Find a Lawyer

Writ Petition No. 919/R of 1962, decided on 11th October 1968.

Review ‑ Petition filed before Chief Settlement Commissioner against orders passed by his predecessor‑in‑office‑Can be decided by Chief Settlement Com missioner himself and not by Settlement Commissioner in exercise of delegated powers of Chief Settlement Commissioner‑Settlement Commissioner only competent to review his own or his predecessor's order.

The power of review delegated to the Settlement Commis sioner was only this much that he could review his own order or the order of any of his predecessors‑in‑office. The impugned order before him was not his own order. Therefore, the only point is whether it can be considered to be that of his predecessor -in‑office. Under the delegated powers conferred on the Settle ment Commissioner was competent only to review his own order or that of an officer who was his predecessor‑in‑office. It is not possible to hold that Chief Settlement Commissioner was, in any way, predecessor‑in‑office to the officer who was only a Settlement Commissioner. He was exercising the delegated powers of the Chief Settlement Commissioner and for that reason could not be considered to be the Chief Settlement Commissioner himself. It was therefore held that the impugned order suffered from a patent illegality and being passed without lawful authority was quashed.

Sh. Fazal Ahmad v. Raja Ziaullah Khan etc. P L D 1964 S C 293 and Ahmad Din v. Ch. Sultan Muhammad Khan P L D 1967 Lah. 559 rel.

Mst. Zainab Khatoon v. Mian Ghulam Shabbir P L D 1965 S C 55; Ghulam Murtaza v. Malik Fateh Khan, Settlement Com missioner P L D 1966 Lah. 569 and C. P. S. L. A. No. 146 of 1966 distinguished.

Altaj Sikandar for Petitioner.

Raja Muhammad Anwar for Respondents.

Dates of hearing : 20th, 26th September and 3rd October 1968.

In this writ petition the dispute between the parties is in respect of House No. S‑74‑R‑4, Panj Mahal Road, Lahore. It was, in the first instance, requisitioned by the Provincial Government for the residence of Mr. S. Ghulam Samdani, since deceased, then Deputy Comptroller of Military Accounts, in 1947. On the 10th of May 1956, it was allotted to Dr. M. Hussain Ali petitioner after the retirement of deceased‑respondent, S. Ghulam Samdani, by the Secretary (Urban) to the Rehabilitation Commissioner, West Pakistan, on the ground that the deceased respondent had constructed his own house in Gulberg Colony and under the rules prevalent at that time the allotments of such persons were liable to be cancelled. In pursuance of this order, the deceased‑respondent was served with a notice of ejectment on the 4th of June 1956, as is disclosed at page 93 of the Rehabilitation file. An appeal against this order was filed which was dismissed on the 20th of August 1956. A revision taken against this order was also dismissed on the 13th of November 1956, and the second revision of the deceased‑respondent again met with the same fate on the 4th of July 1957.

2. On the 19th July 1957, the deceased‑respondent, G. Samdani, was ejected from the premises in dispute. Aggrieved by these orders, the deceased respondent filed Writ Petition No. 318/R of 1958 in the High Court of West Pakistan which was dismissed by Akhlaque Hussain, J. on the 16th of May 1958, on the ground of delay and laches, with permission to the respondent to file a fresh writ petition on the same cause of action if he was able to satisfactorily explain the delay. Accordingly he filed another Writ Petition (No. 599/R of 1958 which was dismissed by Abdul Aziz Khan, J. on the 25th of January 1960. While disposing of the writ petition, the learned Judge made certain pertinent observations. In the first instance, he observed that letter No. 2050‑U/R‑R‑56, dated the 6th of August 1956, was in the nature of statutory rules and the question for determination would be whether the instructions laid down in the aforesaid letter were violated at the time of the deceased‑respondent's ejectment on the 19th of July 1957. He, however, refrained from expressing any opinion on this aspect of the case and directed the learned Additional Settlement and Rehabilitation Commissioner, Lahore, to go into this matter and to decide as to who was entitled to the provisional transfer of the property in dispute. In the last paragraph of his judgment the learned Judge reiterated that it would not be right for him to express any opinion because he was sending the case to the learned Additional Settlement Commissioner for decision. With these observations, he dismissed the writ petition.

