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Writ Petition No. 1259/R of 1963, decided on 5th July 1967.

S. 31(2)‑Delegation of powers of review by Chief Settlement Commissioner to Settlement Commissioner not made by Gazette notification‑Order of Settlement Commissioner passed in review, held, illegal and without lawful authority Thing required to be done in particular manner can be done only in that manner and not otherwise‑[Nazir Ahmad v. King Emperor A I R 1936 P C 253; Mian Akbar Hussain v. West Punjab Government P L D 1954 Lah. 188; Mst. Hashmat Bibi v. Mst. Amanat Begum and others Writ Petition No. 1749/R of 1963 and Mst. Amanat Begum v. Mst. Hashmat Bibi and others Writ Petition No. 1059/R of 1964, rel.].

. 31(2)‑Delegation of powers of review by Chief Settlement Commissioner to Settlement Commissioner not wade by Gazette notification‑Objection as to jurisdiction of Settlement Commissioner to exercise powers of review taken for first time in arguments in writ petition before High Court‑ Objec tion upheld in circumstances of case‑Each case. to be dealt with on its own facts‑[Constitution of Pakistan (1962), Art. 98] -(practice)‑[Khair Din v. Abdul Hamid P L D 1966 Lah. 362 ; Jalal Din and others v. Sh. Muhammad Rafiq etc. P L D 1965 S C 261 ref.; Ghulam Mohi‑ud‑Din v. Chief Settlement Com missioner and another P L D 1964 S C 829 distinguished].

Mian Abdul Khaliq for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Dr. Nasim Hassan Shah for Respondent No. 3.

Dates of hearing: 4th and 5th May 1967.

In Sabzi Mandi Montgomery (now Sahiwal), there is situated a property bearing No. 214/13‑111. It is a double‑storeyed building comprising of a shop and a residential house having ten rooms, one kitchen and one miani. The Settlement authorities have not specifically mentioned the portions in possession of different persons, but this detail is ascertainable from the Settlement Files which were requisitioned in this case. The following persons were in possession of the various portions of this property:‑

(i) Muhammad Sharif petitioner was in possession of one room in the first‑floor. He is a claimant and filed a Form CH;

(ii) Khuda Bakhsh respondent No. 3 was in possession of the shop and four rooms in the ground‑floor and one room with a bath‑room in the first floor. He is a claimant and filed two separate forms CH and CS;

(iii) Nawab Din was in possession of one room in the first floor and a barsati. He was a claimant and filed a CH Form. However, he is no longer in the picture; and

(iv) One Din Muhammad and one Jamil non‑claimants were in possession of one room each in the first‑floor. They also filed NCH Forms but being no longer in the picture we are not concerned with them.

The Deputy Settlement and Rehabilitation Commissioner vide his order dated the 3rd of November 1959, as contained in Annexure "B" rejected all other applications and transferred the property as one unit (house) to the petitioner considering him to be a prior allottee. Khuda Bakhsh respondent No. 3 filed an appeal which was dismissed by the Additional Settlement and Rehabilitation Commissioner on the 21st of November 1959, (Annexure "C"). Respondent No. 3 filed a revision which was accepted by the Settlement and Rehabilitation Commissioner by means of his order, dated the 5th of March 1960 (Annexure "D"), He declared the property to be divisible and divided it into two units, namely, as a shop and as a house. The portion which was treated as a house was allowed to remain with the petitioner, but the portion which was described as a shop was transferred to respondent No. 3. Against the aforesaid order, two revisions were filed one by the petitioner and the other by respondent No. 3. The revision of respondent No. 3 was dismissed by Syed Hashim Raza, the Chief Settlement and Rehabili tation Commissioner, on the 18th of May 1960 vide Annexure "E". The order of the learned Chief Settlement Commissioner is a short one and reads as follows:‑

"The Settlement Commissioner, Multan has given solid reasons for his division. I see no ground to interfere with his order. The revision petition is rejected. Inform the parties."

2. After some time respondent No. 3 filed a writ petition in this Court bearing No. W. P. 224/R of 1961. The said writ petition was admitted to a regular hearing and notices were directed to be issued to the respondents on the 25th of April 1961. The Chief Settlement Commissioner was a party in the said writ petition and on receiving a notice from this Court, he filed a written‑statement. In the said written‑statement he expressed a desire that he would like to exercise his suo motu powers of review in this case. He accordingly requested that the writ petition may either be kept pending or may be dismissed. The actual written‑statement reads as follows:‑

"The Chief Settlement Commissioner, Pakistan, respectfully submits the following:‑--

On receipt of a copy of the writ petition, the Chief Settlement Commissioner has examined the case afresh. While examining it, records received from the subordinate Settlement Authorities has (sic) also been kept in view. It has been found that both the petitioner and the respondent No. 1 filed second revision petitions under section 20(2) of the Dis placed Persons (Compensation and Rehabilitation) Act, 1958. The revision petition of Khuda Bakhsh (petitioner) was not entertained and was rejected (Annexure "B" to the writ petition), whereas the revision petition filed by Muhammad Sharif (respondent No. 1), is still pending. Moreover, there are other aspects of the case which need looking into. As such, the Chief Settlement Commissioner has come to the conclusion that he should exercise his powers of review suo motu in this case of transfer of the property. For this reason, the Chief Settlement Commissioner is withholding his parawise comments on the writ petition, so that he may bear the parties himself with an open mind.

