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Writ Petition No. 51 of 1962, decided on 24th March 1965.

S. 21 read with Displaced Persons (Compen sation and Rehabilitation) (Amendment) Ordinance (II of 1962), S. 6 and Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance (XIII of 1962), S. 2‑Review Application pending before promulgation of Ordinance II of 1962 Powers of review not affected by promulgation of Ordinance General Clauses Act (X of 1897), S. 6.

Art. 98‑Plea not raised in petition‑Cannot be allowed at stage of argument.

Art. 98‑Petition under Article‑Question of fact‑Cannot be entered into.

, Art. 98(2)(a)(i)‑Officer, passing impugned order, ceasing to be in Government service -Relief prayed for cannot be granted.

Peer Bakhsh Khan for Petitioner.

S. Safdar Hussain for Respondent No. 1.

Maqbool Ilahi for Respondents Nos. 2 and 3.

Dates of hearing : 2nd and 3rd March 1965.

.‑This is a petition under Article 170 of the late Constitution of Pakistan read with Article 2 (4) of the Laws (Continuance in Force) Order, 1958, preferred by K. A. Jamil, resident of Bungalow No. 1, Hospital Road, Peshawar Cantonment, through his wife Mst. Nur Jehan, for the issuance of a writ of prohibition to Raja Muhammad Ziaullah, Settlement and Rehabilitation Commissioner exercising the powers of Chief Settlement and Rehabilitation Commissioner and the Chief Settlement and Rehabilitation Commissioner (respondents Nos. 2 and 3, respectively) restraining them from entertaining and deciding the Review Application No. 197/PWR/PA, dated the 13th of February 1962.

2. Briefly, the facts of the case, as alleged by the petitioner, are that he is a displaced claimant and is in authorised possession of Bungalow No. 1, Hospital Road, Peshawar Cantonment; since about five years before the 21st of December 1958. The bungalow in dispute belonged to Rai Bahadur Diwan Chand Oberai, Advocate, Peshawar, which was one tenement and the lease‑hold was also in favour of one person and, moreover, in the records maintained in the offices of the Cantonment Board and the Military Estate Officer, it has been recorded as one indivisible unit and has also been assessed as such for the purpose of house tax. The Deputy Settlement and Rehabilitation Commissioner, by his order dated the 31st of May 1960 (Annexure W) also transferred the bungalow in dispute as one unit on evaluation basis in accordance with the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the Scheme prepared thereunder to the petitioner as a displaced claimant in authorised possession and on the 18th of July 1960, he issued' the Provisional Transfer Order in his favour. Accordingly, the petitioner got his claim adjusted against the price of the bungalow in dispute amounting to Rs. 30.00(' and so he is now entitled to its permanent transfer.

3. Respondent No. 1 Sultan Mahmud Khan, an occupant of a portion of the disputed bungalow preferred an appeal in the Court of Additional Settlement and Rehabilitation Commis sioner, Peshawar, against the order of the Deputy Settlement and Rehabilitation Commissioner, Peshawar, dated the, 31st of May 1960, transferring the disputed bungalow to the petitioner claiming that the portion of the bungalow in his possession be transferred to hire on the ground, that it is capable of division. His appeal was rejected on the 18th of August 1960 (copy Annexure B'). He then preferred a revision petition against the order of the Additional Settlement and Rehabilitation Commissioner, dated the 18th of August 1960, to the Settlement and Rehabilitation Commissioner, who rejected it, by his order dated the 30th of September. His second revision petition filed in the Court of Malik Fateh Khan. Settlement and Rehabilitation Commissioner exercising the delegated powers of the Chief Settlement and Rehabilitation Commissioner, was also rejected by his order dated the 21st of June 1961. True copies of the above‑mentioned orders are Annexures C' and D', respectively Respondent No. 1 then filed a review application for the review of the order of Malik Fateh Khan, dated the 21st of June 1961 ‑in the Court of respondent No. 2 (Raja Muhammad Ziaullah Khan, Settlement and Rehabilitation Commissioner exercising the powers of the Chief Settlement and Rehabilitation Commissioner).

