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Writ Petition No. 742 of 1963; derided on 4th January 1966.
Art. 98 ‑‑Other adequate remedy open‑Petitioner having statutory right to file revision against order directly impugned in writ petition and revision against such order, filed by respondent, in fact pending before lower tribunal‑Writ petition, in circumstance, not maintainable.
Abdur Rehman Pasha v. Chief Settlement and Rehabilitation Commissioner P L D 1961 Lah. 12; Chittagong Engineering and Electric Supply Co. Ltd. v. Certificate Officer, Dacca P L D 1965 Dacca 375; Raj Bahadur Singh v. Shatranjal A I R 1942 Oudh 226 ; A Pires v. A Rodrigues P L D 1960 Kar. 642 and Mian Jamal Shah v. Election. Tribunal P L D 1966 S C 1 ref.
A. A. Fazeel for Petitioner.
S. A. Nusrat for Respondent No. 3.
Respondent No. 4 in person.
Ismail Munshi for Respondent No. 5.
This petition is directed against four orders, (1) dated the 12th of April 1962 (Annexure B to the petition), (2) dated the 18th of July 1962 (Annexure E to the petition), (3)‑dated the 22nd of October 1962 (Annexure G to the petition), and (4) dated the 8th of June 1963 (Annexure H to the petition), but Mr. Fazeel, for the petitioner, took the stand that the order Annexure G was the most important of them all, and that he questioned it as the basic order.
2. The facts which form the background, briefly stated, are that there was a block of buildings, which consisted of 5 shops and a godown situated behind them. Two shops were in the possession of the petitioner and three shops were in the possession of certain persons who did not apply for their transfer, and the godown was in the possession of Muhammad Sharif, Respondent No. 3. The petitioner and respondent No. 3 submitted N. C. H. forms for the transfer of the entire building. The whole property was transferred to Respondent No. 3 by the Deputy Settlement Commissioner by his order dated the 20th of May 1960, therefore, the petitioner filed an appeal against it. The appeal was accepted and the case was remanded to the Deputy Settlement Commissioner. Round about this time the petitioner got his N.C.H. form converted into an O. P. form by the Deputy, Settlement Commissioner. A copy of that order is on the record as Annexure A to the petition, which is dated the 24th of December 1960. After receiving the case back the Deputy Settlement Commissioner cancelled the order of transfer which bad been made in favour of Respondent No. 3, and ordered the property to be auctioned as an open plot. This order was made on the 27th of November 1961 and is Annexure J to the petition. Respondent No: 3 went in appeal against it to the Additional Settlement Commissioner who ordered, on the 12th of April 1962, vide Annexure H to the petition that the godown be transferred to respondent No. 3 and that the shops be disposed of according to the Schemes ; that is to say, according to Scheme I if they were treated as shops, or Scheme VI if they were treated as open plots. According to Mr. Fazeel. They were not liable to be auctioned in terms of his order. The petitioner, therefore, applied for re conversion of his O. P. form into C. S. form. His application was accepted by the Additional Settlement Commissioner, vide his order dated the 25th of April 1962, which is Annexure C to the petition. Thereafter, the five shops were transferred to the petitioner by the Deputy Settlement Commissioner, vide his order dated the 12th of July 1962, Annexure D to the petition. A P. T. O. was also issued in favour of the petitioner.
3. In the meantime, the petitioner as well as respondent No. 3 had filed revision applications against the order of the Additional Settlement Commissioner dated the 12th of April 1962, Annexure B by which he had given the godown to Respondent No. 3 and ordered the shops to be disposed of according to the Schemes. Those revision petitions were dismissed by the Settle ment Commissioner by his order dated the .18th of July 1962, which is Annexure E to the petition.
4. Respondent No. 3 bad during this time also filed an appeal against the order of the Deputy Settlement Commissioner, dated the 12th of July 1962, Annexure D, by which he had transferred five shops to the petitioner. That appeal was sent to the Additional Settlement Commissioner for disposal. The latter officer sought guidance from the Settlement Commissioner because revision application against the order, Annexure B, were at that time pending before him. The Settlement Commissioner apparently thought that the revision applications and the appeal related to the same order; therefore, without giving notice of the reference to anybody he passed the following order on the 20th of July 1962, which is Annexure F to the petition:
"The revision case, pending in my Court on .the pretext of which this appeal was preferred, has since been dismissed. Hence no ground for admitting this appeal which may be filed by the Reader."