Under the circumstances, it is respectfully prayed that the writ petition may kindly be ordered to stand over pending decision of the review or may be allowed to he withdrawn of the petitioner so desires or may kindly be dismissed as being premature."

The case remained pending in this Court and in the month of February 1962, respondent No. 3 put in a Civil Miscellaneous Application bearing No. 824‑62 praying that the Chief Settlement Commissioner may be directed to proceed with the review matter or to intimate the decision of the case to the High Court. Notice of this application was issued on the 22nd of February 1962, and the Civil Miscellaneous came up for adjudication on the 9th of April 1962., when my learned brother Muhammad Daud Khan J., passed the following order:‑

"The Chief Settlement Commissioner should be asked to report if he had passed the order on review if not, he should do so within a month and submit his detailed report to reach this Court within five weeks."

The things thereafter moved in the Settlement Department and leaving aside the minor and unnecessary details, it is sufficient to mention that the case was taken up by Sh. Muhammad Rafiq, a delegatee of the revisional as well as (allegedly) review powers of the Chief Settlement and Rehabilitation Commissioner, who by means of his order, dated the 5th of February 1963 (Annexure "F") accepted the review set aside the earlier order of Syed Hashim Raza Chief Settlement and Rehabilitation Commissioner, dated the 18th of May 1960, and declaring the property as one indivi sible unit, transferred the whole of it to respondent No. 3. It is further to be pointed out that the second revision of the petitioner was also taken up by Sh. Muhammad Rafiq along with the review matter and consequent upon the acceptance of the review, the said revision petition of the petitioner was dismissed. The petitioner has come up in writ petition to this Court against the last mentioned order of Sh. Muhammad Rafiq, dated the 5th of February 1963. Needless to say that after getting a relief from Sh. Muhammad Rafiq, W. P. No. 221/11‑61 was not pressed by respondent No. 3 and was dismissed as such by this Court on 15‑2‑1963.

3. A number of contentions were raised before us by the learned counsel appearing for both sides but in view of the order which we propose to make it is not necessary to deal with all of them. One point which was raised by the learned counsel for the petitioner was that Sh. Muhammad Ratiq had not been validly delegated the review powers of the Chief Settle ment Commissioner under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) here inafter called the Act or Act). The precise argument of the learned counsel was that under section 31(2) of the Act, the Chief Settlement and Rehabilitation Commissioner was authorised to delegate all or any of his powers under the Act to any Settle ment Commissioner by a notification in the official Gazette. He submits that when the Legislature lays down that a particular act should be done in a particular manner, then it can be done in that and that manner alone. Since in the relevant section, the delegation was authorised to be made only by means of a notification in the official Gazette, therefore, so long as the notification in the official Gazette did not appear, there could not be considered to have taken place a valid delegation of powers. Reliance for the proposition that when a particular a9t is directed by the Legislature to be done in a particular manner, then that should be done by that and that manner alone is placed on a decision of the Privy Council reported Nazir Ahmad v. King‑Emperor (A I R 1936 P C 253). That decision was followed in a Division Bench of this Court presided over by S. A. Rahman and Shabbir Ahmad, JJ. and reported in Mian Akbar Hussain v. West Punjab Government (P L D 1954 Lah. 188). That was a case under the Punjab Excise Act I of 1914, section 9 where of authorises that an Excise Commissioner may be appointed by a notification in the official Gazette in that behalf. It was held by the learned Judges that what the section meant was that the Provincial Government may or may not appoint an Excise Commissioner, out if it does appoint one, it must do so by a notification and no other means would be valid in law. Respectfully following the same principle, we held that in the instant case as well, if the powers are to be delegated by the Chief Settlement Commis sioner under section 31(2) of the Act, then they can be done only by means of a notification in the official Gazette and not otherwise. It has been held in Mst. Hashmat Bibi v. Mst. Amanar Beguyn and others Writ Petition No. 1749/11 of 1963 and Mst. Hmanat Begum v. Mst. Hashmat Bibi and others Writ Petition No. 1059/11 of 1964, decided on the 4th of November 1966, by one of us (Fazle Ghani Khan, J.) that Sh. Muhammad Rafiq had not been delegated the powers of review by means of any notification in the official Gazette. Factually this position was conceded by the learned Settlement Commissioner (legal) who appeared in that case. In that view of the matter, the order of Sh. Muhammad Rafiq passed in the instant case, in the purported exercise of the delegated powers of review, would be an illegal one and without lawful authority.