4. The petitioner was ordered to appear in the Court of respondent No. 2 on the 27th of February 1962. An objection was raised on his behalf to the effect, that respondent No. 2 had no jurisdiction to entertain and adjudicate, upon the review application. Respondent No. 2 has not so far rejected the review application, which is still pending in his Court and is contemplating to proceed further in the matter, but no date has yet been fixed. The petitioner, therefore, prays for the issuance of a writ of prohibition against respondents Nos. 2 and 3 restraining them from prosecuting, hearing and deciding the review application on the following grounds:‑----

(1) That respondents Nos. 2 and 3 have no jurisdiction to entertain and adjudicate upon the Review Application No. 197 PWR/PA, dated the 13th of February 1962.

(2) That subsections (1), (1‑A) and (2) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) were omitted by the Displaced Persons (Compensation and Rehabilitation) Ordinance (II of 1962), which has come into force on the 13th of January 1962, and the review application was filed on the 13th of February 1962, when respondents Nos. 2 and 3 did not possess the powers of review and so all proceedings so far taken by them in this behalf were illegal, ultra vires, void and without jurisdiction.

(3) That respondents Nos. 2 and 3 cannot proceed further in the matter even if the review had been filed earlier, as it cannot be entertained and heard by them after the 13th of January 1962, and the order of the Deputy Settlement and Rehabilitation Commissioner, dated the 31st of May 1960, has thus become final and conclusive, which cannot be reviewed or varied in any manner by them.

5. Respondent No. 1 Sultan Mahmud Khan in his written statement filed in this Court contended that Bungalow No. 1, Hospital Road, Peshawar Cantonment was divided into three separate self‑contained independent residential units; one of these, was in possession of the wife of the petitioner, the second was in his (respondent No. 1) possession and the third was in possession of Kazi Ahmad Said, Station Director, Radio Pakistan, Peshawar. In, the Survey Assessment Register of the Custodian, it was also given three separate numbers and it all along has been treated as three independent houses by the Custodian Department, and as such, was allotted to three different persons. Moreover, there were three different accounts in the Cantonment Board Record for the purpose of water tax. It was stated that the entire Bungalow No. 1, Hospital Road, Peshawar, Cantonment, was formerly transferred to the wife of the petitioner and subsequently, it was transferred in favour of the petitioner. He, however, denied that the petitioner was entitled to the permanent transfer of the property in dispute.

6. Respondent No. 1 further stated that he had filed a review application on the 19th of July 1961, which was admitted for regular hearing long before the promulgation of the Displaced Persons (Compensation and Rehabilitation) Ordinance (II of 1962) and subsequently, transferred to respondent No. 2, to whom the Chief Settlement and Rehabilitation Commissioner (respondent No. 3) had delegated his powers. Objections raised by the petitioner regarding the hearing of review application, the jurisdiction of respondent No. 2 and the competence of review application were over‑ruled after hearing the parties and the case was then adjourned for inspection of the property in dispute. Lastly, it was contended that the review application was filed on the 19th of July 1961, in the Court of respondent No. 3 and the proceedings were pending in the Court of respondent No. 2, when subsections (1), (1‑A) and (2) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) were omitted by the Displaced Persons (Compensation and Rehabilitation) Ordinance (II of 1962) on the 13th of January 1962, but a new section, namely, section 7 was inserted in the said Ordinance of 1962 by Ordinance XIII of 1962, published in the Gazette of Pakistan, Extraordinary, dated the 17th of March 1962, and as such, respondents Nos. 2 and 3, possessed the powers of review at the time when the review application was filed on the 19th of July 1961 and the proceedings so far taken by diem were, therefore, legal, intra vires and valid in exercise of their jurisdiction.

