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Writ Petition No. 828‑R of 1965, decided on 10th May, 1972.

‑.‑‑ S. 9 (2) & (3)‑‑Chief Settlement Commissioner's powers of general superintendence‑Interference with judicial findings Chief Settlement Commissioner which exercising powers in admi nistrative matters cannot upset judicial orders passed by Settlement Officers.

Muhammad Ramzan v. Ali Muhammad and others P L D 1967 Lah. 964 ref:

‑‑ S. 9 (2) & (3)‑Orders of Settlement Commissioner‑Scrutiny by Chief Settlement Commissioner‑Held, any matter with regard to transfer of property under Act decided finally by Settlement Com missioner not open to scrutiny by Chief Settlement Commissioner under any provision of law.

‑‑‑ S. 9‑Constitution of Pakistan (1973), Art. 199‑Deputy Settle ment Commissioner without examining petitioner as to genuineness or otherwise of deed of association accepting same and issuing first P. T. O. and then Permanent Transfer Deed‑Petitioner making application before Settlement Commissioner for cancellation of agreement of association allegedly entered into on ground of fraud and misrepresentation which was cancelled alongwith P. T. O. and P. T. D.‑Respondent filing miscellaneous application before Chief Settlement Commissioner who set aside order of Settlement Commissioner in exercise of powers under S. 9 (3) of Act‑Held, Chief Settlement Commissioner holds powers for administrative matters and he cannot upset orders of subordinate officers passed to exercise of their judicial powers‑Order of Chief Settlement Commissioner being illegal, set aside in circumstances.

Hafeez‑ur‑Rehman for Petitioner.

Ishag Muhammad for Respondent No. 2.

Date of hearing : 17th January, 1972.

The dispute relates to shop bearing No. 25‑F., Canning Road, Rawal pindi, wherein the petitioner is carrying on his business as Ladies Hair Dresser. At the time when the Settlement Operations started he sub mitted his N. C. S. Form for its transfer. It was transferred to him by the Deputy Settlement Commissioner by his order dated 5th December, 1959. According to the petitioner since he had not sufficient money to pay the price of the shop, therefore, respondent No. 2, who was his customer, offered to pay the price for petitioner out of her compensa tion book which was to be recovered by her later on in instalments. She got his signatures on a blank four rupees stamp paper and a blank judicial paper for the purpose of making requisite application to the Settlement Authority m this regard. According to the petitioner no body else ever put his signatures on these paper in his presence. He never made any agreement with Respondent No. 2, to surrender his rights in respect of the shop in dispute as this was the only means of livelihood and his family. According to the petitioner, Respondent No. 2, later on without his consent got an agreement of association typed on the blank paper alleging therein that the petitioner had surrendered his total rights in her favour in respect of the property in question. This deed of association was submitted before the Deputy Settlement Commissioner who accepted the same on 1st of April, 1960. According to the petitioner he never submitted these documents before the Settlement Authority. It is, however, admitted that petitioner was navel examined with regard to the genuineness or otherwise of the deed of association by the Deputy Settlement Commissioner concerned, before accepting the same. Respondent No: 2. therefore, on the basis of that deed of association was issued first P. T. O. and then Permanent Transfer Deed on 18th of July, 196: and 1st of February, 1962, respectively.

2. According to the petitioner after some time he came to know that he had been deprived of the property by respondent No. 2 in an illegal manner. He could not take any action at that time as he felt helpless on account influence of the husband of the respondent No. 2. He ultimately made an application on 9th August, 1964 before the Settlement Commissioner, Rawalpindi Cantonment for the purpose of canceling the agreement of association allegedly entered into between the parties on the ground of fraud and misrepresentation. The Settlement Commissioner by his order dated 9th June, 1964 cancelled the said agreement of association and also cancelled the P. T. O. and P. T. D. issued in favour of Respon dent No. 2 on the basis of said deed of association. A copy of the order of the Settlement Commissioner has been placed on record as Annex E. Thereafter, respondent No. 2 made miscellaneous application to the Chie Settlement Commissioner, Pakistan Lahore, challenging the validity of the order dated 9th of June, 1964 passed by the Settlement Commissioner Rawalpindi, on the ground that the agreement of association entered into between the parties was genuine and the petitioner had acknowledged that Respondent No. 2 was his landlady, he had been paying not only rent of the property to her but had also made an application before the Rent Controller against her, for fixing fair rent of the property. Notice was sent to the petitioner on this application by Respondent No. 1 stating therein that the Settlement Commissioner's order appeared. to be without lawful authority. The said order of the Settlement Commissioner, Rawalpindi was ultimately set aside by respondent No. 1 by his order dated

3rd June 1965 vide Annex. 'F' in exercise of the powers of General Super intendence and Control under section 9 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The petitioner has now come up to the High Court and has challenged the validity of the im pugned order passed against him.

