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Writ Petition No. 1144/R of 1965, decided on 6th October 1966.
Ss. 19, 20 & 31(2)‑Order under S. 10 Appealable and revisable‑Permanent Transfer Rules, 1961.
The orders of the Settlement Authorities under section 10 are as well appealable and revisable as orders under any other relevant provisions of the Act. This is evident from a perusal of sections 10, 20 and 31 (2) as now amended, which all point out that every order of transfer or determining entitlement of a person is appealable and revisable in the higher heirarchy of officers under the Act. Merely because an order for the purposes of the Perma nent Transfer Rules was considered at a particular time as final within the meaning of rule 2 (b) of the aforesaid Rules, it will not mean that the power given by the Parent Act itself of revising that order goes away. Rules cannot take away that jurisdiction which the Parent Act, under which the Rules are framed, gives. Again, if there is any inconsistency between the Rules and the Parent Act, then it is obvious that what is to prevail is the Act and not the Rules.
Abdul Karim v. Sh. Mohammad Rafiq and others P L D 1966 Lah. 33; Muhammad Ismail and another v. Shams‑un‑Nisa and another Civil Petition for Leave to Appeal No. K‑104 of 1965; Mst. Hajiani Sughra v. Mr. Tilokchand, Advocate, etc. W. P. No. 500/65; Institute of Patent Agents and others v. Joseph Lockwood 1894 A C 347 ; Minister of Health v. The King (on the prosecution of Yaffe) 1931 A C 493 and Sikandar Jehan Begum v. Mian Abdul Hameed and others P L D 1963 Kar. 219 ref.
S. 9 (3) & 20 (3) read with Notification No. 1226‑IL‑Reh. 60, dated 18‑1‑1960, Memo. No. 91:08‑Lh. dated 9‑5‑1960 and Press‑note dated 7‑9‑1960‑Revisional powers can be exercised even beyond fifteen days.
The contention that the Settlement Commissioner had no jurisdiction to entertain a revision petition which was filed beyond a period of fifteen days from the date of the order it impugned and nor could he accept the same beyond that time has no force:‑--
(i) Firstly, because the memo and the Press‑note in spite of the language employed in them, are merely directory and not mandatory in nature. Their aim is merely to finish work of settlement speedily rather than to place limitation otherwise on the revisional jurisdiction of a Settlement Commissioner.
(ii) Secondly the Settlement Commissioners, Additional Settle ment Commissioners and Deputy Settlement Commissioners, etc., are to perform those duties discharge such functions which are assigned to them by or under the Act subject to only two things, namely, (a) subject to the provisions of the Act and (b) subject to such orders as may from time to time be made by the Central Government. In addition to this, while performing those duties and functions they shall remain under general superintendence and control of the Chief Settlement Commissioner. The supervision and control of the Chief Settlement Commissioner itself is again subject to the provisions of the Act, which means that duties and functions assigned by the Act to a Settlement Commissioner cannot be abridged by the Chief Settlement Commissioner. In other words, a jurisdiction which the Act conferred on a Settle ment Commissioner could not be taken away by the Chief Settlement Commissioner in the garb of his acting in any supervi sory or controlling capacity. Both the Settlement Commissioner and the Chief Settlement Commissioner are to act subject to the provisions of the Act. A Settlement Commissioner, for example while exercising a revisional jurisdiction, will act subject to the provisions of the Act and cannot deride a case otherwise than in accordance with that Act or give properties :o those who are not eligible. Similarly, the Chief Settlement Commissioner, while exercising supervision and control will also remain within the Act. The Act in section 20 (3) says that a Settlement Commissioner may call for the record of any case or proceedings as any rime so the Chief Settlement Commissioner cannot say that the Settlement Commissioner should not call for the record beyond a period of fifteen days. If this power is conceded to the Chief Settlement Commissioner, then it means that he is prohibiting that which the law allowed a Settlement Commissioner to do. The Instructions of the kind in hand, if given any other meaning, would not remain instructions of a supervisory or controlling nature but would then become of a prohibitory character. Supervision and control is of the type of a managerial or regulatory character and cannot assume the character of legislation so as to control the provisions of the statute under which it is exercised. (iii) Thirdly the Notification, specially empowering the Settlement Commis sioners to exercise revisional jurisdiction is, dated 18‑1‑1960 (printed at page 109 of the Settlement Manual (Old Edition)). In that Notification, no such limitation or restriction is contained and from that point of view the General Memo. and the Press note aforesaid cannot be read into the case. (v) Fourthly, in the Memo. dated 9‑5‑1960, the emphasis is on the fact that revision petitions should be disposed of within fifteen days and not that they should not be entertained beyond fifteen days. In the Press note, dated the 7th of September 1960, no doubt, there is a direction that no petition should be entertained beyond fifteen days, but the intention therein again is not to place absolute restriction on the exercise of suo motu revisional jurisdiction in appropriate cases. (v) Fifthly, in the instant case, the Settlement Commissioner was conscious of the fact that the revision petition of the opposite‑party was belated, but in spite of that he felt inclined to exercise his suo motu revisional jurisdiction.