5. It is to be noted here that the appeal of Respondent No. 3 was not pending before the Settlement Commissioner but‑was pending before the Additional Settlement Commissioner who had only sought the guidance of the Settle ment Commissioner. When Respondent No. 3 came to know that his appeal had been ordered by the Settlement Com missioner to be filed, he submitted a miscellaneous Applica tion to .him against that order; that is, Annexure F. The Settlement Commissioner apparently realised that some confusion had taken place; therefore, he sent the miscellaneous application to the Additional Settlement Commissioner, on whose reference he had ordered the appeal to be filed, for comments. The latter officer made his comments; vide his note dated the 8th of October 1962, which is Annexure R‑10 to the counter‑affidavit of Respondent No. 3. In this note he explained the background of that order. On receipt of that note the Settlement Commissioner ordered on it on the 22nd of October 1962, as follows:‑
"Mr. Muhammad Khan should not have allowed conversion and reconversion of the so‑called "P" form into C. S. form resulting in the transfer of 5 shops to one man by D. S. C. Mr. Masud Alam. Mr. A. Matin Siddiqui, Additional will surely do well to hear and dispose of an appeal from Mr. Sharif by sending for him."
The above order, Annexure G, was also made by him like the order for filing the appeal (Annexure F) without hearing anybody.
6. When the appeal of Respondent No. 3 was taken up by Additional Settlement Commissioner for decision, an objection was taken on behalf of the petitioner that it had already been disposed of by the Settlement Commissioner, vide his order, Annexure L; therefore, it could not be heard and decided. That objection was rejected by the Additional Settlement Commissioner ride his order dated the 30th of October 1962, which is Annexure K to the petition, as follows :‑‑
"it has also been contended that although the Settlement Commissioner has observed, when the present appeal was submitted to him for transfer to Mr. Muhammad Khan, that the appeal had been disposed of as the matter had already been decided in 'revision, but the same was only an administra tive observation and was not a. judicial finding which might have been given in due process of law . . . . . . . I, therefore, admit the appeal and fix it for regular hearing for 7‑11‑62 . . . ."
7. Mr. S. A. Nusrat had produced certified copies of the order‑sheet of the appeal. They show that the appeal was not heard on the 7th of November 1962, because Mr. Jafri, Advocate for the petitioner stated that he had not received a copy of the memorandum of appeal. The hearing was adjourned to the 22nd of November 1962. On that date, the present petitioner, who was the respondent in those proceedings, obtained an adjournment owing to the illness of his Advocate. The hearing was, therefore, adjourned to the 8th of December 1962. On that date The present petitioner appeared in person and, again applied for an adjournment owing to the illness of his advocate. The hearing was, therefore, adjourned to the 22nd of December 1962. On that date, Mr. S. H. Jafri, Advocate, appeared for the petitioner and filed preliminary objections to the jurisdiction of the Additional Settlement Commissioner to hear the appeal. The objection was taken "on the ground that the same became infructuous in view of the order passed by the Settlement Commissioner on 20‑7‑62 Annexure "F". The objections were again rejected pointing out that the Settlement Commissioner could not dismiss the appeal without hearing the parties and that his direction that it may be filed was not a judicial decision; moreover, the appeal was not pending before the Settlement Commissioner; therefore, even if the contention of the respondent (the present petitioner) be correct, his remedy is to challenge the order of the superior Court and not to question the jurisdiction of this Court which is fully competent to dispose of the appeal according to law, more so whets a fresh cause of action has accrued to the applicant (the present respondent No. 3) by the order of the lower Court (of the Deputy Settlement Commissioner) holding (vide his order dated the 12th of July 1962, Annexure D) the respondent (the present petitioner.) entitled to the transfer of the property in dispute". After dismissing the preliminary objections as above, the Additional Settlement Commissioner fixed the hearing of the appeal on the 3rd of January 1963. After that, three adjournments were given by the Additional Settlement Commissioner for his own reasons and the 4th was taken by the present petitioner on the 2nd of February 1963. On that date, the following order was made:
"Parties present. Respondent (the present petitioner) moves an application asking for a week's time as he wants to move transfer application before superior Court. The time asked for is allowed. Case shifted to 9‑2‑63."
