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Civil Appeal No. 141 of 1963, decided on 2nd June 1965.;

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 9th August 1962, in Writ Petition No. 1589‑R of 1962).

‑‑--S. 20(2) [as amended by Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance (XIII of 1962), S. 2] ‑Second revision‑‑Entertainable only where records called for before 13th January 1962‑Record called for on 10th April 1962 Chief Settlement Commissioners in circumstance, held, devoid of jurisdiction to entertain revisions.

‑‑ Art. 98‑Writ‑Conduct disentitling to relief of certiorari‑Chief Settlement Commissioner's view of interpolations being made in record at appellants' instance merely endorsed by High Court without noticing total absence of any proof regarding alleged interpolation Case at best, held, could be one of suspicion‑Not proper to deny in relief merely on suspicion and to maintain illegal order‑Reasons given by High Court for refusing to interfere with settlement authority's order in writ jurisdiction‑Not valid, hence, quashed.

Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (Pakistan), Lahore and another P L D 1964 S C 829 distinguished.

Raja Muhammad Anwar, Advocate Supreme Court instructed by Falz Muhammad Bhatti, Attorney (absent) for Appellant.

Dr. Nasim Hasan Shah, Senior Advocate (Kh. Shaukat Ali, Advocate Supreme Court with him) instructed by Khalilur Rehman, Attorney for Respondent No. 1. Respondent No. 2 : Fx parte.

Date of hearing : 2nd June 1965.

This appeal by special leave is from an order of a learned Single Judge of the High Court of West Pakistan summarily dismissing a Writ Petition.

The facts briefly are as follows : ‑

The dispute between the parties is with regard to house No. 52/13. 11 in the town of Montgomery which was occupied by different persons under various allotment orders. Respondent No. 1, Nizam Din occupied the residential unit on the first floor and the 3 shops on the ground floor were in occupation of Sher Muhammad, Muhammad Abdullah and Ghulam Muhammad, respectively. The occupants of the different parts filed C. S. and C. H. forms for transfer of the p3rtions that were in their possession. As Nizam Din made a statement that he was claiming only the residential portion, the Deputy Settlement Commissioner transferred the said portion to him and the remaining shops to the respective claimants. Nizam Din then filed an appeal before the Additional Settlement commissioner claiming the shops that were in possession of Ghulam Muhammad and Sher Muhammad as part of the residential unit. On 2nd April 1960, the Additional Settlement Commissioner ordered that the room which was in possession of Sher Muhammad being a garage should be taken away from him and that the shop in possession of Ghulam Muhammad should be put to auction. All the three, namely Nizam Din, Sher Muhammad and Ghulam Muhammad , filed three separate revision petitions against the order of the Additional Settlement Commissioner. The Settlement and Rehabilitation Commissioner, Multan Division, while allowing the petition of Sher Muhammad observed :‑

"There is no permanent partition between the alleged garage' and the room transferred to Sher Muhammad petitioner. He is in possession of the same since the year 1957. It has been considered as one unit in the Taxation record. So it should be transferred to Sher Muhammad petitioner."

The revision petition of Ghulam Muhammad was also accepted and the shop in his possession was transferred to him. The revision petition of Nizam Din was however, dismissed.

On 24th April 1961, Nizam Din filed a second revision before the Chief Settlement and Rehabilitation Commissioner. On 10th April 1962, the Chief Settlement and Rehabilitation Commissioner ordered for issue of notice to the parties and also called for the records. On 1st May 1962, while hearing the revision he found that in the original petition filed by Sher Muhammad the word 'baithak' had been substituted by the word 'Dokan'. He therefore while accepting the revision made the following observations.

"This was an obvious interpolation in favour of the respondent made fraudulently after the inspection of the file by the petitioner's counsel. None admits to have done it and I have taken action against the Ahalwad in whose custody the file was but as the change was made to benefit the respondent. I believe that it was a baithak' and 1 cancel the transfer of the garage and the said room obtained by Sher Muhammad on account of this fraud and transfer the same to the petitioner."

