1969 Karachi 506 (PLP)

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 21(3)‑Words "such officer or authority or his successor‑in‑office"‑

Question: whether power of review to correct clerical or arithmetical mistake must be exercised in terms of subsection (3) by the same officer who made original order and whether Settlement Commissioner (Industries) invested with powers of Chief Settlement Commissioner could review in terms of S. 21(3) order passed by Chief Settlement Commissioner himself

Questions, held, not free from doubt‑Objection as to exercise of such jurisdiction having not been raised cannot, however, be allowed to be raised for first time in writ jurisdiction‑Constitution of Pakistan (1962), Art.

98. Zubair Siddiqui v. M. H. Sufi P L D 1964 Lab. 453 rel. Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner P L D 1964 S C 829; Muhammad Sharif v. Settlement Commissioner P L D 1968 Lab. 263; Khairuddin v. Abdul Hamid P L D 1966 Lab. 362 and Zaitoon Begum v. Ghulam Shabbir, Settlement Commissioner 1968 S C M R 611 ref. (b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 21‑Review‑--Interpretation of order of higher authority by lower officers or Courts‑

Not dependent on powers of revision or review but arises from necessity that each officer has to understand the order to which he has to give effect

Settlement Commissioner (Industries) enjoying powers of Chief Settlement Commissioner interpreting order passed by Chief Settlement Commissioner himself, not for discovering its meaning and enforcing it but because he had been called upon to set aside order of an Additional Settlement Commissioner purporting to act under S. 21(3)‑Exercise of powers of review, in circumstance, held, wrong‑Case, however, not remanded back to proper officer for re‑decision but disposed of on merits by High Court itself. Abdul Hayee Khan v. The State P L D 1958 S C (Pak.) 169; Ahmad Din v. Sultan Muhammad Khan P L D 1967 Lah. 559; Syed Muhammad Sharif‑ul‑Hassan v. Chief Settlement Commis sioner P L D 1968 Lah. 363 and Muhammad Sharif v. Settlement Commissioner P L D 1968 Lah. 263 ref. This petition under Article 98 of the Constitution is directed against the order Annexure `F' dated the 14th of April 1966 made by the Settlement Commissioner (Industries) with powers of the Chief Settlement and Rehabilitation Commissioner. By this order the officer treated the appeal of respondents Nos. 2 to 4, which they had filed on the 4th of November 1964, as an application for the review of the order of the Additional Settlement Commissioner (Industries), Lahore dated the 21st of September 1964 Annexure `E' to this Petition. The latter officer had dismissed the application of respondents Nos. 2 to 4 in which it was requested that the order of the 22nd of October 1960 which was made by the Chief Settlement Commissioner, be clarified and elucidated.

2. The factual background of this Petition is that there is a cinema theatre in Hyderabad known as "Capital Cinema". Its land and building are evacuee property and its furniture and machinery are half evacuee and half non‑evacuee property. The non evacuee property was purchased by respondents Nos. 2 to 4 and Rais Najmuddin. The share of the last named purchaser was twenty paisa in rupee. Syed Muzaffar Ali, the present petitioner purchased the share of Rais Najmuddin in 1956 and joined respondents Nos. 2 to 4 in the management of the business.

3. In 1959, applications were invited for the transfer of industrial concerns and cinemas; therefore an application was made with respect to the transfer of the Capital Cinema. There is a dispute between the parties as to whether the application was made by the petitioner alone or along with respondents Nos. 2 to

4. The petitioner has filed a copy of that application which is Annexure `A' to this petition according to which he alone was the applicant but Mr. S. Wasim Hamid Rizvi, who had the original record in his possession, informed this Court that the original application made for the transfer of the Capital Cinema was signed by the petitioner as well as respondents Nos. 3 and

4. That application was rejected on the 26th of January 1960 vide the order of the Settlement Commissioner, Khairpur Division, Annexure `B' to this Petition. Subsequently, the cinema theatre was auctioned on the 4th of April 1960, and purchased by one Shujauddin Bari for Rs. 7, 25,