On the latter date, the following order was made:
"Heard Mr. Nusrat and Mr. Munshi for the appellant (the present petitioner) and Muhammad Zaki for the intervenor Muhammad Umar. Mr. Jafri (counsel for the present petitioner who was respondent in those proceedings) refused to argue. Heard the arguments. Site inspected on 11/2. Reserved for orders."
8. Admittedly, no application for transfer was made, but the petitioner preferred a revision application to the Settlement Commissioner against the order by which the Additional Settle ment Commissioner had rejected the preliminary objections. That revision application was dismissed on the 30th of April 1963, vide Annexure I: to the petition, with the following remarks:
"Seen . . . . . . . record which became necessary as a result of my administrative direction dated 22‑10‑62 (Annexure G) There is no bar to an appeal being preferred or proceeded with so that the applicant's entitlement may be examined without upsetting the findings recorded in the revisional judgment (the order Annexure E by which the order Annexure : B was confirmed) of this Court relating to the property in question. Hence dismissed summarily."
9. The A4ditional Settlement Commissioner wrote out his judgment; after waiting for the petitioner to apply for the transfer of the appeal from him on the 8th of June 1963. The opening part of his order (Annexure H) is as follows:-
"This case was referred to my learned predecessor by learned Settlement Commissioner, with the endorsement dated 22‑10‑62, as follows:‑
'Mr. Muhammad Khan should not have allowed conversion and reconversion of the so‑called (P) form into C. S. form resulting in the transfer of 5 shops to one man by D. S. C. Mr. Ahmed Masood Alam, Mr. Abdul Mateen Siddiqui will surely do well to hear and dispose of an appeal from Mr. Sharif by sending for him.'
Parties called and heard their arguments. It is very old ape disputed case pending since long. Mr. Jafri, Advocate for Fazal Noor refused to argue. He had tried for the transfer of the case before me for which he was given sufficient time to get the case transferred from me but failed hence I proceed , accordingly".
The last words of the order are as follows
"Parties informed."
But counsel for the petitioner took the stand that the petitioner never came to know of the order; therefore, an application was moved on his behalf an the 26th of June 1963, that since the revision filed by the petitioner had been dismissed (vide Annexure L), "the appeal be disposed of and hearing be fixed at an early date". This application is dated the 26th of June 1963, and according to Mr. Jafri was presented by him on the same date. On the above application the Settlement Commissioner ordered as follows :-
"Issue order copy."
Mr. S. A. Nusrat has explained that the above order was intended "to convey the meaning that Mr. Jafri was aware that arguments had been heard in his presence when he had refused to present his points of view because he had previously obtained an adjournment for getting the appeal transferred; therefore, there was no question of the appeal being transferred; therefore, there was no question of the appeal being fixed for hearing. The Additional Settlement Commissioner apparently also realised that the order had not been announced; nor, perhaps, was its informa tion sent by the office to or received by the parties ; therefore, he additionally ordered that notice be issued to the parties. The notice which was issued to the present petitioner is Annexure N; it is dated the 6th of July 1963. It is as follows:‑
"Please appear before the above‑mentioned Court of the Additional Settlement Commissioner (J) at 7‑Old Napier Barracks on 11‑7‑63 at 10 a.m. in connection with the pro nouncement of order."
The order is said to have been pronounced on that date, although it is dated the. 8th of June 1963.
10. In order to complete the narration of the facts, I may mention here that Mr. Jafri, Advocate was present in this Court to support the version of the petitioner, and at the instance of Mr. Fazeel stepped forward to explain that he had never appeared before the Additional Settlement Commissioner excepting on the 26th of June 1963, with the application (Annexure L) for getting a date for the hearing of the appeal. He admitted that he had intended to apply for the transfer of the case from the Additional Settlement Commissioner but had not done so. He denied that he bad refused to address arguments in the appeal and said that he did not know why a wrong statement of fact in respect of him was made by the Additional Settlement Commissioner in the order‑sheet as well as in the order itself which is Annexure H. I do not attach any importance to the statement which has been made by Mr. Jafri in these proceedings because his presence in this Court to offer his explanation did not create the impression that he was an uninterested witness. Moreover, there is no allegation in the petition that the Additional Settlement Com missioner had wrongly recorded the fact that Mr. Jafri had refused to address arguments before him. Mr. Fazeel said that a general allegation has been made in paragraph 11 of the petition that the order, Annexure H, was made‑
"Without any notice to the petitioner"
which was comprehensive enough to include the stand which has, been taken by Mr. Jafri in this Court. But this is not a fair view of the situation because the respondents were not in a position to know that an allegation about the record of a particular fact was going to be made so that they could take a stand with regard to the statement which Mr. Jafri has made in these proceedings. I may further note here that the allegations which are contained in paragraph 11 of the petition have been denied on behalf of the Department as well as by respondent No. 3.
