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Constitutional Petition No. 126 of 1972, heard on 12th March 1978.

‑‑ Sched., para. 15(3)‑Cost of repairs, adjustment of‑Remand, non compliance of orders of‑‑Natural justice, rule of‑High Court remanding case to Settlement authority for determination inter alia, of cost of repairs, if any, carried out by petitioners but Settlement authority without deciding point dismissing case‑Settlement autho rity, deciding case also found to have appeared as counsel in one of petitions on behalf of Settlement Department and opposed petition --Settlement authority in circumstances, held, may have been subcon sciously influenced in his decision and should not have contravened maxim, "justice should not only be done but must also be seen to be done", particularly when such objection also raised before him Impugned order quashed and case remanded for decision afresh by another Settlement authority of equivalent rank in terms of directions given by High Court previously‑Constitution of Pakistan (1973), Art. 199.‑[Maxim].

Ismail Munshi for Petitioner No. 1.

Abdul Majeed Khan for Respondents.

Date of hearing : 12th March 1978.

This petition is directed against the order dated 23‑10‑1971 passed by the learned Settlement Commissioner (Mr. S. Wasim Hamid Rizvi) dismissing the revision filed by the petitioner.

The facts forming the background of this petition are that an industrial concern known as "Pate Engineering Works, Hyderabad" was auctioned on 29‑11‑1959 to one Mr. A. Rehman Khan for Rs. 2 lacs. However, before the auction could be confirmed, it transpired that the half of the concern had been declared as non‑evacuee property and, consequently, the auction in favour of Mr. Abdul Rehman Khan was not approved. Thereafter, one Mohammad Abdul Majid, who was in occupation of the remaining half of the evacuee portion of the concern as an allottee, made an application to the Settlement Department requesting for transfer of the evacuee portion of the concern to him for Rs. 1 lac at 50 % of the bid previously offered by the said Mr. A. Rehman Khan. His request was granted and the 50% evacuee portion of the concern was transferred to the applicant by the Chief Settlement Commissioner for Rs. 1 lac on negotiation basis. Later on, Muhammad Abdul Majid made a representation to the Settlement authorities that during the period of allotment he had carried repairs in the building and invested considerable amount of money in it for which he had already informed the Custodian of Evacuee Property at Hyderabad and, accordingly, claimed that the amount incurred by him may be adjusted towards the sale price of Rs. 1 lac under para. 15(3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. His prayer was, however, rejected by the Department on the ground that, as the factory had been transferred to him on negotiation basis, he was not entitled to the deduction. As, however, the order was passed by the learned Chief Settlement Commissioner without hearing Mohammad Abdul Majid, the latter filed a petition in the High Court being Constitutional Petition No. 266 of 1965 which was allowed and the matter was remanded to the Settlement Commissioner vide order dated 16‑12‑1969 for fresh decision with the following directions :‑---

"(1) That they should determine whether the petitioner had made any investments in the one‑half portion of the industrial concern transferred to him ;

(2) Whether these investments are deductable under the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958; and

(3) if the investments are so deductable, then, an order should be made to the effect that these investments would be deducted from the price of Rs. 1 lakh, or the balance remaining unpaid as the case may be."

On remand, the matter was heard by the learned Additional Settlement Commissioner (Mr. Masood Alam) who dismissed the application and refused to allow the deduction on the same ground that the factory having been transferred to Mohammad Abdul Majeed on negotiation basis he was not entitled to any deduction under the law under section 15(3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Against this order, Abdul Majid went in revision before the Settlement Commissioner who dismissed the revision by his order dated 23‑10‑1971. Hence this petition. During the pendency of the petition, Mr. Mohammad Abdul Majid died and his legal heirs were brought on record as petitioners (a) and (b) vide this Court's order passed on 4‑10‑1976.

The first contention raised by Mr. Ismail Munshi, learned counsel for the petitioner, was that since Mr. S. Wasim Hamid Rizvi, learned Settlement Commissioner had earlier appeared as a counsel for the Settlement Department in Petition No. 266/1965 and opposed the said petition filed by Mohammad Abdul Majid, the predecessor‑in‑title of the petitioners, he ought not to have sat on the revision application and decided it, as he could not have decided the matter with unbiased mind, human nature being what it is, more so, when such an objection was expressly taken before him.

The learned counsel next contended that the High Court had given a clear direction, being the direction No. 1, that the Settlement Department should first determine whether Mohammad Abdul Majid had made any investment in the one‑half portion of the industrial concern transferred to him,, but the Settlement authorities made no effort to determine the investments made by Mohammad Abdul Majid, and thereby bad failed to comply with the direction of the High Court. Mr. Abdul Majeed Khan, learned counsel for the respondents, taking a very fair stand, submitted that, although the learned Settlement Commissioner (Mr. S. Wasim Hamid Rizvi) was not legally barred from deciding the revision in his capacity as a Settlement Commissioner, it would have been more appropriate if he had not sat on the revision, in view of the admitted position that he had earlier appeared in the High Court in the Writ Petition as a counsel for the Settlement Department who had opposed the petition filed by Mohammad Abdul Maid and, therefore, he would have no objection if the impugned order is set aside and the matter is remanded for fresh adjudication by a Settlement Commis sioner other than Mr. S. Wasim Hamid Rizvi. He went on to add that he was making this concession only to honour the well‑known maxim that justice should not only be done but seen to be done, as otherwise, impartiality and integrity of the learned Settlement Commissioner is too well known to be questioned and Mr. Ismail Munshi fully agreed with him.

I agree with both the learned counsel that Mr. S. Wasim Hamid Rizvi, for whom I have enormous regard, having appeared as a counsel in Petition No. 265/65 on behalf of the Settlement Department and opposed the petition on their behalf, he ought not have sat on the revision and decided it for the reason firstly, that it is quite possible that having formed his views in the case while appearing as a counsel for a party, he may well have bee subconsciously influenced in his decision, secondly, it contravened the old established maxim, namely justice should not only be done but seem to done, particularly when such an objection was raised before him. There i no substance in the contention raised by the learned counsel for the petitioner that the direction given by the Court in its order dated 16‑12‑1969, whereby it directed the Settlement Department to determine whether the predecessor-in‑title of the petitioners had made any investment in the concern in question had not been complied with as there is nothing on the record, nor does the impugned order show, that any effort was made by the Department to determine whether any investment had been made by Mr. Mohammad Abdul Majid, the predecessor‑in‑title of the petitioners.

For the aforesaid reasons, I allow this petition and quash the impugned order dated 23‑10‑1971 passed by the learned Settlement Commissioner and, with the consent of both the learned counsel, remand the matter for deciding the revision afresh in terms of the directions given by the High Court in it e order dated 16‑12‑1969. Since this petition is being allowed only on the ground that the Settlement Commissioner ought not to have sat on and decided the revision, it is directed that the revision be decided by a Settlement Commissioner, other than Mr. S. Wasim Hamid Rizvi. Before parting, I would, however, like to make it clear that this order shall not be understood to mean, in any manner whatsoever, as to be casting any refection on the impartiality and integrity of the Settlement Commissioner for whom I have the greatest regards. There will be no order as to costs.

S. A. H. Petition allowed,

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