000. On the 18th of July 1950, the auction was confirmed in favour of the purchaser. On the 19th of July 1960, the petitioner made an application for getting the confirmation of the auction set aside. That application was treated as an appeal by the Chief Settlement and Rehabilitation Commissioner who not only accepted it but in the same proceed ings also put the cinema theatre to a restricted auction between the petitioner and the auction purchaser; with the result, that the petitioner gave the highest bid of Rs. 7,45,003 which was accepted vide the order dated the 22nd of October 1960 Annexure `C' to this Petition. Shujauddin was not satisfied with this result; therefore, he invoked the jurisdiction of this Court under Article 98 of the Constitution to challenge the order Annexure `C'. That Petition dismissed on the 6th of November 1963 vide order Annexure `B' to this Petition. Soon after it on the 27th of February 1964, the order of the 22nd of October 1960, was communicated to the petitioner vide Annexure `C‑1'. Its last line is as follows: "Please deposit the transfer price as mentioned above within 30 days of the receipt of this memo failing which your entitlement will be cancelled." Counsel for the parties agreed that nothing has been paid by the petitioner or for that matter by anybody else in pursuance of the above direction, because disputes arose between the petitioner and respondents Nos. 2 to 4 as to whether the cinema theatre was transferred to the petitioner alone or jointly along with respondents Nos. 2 to 4.

4. On the 23rd of January 1964, respondents Nos. 2 to 4 applied to the Chief Settlement Commissioner for directions to be given to the Assistant Settlement Commissioner (Industries) to specify the names and shares of all the partners and that a document of transfer be issued by him so as to eliminate disputes amongst the partners, who were in joint possession of the Capital Cinema. The Additional Settlement Commissioner (Industries) with powers of the Chief Settlement Commissioner dismissed it on the 21st of September 1964, vide Annexure `E' to this Petition on two grounds. Firstly, because the order of the Chief Settlement Commissioner was clear with respect to the identity of the transferee and secondly, because the prayer for clarification was delayed by four years. Respondents Nos. 2 to 4 went in appeal, against that order before the Settlement Commissioner, with powers of the Chief Settlement Commissioner, which was accepted by him on the 14th of April 1966, vide the order Annexure F' to this Petition.

5. The petitioner has now invoked the jurisdiction of this Court by making the present Constitutional Petition under Article 98 of the Constitution. He seeks to get the order Annexure `F' dated the 14th of April 1966, declared as without lawful authority and of no legal effect and to get the order of the 22nd of October 1960 Annexure `C' to this Petition confirmed as the valid and subsisting order.

6. The second part of the prayer is redundant and does not fall within the scope of Article 98 of the Constitution. In support of the first part Mr. S. M. Raza learned counsel for the petitioner has advanced the following arguments: (1) The order dated the 22nd of October 1963, Annexure `C' was upheld by the High Court vide the decision of Writ Petition No. 597/60 dated the 6th of November 1968 Annexure `B' to this Petition, and was subsequently confirmed by the Additional Settlement Commissioner (Industries) with powers of the Chief Settlement Commissioner on the 16th of March 1964, Annexure 'C‑2'. In these circumstances, according to counsel, it could not be questioned by respondents Nos. 2 to 4 by going in appeal against it. (2) Respondents Nos. 2 to 3 questioned the order Annexure `E' to this Petition made by the Additional Settlement Com missioner with powers of the Chief Settlement Commissioner dated the 21st of September 1964. This appeal was competent under subsection (2) of section 31 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as amended by virtue of Ordinance XIII of 1964, but the Settlement Commissioner (Industries) with the powers of the Chief Settlement Commissioner who heard the appeal realised that the appeal involved the interpretation of the order of the Chief Settlement Commissioner dated the 22nd of October 1960, Annexure 'C' to this Petition; therefore, he treated the appeal as an application for review under subsection (3) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. According to counsel this could not be done in terms of the subsection because there was neither any clerical or arithmetical mistake in the order nor was the. Settlement Commissioner (Industries) who enjoyed the powers of the Chief Settlement Commissioner, an officer or authority who could exercise the power of review. (3) The power‑of‑attorney which is said to have been given by respondents Nos. 2 to 4 to the petitioner to act on their behalf for getting the cinema theatre transferred to them jointly, was restricted by the condition that the price should be the prevailing market value. Moreover, the power‑of -attorney was signed by respondents Nos. 3 and 4 only and not by respondent No. 2.

7. The first contention of Mr. S. M. Raza indirectly raises the same question which is contained in the second contention namely, that the officer who made the impugned order Annexure `F' dated the 14th of April 1966, did not have the power to do so, because if he .had that power then it is immaterial as to how many times the order of the 22nd of October 1960, was left untouched and unmodified. Mr. S. M. Raza has referred to the order of the High Court dated the 6th of November 1963, Annexure B' to this Petition to create an impression that by virtue of it the order became final and the power exercisable by the Settlement Commissioner (Industries) to review the order of his predecessor ceased to exist but this is not the correct angle because the High Court did not examine the order of the 22nd of October 1960 from that point of view. The dispute before the High Court was between the former auction purchaser and the present petitioner only; therefore, in that context the disputes between the present petitioner and his associates or partners could not be taken into consideration. Similarly, the order of the 22nd of October 1960, was confirmed because the constitutional petition of the former auction purchaser was dismissed. Mr. S. Wasim Rizvi has brought to my notice an application which was made by respondents Nos. 3 and