11. Turning now to the merits of this petition I may recapitulate that this petition is directed against four orders which are Annexures B, E, G and H to the petition, but as explained above, Mr. Fazeel has treated Annexure G as the most important of them because after the order contained in that annexure the appeal was heard and was accepted by the Additional Settlement Commissioner, vide his order Annexure H. The main reason for attacking the order Annexure G was that the appeal had already been disposed of by the Settlement Commissioner, vide his order Annexure F, with the result that it was no longer pending and could not be heard and decided by the Settlement Commissioner by his order Annexure H.
12. Mr. Nusrat, counsel for respondent No. 3 deserves to be mentioned for the lucidity of his; explanation of the facts which form the background of this petition. But for Dais assistance it would have been difficult to see the facts as clearly as was responsible in these proceedings. His explanations, which have already been taken into account while stating the facts in the fore going paragraphs, go a long way to show the hollowness of the stand which has been taken by the petitioner. Apart from that, Mr. Nusrat has opposed this petition by raising a preliminary objection also. He pointed out that Annexure H which is the last impugned order in this case and which in fact is the cause of the grievance of the petitioner was made revision by an Additional Settlement Commissioner therefore it was open to revision by the Settlement Commissioner" but the petitioner has rushed to this Court without making use of that alternative remedy; therefore, this petition is not maintainable in terms of clause (2) of Article 98 of the Constitution which makes it a condition precedent that a High Court should exercise jurisdiction under Article 98:‑
"If it is satisfied that .to other adequate remedy is provided by law."
13. Mr. Nusrat further pointed out that his client has already filed a revision application to question the order, Annexure H, which is pending in the Court of Mr. Kazi at Karachi. That application was presented on the 6th of August, 1963, was admitted to regular hearing on the 22nd of August 1963, and its notice was served on the petitioner on the 22nd of August 1964. It was fixed for hearing on the 2nd of December 1965, on which date the parties or their counsel were in this Court. Mr. Nusrat, therefore, argued:
(i) that this petition was not maintainable because another adequate remedy was available to the petitioner which he had not availed and wanted to use the Constitutional jurisdiction as a substitute for it. .
(ii) that the revision application of respondent No. 3 is yet to be disposed of by the Settlement Commissioner‑cum- Additional District Judge, Karachi. A decision of this petition by this Court will virtually debar that officer from exercising his jurisdiction because he will not be able to take a different view from that of this Court or else conflicting decisions will, be the result.
14. Mr. Fazeel replied that his attack on the last order, which is Annexure H, is only subsidiary and consequential to his attack which is really and straightly directed against the order Annexure G. No revision application could be filed by the petitioner against Annexure G; therefore, the contention of Mr. Nusrat that a revision application was competent against Annexure H was not relevant. Secondly, according to Mr. Fazeel, it was useless to file a revision application against Annexure H which was bound to go by the board if the 'order Annexure G was held to be without lawful authority and of no effect. Thirdly, according to him, a revision application was not an adequate remedy; therefore, the above‑quoted provision of paragraph (2) of Article 98 of the Constitution was not a bar to the institution of this petition. In support of this contention he advanced two arguments, one of them leas that the provision of revision was by itself inadequate. In support of this view he cited Abdur Rehman Pasha v. Chief Settlement and Rehabilitation Commissioner (P L D 1961 Lah. 12) and drew our attention to the following observations of Changez, J.‑
"I am, therefore, of the considered view that the petitioner had no statutory right of filing a revision petition before the Settlement Commissioner, and as such he had no alternative and efficacious remedy against the order passed by the Additional Settlement and Rehabilitation Commissioner. But even if he had such a right yet in the circumstances of the present case he could have come to this Court straight, praying for the exercise of writ jurisdiction for the issuance of a writ of certiorari for quashing that. order, because, as I have already pointed out, the order, on the face of it, is illegal and ultra vires. In the well‑known case of the Tariq Transport Co., Lahore v. The Sargodah Bhera Bus Service, etc., P L D 1958 S C 437, the learned Chief Justice of Pakistan while dealing with a similar question, observed as follows:‑
"If a Tribunal has no jurisdiction either in respect of the subject‑matter of litigation or the parties before it, or the territory to which the dispute relates or because of its own defective constitution or the illegality of the order, the proceedings are void ab initio, and an appeal in such case is an unnecessary step and mere prolongation of the proceedings which eventually the Court must hold to be void for lack of jurisdiction. In such cases certiorari acts as would a Court of Equity . . . . But where appeal does lie, in order to quash a proceeding by a certiorari it is necessary that the lack of jurisdiction should appear on the face of the record."
