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Writ Petition No. 191/R of 1974, heard on 11th June, 1980.

Constitution of Pakistan (1973)--

Art. 199 read with Displaced Persons (Compensation and Rehabili tation) Act (XXVIII of 1958), S. 20(3)--Suo motu revision-Chief Settlement Commissioner ordering Settlement Commissioner to take up case in sum motu jurisdiction and also directing him to send a, copy of final order to his office--Held, judicial power in such circum stances could hardly be exercised freely when an authority knows that its decision was going back to his administrative boss who ordered him to take up case-Order of Chief Settlement Commissioner and consequential order of Settlement Commissioner, held, without lawful authority and of no legal effect.

Raja Muhammad lqbal etc. v. Chief Settlement Commissioner etc. P L D 1975 Lah. 1508 ; Sardar Ashiq Muhammad Khan Mazari etc. v. Chairman, Federal Land Commission etc. P L D 1977 Lah. 461 anti Muhammad Afzal v. Board of Revenue, West Pakistan etc. P L D 1967 S C 314 ref.

Ch: Hamiduddin for Appellant.

Nemo for Respondents Nos. I to 3, 6 and 7.

Ch. lnayat Hussain and Mian Sher Alam for Respondents Nos. 4 and 5..

Dates of hearing : 9th to 11th-June, 1980.

JUDGMENT

Petitioner (since deceased and represented by his heirs) applied for transfer of House No. SW-707-R-3-A, Qutab Road, Lahore along with ground attached and appurtenant thereto and a servant quarter as well as garage. The house was also in possession; of Abdul, Aziz, respondent No. 6 (since deceased and represented by his heirs). 'The spot was inspected by Mr. M. Balagh Haider, Deputy Settlement Commissioner who divided the house into two halves transferring one, to the petitioner Syed Abul Hassan and the other to Abdul Aziz,. respondent No. 6. The transfer order is dated 1-1-1960. Respondent No. 4 Muhammad Ayub applied for transfer of an Industrial Concern No. SW-105-R-43, Rattigan Road, Lahore. He was transferred the same by the Additional Settlement Commissioner on 15A1-1960. 1n due course of time, the petitioner Syed Abul Hassan was issued Permanent Transfer Deed on 5-6-1962. Muhammad Ayub, respondent No. 4, was issued Permanent Transfer Deed on 12-6-1965 along with respondent No. 5, who had meanwhile associated. A dispute arose about a piece of land claimed by the petitioner as transferred to him as a courtyard of his house, whereas the respondent No. 4 claimed that to be a part of the industrial concern. A case under section 448/427/147, P. P. C. was registered against the respondent No. 4 and others. However, the parties entered into a compromise and the respondent No. 4 'admitted that the possession of the disputed portion shall remain with the petitioner and that the respondent No. 4 for his rights will file an appeal citing petitioner as a respondent. The compromise is dated 22-7-1967. The respondent No. 4 did nothing in the matter until he filed an application on 26-12-1972 and subsequently another application along with respondent No. 5 on 9-2-1973 to the Minister for Settlement and Rehabilitation who forwarded the same to the Chief Settlement . and Rehabilitation Commissioner "to consider the scope of suo motu revision in the case". The Chief Settlement Commissioner in his turn sent a memorandum to the Settlement Commissioner on 28-2-1973 to the following effect ;

"The application dated 26-12-1972 from Muhammad Ayub and sub sequent application dated nil from Majeeda Begum and Muhammad Ayub containing orders of the Minister for Settlement and Rehabilita tion and the Chief Settlement and Rehabilitation Commissioner, thereon are sent herewith for information. A copy of the detailed report covering full facts of the case as furnished by the Deputy Settlement Commissioner 11, Faridkot House, Lahore under Memo. No. DSC-II/73/30 dated 10-1-1973 is also enclosed.

In view of what has been stated therein the Chief Settlement and Rehabili tation Commissioner, Punjab, has been pleased to order that you should please examine if the case is fit .to be taken up under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 19 8 and if so, decide the same on merits after hearing the parties.