The Memo. and the Press‑note did not absolutely close the doors of revisional jurisdiction after a period of fifteen days.
Najmuddin Ahmad Mulla v. The Chief Settlement Commis sioner, Karachi and 3 others P L D 1964 Kar. 425.
Allotment‑Person having already obtained allotment of house not entitled to get another house.
Art. 98‑Objection raised, if given effect, likely to result in injustice or perpetuation of an illegal order‑High Court can refuse to interfere.
Sh. Aftab Hussain for Petitioner.
Nemo for Respondent No. 1.
S, M. Chaudhary for Respondent No. 2.
Date of hearing: 6th October 1966.
There is one property described by Nos. 2273 to 2283 situated in Sadar Bazar, Rawalpindi Cantt. The Deputy Settle ment Commissioner by his order dated 7‑12‑1959 (Annexure "B") divided the aforesaid property into two portions. On portion consisting of Nos. 2273 to 2277 was given to Mst. Farooq Begum. This portion is not the subject‑matter of dispute and we are not concerned with it in the present Writ Petition. The other portion consisting of Nos. 2278 to 2283 was transferred to respondent No. 2 who was considered to be a claimant, because he had filed a claim form, verification of which had not till then taken place and was preferred to the petitioners who are non‑claimant displac ed persons. The Deputy Settlement Commissioner, however, observed that as the claim of respondent No. 2 was alleged to be pending, therefore, if that claim was not verified then the portion, aforesaid, should be transferred to petitioner No. 1. Petitioners Nos. 2 and 3 bad also filed forms for the transfer of a portion of this property but their forms were rejected. In the present writ petition we are only concerned with portion containing No. 2278 to 2283 which will hereinafter be referred to as a house or the house.
2. On 1st October 1960 (vide Annexure. "C") the case was again taken up by the Deputy Settlement Commissioner. He observed that the respondent No. 2 in spite of various notices had not produced a copy of any claim or certificate by the Claims Commissioner to show that his claim had been verified. For this reason he observed that the respondent No. 2 did not appear to have a claim of any sort. He, therefore, directed that the house consisting of No. 2278 to 2283 should be transferred to petitioner No. 1. Respondent No. 2 filed an appeal against the aforesaid order of the Deputy Settlement Commissioner dated 1‑10‑1960. This appeal was taken up by the Additional Settlement Commis sioner, who by means of his order dated 24th November 1960 (Annexure "E") reminded the case back to the Deputy Settlement Commissioner for passing a clear and comprehensive order because from the copy of the order which was filed in the appeal, the Additional Settlement Commissioner observed, that the said order did not make any sense and it was not possible for him to comprehend or correct the same. This situation had arisen because the copy which was supplied by the Copying Department to respondent No. 2 had omitted one complete line due to which the order did not read logical.
3. After remand the case was taken up by the Deputy Settlement Commissioner, and though his own staff had put up a note before him on 27‑2‑1961 that the claim of respondent No. 2 had been verified and accepted, in spite of it he, on 11th March 1961 (Annexure "F") did not recognise the entitlement of res pondent No. 2 and observed that his earlier order dated 1‑10‑1960 was quite clear and called for no action. He was of the view that the case had been remanded to him simply to make his order clear and for no other purpose. With those observations he closed the matter.
4. The case of respondent No. 2 is that on 28th March 1961 he filed an appeal against the order of the Deputy Settlement Commissioner, dated 11‑3‑61 which got misplaced. He then put in applications for tracing out the said appeal or filing a duplicate memorandum of appeal. One of such applications is dated 9th July 1964 (Annexure "G"). In connection with these applications the Additional Settlement Commissioner recorded the statement of Muhammad Ishaque, an Upper Division Clerk, from the office of the Deputy Settlement Commissioner and also went through the relevant register. Thereafter by means of his order dated 17th October 1964 (Annexure "K") he held "that the contention of respondent No. 2 that he had filed an appeal was not substantiate and the question of receiving a duplicate memo randum of appeal did not arise. With these observations he dismissed the application (Annexure "G") of respondent No. 2.
