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Writ Petition No. 263 of 1963, decided on 25th August 1965.

Ss. 2(4) first proviso, 19, 20, 21 & 31 and Sch. Part I [read with Displaced Persons Laws Amendment Ordinance (XVIII of 1965), Sch. Item No. 21‑House‑Divisi bility‑Delegatee of Chief Settlement Commissioner passing order in exercise of powers conferred under S. 31(2)‑Order subject to incidents of appeal and revision.

S. 21 red with Displaced Persons (Compen sation and Rehabilitation) (Amendment) Ordinance (II of 1962), S. 7 [as inserted by S. 2, Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance (XIII of 1902), S.2]‑Review‑Application filed after power of review taken away‑Review not competent.

Abdul Majid Khan for Petitioner.

Wasim Rizvi, Additional S. C. (Legal) for Respondents.

Date of hearing : 25th August 1965.

Munawar Hussain petitioner was in possession of upper floor of the building bearing No. D‑1218, Gharibabad, Sukkur, since 1951. The house consists of three shops on the ground floor and three flats on the top floor. The entire house is an evacuee property. The shop and a flat on top of it was allotted to the petitioner. In November 1959 the petitioner filed N. C. H. Form for the transfer of the shop and the flat in question. That form was, however, misplaced in the office of the Deputy Settlement Commissioner, Sukkur. On the 23rd of March 1960 the petitioner again filed a duplicate N. C. H. Form 31ong with a petition before the Deputy Settlement Commissioner, Sukkur, who was delegated the powers of the Additional Settlement Com missioner. This form was admitted by the Deputy Settlement Commissioner vide his order dated the 24th of March 1960. Thereafter the P. T. O. as well as the Appendix were issued to the petitioner on the 27th of March 1960 for the transfer of both the shops and the flats mentioned above. The price mentioned in the Appendix was Rs. 12,096. This price was for the entire property, i.e., consisting of three shops and three flats. The petitioner objected to pay that price on the ground that he had only applied for the transfer of one shop and a flat, i.e., 1/3rd portion of the entire property. The Deputy Settlement Commissioner made a reference to the Settlement Commissioner, who agreed to the reduction of price. Thereafter the Deputy Settlement Commissioner vide his order dated the 13th of May 1960, the copy of which is Annexure 'C‑I' reduced the price to Rs. 3,024, which was paid by the petitioner by agreement of association. One Habib, who was in actual physical possession of the shop, in question, executed a rent deed in favour of the petitioner. On the 5th of March 1962, he presented an appli cation before the Deputy Settlement Commissioner, Sukkur. The copy of that application is not on the record. The learned Additional Settlement Commissioner (Legal), who appeared on behalf of the Settlement Authorities, showed me the original application form, which is as follows :‑

"(1) That the applicant has been in peaceful and continuous possession from the 17th of February 1947 of the aforesaid house and has been regularly paying rent to the Custodian.

(2) That the applicant submitted C. S. Form for the transfer of the said shop and the due Appendices were issued to me.

(3) That it is learnt that somehow or other the defendant, who is keeping the upper portion of the said premises, has been issued a P. T. O. for the whole of the premises.

It is, therefore, prayed that in the face of the applicant's right, the defendant has no case and the P. T. O. wrongfully issued to him is liable to be cancelled and the applicant be kindly issued a P. T. O. for the same."

The application was rejected by the Deputy Settlement Com missioner vide his order dated the 27th of April 1962, the copy of which is Annexure 'D‑1'. Against that order Habib filed an appeal before the Additional Settlement Commissioner, who vide his order dated the 20th of July 1962, the copy of which is Annexure 'E' set aside the order of the Deputy Settlement Com missioner transferring the property in dispute to the petitioner on the ground that the Deputy Settlement Commissioner was never delegated the powers of the Additional Settlement Commissioner and as such the N. C. H. form of the petitioner, which was admitted by him on the 23rd of March 1960 was not valid. He ordered that the entire building be put to an open auction. Against that order the petitioner went up in revision before the Settlement Commissioner, who, vide his order dated the 9th of February 1963, modified the order of the Addi tional Settlement Commissioner in so far as the residential flat was concerned. In other words he restored the order of transfer of the flat in favour of the petitioner. With regard to the shop ha upheld the order of the Additional Settlement Commissioner. The petitioner aggrieved by that order has invoked the writ jurisdiction of this Court.