3. The matter, thereupon, came up before Mr. J. D. Malik, Additional Settlement and Rehabilitation Commissioner, who, by order dated the 12th of March 1960, declined to interfere in the matter with the following observations :‑

"In my opinion, as the Hon'ble High Court has not yet finally decided the case, it would be wrong for the Settlement authorities to undertake the transfer of the house. In the present case, in my opinion, the Hon'ble High Court has directed me to undertake the provisional transfer of the property which, in my opinion, cannot be done unless a clear cut verdict is given on the subject of allotment. Provisional transfer depends, to a major extent, on the allotment of the contestants. I cannot assume that the Hon'ble High Court has finally come to the conclusion that as far as the allotment order is concerned, the petitioner has no case. In actual fact, the Hon'ble Judge has gone to the extent of agreeing that the provisions of the letter addressed to the Secretary (Urban) to the Rehabilitation Commissioner apply to a case like this. In view of this, it will be wrong on my part to assume that the Hon'ble High Court entirely agrees with the order of the learned Rehabilitation Commissioner.

I have already in a separate appeal directed the learned Deputy Settlement Commissioner not to take a filial decision in the case of this property until the fate of the writ petition is finally decided. This direction will still lie until the petitioner manages to get a clear‑cut ruling from the Hon'ble High Court. This is because I feel that I am not competent to upset the order of the learned Rehabilitation Commissioner on the subject of allotment."

This order was challenged in revision before the Settlement and Rehabilitation Commissioner, Mr. Farzand Ali Khan, who also refused to interfere in the matter and referred it on to the Chief Settlement Commissioner as, according to him, it involved a policy question. It would be advantageous to reproduce his order, which is as follows :‑

"Property S. 74‑R‑4, Panjmahal Road, was allotted to Syed Ghulam Samdani, the petitioner, who is a claimant. He remained in possession of the house for several years. He had built a house of his own in Gulberg He was required to vacate it by the D. R. C. and was ejected on 19‑7‑57 on the receipt of letter 180‑2050‑U.O/R‑256 dated 6‑8‑56 from Secretary, Rehabilitation and Refugees, West Pakistan, to the effect that the refugees who built their own houses should not be ejected from the evacuee houses allotted to them. This house was allotted to‑respondent who is not a claimant displaced person. Now the question is whether the transfer of the house should be made to the petitioner or respondent. The contention of the petitioner is that the order ejecting him from the house was illegal, ultra vires and inoperative, as construction of the house by him does not disqualify him from possession of evacuee house. The Hon'ble Judge in his judgment dated 25‑5‑60 remarked:

I refrain from expressing any opinion as I propose to direct the learned Additional Settlement and Rehabilitation Commissioner, Lahore, to go into the case, who is entitled to the provisional transfer of 4 Panjmahal Road, Lahore.'

The case is still pending in the Court of the learned Additional Settlement Commissioner. The question for determination is whether the order ejecting him was illegal, ultra vires and is still entitled to the transfer of the property although he is no longer in possession thereof. This involves the question of policy and is referred to the learned Chief Settlement and Rehabilitation Commissioner for his order."

4. Thereafter, the question whether the deceased‑respon dent was in possession of the property in dispute under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, came up for consideration before Mr. Hashim Raza, the then Chief Settlement Commissioner, who on the 5th of May 1960, passed the following order:‑

"I have since received the endorsed paper. According to law, the person who is in occupation of the house on 2012‑1958 is entitled to its transfer provided he is not a local in the garb of non‑claimant."

It will thus be noticed that the learned Chief Settlement Commissioner, by the above order, held that the deceased respondent could not be considered to be in possession of the property in dispute. It was for this reason that the petitioner moved an application for review which came up for hearing before Malik Fateh Khan who returned it for presentation to the Chief Settlement Commissioner, with the following observa tions :‑

"Petitioner with counsel. Ahmad Ali, brother of the respondent, is present. It has been submitted by the learned counsel for the petitioner that the decision of this case will require the review of an order passed by Syed Hashim Raza and, as such, the case should be heard by the present Chief Settlement and Rehabilitation Commissioner. I would, therefore, return the case to him as desired by the petitioner."

The matter then came up before Mr. Ahsan‑ud‑Din, Chief Settlement and Rehabilitation Commissioner, who sent it for disposal to Sheikh Muhammad Rafiq as his delegatee. The learned officer by order dated the 17th of April 1962, reviewed the order of Mr. Hashim Raza, and passed the following order :‑‑

"Bungalow No. S‑74‑R/4, Panjmahal Road, Lahore, was allotted to Syed Ghulam Samdani on 1‑11‑1947. Ten years later, it was allotted to the respondent, Dr. Husain Ali, on the ground that Syed Ghulam Samdani had built a house of his own. As a result, Syed Ghulam Samdani was ejected on 19‑7‑1957. He then filed a writ petition and the High Court ordered the case to be taken up by the Settlement authorities and decided. The Chief Settlement Commissioner, when the case came up before him, passed the following order :‑

According to law, the person who was in occupation of the house on 20‑12‑1958 was entitled to its transfer provided that he was not a local in the garb of a non‑claimant.'