5. Respondent No. 2 then filed a Revision Petition (Annexure "M"). This revision was accepted by the Settlement Commissioner by means of his order dated 16‑4‑65 (Annexure "N") read with order dated 25‑5‑65 (Annexure "P") as a result of which he divided the house in this way, that Nos. 2279 to 2280 were transferred to respondent No. 2 and Nos. 2278, 2281 and 2283 were transferred to the petitioner No. 1 who associated with petitioners Nos. 2 and 3. Respondent No. 2 agreed to this further sub‑division of this house before the Settlement Commissioner. The petitioners, not being satisfied, have come up is writ petition against the aforesaid order of the Settlement Commissioner. The learned counsel for the petitioners has raised a number of contentions before me which I will presently dispose of.
6. The first point raised by the learned counsel of the petitioners was that his clients had been issued a permanent transfer deed on 3‑2‑64, the effect of which is that the Settlement Commissioner had no jurisdiction even in revision against the earlier orders of the other Subordinate Settlement Authorities, to set aside these orders and to divide the property in the manner in which he did. He submitted that according to section 22 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) (hereinafter called the Act or Act), the orders passed by the Deputy Settlement Commissioner on 1‑10‑1960 (Annexure "C") and 11‑3‑61 (Annexure "F") had become final in pursuance whereof even permanent transfer deed had also been issued and therefore, the Settlement Commissioner could not follow a property which had by the issuance of a P. T. D. gone out of the Compensation Pool. He also submits that in the Permanent Transfer (House and Shops) Rules, 1961, rule 6 which dealt with "Irregular Transfers", and rule 7 which dealt with transfers obtained by fraud and mis‑representation or in contravention of any provision of the Act, had been deleted by the time the Settlement Commissioner passed the order in revision. The effect of the deletion of these two rules, according to the learned counsel is, that the Settlement Commissioner could not recall the permanent transfer deed by means of setting aside earlier orders on which the P. T. D. was based, even if it be assumed that those orders were irregular or illegal. For this proposition he has relied upon Abdul Karim v. Sh. Muhammad Raiq and others (P L D 1966 Lah. 33) the observations contained wherein do in the 1st reading give such an impression. I do not agree with the contention of the learned counsel and my reasons for that are as follows:‑
(a) The decision in the case of Abdul Karim was given on 25‑11‑1965. Subsequent thereto, however, the question came up for adjudication before the Supreme Court in Civil Petition for Leave to Appeal No. K‑101 of 1965 (Karachi), in Muhammad Ismail and another v. Shams‑un‑Nisa and another. When on the 14th of December 1965, their Lordships of the Supreme Court held that issuance of a P. T. D. was no bar in setting aside earlier such orders of the Settlement Authorities in appeal or revision, on the basis of which, the P. T. D may have been issued. The dispute before the Supreme Court was about a property in Hyderabad City. The said property was disposed of by auction. The auction‑purchaser obtained the permanent transfer deed after payment of the full price and thereafter sold. the same to one Sharif Ahmad through a registered sale‑deed. Mst. Shams‑un‑Nisa, who had filed a C. S. form for the said property, took the matter in revision to the Settlement Commis sioner. The auction‑purchaser took the plea before the Settlement Commissioner that after the issuance of the Perma nent Transfer Deed, the property no longer remained in the Compensation Pool and, therefore, the said officer was not competent to cancel the P. T. D. The Settlement Commissioner repelled this contention; set aside the auction proceedings; cancelled the permanent transfer deed of the auction‑purchaser and ordered that the property should be transferred to Mst. Shams‑un‑Nisa on her C. S. Form. The auction‑purchaser filed a Writ Petition No. 380 of 1965, against the order of the Settlement Commissioner, which was dismissed by a Division Bench of this Court at Karachi on the 1st of June 1965. Against the decision of the High Court, a petition for Special Leave to Appeal No. K‑104/1965, was filed, which was rejected by the Supreme Court, on the 14th of December 1965. The actual passage in the judgment of the Supreme Court reads as follows:‑
"The petitioners now seek special leave to appeal and it is contended on their behalf that the High Court had failed to consider that the issuance of the permanent transfer deed deprived the Settlement Authorities of any further jurisdiction, as the property thereafter went out of the compensation pool. There is no substance in this contention, as the order for the issuance of the permanent transfer deed was still subject to appeal and revision in accordance with the provisions of the Act of 1958."
The above judgment is a complete answer to the contention which is being raised by the learned counsel for the petitioners.