2. This writ petition was admitted at the preliminary hearing on the following two points :‑

(1) That the Deputy Settlement Commissioner having divided the house into three portions, each portion consisting of a residential unit and "a shop, the Additional Settlement Commissioner, as the delegatee of the Chief Settlement Com missioner, could not interfere with that order.

(2) That no appeal lay against the order passed in review by the Additional Settlement Commissioner.

3. So far as the first ground is concerned the Supreme Court in more than one pronouncement held that on the exercise of the delegated powers by the Deputy Settlement Commissioner with regard to the division of houses his order became final and was not liable to be interfered with in appeal or revision. This position has now been charged because of the Displaced Persons Laws Amendment Ordinance, 1965 (Ordinance XVIII of 1965). By this Ordinance a new subsection was added to section 31 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This is numbered as subsection (3) and reads as follows :‑

"(3) Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) shall be, and be deemed always to have been subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Com missioner, Additional, Deputy or Assistant Settlement Com missioner, as the case may be, is so subject."

It may be noted that Chapter VI of the Act which is mentioned in this subsection relates to appeal, revision and review. In any case I find that there is no order of the Deputy Settlement Commissioner on the file dividing the property into three portions. The learned counsel for the petitioner also admitted that he was not able to trace the said order from the file, otherwise ho would have filed its copy along with the writ petition. In view of this above this ground taken up by the petitioner is no longer available.

4. Ground No.2.‑From the perusal of the application submitted by Habib it is clear that he wanted the Deputy Settle ment Commissioner to review his previous order transferring the property to the petitioner. This application was presented before the Deputy Settlement Commissioner on the 5th of March 1962. By virtue of the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance (II of 1962), which came into force on the 13th of January 1962, section 21, sub sections (1), (1‑A) and (2) were omitted. In other words the power of review was taken away. This Ordinance was, however, amended by Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance (XIII of 1962). Section 2 of this Ordinance reads as follows:‑

"Insertion of section 7, Ordinance II of 1962.‑In the Dis placed Persons (Compensation and Rehabilitation) (Amend ment) Ordinance, 1962 (II of 1962), after section 6, the following new section shall be inserted and shall be deemed always to have been so inserted ;

7. Savings ‑For the removal of doubts it is hereby declared that omission by this Ordinance of subsections (2) and (4) of section 20 and subsections (1), (1‑A) and t2) of section 21 of the said Act shall not affect any case or proceeding, the record of which was called for under subsection (2) of section 20 of the said Act, or any review proceeding under subsection (1) of section 21 thereof which was pending im mediately before the commencement of this Ordinance'."

As already mentioned above the application was filed by Habib on the 5th of March 1962 when the power of review had been taken away and, therefore, the Deputy Settlement Commissioner had no jurisdiction to entertain that application. If that is so, the appeal against the order of the Deputy Settlement Com missioner also did not lie before the Additional Settlement Commissioner. The learned Additional Settlement Commissioner (Legal), however, argued that the application did not amount to review, but it was only a prayer that the shop in question be transferred to the applicant on his C. S. Form. This contention has no force because in the application it is specifically mentioned that the P. T. O. already issued in favour of the petitioner should be cancelled and instead the P. T. O. be issued in the name of the applicant. In other words, the applicant wanted the D. S. C. to review his previous decision and issue the P. T. O. in his favour.

5. In the result I accept the writ petition with costs, set aside the orders of the Additional Settlement Commissioner and the Settlement Commissioner, and restore the original order of the Deputy Settlement Commissioner transferring the shop to the petitioner.

K. B. A.

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