The aforesaid observations were, again referred to and applied by the Supreme Court of Pakistan in Messrs. S. A. Haroon v. The Collector of Customs, Karachi, P L D 1959 S C 177:'
Counsel has further cited Chittagong Engineering & Electric Supply Co. Ltd. v. Certificate Officer, Dacca (P L D 1965 Dacca 375) and drawn our attention to the observations which appear at page 385; as follows:‑
"The precise point sought to be given at is that in view of the specific remedy available under the relevant statute and the same not having been availed of, Article 98 of the Constitution can have no application. In support of his contention learned Advocate has cited the case of Tasadduk Rasul Khan v. Ahmad Hussain I L R 21 Cal. 66 and Roshan Lal Prithi Mal v. Shanti Lal and others A I R 1933 Lah. 186, but these deal with non -observance of provisions bearing on the publication and conduct of the sale and do not thus touch the point we are concerned with in the present instance, viz. jurisdiction of the Court to proceed with the execution case and hold the impugned sale."
15. His other argument was that a revision application against the order, Annexure H, would have been heard by the Settlement Commissioner who was Mr. Abdur Rauf Chaudhury. This was the same officer who had passed the order, Annexure G, in which he had already expressed his views against the interest of the petitioner.
16. Mr. Nusrat squarely met the above contentions of Mr. Fazeel by urging in reply to the first contention that this petition was presented on the 8th of September 1963, to question the last order, Annexure H, which is dated the 8th of June 1963, which was announced on, the 11th of July 1963. But if the intention of the petitioner was to attack the order, Annexure G, as the basic order, then there is no explanation as to why the petitioner did not invoke the constitutional jurisdiction much earlier because that order is dated the 22nd of October 1962. If the petitioner's aim is to question that order, then this petition has been, without any reason, filed after about eleven months and a half of the date of that order, and deserves to be thrown out owing to laches and the delay from which it suffers.
17. The second contention of Mr. Fazeel was equally without force according to Mr. Nusrat because the petitioner had actually filed a revision application to the same officer who had passed the orders, Annexures F & G against the order Annexure K of the Additional Settlement Commissioner. This fact exposes the weakness of the excuse of the petitioner for not filing a revision application to the same officer against the order, Annexure H. Moreover, if according to the petitioners the order Annexure G is the basic order against him, then it should be noted that the effect of the order, Annexure G undo the order which was Annexure F and was in favour of the petitioner. The petitioner relied on it. The petitioner had on the basis of Annexure F pressed his point that the appeal could not be heard. Here it is noteworthy that the Additional Settlement Commissioner had by his order, Annexure K, overruled ,those objections of the petitioner to the hearing of the appeal which were founded on his criticism of the, order Annexure G and his support to the order. Annexure F. In these circumstances, the dismissal of the revision application of the petitioner filed against the order.; Annexure K by the order of the Settlement Commissioner, makes the latter order which is Annexure I, more important than the order Annexure G. The revision against the order Annexure K was dismissed by the Settlement Commissioner by his order Annexure L. Therefore, if the petitioner's real object is still to attack Annexure IG, then he should realise that his criticism of it has already been over ruled by the order, Annexure L. He cannot thus; successfully criticise the order, Annexure G, without criticising Annexure L. But as it is, his petition is not directed against Annexure L. Annexure L not only exposes the weakness of the second contention of Mr. Fazeel but also provides an obstacle in the maintainability and effectiveness of this petition itself. There is one more aspect which shows the hollowness of the second contention of Mr. Fazeel which is that under section 32 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the petitioner was not obliged to submit his revision application to the same officer who had, according to the petitioner, expressed an adverse view against him because under that section his revision application could be transferred to some other officer.