4. It was presented to the Chief Settlement Commissioner, Lahore on the 6th of January 1961, and contained the following request:‑ "We would request that as the offer made by Syed Muzaffar Ali Shah was made on behalf of himself and on behalf of us as per our special authority given to him, our names may also kindly be entered along with his name as co‑purchasers of the evacuee share in your records and demand note be issued to us separately so that we may make payment of our proportioned share in the purchase money." The decision of that application was postponed with the following remarks: "I think status quo has been maintained by the High Court. This review petition will therefore, be heard by the Chief Settlement and Rehabilitation Commissioner after the judgment of the High Court is announced in the Case." But the review application was not heard in pursuance of the above order, perhaps because respondents Nos. 2 to 4 moved the authorities afresh by making an application which is Annexure `E' to the counter‑affidavit of respondents Nos. 2 to 4 and is dated the 23rd of January 1964.

8. A review application was thus already before the authorities and when an appeal was made it was felt as mentioned above, that it involved the review of the order dated the 22nd of October 1960 and was therefore, treated as such. Mr. S. M. Raza has contended that the Settlement Commissioner (Industries) enjoying the powers of Chief Settlement Commissioner could not review that order in terms of subsection (3) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In order to appreciate this argument it is necessary to have a look at that provision. It is as follows "Clerical or arithmetical mistakes in any older passed by an officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority or his successor‑in‑office." Under the above provision the Settlement Commissioner (Industries) with the powers of the Chief Settlement Com missioner has made the following order: "It is abundantly clear from the order of Pir Ahsanuddin dated 22‑10‑1960, particularly para. 5 of the order reproduced above that Syed Muzaffar Ali Shah appeared before him not in his individual capacity but on behalf of all the parties who had submitted a joint application for the transfer of the Cinema. The learned Chief Settlement Commission: in his order has stated more than once that Syed Muzaffar Ali Shah was in possession of the Cinema along with others. He further emphasized that it would not be fair to disturb them at this stage particularly when half of the furniture and machinery belonged to them and they were prepared to pay more than the price offered by one Shujauddin for the evacuee share. I am therefore, satisfied that the only meaning that could be attached to the order of Pir Ahsanuddin is that the cinema was transferred by him jointly to the appellant as well as res pondent Syed Muzaffar Ali Shah. The fact that the respondent has failed to make his appearance in spite of repeated notice:; arid has not cared to produce the original special power‑of‑attorney copies of which attached by the same Oath Com missioner (Qazi Aziz‑ul‑Hassan Usmani, M. A. (1), LL. B., Oath Commissioner, Hyderabad) have been produced by both the parties at different times shows that he has not been pursuing the case with clean hands and has betrayed the trust imposed in him by the appellants of whom two are ladies. He is obviously trying to grab the whole property after final orders of transfer were passed by Pir Ahsanuddin. I therefore, accept the petition of the appellants and order that they shall be treated as joint transferees of Capital Cinema, Hyderabad, along with Syed Muzaffar Ali Shah."

9. The above analysis of the order of Pir Ahsanuddin, the Chief Settlement Commissioner dated the 22nd of October 1960, shows that the right of petitioner and his associates was con sidered but in the end the transfer was mistakably ordered in favour of the petitioner only. From this point of view the order falls squarely within the scopes of subsection (3) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

10. When this was pointed out to Mr. S. M. Raza he said that the Settlement Commissioner (Industries) who enjoyed the powers of the Chief Settlement Commissioner did not fall within those categories of officers and authorities to which reference is made in the provision by the words "such officer or authority or his successor‑in‑office." Counsel said that the Settlement Commissioner (Industries) who enjoyed the powers of the Chief Settlement Commissioner could not be said to be a successor in the office of the Chief Settlement Commissioner because he did not take the place of the Chief Settlement Com missioner and because there were many Settlement Commissioners who enjoyed the delegated powers of the Chief Settlement Commissioner. Moreover, according to counsel the Settlement Commissioner (Industries) did not fall within the category of "such officer or authority" because the word "such" means the same officer or authority and not an equivalent officer or authority.