7. Mr. Peer Bakhsh Khan, learned counsel appearing for K. A. Jamil petitioner submitted that Malik Fateh Khan, Settlement and Rehabilitation Commissioner exercising the delegated powers of the Chief Settlement and Rehabilitation Commissioner under subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, rejected the second revision petition on the 21st of June 1961, filed by respondent No. 1. An application was made by him on the 6^th of July 1961, for the grant of certified copies of that order, which were furnished to him on the same date. Respondent No. 1 then filed a review application before the Additional Settlement and Rehabilitation Commissioner on the 19th of July 1961, who forwarded it by Memorandum No. 638/Reader, dated the 31st of July 1961, to Malik Fateh Khan, Settlement and Rehabilitation Commissioner, who had been delegated the powers to hear and decide second revision petitions under subsection (2) of section 20 of the Act only. Learned counsel urged that no powers were delegated to Malik Fateh Khan by the Chief Settlement and Rehabilitation Commissioner under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to entertain or decide review applications.

8. Learned counsel for the petitioner further contended that assuming for the sake of arguments, that Malik Fateh Khan was exercising the powers of review, there was no proper review application in the eye of law as long as it had not actually reached him. Even if Malik Fateh Khan had the delegated powers of review, the application should have been presented to him, but since it was not done, the application was rendered incompetent, when it was actually received in his office. Learned counsel urged that, the review application was not received in his office within the statutory period of 15 days and thus there was no review in the eye of law.

9. It may be pointed out here, that the point of limitation, mentioned above, was not raised in the writ petition, but was raised for the first time in the course of arguments. Learned counsel for the petitioner conceded that the limitation in filing review applications can be condoned under the Limitation Act, and in this context, he referred to clause (1‑A) of section 21 of the Manual of Settlement Law and Procedure, appearing at page 253, which reads as under :‑---

"The provision of sections 5 and 12 of the Limitation Act, 1908 (IX of 1908), shall apply in computing the aforesaid period of fifteen days."

Referring to the explanation offered by respondent No. 1 in filing the review application beyond the period of limitation, learned counsel for the petitioner submitted that the only explanation offered by him was that he was ill and was thus unable to attend the Court. Learned counsel urged that Raja Muhammad Zia Ullah Khan respondent No. 2 had not condoned the delay, but admitted that application for the condonation of delay has not so far been rejected. In our opinion, it is for the Settlement and Rehabilitation Authorities to consider as to whether the application filed by respondent No. 1 for the condonation of delay is to be accepted or not, and, moreover, this objection was not raised in the writ petition.

10. Adverting to the review application, learned counsel for the petitioner contended that there is no material on the record to suggest that the Chief Settlement and Rehabilitation Commissioner purporting to act under section 31(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had delegated the powers of review to Malik Fateh Khan or Raja Muhammad Zia Ullah Khan or any other Settlement and Rehabilitation Commissioner. He urged that the application for review filed in the Court of Additional Settlement and Rehabilitation Commissioner was not competent, as it should have been presented to the Chief Settlement and Rehabilitation Commissioner and to no other authority. In this connection, learned counsel for the petitioner referred to Notification No. 1313‑Admn‑Reh/62, issued by the Chief Settlement and Rehabilitation Commissioner on the 26th of April 1962, which reads as follows:‑

"In partial modification of the previous Notifications issued from time to time in relation to delegation of my power under section 20 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, I, Ahsan‑ud‑Din, C. S. P., Chief Settlement Commissioner, Pakistan, by virtue of the powers vested in me by section 31 (2) of the said Act, do hereby delegate my powers under section 21 (1) ibid as amended up‑to‑date to the following Settlement Commissioners in their respective jurisdiction in respect of such review cases as had been filed before 31‑1‑1962 against the orders passed by me under section 20 (2) of the said Act :‑

(2) These officers will also dispose of such review cases as may be entrusted to them from time to time."