The present application, which is for the review of the order made by Syed Ghulam Samdani has now been sent to me by the present learned Chief Settlement Commissioner for disposal.

It cannot be denied that the order of the Rehabilitation Commissioner was contrary to the instructions issued by the Government on 6‑8‑1956 whereby restrictions imposed on the refugees regarding the construction of new house were withdrawn. It is evident that these instructions, also taken notice of in the High Court order dated 25‑1‑1960, were ignored and it may be that these were not brought to the notice of the Rehabilitation Commissioner. The instructions also do not seem to have been brought to the notice of Mr. Hashim Raza, the then Chief Settlement Commissioner. In this connection, it may also be stated that under section 2 (6) of the Displaced Persons Act, 1958, a claimant dispossessed on or after the Ist July 1957, shall be deemed to be in possession and in this case it will be observed that Syed Ghulam Samdani was ejected on the 10th July 1957 (it should have been 19th July 1957). I accept the review petition and transfer the bungalow in question to Syed Ghulam Samdani."

It is this order of Shaikh Muhammad Rafiq which is the subject matter of challenge before me in the present writ petition.

5. In support of the petition, Mr. Altaf Sikandar, learned counsel for the petitioner, has contended that the power of review exercised by the learned Settlement Commissioner was exercisable only under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act), whereunder an order of a predecessor in office could be reviewed, but that in the present case it could only be reviewed by the Chief Settlement Commissioner himself and not the Settlement Commissioner who was not the former's predecessor‑in‑office. The learned counsel contended that the Settlement Commissioner as the delegatee of the Chief Settlement Commissioner was not competent to review the order passed by the Chief Settlement Commissioner himself and, therefore, the impugned order is illegal, ultra vires and has no validity in the eye of law.

6. In reply, Raja Muhammad Anwar, learned counsel for the contesting respondent has contended‑--

Firstly, that the revision petition filed by the respondent was pending and Sh. Muhammad Rafiq passed the impugned order for the first time after hearing the parties and that the impugned order was not passed in exercise of the review jurisdiction ;

secondly, that the review petition having been sent by the Chief Settlement Commissioner and he having been delegated the powers of review under section 31 (2) of the Act, Sh. Muhammad Rafiq, Settlement Commissioner was competent to review the order of the; Chief Settlement Commissioner;

thirdly, that the appeal is still pending before the Additional Settlement Commissioner and the matter can still be decided by him ;

fourthly, that the respondent should be deemed to be allottee in possession of the property in dispute and entitled to its transfer; and

fifthly, that even if the order is found to be without jurisdiction, the review petition still remains pending and that a direction be issued that it be decided in accordance with law.

7. After hearing the learned counsel for the parties and on a careful consideration of the points raised before me I have formed the opinion that the contention of the petitioner that the impugned order is without jurisdiction must pravail. It will be noticed that Sh. Muhammad Rafiq was a delegatee of the Chief Settlement Commissioner vide Notification dated 20th of December 1961, relevant portion of which is reproduced below:‑

"Notification No. 10266‑Admn‑Reh/61.‑In supersession of all previous notifications from time to time. I, Ahsanuddin, C. S. P., by virtue of powers vested in me by section 31 (2) of D. P. (C. & R.) Act (XXVIII of 1958), do hereby delegate powers under section 20 (2) of the said Act to the following C. S. C. for the areas noted against their names :‑

According to the above jurisdiction and distribution of work, all officers should please ensure that the case relating to Courts other than their own which are pending on these files in accordance with previous distribution of work are imme diately transferred to the respective Courts after preparing detailed lists and under intimation to H. Q. office.

The above officers will also hear fresh review petitions and also those petitions pending with Courts of their pre decessors.