18. The third contention of Mr. Fazeel was criticised by Mr. Nusrat on the ground that in this case it made no difference whether the petitioner had a right to file a revision application or not because the revision application of respondent No. 3 having been admitted to regular hearing, it cannot be said that the petitioner's revision application would not have been entertained provided it was in accordance with law. If the revision applica tion of the petitioner had been directed against Annexure G, but was filed after about a year of its date subsequent to the decision of the appeal, vide Annexure H, as well as the order of the Settlement Commissioner, Annexure L, and was not entertained on the ground that it was barred by time or suffered from laches or was filed after the criticism levelled against Annexure G had been considered and disposed of by Annexure L, then the result cold not be attributed to the inadequacy of the remedy of revision but to the faults of the petitioner himself. It appears that the petitioner was aware of his faults or defaults and, therefore, instead of going in revision against Annexure G has filed this constitutional petition and made an excuse that revision was not an adequate remedy.
19. Additionally, Mr. Nusrat pointed out that Mr. Fazeel was not able to give any reply to the contention that the petitioner could not be granted the remedy in these, proceedings during the pendency of the revision application of respondent No. 3.
20. The above contentions of Mr. Nusrat against the maintainability of this petition can be summarised as follows :‑
(i) Annexure H, which is the last order, was passed by an Additional Settlement Commissioner; therefore, it was revisable by the Settlement Commissioner, but the petitioner has failed to avail himself of that remedy.
(ii) Respondent No, 3 has actually filed a revision application against that order which is pending before Mr. Kazi, an Additional District Judge‑cum‑Settlement Commissioner, Karachi.
(iii) The stand of the petitioner that Annexure G and not Annexure H is the basic order, creates further obstacles in his way because the order Annexure G was made on the 22nd of October 1962 but the petitioner did not invoke the constitutional jurisdiction of this Court for about a year after it and for about two months after the announcement' of the last order, Annexure H dated the 11th of July 1963.
(iv) If the contents of the order, Annexure G, are of basic value, then owing to the fact that the criticism levelled against the order Annexure G was repelled by the order, Annexure K, and the revision application against it was rejected by another order. Annexure L, makes it necessary that the petitioner should have questioned the orders, Annexures K and L also, but he has not questioned either of them in this petition. The order, Annexure L, is thus the last basic order against the petitioner which has remained unchallenged.
They are weighty contentions as has been seen earlier.
21. Counsel for the parties have addressed this Court mainly on the maintainability of this petition. Mr. Fazeel tried to establish its maintainability by emphasising that the Settle ment Commissioner had no jurisdiction at all to pass the order, Annexure G. He, therefore, advanced arguments to establish the absence of. the jurisdiction to pass it. This part of his argument was, thus, almost on the merits of the petition. Mr. Nusrat has replied to it by emphasising the nature of the jurisdiction which is conferred by Article 98 of the Constitution and by showing that some of the fundamental facts of this case are also in dispute.
22. In order to understand the above‑mentioned argu ment of Mr. Fazeel it is proper to reproduce the orders, Annexures F and G, because Mr. Fazeel referred to them for proving the absence of jurisdiction of the Settlement Commissioner for passing them. They are as follows:
"The revision case pending in my Court on the pretext of which this appeal was preferred has since teen dismissed. Hence no ground for admitting this appeal which may be filed by the Reader."
"Mr. Muhammad Khan should not have allowed conversion and reconversion of the so‑called 'P' form into C. S. form resulting in the transfer of 5 shops to one man by D. S. C. Mr. Masud Alam. Mr. A. Mateen Siddiqui Additional will surely do well to hear and, dispose of an appeal from Mr. Sharif by sending for him."
Mr. Fazeel's contention was that the Settlement Commissioner had dismissed the appeal by his order, Annexure F, and had reviewed that dismissal by making the order, Annexure G. This could not be done because, according to counsel, the Settlement Commissioner had no jurisdiction to review his own order. The power of review was conferred by section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. But that power has been taken away, and all that the Settlement Commis sioner could do by way of reviewing his order was confined to the provisions which have been made in subsection (3) of section 21. That subsection is as follows:‑ .
"(3) Clerical or arithmetical mistakes in any order 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 successsor‑in- office."