(b) That apart from the decision of the Supreme Court afore said, my learned brother Khamisani, J., in W. P. 500/65 Mst. Hajiani Sughra v. Mr. Tilokchand, Advocate, etc., took the same view. In the said case, a plot of land situated at Liaqat Colony, Hyderabad, was transferred by the Settlement Department to Mst. Hajiani Sughra. She had obtained a P. T. D., about the same on the 23rd of April 1963. A revision petition was filed In the Court of the Settlement Commissioner, regarding the transfer of the property made to Mst. Hajiani Sughra. The Settlement Commissioner held that the nature of the property was such that it could not have been transferred under the Settlement Laws to Mst. Hajiani Sughra. A point was raised that by the issuance of the P. T. D., the property had gone out of the Compensation Pool and could not be followed any further. The Settlement Commissioner, however, took the view that the very order of transfer, on the basis of which the P. T. D. was issued, was illegal, void and nullity, and conferred no better status to the P. T. D. which was founded on the aforesaid illegal order. Against the order of the Settlement Commissioner, a writ petition was filed in the High Court and Khamisani, J., therein observed as follows:‑
"I have no doubt in my mind that with the orders mentioned above, there can be no dispute regarding the question of Dr. Khub Chand's status as a non‑evacuee. There consequently, cannot be any dispute regarding his property being non‑evacuee property. Under these circumstances, it did not lie within the power of the Settlement Authorities to transfer this property to the petitioner and issue a P. T. O. or P. T. D. in respect of it to her. The orders which they have issued "Provisional Transfer Order" and "Permanent Transfer Deed" are, therefore, illegal and nullity in law. These orders are such which do not exist and the District Judge and Settlement Commissioner, was "quite right in declaring these orders to be illegal and holding the property to be the property of Khub Chand." A Letters Patent Appeal against the aforesaid order of Khamisani, J., was dismissed. This will also show that the view which prevailed before the Single Bench as well as the Division Bench was that regardless of the issuance of a P. T. D., a Settlement Commissioner, had the jurisdiction to examine the orders on the basis of which the title deed to any person may have been issued, and if these orders were set aside, its effect was that the title deed issued to any particular person would also fall with the name.
(c) That Permanent Transfer Rules (1961) were framed under section 35 of the Act. The said section stated that, "the Central Government may by Notification in the official Gazette make rules to carry out the purposes of this Act". The preamble of the Permanent Transfer Rules states that the Central Government was framing them :‑
"in order to enable the Chief Settlement Commissioner to transfer or dispose of property under section 10 of the said Act".
Now it is quite clear that the orders of the Settlement Authorities under section 10 are as well appealable and revis able as orders under any other relevant provisions of the Act. This is evident from a perusal of sections 10, 20 and 31(2) as now amended, which all point out that every order of transfer o determining entitlement of a person in appealable and revisable in the higher hierarchy of officers under the Act. Merely because an order for the purposes of the Permanent Transfer Rules was considered at a particular time as final within the meaning of Rule 2 (b) of the aforesaid Rules, it will not mean that the power given by the Parent Act itself of revising that order goes away. Rules cannot take away that jurisdiction, which the Parent Act, under which the Rules are framed, gives. Again, if there is any inconsistency between the Rules and the Parent Act, then it is obvious that what is to prevail is the Act and not the Rules. This was so laid down by Lord Herschell L. C., Institute of Patent Agents and others v. Joseph Lockwood 1894 A C 347 at page 360 where the actual passage is as follows:---
"No doubt there might be some conflict between a rule and a provision of the Act. Well, there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best you say. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other. That would be so with regard to the enactment and with regard to rules which are to be treated as if within the enactment. In that case probably the enactment itself would be treated as the governing consideration and the rule as subordinate to it."
Similarly in Minister of Health v. The King (on the prosecution of Yaffe (1931 A C 493) ) the Privy Council at page 503, held as follows:----
"What that comes to is this: The confirmation makes the scheme speak as if it was contained in an Act of Parliament, but the Act of Parliament in which it is contained is the Act which provides for the framing of the scheme, not a subsequent Act. If therefore the scheme, as made, conflict with the Act, it will have to give way to the Act. The mere confirmation will not save it. It would be otherwise if the scheme had been, per se, embodied in a subsequent Act, for then the maximum to be applied would have been Fosteriora derogant prioribus' But as it is, if one can find that the scheme is inconsistent with the provisions of the Act which authorises the scheme, the scheme will be bad, and that only can gone into by way of proceedings in certiorari."