(Sd.) Ahsanuddin C. S. P.,

C. S. C."

It will be noticed that under this notification, Sh. Muhammad Rafiq was empowered to hear fresh review petitions and also those petitions pending in the Courts of his predecessors‑in‑office. The power of review, however, was exercisable under section 21 (1), as it then stood, which is in the following terms :‑

"21. Review etc.‑(1) The Chief Settlement Commissioner or a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner may either of his own motion at any time or on an application made in that behalf, within fifteen days, review, and while so reviewing modify, reverse, or confirm an order passed by himself or by any of his predecessors‑in‑office;

Provided that‑

(a) (i) a Settlement Commissioner shall not review any order passed by his predecessor‑in‑office without first obtaining the sanction of the Chief Settlement Commissioner .

A perusal of this provision of law shows that the Chief Settlement Commissioner can, either of his own motion at any time or on an application made in that behalf, within fifteen days, review his own order or an order passed by his predecessor- in‑office.

8. The contention of the learned counsel for the petitioner that Sheikh Muhammad Rafiq, Settlement Commissioner, with powers of Chief Settlement Commissioner, has decided the revision petition and not the review petition cannot be accepted as good argument because in the impugned order itself it is clearly stated that the learned officer was disposing of the review petition forwarded to him for disposal by the Chief Settlement Commissioner and while allowing the petition he has clearly stated that he was allowing the review petition.

9. The short question in the present case for consideration, therefore, is whether the order reviewed by Sh. Muhammad Rafiq was one passed by himself or by any of the Chief Settlement Commissioner who had preceded him in office. The answer to this question obviously is in the negative. It is, clear to me that neither the order of Mr. Hashim Raza, which Sh. Muhammad Rafiq reviewed, was his own order, nor could it be considered to be an order of a Chief Settlement Commissioner who preceded him in office. This aspect of the question was 9pnsidered by their Lordships of the Supreme Court in Sh. Fazal Ahmad v. Raja Ziaullah Khan etc. (PLD 1964 SC 293). In that case an objection was raised by the appellant that there was no power in the Claims Commissioner to review the order of the Additional Claims Commissioner. The provision of section 7 of the Registration of Claims (Displaced Persons) Act, 1956, was amended by Ordinance No. LXXK of 1962 and in section 7(4) the words "or an order of any of his predecessors -in‑office" were inserted with retrospective effect from the date of the coming into force of the Act. It was on this basis that it was urged before the Supreme Court that there was no power in the Claims Commissioner to review the order of an Additional Claims Commissioner as the latter could not be said to be the predecessor‑in‑office of the former. In this connection, their Lordships have observed as under :‑

"Learned counsel for the appellant contends, however, that in this case the Additional Claims Commissioner was not a "predecessor‑in‑office." He was only an Additional Claims Commissioner who had been delegated enhanced powers, while Raja Ziaullah Khan was a Claims Commissioner who could not be his successor‑in‑office. On a careful consideration of this matter, we have come to the conclusion that the contention of the appellant is bound. The mere fact of the Additional Claims Commissioner was exercising one of the powers of a Claims Commissioner would not make him the holder of the office of a Claims Commissioner. There is further difficulty in accepting the view that a Claims Commissioner would be the successor‑in‑office of an Additional Claims Commissioner to whom powers of a Claims Commis sioner had been delegated. An Additional Claims Commissioner may have powers delegated to him not by name but by office so that if one Additional Claims Commissioner ceases to hold office and is succeeded by another, the new incumbent would be his full successor‑in‑office and would be entitled to exercise the power of review regarding the orders of his predecessor. The Claims Commissioner cannot be granted a concurrent power of review of the order of an Additional Claims Commissioner along with the successor of that Additional Claims Commissioner, for both can pass absolutely inconsistent orders without one order having any preference over the other. Even in a case where powers are delegated by name to an Additional Claims Commissioner who ceases to hold office and is succeeded by another Additional Claims Commissioner to whom also the powers of a Claims Commissioner are delegated the same situation will arise for the new incumbent of the office of the Additional Claims Commissioner would be a successor‑in‑office and entitled to review the order of his predecessor.

At the same time, there is no material on the record as to whether on the date on which Raja Ziaullah Khan took proceedings for review in these cases, the Additional Claims Commissioner whose order was the subject of review bad ceased to hold office or if he had ceased to hold office whether some other person had not taken his place as his successor with delegated powers of a Claims Commissioner.