Counsel emphasised the words: "Clerical or arithmetical mistakes in any order passed under this Act" and "any accidental slip or omission." The significance of the words "order passed ..under this Act", according to counsel was that any order which could be said to have been passed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, could be reviewed by the officer who passed it in terms of the above -quoted subsection only. There was no occasion owing to the presence of these words for advancing the argument that the order which was passed under the Act could be reviewed in disregard of the language of the subsection merely because it was an administrative order. The subsection, according to counsel, recognised no such distinction as administrative, ministerial, quasi‑judicial or judicial. The only condition for the applicability of subsection (3) is that it should have been passed under the Act. If this condition was fulfilled then as officer or authority who passed it exercising power under the Act could review it subject to the limitations of the subsection only. This meant that he could review an order to correct a clerical or arithmetical mistake or to remove an error which had arisen by virtue of an accidental slip or omission. In this case, he contended that there was no clerical or arithmetical mistake in the order, Annexure F, so that it could be corrected by review ing the order. There was no accidental slip or omission either, according to counsel, in the order, Annexure F, because the test for finding out as to whether a slip or omission has been made accidentally or not is to see whether the order which was passed was intended or not. In this connection he referred to Raj Bahadur Singh v. Shatranjai (A I R 1942 Oudh 226). In that judgment a Division Bench of the Oudh Chief Court has analysed section 152, C. P. C. which contains similar language as of the above‑quoted sub section (3). Section 152, C. P. C. is as follows :‑
"clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
The relevant observations of the Division Bench with regard to the words are as follows:‑
"It was held in 13 O C 114 (Ashik Hussain v. Mahdi Hasan) that the test is whether the order as it stands represents the intention of the Judge at the time he made it and if it does then a mistake in it cannot be treated as an accidental slip or omission which may be corrected under section 152."
Counsel argued that the power of review conferred by sub section (3) of section 21 of the said Act was much narrower than that conferred by Order XLVII, rule 1, C. P. C., but even if it was taken to be equal to the power of review conferred by C. P. C., the Settlement Commissioner could not review the order, Annexure F, because in that case it was necessary that the error should have been at least apparent on the face of the record, and not dependent on laborious and painstaking discovery. In support of this proposition he cited the following observation from A Pires v. A Rodrigues (P L D 1960 Kar. 642):
"Even if the learned Judge has adopted a view of law which may be characterised as erroneous, the error is one which has never been considered to be a ground for review, as it is not an error apparent on the face of the record but an error which has to be laboriously and painstakingly discovered with the help of a large number of elaborate and learned authorities. Thus this is not a case which would fall within the purview of Order XLVII, rule 1 of the Code of Civil Procedure."
Counsel explained that the order, Annexure F contains the reasons of the view which was taken in it. It is immaterial whether the reasons were right or wrong. So long as reasons were given for the order, it should be taken to have been intended therefore; the order, Annexure' G, was without jurisdiction from the point of view of the restricted power of review conferred by the above‑quoted subsection (3) of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and even if tested by the standard of the larger power of review that is conferred by Order XLVII, rule 1, C. P. C. ‑ it was without jurisdiction.
23. The above argument of Mr. Fazeel misses the real point which is that the order, Annexure F, was without jurisdiction and a nullity; therefore, the order Annexure G was not passed in exercise of the powers of review but merely to point out that the appeal was yet to be beard. It is an irony of circumstances that Mr. Fazeel's considered view was that the order, Annexure G, was the basic order which called for his concentrated attack, but the disclosure of full facts leads to the conclusion that it has no importance because the order, Annexure F, which is supposed to have been reviewed by it was itself a nullity and needed no review. .
24. Mr. Nusrat has produced a certified copy of the yet unreported judgment of the Supreme Court in Mian Jamal Shah v. Election Tribunal (PLD1966 S C 1) Civil Appeal No. 57 of 1965, of Mian Jamal Shah and enumerated three basic facts which are in dispute between the parties. They are‑‑
(i) that the N. C. H. form which is the basis of the claim of the petitioner was not signed by him and was submitted jointly with another person;
(ii) that no order admitting the N. C. H. form was made and no receipt was issued; nor was any order made on the P form ;
(iii) that the possession of the petitioner is in dispute.
It is unnecessary, in view of the above‑mentioned objections to the maintainability of this petition, to examine whether and to what extent these facts are in dispute and what is their effect on the maintainability of this petition under Article 98 of the Constitution.
25. In conclusion of the foregoing discussion, the petition is hereby dismissed.
K. B. A.
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