11. The first part of counsel's argument appears to be sound but the second part was criticised by Mr. M. A. Latif who compared subsection (3) with subsection (1) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He pointed out that in subsection (1) the words are:‑ "Modify, reverse or confirm an order passed by himself or by any of his predecessors‑in‑office." The expression "by himself" has been replaced in subsection (3) by the words "such officer or authority" which. according to counsel, indicates absence of emphasis on the same personality who made the original order. Mr. S. Wasim Hamid Rizvi has also criticised the above argument of Mr. S. M. Raza though from a different angle. He contended that no objection was taken to the jurisdiction of the Settlement Commissioner (Industries) when the proceedings took place before him but after the decision went against the petitioner, efforts are made by him to find jurisdictional faults. 1n these circumstances, counsel argued, the petitioner has no right to raise the objection. In support of this contention he relied on Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (P L D 1964 S C 829). Mr. S. M. Raza tried to meet this contention by referring to Muhammad Sharif v. Settlement Commissioner (P L D 1968 Lah. 263) and Khairuddin v. Abdul Ahmad (P L D 1966 Lah. 362) on the one hand and to Zaitoon Begum v. Ghulam Shabbir Settle ment Commissioner (1968 S C M R 611) on the other hand. The decisions of the Lahore Seat contain the proposition that‑ "the rule of disallowing objections of jurisdiction to be raised for the first time in writ (or constitutional) proceedings is not an absolute one." Certain exceptions are mentioned in the two judgments, parti cularly in the earlier one; but it is unnecessary to consider this argument elaborately because Mr. S. M. Raza has not argued that the present case falls within any of those exceptions. Similarly, the judgment of the Supreme Court is not relevant because it deals with a different problem. To quote the words of that judgment the question before their Lordships was‑ "Whether express delegation of revisional power under section 20 (2) of the Act would carry with it the power of review as an ancillary to the delegated power."

12. The above discussion leads to the conclusion that the contention of Mr. S. M. Raza that power of review must be exercised, in terms of subsection (3) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the same officer who made the original order, is not free from difficulties and doubts, and that such an objection having not been raised before that officer it cannot be allowed to be raised in these proceedings by virtue of any exception to the principle laid down by the Supreme Court in Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner. I may mention here that Mr. M. A. Latif has referred to Zubair Siddiqui v. M. H. Sufi the relevant facts of which are almost the same as of this case. It was decided under subsection (3) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958; therefore, the provision was interpreted to decide whether it amounted to review or removal of errors. A comparison of the language of this provision with section 152, C. P. C. was made in order to show that the object of the provision is to confer the power to remove clerical and arithmetical mistakes as well as errors arising from accidental slips and omissions. Taking this view of the provision, objection to the jurisdiction of the officer who exercised power under it was disallowed, because it was taken for the first time in the High Court, with the following observations: "The petitioner had all along participated in the proceedings and never objected at any stage as to the competence of the Chief Settlement Commissioner to interpret or clarify the order of his predecessor. He, therefore, took a chance of the decision being given in his favour. It does not under the circumstances lie in his mouth to object to the jurisdiction of the Chief Settlement Commissioner which he had in fact himself invoked. I am, therefore, of the view that even lf the petitioner had been able to make out some case in his favour, I would not have inclined to grant him any relief under Article 98 of the Constitution, which besides being discretionary is granted only in cases of extraordinary nature." The above is certainly a judicial precedent in favour of counsel for the respondents.

13. There is one more aspect of the problem which seems to be in favour of the respondents. It is that the order of the Chief Settlement Commissioner of the 22nd of October 1960, which is Annexure `C' to this petition has been interpreted by the petitioner to mean that the transfer was made in his favour and not jointly with the respondents. This conclusion is based .on the last two lines of paragraph 5 which is the operative part of the order. It will be proper to reproduce that paragraph here for judging the correctness of its interpretation by the petitioner and his lawyer: "Since Syed Muzaffar Ali Shah and others are in possession of the cinema for the last four years, it will not be fair to disturb them at this stage, particularly when half of the furniture and machinery belongs to them and they are prepared to pay more than the price offered by Shujauddin for the evacuee share. I, therefore, partially set aside the order of the Settlement Commissioner (Industries) dated 18‑7‑60 and transfer the cinema house to Syed Muzaffar Ali Shah, who is a claimant displaced person, at the price of Rs. 7,45,000 under para. 5 of the order of the Central Govern ment dated 19th October 1959." Mr. M. A. Latif has laid emphasis on those words of the above quotation which have been underlined* by me. In spite of those expressions, the Chief Settlement Commissioner said in the end that the cinema house was transferred to Syed Muzaffar Ali Shah who was a claimant. There is thus an obvious inconsistency in the conclusion and the underlined* expressions. The petitioner and his counsel were aware of it therefore, in clause IF' of paragraph 15 of this petition, they have stated as follows:‑ " The further finding (in the impugned order) that they are prepared to pay more than the price offered by Shajauddin Bari is a mistake only to the extent of the use of the word `they' for the word `he' but the operative part is clear." The mistake to which reference has been made above is not as inconsequential as has been made out. The reference to the associates of the petitioner and their offer to pay a higher price than that offered by Shajauddin, convinces the mind that all of them were applicants yet the cinema house was erroneously transferred to one of them only.