10. This aspect of the question was also considered by Sardar Muhammad Iqbal, J. a learned Judge of this Court, in Ahmad Din v. Ch. Sultan Muhammad Khan (P L D 1967 Lah. 559). In this connection, the following observations of the learned Judge are pertinent:--

"It is provided in section 21 (1) that the Chief Settlement Commissioner may either of his own motion at any time or on any application made in this behalf within fifteen days review an order passed by himself or by any of his predecessors- in‑office. He is, therefore, competent to review his own order as well as the one passed by any other Chief Settlement Commissioner who preceded him in his office . . . Before a person can act under section 21, he has, therefore, to satisfy himself that he passed the order either himself or it was by any of his predecessors‑in‑office. By the aforesaid notification dated the 26th of' April 1962, the Chief Settlement Commissioner delegated to the Settlement Commissioners his power to review cases against orders passed by him. It is in the exercise of such delegated authority that Ch. Sultan Muhammad passed the impugned order reviewing the order of Pir Ahsan‑ud‑Din dated the 11th of November 1960. The order of Ch. Sultan Muhammad does not fall under section 21 of the Act because it is neither a review of his own order nor that of his predecessor‑in‑office. If the Chief Settlement Commissioner delegated to him his power of revision under section 20 (2) or of review under section 21 (1), the delegate by virtue of such authority did not become the holder of the office of the Chief Settlement Commissioner. He remained the Settlement Commissioner but only exercised a particular power which vested in the Chief Settlement Commissioner. Under section 9 of the Act, the Central Government is competent to appoint a Chief Settlement Commissioner or Settlement Commissioner etc. It is only a person appointed, under section 9 that he can hold the office of the,. Chief Settlement Commissioner and unless there is an appointment under the said provision, a person cannot be called the Chief Settlement Commissioner or his successor‑in‑office or predecessor‑in‑office. Ch. Sultan Muhammad was not appointed as Chief Settlement Commissioner under section 9. His appointment under the said section was only as Settlement Commissioner. He cannot, under the circumstances, be deemed to be the successor‑in‑office of the Chief Settlement Commissioner because of the delegation of his powers by the latter. In this view of the matter, Ch. Sultan Muhammad had no jurisdiction to review the orders passed by Pir Ahsan‑ud‑Din, the Chief Settlement Commissioner.

Since section 21 clearly provided that an officer could review his own order or of his predecessor‑in‑office, the Chief Settlement Commissioner by delegating this power to the Settlement Commissioners enabled them to review the orders passed by the Chief Settlement Commissioner. It meant that after such a delegation not only the Chief Settlement Commissioner could review his own orders and those of his predecessors‑in‑office, but that the Settlement Commissioners could also review the, orders of the Chief Settlement Commis sioner. This is not provided in clause (1) of section 21 and by conferring such an authority the Chief Settlement Commissioner passed an order which is in the nature of a legislation, the same being within the exclusive jurisdiction, of the Legislature. The Chief Settlement Commissioner has in delegating his powers under section 21, acted in excess of his powers and the notification dated the 26th of April 1962, being ultra vires the provisions of clause (t) of section 21, is without lawful authority and of no legal consequence."

11. Raja Muhammad Anwar, learned counsel for the respondent, referred me to two decisions Mst. Zainab Khatoon v. Mian Ghulam Shabbir (P L D 1965 S C 55) and Ghulam Murtaza v. Malik Fateh Khan, Settlement Commissioner (P L D 1966 Lah. 569) in support of his contention that the review petition having been sent by the Chief Settlement Commissioner and he having delegated his power of review under section 31 (2) of the Act, Sh. Muhammad Rafiq was competent to review the order of' the Chief Settlement Commissioner. These decisions are, however, of no help to the learned counsel. In Mst. Zainab Khatoon v. Mian Ghulam Shabbir the question before the Supreme Court was whether a Settlement. Commissioner, who is delegated revisional powers of the Chief Settlement Commissioner, under subsection (2) of section 20 of the Act could be deemed to be automatically armed with powers of reviewing his own order, as such delegatee. In that case the majority view was that the power of review in this context could not be regarded as ancillary to the revisional powers conferred on the delegatee. The revisional power and the power of review of his own order, conferred on the Chief Settlement Commissioner are contained in two separate sections of the Act. Delegation' of power under one section cannot be construed to carry with it a delegated power under the other section also. A power of review is a creature of the statute and it cannot be said that a delegatee, exercising revisional powers under subsection (2) of section 20 of the Act has inherent power to review orders passed in his capacity as a delegatee. It was urged before their Lordships that this view would invest the order of the delegatee with finality, which perhaps would not be in accord with the intention of the legislative authority. Their Lordships met this objection by observing as under :‑

"But the supposed difficulty would vanish if the power to be so conferred would be that of the Chief Settlement Commissioner himself to review his own order, that was an express power vested in him under section 21 of the Act and could be delegated to a subordinate officer by him in exercising of his powers under subsection (2) of section 31."