If an order fulfils the requirement of being a "final order" under Rule 2(b), then it is final for the limited purpose for which further action on the basis of that order is permissible or con templated in these Rules, and is not final for all purposes. If that was an order under the Act, it would remain amenable to the other incidents and provisions of the Act and cannot go out of its reach and as far as its amenability to appeal or revision is concerned, that is to be seen from the Parent Act itself and not the Rules. The Parent Act in section 22 makes, "every order made by any officer appointed under this Act", as final, "save as otherwise expressly provided in this act", itself. The "otherwise provision" is contained in sections 19 and 20 which contemplate its being, for instance revised at any time. It was laid down by Inamullah, J. (as then he was) in Sikandar Jehan Begum v. Mian Abdul Hameed and others (P L D 1963 Kar. 219), with reference to the facts of that case, that:---
"The admitted position is that the respondent No. 1 did not file any appeal against the order, dated the 31st October 1959, transferring the house in dispute to the petitioner. In order to appreciate the contention of the learned Advocate for the petitioner that the order of 31st October 1959, became final it would be useful to reproduce section 22 of the Act. It runs as under:‑----
Save as otherwise expressly provided in this Act every order made by any officer appointed under this Act shall be final and shall not be questioned in any Court."
"It is clear from the above that finality attached to the order passed on 31‑10‑1959, in favour of the petitioner was subject to the provisions of the Act. The said order was open to suo motu Revision. It would appear from the order of the Additional Settle ment Commissioner dated 25th April 1960, reproduced below that the learned Additional Settlement Commissioner bad suo motu set aside the order of the 31st October 1959. The relevant portions of the order runs as under:‑-
"In Settlement cases the property is one and the claimants have been filing their applications at different dates and they are considered at different times. Therefore, I think that in order to have a final decision and effective one it is within the rights of the Appellate Court to re‑open the matter and if considered proper set aside the order either in appeal or revision suo motu for the transfer of the whole property to one person because if the Court comes to the conclusion that the appellant is entitled for the ground‑floor or the first‑floor which has been transferred to another person, the order in appeal cannot be effectual unless the previous order is set aside for transferring the whole property. I, therefore, in this particular case, hold that the order passed for the transfer of the whole building to the respondent vide order 31‑10‑1959, was illegal and ultra vires.
There is, therefore, in view of the above finding no force in the contention that the order of 31st October 1959, was a final order."
Respectfully following the above law, I hold that the finality attached to the orders dated 1‑10‑1960 (Annexure "C") and dated 11‑31961 (Annexure "F"), of the D. S. C. was subject to the provisions of the Act, and as such was revisable. Merely because for taking further action under the Rules these orders were treated as final, it did not mean that they ceased to remain so subject or revisable.
(d) The deletion of Rules 6 and 7 of the Permanent Transfer Rules, 1961, would hardly make any difference so far as the exercise of the revisional jurisdiction over the earlier order involv ed in this case was concerned. This jurisdiction already existed there and just as promulgation of Rules 6 and 7 could not add anything into it, similarly their deletion could not detract anything from the same.
(e) That in Abdul Karim's case there are indications to the effect that if any revision be presented by a contesting party (as distinct from the Enforcement Staff under "Order" of the Central Government, dated 1‑9‑1961, usually known as "Informer's Order"), then that could proceed. This is evidence froth page 37 Paragraph 11 of the report, where the learned Judge observed as follows:‑
"In this connection, it may be mentioned that a Settlement Commissioner is authorised to exercise powers of revision against an order of an Additional Settlement Commissioner, as he thinks fit, on calling for a record and this power is much wider than the power which could be exercised under the Order of the Central Government, dated the 1st of September 1961, but the reference in question was made under the order of the Central Government to the Chief Settlement Commissioner for the benefit of an informer, which, it has been shown, was not competent. In the case of exercise of power of revision under subsection (3) of section 20, an informer as a third person, does not come in, and cannot be benefited by the revisional order. It has been so held by the learned Judges of the Supreme Court in the above cited case. The reference to Mr. Muhammad Rafique, as Chief Settlement Commissioner having been made under the order of the Central Government, is not competent and no action can be taken on it."
Then further on page 39 in paragraph 13, the learned Judge writes:‑--
"I would like to make it clear that if the Settlement Commis sioner wants to interfere, it should not be on the basis of the report of the Enforcement Staff, which is in particular under the Order of the Central Government."
These passages support the view which I have taken and rather suggest that even after the issuance of a P. T. D., a revisional jurisdiction could be exercised at the instance of a contesting party. The authority in Abdul Karim's case in this way does not help the petitioner but rather goes against him. No doubt at page 38, para. 11, a passage occurs that:
"It needs also to be mentioned that rule 7 for the Permanent Transfer (Houses and Shops) Rules, 1961, was omitted by the Central Government on the 27th of December 1964, and is no longer available to set aside an irregular transfer."