Learned counsel for the petitioner urged that the word me' underlined was important, because the review powers were conferred by the Chief Settlement and Rehabilitation Commis sioner on the basis of this notification only retrospectively in respect of such review cases in which the orders were passed by him. Continuing his arguments, learned counsel for the petitioner urged that there was another way of looking at the question and that is apparently, the Chief Settlement and Rehabilitation Commissioner, who passes an order as a delegate, has the powers of reviewing his own order. If, however, it was intended by this notification by the Chief Settlement and Rehabilitation Commissioner to completely divest himself of all the powers and to confer them on his delegatees, then in that event, the words in the notification, in the opinion of the learned counsel, would have been something like this :‑---

". . against orders passed by me or by my delegatees under subsection (2) of section 20 of the said Act."

Learned counsel for the respondent, however, made a reference to Notification No. 10266‑Admn‑Reh/61, issued by the Chief Settlement and Rehabilitation Commissioner on the 20th of December 1961. It reads :‑-- .

"In supersession of all previous notifications issued from time to time, I, Ahsan‑ud‑Din, CSP, Chief Settlement and Rehabilitation Commissioner, Pakistan, by virtue of powers vested in me by section 31(2) of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) do hereby delegate my powers under section 20 (2) of the said Act to the following Settlement Commissioner for the areas noted against their names :‑--

According to the above jurisdiction and distribution of work all officers should please ensure that the cases relating to Courts other than their own which are pending on their file in accordance with previous distribution of work, are immediately transferred to the respective Courts after preparing detailed lists and under intimation to the Head quarters Office. The above officers will also hear fresh review petitions and also those petitions pending in the Courts of their predecessor."

Learned counsel for the petitioner contended that if it is admitted that on the basis of the above‑mentioned notification, the powers of review were conferred on Raja Muhammad Zia Ullah Khan, yet it was to take effect from the 1st of January 1962, and in support of this contention, he referred to Notification No. 126 Admn‑Reh/62 issued by the Chief Settlement and Rehabilitation Commission.‑r, on the 9th of January 1962, which is as under :‑---

"In partial modification of Settlement Organization Notifica tion No. 10266‑Reh/61, dated the 20th November 1961, relating to the delegation of my powers under section' 20 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as amended up to date, I, Ahsan‑ud‑Din, CSP, Chief Settlement Commissioner, Pakistan, do hereby order that the said notification shall come into force with effect from the 1st of January 1962."

Concluding his arguments that the Chief Settlement and Rehabilitation Commissioner had not delegated the powers of review, learned counsel for the petitioner again referred to Notification No. 1313‑Admn‑Reh/62, dated the 26th of April 1962, reproduced earlier in this judgment, and contended that the Chief Settlement and Rehabilitation Commissioner had delegated the powers of review to the Settlement and Rehabilitation Com missioner, mentioned therein, only against the orders passed by him before the 13th of January 1962, because the words in this notification are:---

" . . . review cases as had been filed before 13‑1‑1962 against orders passed by me under section 20 (2) of the said Act",

and thus the Chief Settlement and Rehabilitation Commissioner had not delegated the powers to the Settlement and Rehabilitation Commissioners to review those orders, which were passed by them in exercise of the powers delegated by the Chief Settlement and Rehabilitation Commissioner. Lastly, learned counsel for the petitioner contended that by the Displaced Persons (Compensation and Rehabilitation) Ordinance (II of 1962), which was published and notified on the 13th of January 1962, section 20 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) was amended and subsections (1), (1‑A) and (2) of section 21 of the said Act were omitted. It, therefore, follows that the provisions pertaining to the review had been abrogated by the above‑mentioned Ordinance and thus the powers of review could be exercised up to the 12th of January 1962.