4. When confronted with the above situation, learned counsel for respondent No. 3 contended that even though in the writ petition certain other points challenging the jurisdiction of Sh. Muhammad Rafiq have been raised, the point mentioned above does not find mention in the writ petition and, therefore, should not be allowed to be raised for the first time in the course of arguments at the Bar. He also contended that this precise point was not raised even before Sh. Muhammad Rafiq and, therefore, it was all the more necessary as not to allow it to be raised now. He relies on a decision of the Supreme Court reported in Ghulam Mohi‑ud‑Din v. Chief Settlement Commis sioner and another (P L D 1964 S C 829), in support of his contentions. We are afraid we cannot give effect to the contentions of the learned counsel for respondent No. 3. The case relied upon by the learned counsel precludes raising of objection about jurisdic tion only in such cases where the objector (i) was aware of the defect of jurisdiction earlier but failed to raise that point or (ii) where be was an active participant in the proceedings of the Tribunal about whose jurisdiction later on he raises an objection and (iii) where a defect of jurisdiction crops up due to his own conduct. There is nothing to show that the petitioner was aware of the aforesaid defect in the jurisdiction of Sh. Muhammad Rafiq and we are prepared to accept the contention of the learned counsel for the petitioner that acting on the principle that official acts must be presumed to have been regularly done, he was under the impression that the jurisdiction on Sh. Muhammad Rafiq would have been regularly and validly con ferred if an officer of his rank‑who was once adorning the Bench of this Court as well‑was proceeding to deal with the case. It has been pointed' out by this Court in Khair Din v. Abdul Hamid (P L D 1966 Lah.362), as to what are the exceptions in which a point of jurisdiction can be allowed to be taken for the first time in the course of a writ petition. The present case fully falls within the exceptions laid down in the said authority and we have, therefore, no hesitation in giving effect to the point raised by the learned counsel for the petitioner. It is further to mention that rather the Supreme Court also in Jalal Din and others v. Sh. Muhammad Rafiq etc. (P L D 1965 S C 261), allowed a point of defect of jurisdiction to be raised for the first time before them, even though it was not raised either before the Settlement Authorities or in the High Court. All this shows that principle on which the learned Counsel for the contesting respondent relies is not a uniform one and each case must be decided on its own facts and circumstances. It is further to be noticed that the contention of the learned counsel for the contesting respondent that the petitioner was an active participant in the proceedings before Sh. Muhammad Rafiq and that he should be debarred from raising objection to the jurisdiction of the said officer, is not quite correct. Sheikh Muhammad Rafiq was hearing the revision petition of the petitioner as well and if he tried to succeed in that revision, there was nothing wrong on his part, because it is not debated that Sh. Muhammad Rafiq had the revisional jurisdiction and there was no defect in the same. The partici pation of the petitioner, in these circumstances, therefore, in c the revisional proceedings, cannot be considered to be a bar on his part to raise the objection that Sh. Muhammad Rafiq did not possess the jurisdiction in review. Moreover, unlike the case of Ghulam Mohi‑ud‑Din, here defect in the review jurisdiction of Sh. Muhammad Rafiq had not cropped up due to the conduct of the petitioner. In the instant case, the petitioner was urging before Sh. Muhammad Rafiq that he should not review the matter and was thus opposing the exercise of review jurisdiction and this is what he is saying even now that exercise of review jurisdiction was illegal. The conduct of the petitioner in the instant case is, therefore, consistent throughout and is not inconsistent as was the case of Ghulam Mohi‑ud -Din. Again in Ghulam Mohi‑ud‑Din's case the petitioner was himself invoking the same jurisdiction which he later on challenged, but in the instant case, as shown earlier, the petitioner was not invoking the review jurisdiction of Sh. Muhammad Rafiq. He was invoking his revisional jurisdiction and cannot be said to be an active participant in the invoking of a review jurisdiction.

5. The upshot of the above discussion is that the order of Sh. Muhammad Rafiq, dated the 5th of February 1963, is declared to be without lawful authority and is hereby quashed. The result is that the review matter which was suo motu taken up by the Chief Settlement Commissioner will remain pending and is liable to be disposed of in accordance with law. Since Sh. Muhammad Rafiq, on our finding, did not possess the delegated powers of review and also because he is no longer in service, the case is sent back to the learned Chief Settlement Commissioner to take it up himself and decide the same in accor dance with law. As we have decided the case on the point mentioned above, we need not deal with the other contentions which the learned counsel for both sides wanted to raise before us. They will be at liberty to raise whatever points they like before the learned Chief Settlement Commissioner who will of course decide the same in accordance with law and nothing contained in this judgment will preclude the Chief Settlement Commissioner from dealing with them. To make the matter clear, one of the points raised before us by the learned counsel for the petitioner was that no review was validly pending before the learned Chief Settlement Commissioner at the time when the same was decided by Sh. Muhammad Rafiq‑ Another point sought to be debated by the parties was as to whether the record in the revision or the review had or had not been called for before the target date and as to what was its effect. The parties will be at liberty to raise these points and such other points on merits or legal plane which they may be advised to raise before the learned Chief Settlement Commissioner. There will be no order as to costs.

A.H. Case remanded.

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