And then at page 39 is a passage in Para. 14 which reads as follows:‑--
"I find that in the Land Settlement Act there are sections 10 and 11, which enable the Chief Settlement Commissioner to cancel an allotment, which has been obtained by means of fraud or false representation, etc., but there are no similar provisions in the Displaced Persons (Compensation and Rehabilitation) Act to deal with cases, in which transfer may have been obtain ed fraudulently or by misrepresentation. Rule 7 of Permanent Transfer (Houses and Shops) Rules, 1961, has even been deleted. In the circumstances, it may be examined by the Central Government, whether it is not necessary to have legislation enabling the cancellation of such transfers by a revision or review of the transfer."
But these passages are to be read in the context in which they occur and if read in conformity with the overall circumstances of the case, then the most they mean is that on a reference by an Enforcement Staff no revisional jurisdiction could be exercised because the Informer's Order had come to an end on the 13th of January 1962, and also because the Enforcement Staff could not avail of the provisions of Rules 6 and 7 of the Permanent Transfer (Houses and Shops) Rules, 1961' any longer. If, however, on the other hand, the passages above‑quoted mean something different then with great respect they cannot be followed any longer in view of the law laid down by the Supreme Court and the view of the Division Bench in the case mentioned by me earlier. I may here point out that the power to recall a transfer which may have been obtained by fraud false representation or concealment of any material fact already exists there in the form of Condition No. 6 which is generally contained in the P. T. O. The pro forma of the P. T. O. is printed at page 302 of the Settlement Manual (Old Edition) in the form of Appendix XII. The relevant clause (vi) of the said document reads as follows:‑----
"The President shall be entitled to resume the whole or any part of the said property if the Central Government or any officer authorised by the Central Government in this behalf is at any time satisfied and records a decision in writing to that effect, that the transfer of the said property or any other com pensation in any form whatsoever under the aforesaid Act had been obtained by fraud, false representation or concealment of any material fact on the part of the transferee or his predecessor‑in‑interest."
Even, therefore, if rules 6 and 7 were deleted from Permanent Transfer Rules, no much difference took place because a similar provision existed in the document of title issued to the transferees and which provision or condition could always be evoked and which could well‑form the basis of exercising a revisional jurisdic tion in any competent case. Even otherwise, the revisional jurisdiction is not circumscribed by any limitation, because subsection (3) of section 20 confers this power on the Settlement Commissioner for the purpose of satisfying himself as to the correctness; legality or propriety of any order passed by his subordinates. The deletion of Rules 6 and 7, so far as the facts and circumstances of the present case are concerned, would, therefore, hardly make any difference.
7. The second point urged by the learned counsel for the petitioner was that the revision petition of respondent No. 2 before the S. C. was barred by time. The order of the Additional Settlement Commissioner was dated 17‑10‑1964 (Annexure "K") and the revision against it was filed on 11‑1‑1965 (Annexure M). The learned counsel contended that according to section 9 (3) of the Act, a Settlement Commissioner was under the Superin tendence and control of the Chief Settlement Commissioner. This section reads as follows:‑--
"Subject to the provisions of this Act and of such orders as may from time to time be made by the Central Government in this behalf, Settlement Commissioners; Additional Settlement Commissioners; Deputy Settlement Commissioners and Assistant Settlement Commissioners and any other officers shall perform the duties and discharge the functions assigned to them by or under this Act, under the general superintendence and control of the Chief Settlement Commissioner."
He also says that according to section 20 (3) only such Settlement Commissioners could exercise a revisional jurisdiction who were specially empowered in this behalf by the Chief Settlement Commissioner. The actual wording of section 20(3) is as follows:‑
"A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may, at any time, call for the record of any case or proceedings under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commis sioner under his jurisdiction has passed an order, relating to the entitlement of a person to the transfer of a property or to a matter involving title for the purpose of satisfying herself as to the correctness, legality, or propriety of such order and may pass such order, in relation thereto, as he thinks fit."
The Notification No. 1226 PL‑Reh. 60, dated 18‑1‑1960, au thoris ing the Settlement Commissioners is printed at page 109 of the Settlement Manual (Old Edition) and runs as follows:‑
"In exercise of the powers conferred upon me by subsection (3) and subsection (4) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. 1, Syed Hashim Raza, Chief Settlement Commissioner, Pakistan, empower the following officers to exercise powers under the aforesaid subsections of the Act, with effect from the date of their appointment in each case:‑
(1) All Settlement Commissioners in West Pakistan and Karachi, in their respective jurisdictions with the exception of the Commissioners of Divisions in West Pakistan.
(2) All Additional Settlement Commissioners in West Pakistan and Karachi in their respective jurisdictions with the exception of the Additional Settlement Commissioners in the Headquarters Office, Lahore."