11. Learned counsel for the respondent made a reference to the Displaced Persons (Compensation and Rehabilitation) Ordi nance (II of 1962) published in the Gazette of Pakistan Extra ordinary on the 17th of March 1962. Section 7 of this Ordinance, which is a saving clause, reads as follows :‑----

"For the removal of doubts it is hereby declared that omission by this Ordinance of subsections (2) and (4) of section 20 and subsection (1), (1‑A) and (2) of section 21 of the said Act shall not affect, any case or proceeding the record of which was called for under subsections (2) of section 20 of the said Act, or any review proceeding under subsection (1) of section 21 thereof, which was pending before the commencement of this Ordinance. Provided that no revision under any of the provisions omitted by this Ordinance shall lie against such case or proceeding."

Section 6 of the General Clauses Act (Central) can also be invoked, which is as under :‑

"Where this Act, any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or thereafter to be made, then, unless a different intention appears, the repeal shall not‑

(a)------------------------------------------------- .

(b) affect the previous operation or anything duly done or suffered thereunder ; or

(c) -------------------------------------------------

(d) -------------------------------------------------

(e) -------------------------------------------------

12. A perusal of section 7 of Ordinance (XIII of 1962) read with section 6 of the General Clauses Act (Central) would show that all the review applications pending before the promulgation of Ordinance (II of 1962) should continue notwithstanding the fact, that the powers of review had been deleted by this Ordinance.

13. Replying to the contention raised by the learned counsel for the petitioner that review application was not properly presented, as it was filed in the Court of Additional Settlement and Rehabilitation Commissioner instead of filing it in the Court of the Chief Settlement and Rehabilitation Commissioner, learned counsel for the respondent called attention to the order of the Settlement Department published in the press‑note, dated the 4th of April 1962, which is as under :‑

"It has been decided that all revision petitions under section 20, subsection (2) to be presented to the Chief Settlement and Rehabilitation Commissioner, will be received by the Additional Settlement Commissioner of the area. After issuing proper receipt therefore, the petition so received should be passed on to the Settlement Commissioner concerned who had been invested with the powers of Chief Settlement and Rehabilitation Commissioner for the disposal of such petitions."

Continuing his arguments, learned counsel for the respondent submitted that on the basis of the above‑mentioned order, the Additional Settlement and Rehabilitation Commissioners of the areas were authorized to receive revision petitions under section 20, subsection (2) of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) and so, on this analogy, the review application addressed to the Chief Settlement and Rehabilitation Commissioner filed in the Court of Additional Settlement and Rehabilitation Commissioner was properly instituted.

14. It is not within the scope of the writ jurisdiction that we should enter into the question as to whether the review application was in time or not. The powers of review conferred upon the Chief Settlement and Rehabilitation Commissioner are two‑fold, firstly, when he is moved on an application for which a period of 15 days is fixed, and secondly, he has got suo Motu powers. If, therefore, this petition is accepted and the prohibition, as prayed for, is issued, we would be depriving the Chief Settlement and Rehabilitation Commissioner of his suo Motu powers. It is also conceded by the learned counsel for the petitioner at the Bar in this writ petition that we should not enter into the question, namely, whether the review application pending in the Court of the Chief Settlement and Rehabilitation Commissioner is within time or not.

15. A reference to this Court order dated the 6th of March 1962, admitting this writ petition for regular hearing would show that the learned counsel for the petitioner had relied upon clause 6 of the Displaced Persons (Compensation and Rehabilitation) Ordinance (II of 1962), whereby section 21(1), (1‑A), (2) is no longer available, but; as discussed above, the powers of review with respect to cases pending before the promulgation of this Ordinance, was saved by section 7 of the Displaced Persons (Compensation and Rehabilitation) Ordinance (XIII of 1962) and also by section 6 of the General Clauses Act (Central). Furthermore, Raja Muhammad Ziaullah Khan (respondent No. 2) is no longer in service and, therefore, the petitioner is not entitled to the relief claimed against him.

16. As a result of the foregoing discussion, we are of the view that the prayer for a writ of prohibition is premature and we dismiss the writ petition. Since the writ petition has failed on a technical ground, we leave the parties to bear their own costs.

K. B. A. Petition dismissed.

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