It will thus be noticed that their Lordships of the Supreme Court in this case, in order to remove the difficulty, had suggested that if the power of review is delegated by the Chief Settlement Commissioner to the delegatee, then the latter might be able to review his own order.

12. In Ghulam Murtaza v. Malik Fateh Khan, Settlement Commissioner the position was entirely different. In this case, a Division Bench of this Court propounded the view that a Settlement Commissioner, as delegatee under section 31 (2) of the Act, invested with merely revisional powers of Chief Settlement Commissioner cannot be deemed automatically to have been invested with the powers of review as well. But while considering the change in law introduced by the Displaced Persons Laws Amendment Ordinance XVIII of 1965, their Lordships observed that where a delegatee passes an order, the same shall be subject to the provisions of Chapter VI of the Act. This is not the same question as is involved in the present case. Formerly, a delegatee was not competent to review his own order. Now under the amended provision of law the delegatee has also been given the same power as has been conferred on the principal. Raja Muhammad Anwar also drew my attention to an unreported decision of the Supreme Court in C f'. S. L. A. No. 146 of 1966, decided on 13th April 1966; but this also is of no avail to him because it only upheld the view taken by the High Court in Ghulam Murtaza v. Malik Fateh Khan, Settlement Commissioner as would appear from the following observations:‑

"The second point urged is that the review order, in any event, was not competent, as powers of review had not been delegated to him by the Chief Settlement Commissioner under section 31 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The defect, if any, was cured by Ordinance XVIII of 1965, which was brought into force on the 2nd of June 1965, with retrospective effect. By this Ordinance a new subsection (3) was added to section 31 of the Act, providing that 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 Commissioner, Additional, Deputy or Assistant Settlement Commissioner, as the can, may be, is so subject. Section 3 of the Ordinance further validated all the previous orders passed in the purported exercise of such a power. The High Court, therefore, rightly held that the impugned order, passed by Malik Fateh Khan was not open to exception on the legal plane. Mr. Muhammad Anwar then tried to suggest that the power of review under the Act was confined to correction of clerical errors only. This contention is plainly unsustain able on the language of section 21 of the Act, as it stood at the relevant time. The petition fails and is hereby dismissed."

13. It seems to me that the effect of the powers of review delegated to Sh. Muhammad Rafiq was only this much that he could review his own order or the order of any of his pre decessors‑in ‑office. In the present case, the impugned order before him was not his own order. Therefore, the only point is whether it can be considered to be that of his predecessor‑in -office. It is in this context that it is to be considered whether Mr. S. Hashim Raza, whose order was sought to be reviewed, could be called to be his predecessor‑in‑office. Admittedly, Sheikh Muhammad Rafiq was only a Settlement Commissioner. At best, therefore, he was a delegatee of the Chief Settlement Commissioner, or an officer exercising his powers. By no stretch of imagination he can be considered to be the successor‑in‑office of the Chief Settlement Commissioner, because the latter had not ceased to hold office and was still functioning as such. Had it been the case of review of an order of a delegatee of the Chief Settlement Commissioner who had ceased to hold office, I might have taken a different view.

14. In its absence, it is clear to me that under the delegated powers conferred on Sheikh Muhammad Rafiq, he was competent only to review his own order or that of an officer who was his predecessor‑in‑office. In the present case, it is not possible to hold that Mr. S. Hashim Raza, the learned Chief Settlement Commissioner was, in any way, predecessor‑in‑office to Sh. Muhammad Rafiq who was only a Settlement Commissioner. He was exercising the delegated powers of the Chief Settlement Commissioner and for that reason could not be considered to be the Chief Settlement Commissioner himself. I would, therefore, hold that the impugned order suffers from a patent illegality and being passed without lawful authority is hereby quashed.

15. In that view of the matter, it is unnecessary for me to decide whether the appeal of the respondent is still pending before the Additional Settlement Commissioner or whether the petitioner can be deemed to be in possession of the property in dispute as he was an allottee in May 1956. In fact, the definition of "possession" by virtue of an amendment to section 2 (6) of the Act has undergone a vast change. At the same time it will be open to the Chief Settlement Commissioner, if he so desires, to hear the review petition himself or dispose it of on merits.

16. In the result, subject to the remarks made by me above, this writ petition is allowed. In the special circumstances of the case, however, the parties are left to bear their own costs.

A. E.

Petition allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.