Then there are printed a Memo. and Press‑note of the Chief Settlement Commissioner, at pages 146 and 166 of the Settlement Manual (Old Edition). The Memo. Printed at page 146 bears No. 9908‑PL‑dated 9th May 1960 and reads as follows:‑--
"I have observed that the Settlement Commissioners while dealing with revision petitions submitted to them under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, have treated them more or less like second appeals and have dealt with all the petitioners submitted to them as if the petitioner had a right to submit the petition under the law. There is no provision in the law for the revision of a case on application made in this behalf. Settle ment Authorities who have been empowered to revise the orders passed by lower Courts can exercise this power only suo motu.
(2) In the interest of the speedy disposal of work, the Settle ment Commissioners should not go beyond the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. They should not admit and hear all the revision petitions as a matter of course. The petition against an order, which prima facie appears to be correct and which the Settlement Commissioner does not purpose to revise, should be summarily rejected without calling the parties. Only in case where the Settlement Commissioner feels that he would revise the order passed by the Lower Court, the petition should be admitted and notice served on the parties to appear. In such cases also the petitions should be disposed of within a fortnight.
(3) The revision petitions pending with the Settlement Commissioner at present, may please be disposed of by 15th July 1960, at the latest and a report submitted to me. The petitions received in future, should not be delayed beyond 15 days."
The Press‑note printed at page 166 is, dated the 7th of September 1960 and reads as follows:‑--
"Under subsection (2) and subsection (3) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner and the Settlement Commissioners concerned are not required to call for the record of a case in which an order has been passed by a Lower Settlement Authority or which is pending before such Authority on an application made in this behalf by the aggrieved parties. They can, however, call for the record of a case under their suo motu powers in order to satisfy themselves about the correct ness, legality or propriety of the order passed by a Lower Authority."
"A large number of petitions for revision are being submitted by the aggrieved parties to the Chief Settlement Commissioner and Settlement Commissioners concerned under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and in appropriate cases such petitions are entertain ed by them. The record of the case is, however, not called in such cases nor are the parties given a hearing unless the Chief Settlement Commissioner or the Settlement Commissioners concerned considered it to be necessary. The aggrieved parties, have in a number of cases, considerably delayed the submission of revision petitions. The Chief Settlement Commissioner had decided that if any aggrieved party desires to invoke the suo motu powers of the Chief Settlement Commissioner or the Settlement Commissioners concerned under section 20 of the Act he must do so within 15 days of the order against which the petition is preferred. Any petition recorded after this period will not be entertained in future."
The learned counsel with reference to the aforesaid provisions contended that since the Settlement Commissioners are to perform duties and discharge functions assigned to them by or under this Act, under the general superintendence and control of the Chief Settlement Commissioner (as laid down in section 9 (3) of the Act), and since a Settlement Commissioner cannot exercise the revisional jurisdiction unless he is specially empowered by the Chief Settlement Commissioner in that behalf, the limitation imposed in the memo, dated the 9th of May 1960, and Press‑note dated the 7th of September 1960, were binding on the Settlement Commissioners both from the point of view of control and superintendence" and also as being limitations in the special power conferred under section 20 (3) which power, it is contended, could be conferred conditionally or in a restricted manner of could be given in a wide manner without any limitation in this way, it was contended that the Settlement Commissioner in this case, and no jurisdiction to entertain a revision petition which was filed beyond a period of fifteen days from the date of the order it impugned and nor could he accept the same beyond that time. In my opinion, the point raised by the learned counsel has no force:‑-(a) firstly, because the memo. and the Press‑note in spite of the language employed in them, are merely directory and not mandatory in nature. Their aim is merely to finish work of Settlement speedily rather than to place limitations otherwise on the revisional jurisdiction of a Settlement Commissioner. I am fortified in this view by a ruling of a Division Bench of this Court reported in Najmuddin Ahmad Mulla v. The Chief Settlement Commissioner, Karachi and 3 others (P L D 1964 Kar. 425) where with regard to similar instructions on other subjects they were held to be directory and not mandatory, (b) Secondly, a careful study of section 9(3) shows that the Settlement Commissioners, Additional Settlement Commissioners and Deputy Settlement Commissioners, etc., are to perform those duties and discharge such functions which are assigned to them by or under the Act, subject to only two things, namely, (a) subject to the provisions of the Act and (b) subject to such orders as may from time to time be made by the Central Government. In addition to this, while performing those duties and functions they shall remain under the general superintendence and control of the Chief Settlement Com missioner. The supervision and control of Chief Settlement Commissioner itself is again subject to the provisions of the Act, which means that duties and functions assigned by the Act to a Settlement Commissioner cannot be abridged by the Chief Settlement Commissioner. In other words, a jurisdiction