A copy of the final orders passed in this case may be sent to this office for information and record as and when the case is finally disposed of."

In pursuance thereof, the learned Settlement Commissioner took up the matter, made certain observations and remanded the .case to the Deputy Settlement Commissioner with the observation that "the revision petition put up tome in suo motu revisional jurisdiction stand disposed of". This is vide order dated 22-1-1974. This order was challenged by Syed Abul Hassan through this Constitutional petition.

2. Learned counsel for the petitioner raised a number of pleas like that after issuance of P: T. Ds. in 1962 and 1965 in favour of the petitioner and respondents Nos. 5 and 6, the Settlement Commissioner had no jurisdiction to intermeddle in their rights after a decade. He referred to decided cases. The respondent No. 4, even after the dispute arose in 1967, did not file any appeal against the petitioner as be had agreed to and thus gave up all rights in the property in dispute. He had consequently no right or justification to file a miscellaneous application in 1972 nor on the basis thereof the rights of the petitioner could be interfered with by the learned Settlement Commissioner. Learned counsel for. the petitioner squarely relied on Raja Muhammad 1qbal etc. v. Chief Settlement Commissioner etc. (P L D 1975 Lab. 1508) and Sardar Ashiq Muhammad Khan Mazari etc. v. Chairman, Federal Land Commissioner etc. (P L D 1977 Lab. 461).

3. Learned counsel for the respondents submitted that the portion in dispute was not a part of the house transferred to the petitioner. It belonged to another evacuee than the evacuee to whom the house belonged. The area in question is separated from the house transferred to . the petitioner by a lane and cannot be taken to be a courtyard thereof, that Mr, Balagh Haider, who passed the initial order of transfer in favour of the petitioner was only an Assistant Settlement Commissioner and had not been delegated the powers of the Deputy Settlement Commissioner to transfer the house and that notwithstanding the issuance of Permanent Transfer Deed in favour of the parties, the Settlement Commissioner had the jurisdiction to pass the impugned order as the P. T. D. in favour of the petitioner was based on void order of transfer and that no writ can be issued in favour of the petitioner as that would perpetuate illegalities and that the petitioner having submitted, to the jurisdiction of the learned Settlement Commissioner has no right to question the same in the present proceedings. They referred to various decisions in support of their contentions.

4. Besides that after issuance of P. T. Ds. in favour of the parties and the fact that in spite of the dispute having arisen between them in the year 1967 and the respondent No. 4 agreeing to claim the right to the portion in dispute through an appeal and no appeal was ever filed and that the petitioner can question the jurisdiction of the learned Settlement Commis sioner in spite of having appeared before him because he was only a respondent as held in Muhammad Afzal v. Board of Revenue, West Pakistan etc. (PLD1967SC314), the crucial question which arises in this case, after hearing the learned counsel for the parties at length and perusing the record with their assistance, is as to whether the impugned . order dated 22-1-1974 of the learned Settlement Commissioner has been 'passed within lawful authority. There is no doubt whatsoever that the respondents Nos. 4 and 5 filed an application before the Minister for Settlement and Rehabilitation which was routed through the. Chief Settlement Commissioner to the Settlement Commissioner who passed the impugned order in suo motu revisional jurisdiction. This is impermissible as laid down in the case of Ashiq Muhammad Khan referred to by the learned counsel for the petitioner wherein at page 475 of the report P L D 1977 Lab. 461 it was observed by Mr. Justice Mushtaq Hussain as then and now a learned Judge of the Supreme. Court that;

"41. The expression of .its or his own motion' is not unknown to law. It is a term of art and is meant to. clothe an authority with the power to act even when it has not been moved by anybody to do so. Information leading to such action would ordinarily be expected to come to the knowledge of an authority, during an inspection of the office of the subordinate authority or during the course .of any other proceedings. So long as an authority has .not been moved by a person to act, the person not being necessarily aggrieved himself, the authority would be deemed to have proceeded of its own motion.