Sher Muhammad challenged the order of the Chief Settlement and Rehabilitation Commissioner by filing a writ petition in the High Court. His main contention was that as the record in this case had been summoned after 13th January 1962, the Chief Settlement and Rehabilitation Commis sioner had no jurisdiction to entertain a second revision petition. He also denied the alleged charge of interpolation. The learned Single Judge of the High Court being of the opinion that the alleged interpolation was made at the instance of Sher Muhammad declined to grant any discretionary relief to him. He therefore, summarily dismissed the writ petition.

This Court granted special leave to appeal to consider whether the Chief Settlement and Rehabilitation Commissioner had jurisdiction to entertain the second revision petition.

The main contention of the learned counsel for the appellant is that the order of the Chief Settlement and Rehabilitation Commissioner is a nullity. The learned counsel elaborated his argument by pointing out that after amendment of section 20(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by Ordinance XIII of 1962 he had jurisdiction to entertain second revision only in those cases in which the records had been called for before 13th January 1962, but as in the present case the records had been called for on the 10th April 1962, he had no jurisdiction to entertain the second revision.

From the order of the Settlement and Rehabilitation Commissioner dated 10th April 1962, it is clear that the records had been called for on that date. In these circumstances the learned counsel for the respondent had found it difficult to contend that the Chief Settlement and Rehabilitation Commissioner had jurisdiction to entertain this revision. It is thus clear that he had no jurisdiction to set aside the order of the Settlement and Rehabilitation Commissioner.

The learned counsel for the respondent has however contended that the jurisdiction conferred on the High Court by Article 98 of the Constitution is entirely a discretionary one and therefore, when the question arises as to whether the Court should exercise the discretion in favour of the applicant, it would take into consideration among other circumstances the conduct of the parties invoking the writ jurisdiction. He has submitted that the appellant by his conduct had disentitled himself to the relief by way of certiorari. In support of his contention he has relief on the decision of this Court in Ghulam Mohi‑ui‑din v. Chief Settlement Commissioner (Pakistan), Lahore and another (P L D 1964 S C 829).

In the above case the appellant had filed both a second revision and a review petition. The fact that filing of a second revision was a bar to the hearing of review petition was not brought to the notice of the Settlement Commissioner. On the other hand, at the hearing of the review, instead of raising any objection the appellant actually participated in its hearing on merits. In the writ petition also he did not assert that he was unaware of the filing of second revision which debarred the Settlement Commissioner from reviewing his previous order. Thus he knowing the true legal position deliberately allowed the Settlement Commissioner to commit an illegality. On the above facts Hamoodur Rahman, J. observed :‑

"In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent the commission of the illegality. If he had succeeded in the review in getting the entire house transferred to himself he would, we feel certain, have made no grievance on account of that illegality. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal o usurp a jurisdic tion which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."

In the instant case it could not be said that the appellant had acquiesced in the usurpation of jurisdiction by the Chef Settlement Commissioner. At the most he was a mere passive spectator having no power to prevent the illegality. The learned Single Judge of the High Court dismissed the writ petition without applying his mind to the question of jurisdiction raised in the writ petition. In these circumstances the above observations will not be applicable to this case.

The learned Single Judge should have first considered whether the Chief Settlement Commissioner had jurisdiction to entertain a second revision and then decided whether due to his conduct the appellant had disentitled himself to get the relief asked for. He however, in his short order merely endorsed the views of the Chief Settlement Commissioner. He failed to notice that there was no proof that the alleged interpolation in the original application had been made at the instance of the appellant. At the most there might be a suspicion that this was done at his instance. But on a mere suspicion it would not be proper to deny the relief asked for and to maintain an illegal order. The reason given by the learned Single Judge for refusing to interfere with the order of Chief Settlement and Rehabilitation Com missioner does not appear to us to be a valid reason for not quashing his order.

We accordingly allow this appeal, set aside the order the High Court and direct that a writ of certiorari should issue to call up the order of the Chief Settlement and Rehabilitation Commissioner dated the 1st May 1962, and to quash the said order. In view of the facts and circumstances of the case, we make no order as to cost.

Appeal allowed.

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