which " the Act conferred on a Settlement Commissioner could not be taken away by the Chief Settlement Commissioner in the garb of his acting in any supervisory or controlling capacity. Both the Settlement Commissioner and the Chief Settlement Commissioner are to act subject to the provisions of the Act. A Settlement Commissioner, for example while exercising a revisional jurisdic tion, will not subject to the provisions of the Act and cannot decide a case otherwise then in accordance with that Act or give properties to those who are not eligible. Similarly, the Chief Settlement Commissioner, while exercising supervision and control will also remain within the Act. The Act in section 20 (3) says that a Settlement Commissioner may call for the record of any case or proceedings at any tee, as the Chief Settlement Commis sioner cannot say that the Settlement Commissioner should not call for the record beyond a period of fifteen days. If this power is conceded to the Chief Settlement Commissioner, then it mean that he is prohibiting that which the law allowed a Settlement Commissioner to do. The instructions of the kind in hand, if given any other meaning, would not remain instructions of a supervisory or controlling nature but would then become of a prohibitory character. Supervision and control is of the type of a managerial or regulatory character and cannot assume the character of legislation so as to control the provisions of the statute under which it is exercised. (c) Thirdly, the Notification, specially empowering the [Settlement Commissioners to exercise revisional jurisdiction is dated 18‑1‑1960 (printed at page 109 of the Settlement Manual (Old Edition). In that Notification, no such limitation of restriction is contained and from that point of view the General Memo. and the Press‑note aforesaid cannot be read into the case. (d) Fourthly, in the Memo. dated 9‑5‑60, the emphasis is on the fact that revision petitions should be disposed of within fifteen days and not that they should not be entertained beyond fifteen days. In the Press‑note, dated the 7th of September 1960, no doubt, there is a direction that no petition should be entertained beyond fifteen days, but in my opinion, the intention therein again is not to place absolute restriction on the exercise of suo motu revisional jurisdiction in appropriate cases. (e) Fifthly, in the instant case, the Settlement Commissioner was conscious of the fact that the revision petition of the opposite‑party was belated, but in spite of that he felt inclined to exercise him suo motu revisional jurisdiction. This is evident from the following passage occurring in his judgment
"In suo motu revision even if the application of the person meaning revision has been put in after great amount of delay, I can still go into the record suo motu to see whether any illegality has been committed or not. I find from the record that a clear illegality was committed when the D. S. ordered the transfer of the whole of the portion 2278 to 80‑83 in favour of respondent No. 1 although his application was only in respect of the residential flat bearing the No. 2281, respondent No. 1 was not an applicant for the shop No. 2278‑79, and, therefore, he was not entitled to the transfer of this shop to him."
In my opinion, the Memo. and the Press‑note were never intended to shut out the exercise of the revisional jurisdiction in cases in which a Settlement Commissioner was of the view which has been expressed in the above‑quoted passage. The Memo. and the D Press‑note did not absolutely close the doors of revisional jurisdic tion after a period of fifteen days and if it could be exercised in some cases then the present was eminently a fit case for the same and the Settlement Commissioner has simply justified his interference in it.
8. No other point was argued before me.
9. Before concluding, however, I may observe that the learned counsel for the petitioners never challenged the finding on the divisibility of the portion or the house in dispute. The natural effect of this is that the petitioners concede that the portion which has been given to them in the final analysis constitutes one house or a separate house by itself and the other portion given to respondent No. 2 constituted another independent house. In that view of the matter, since the petitioners have obtained one house, they have no right, justification or locus standi to claim another house or extend their arms to claim portions of another house because it is well‑settled that under the Settlement Laws, al person can get only one house.
10. Another thing to be noticed is that so long as the claim of the contesting respondent was pending, the Deputy Settlement Commissioner had no jurisdiction to decide the case against him or reject his form much less to take away a transfer already order ed to be made to him. In the instant case, the Deputy Settlement Commissioner acted in a high‑handed manner after the case had been remanded to him (to pass a legible order) to still cancel or maintain the cancellation of the transfer from the name of respon dent No. 2 in spite of the fact that his office by means of a clear note dated 7‑12‑1959 pointed out to him that the claim of the said respondent had duly been verified. Without conceding, however, but assuming just for the sake of argument, that even if there was any force in the two contentions raised by the learned counsel for the petitioners in Paras. 6 and 7 of the judgment, I am not prepared to give any effect to them because their obvious result would be to perpetuate the illegal order of the Deputy Settlement Commissioner and to deprive a well‑deserving claimant from his right merely on technicalities. It is well‑settled that the High Court in its discretion under Article 98 of the Constitution can refuse to interfere where an obvious result of giving effect to an objection will be to perpetuate an illegal order or otherwise result is in injustice.
11. The upshot of the above discussion is that the writ petition has no merits and is hereby dismissed with costs.
K. M. A.
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