14. If the above appreciation is correct, then the situation assumes a different significance because the interpretation of an order of a higher authority by the lower officers is not dependent on the power of review or revision but arise from the necessity that each officer has to understand the order to which he has to give effect. It was from this point of view that the Supreme Court observed in Abdul Hayee Khan v. The State (1) as follows:‑ "A Judgment of a High Court is indeed binding upon all subordinate Courts, but when its meaning is not entirely clear, in the circumstances of a particular case, it is open to the subordinate Courts to attempt to interpret the words employed, and to give effect to that interpretation which seems to them to be the most reasonable. In such an exercise there is no distinction of superiority or inferiority of Courts, and each Court subordinate to the High Court must be regarded as having equal competence in the particular respect except in the case where the interpretation is made the basis of a lawful direction to a subordinate Court."

15. In this case the Settlement Commissioner (Industries) enjoying the powers of the Chief Settlement Commissioner has interpreted the order of the Chief Settlement Commissioner but he has not done so to discover its meaning for enforcing it but because he was called upon to set aside the order of an Additional Settlement Commissioner (Industries) dated the 21st of September 1964, purporting to act under subsection (3) of section 21 of the Displaced Persons (Compensation an Rehabilitation) Act, 1958. To this extent the exercise of power in this case does not precisely answer the requirements of the situation which is contemplated by the Supreme Court in the; case of Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner. But it is important to note, as pointed out by Mr. M. A. Latif, that in all those cases, which according to him are 17 in number, in which the power of review was wrongly exercised by the delegatees of authority in terms of subsection (P L D 1958 S C 169) of section 21 of the Displaced Persons (Compensation and Rehabilitation Act, 1958, the decision was that they be sent back for decision. by property officers. Some of such cases are Ahmad Din v. Sultan Muhammad Khan (P L D 1967 Lah. 559), Syed Muhammad Sharif‑ul‑Hassan v. Chief Settlement Commissioner (P L D 1968 Lah. 363) and Muhammad Sharif v. Settlement Commissioner (P L D 1968 Lah. 263). Counsel therefore, urged that in spite of the grave objection that existed against permitting counsel for the petitioner to question the jurisdiction of the Settlement Commissioner who made the impugned order, if it is allowed to be raised, the result would be that the case will go back to the Chief Settlement Commissioner for re‑decision. The propriety of such an eventuality should, according to counsel, be overruled in view of the situation that the language of" paragraph 5 of the order dated the 22nd of October 1960, made by the Chief Settlement Commissioner, leaves hardly any doubt: that he was thinking of the claim of all the associates of the petitioner when he, made up his mind in his favour. In these: circumstances the correct interpretation of the order, according to counsel, is that the transfer was not intended to be made to the petitioner alone. If in spite of this impression, which paragraph 5 unmistakably creates on the mind, the case were to be remanded to the Chief Settlement Commissioner for re-decision it would amount to an exercise in tremendous waste of ‑time. I agree with the learned counsel.

16. Counsel for the respondents have relied on 5 documents in support of their contention that the petitioner has never acted for himself alone. The first of them is the power‑of-attorney in his favour which is dated the 6th of October 1959, the second is the joint application which he made for the transfer of the cinema dated the 29th of November 1959. There are two applications dated the 2nd of April 1960 and 4th of April 1960 in which he has clearly admitted that he was not acting for himself but was taking steps for himself and his associates. There is a stay order also which he had obtained on the 24th of April 1960, and the language of which shows that it was granted for the benefit of the petitioner as well as his associates. It was in view of this evidence that the Settlement Commissioner (Industries) observed in the impugned order ‑dated the 14th of April 1966, that the petitioner was not pursuing ‑the ease with clean hands. Objection has been taken by Mr. S. M. Raza, counsel for the petitioner, to this remark but I do not think that exception can be taken to it in view of the facts of this case.

17. The above facts, various aspects of the case to which reference has been made and the contentions that have been lead to the conclusion that this is not a fit petition for being granted. It is dismissed with costs. K. B. A. Petition dismissed.