42. When, however, a person, particularly one who is aggrieved, moves an authority in the matter, any action taken by that authority consequent upon such application cannot by any -stretch of imagination be dubbed as action of its or his own motion':'

In the present case admittedly the respondents as aggrieved persons bad filed the applications on the basis of which the suo motu revisional jurisdiction has been exercised by the Settlement Commissioner. His order cannot be said to have been passed under the suo motu revisional jurisdiction. Therefore, he acted without lawful authority in passing the impugned order. Then, in the other case referred to by the learned counsel for the petitioner, namely, that of Raja Muhammad Iqbal, the facts were that the Chief Settlement Commissioner had "directed the Settlement Commissioner to take up the case in suo motu revisional jurisdiction under section 20(3) of the Displaced Persons (C & R) Act, 1958 and to dispose of the case on merits according to law." In pursuance thereof, the Settlement Commissioner passed the impugned order challenged in that case. The learned Judge Mr. Justice K. E. Chauhan as then and now a learned Judge of the Supreme Court of Pakistan observed at page 1511 of the report P L D 1975 Lab. 1508 that "The first point argued by the learned counsel for the petitioners was that the order dated 23-9-1971 (Annex A') wherein the learned Chief Settlement Commissioner had directed the learned Settlement Commissioner to exercise his suo motu revisional jurisdiction was without lawful authority and of no legal consequence, inasmuch as, it had been passed without hearing the petitioners and without giving them opportunity to defend themselves. The contention has merit." There is no denying the fact that, in the present case, the petitioner was not heard by the Chief Settlement Commissioner before the latter issued directions on 28-2-1973 ordering the Settlement Commissioner to examine the case if that was fit for suo motu revisional jurisdiction. Then, in the same judgment it was further observed that "The next point argued was that in the order dated 23-9-1971 it was written as follows :-

It is argued that suo motu exercise of jurisdiction is within the discretion of the officer concerned. In that discretion he is at liberty to invoke or not to invoke the same. If, however, he is directed by his immediate boss (Chief Settlement Commissioner) to must exercise that jurisdiction then it is not the suo motu jurisdiction of that officer but simply the compliance of the direction of his boss. In the paragraph from the order of the learned Chief Settlement Commissioner reproduced above the direction issued to the learned Settlement Commissioner leaves no scope with him as not to invoke his jurisdiction. This direction in its very nature was in excess of the authority of the learned Chief Settlement Commissioner and any action taken thereon is a nullity. This contention also has merit. The manner in which the direction was issued to the learned Settlement Commissioner leaves no doubt that he had been left with no choice to remain free in the matter of invoking or not invoking his suo motu jurisdiction. The learned Settlement Commissioner in the circumstances not being free in the exercise of his jurisdiction remained only a passive agent of the Chief Settlement Com missioner and the order passed. by him cannot, therefore, be said to be an order lawfully and independently passed' his ownself". In this case, the Chief Settlement Commissioner had been pleased "to direct" the Settlement Commissioner to take up the matter in the suo motu jurisdiction. In the case in hand, the Chief Settlement Commissioner had been pleased "to order" the Settlement Commissioner to take up the case in suo motu jurisdiction. It is patent that direction would be less binding as there would be scope of innocent deviation than the order to a subordinate who has just to comply and not move. Moreover, the Chief Settlement Commissioner in the present case has not only ordered the Settlement Commissioner to take up exercise of his suo motu power but had also directed him that a copy of the final order passed in the case be sent to his office as if it was being ensured that the order shall be passed in accordance with the assumption made and to see that that has been carried out. In other words, the boss likes to know what his subordinate has done. In such circumstances judicial power can hardly be exercised freely when an authority, not even a judicial, knows that .its , decision is going to go back to his administrative boss who had ordered him to take up the case. All, this leads to the irresistible conclusion that the order of the Chief Settlement Commissioner. dated 28-2-1973 and consequential order of the Settlement Commissioner dated 22-1-1974 are without lawful authority and of no legal effect.

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