3. It has been contended by the learned counsel for respondent No. 2 that the deed of association entered into between the parties was genuine one and the same was submitted to the Settlement Authority by the petitioner himself. He has further contended that the petitioner was estopped by his conduct to agitate the matter before the Settlement Commissioner against Respondent No. 2, after acknowledging her as his landlady. He has referred to certain documents filed with the written statement as Annexs. 'RB' to 'RG'. The learned Counsel has further contended that Chief Settlement Commissioner has jurisdiction under sec tion 9 (3) of the Displaced Persons (Compensation and Rehabilitation)

Act, 1958 to pass the impugned order in the exercise of his powers of general superintendence and control.

4. The main question involved in this case is as to whether respon dent No. 1 the Chief Settlement Commissioner could pass the impugned order under section 9 (3) of the Act. The relevant provision reads as follows :‑

"Subject to the provisions of the Act and of such orders as may from time to time be made by the Central, Government in this behalf, Settlement Commissioner, Additional Settlement Commissioner, Deputy Settlement Commissioner and Assistant Settlement Commissioner and any other officer shall perform the duties and discharge the functions assigned to them by or under this Act under the general superintendence and control of the Chief Settlement Com missioner, the Central Government may appoint any officer to dis charge such functions and perform such duties of the Settlement Commissioner as may from time to time be specified by the Central Government."

It is contended that since the Settlement Commissioner and other Settlement Officers subordinate to him have to discharge their functions and perform their duties under the general superintendence and control the Chief Settlement Commissioner, therefore, he can in the exercise of his such powers interfere with their judicial findings. I am afraid the inter pretation as put by the learned counsel far respondent No. 2 is not spelt out from the language of the provisions. This provision obviously deals with the administrative matters. The general superintendence and control of the Chief Settlement Commissioner over the Settlement Officer subordinate to him does not mean that in the exercise of his such power he can upset any judicial order passed by competent Settlement Authority or can interfere in the performance of their judicial functions. The duties and functions to be performed by various Settlement Authorities on the judicial side have been clearly defined in the Act. The provisions on appeal, Revision and Review have been provided for grant of redress to aggrieved persons in accordance with law. The Chief Settlement Com missioner under subsection (1) of section 21 of the Act but the same was also omitted by virtue of the said Ordinance in 1962. If the intention of the Legislature had been to confer jurisdiction or to provide authority to the Chief Settlement Commissioner for the purpose of interfering with the judicial decisions of the Settlement Officer subordinate to him then the provisions as contained in subsection (2) of section 20 and subsection (1) of section 21 had not been deleted. The view that the provision as contained in subsection (3) of section 9 of the Act deals with the adminis trative matters gains strength from the use of the language in subsection (2) of section 9. As the Settlement Commissioner and other officers sub ordinate to him have to perform their duties and discharge their functions under the general superintendence and control of the Settlement Com. missioner, similarly he has to perform his duties and functions under the general superintendence and Control of the Central Government. It does not mean that the Central Government can upset the judicial findings of the Settlement Commissioner, or can interfere in the performance of their Judicial functions. Interference with the decision passed on judicial side, can be made only under the provisions of the Act specifically made available for this purpose. Since the Chief Settlement Commissioner has not been specifically authorised to do so under any of the present pro visions of the Act, therefore, interference by him in the judicial decisions of the officers subordinate to him is illegal and ab initio void. Any matter with regard to transfer of property under the Act decided finally by the Settlement Commissioner is not open to a scrutiny by the Chief Settlement Commissioner under any provisions of law. Analogy in this regard can be drawn between Article 73 of Basic Democracies Order and section 9 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 Article 73 of Basic Democracies Order provides that the Government has power of supervision and control over Local Councils but the power of appeal and Revision do not howoever, be impliedly inferred from. The power to control and supervise activities of the Municipal Committee. Reliance in this respect can be placed upon Muhammad Ramzan v. Ali Muhammad and others (P L D 1967 Lah. 964). The relevant portion of the judgment may be reproduced below for benefit "'The only point that requires consideration is as to whether the Government had any appellate or revisional jurisdiction so as to set aside the order passed by the Chairman, Municipal Com mittee. The learned Advocate appearing for the State relied on section 110 of the Municipal Administration Ordinance, 1960. Under that section certain provisions of Articles 73, 75, 76, 77 and 79 in Chapter 11 of Part 6 of the Order (Basic Democracies Order) have been made applicable to Municipal Committee, as they applied to Local Councils as if those provisions had been enacted in Municipal Administration Ordinance, 1960. The learned Advocate makes a reference to Article 13 of the Basic Democracies Order. Under that provision the Government has been given power of supervision and control over Local Councils. The sub mission is that the Government has power to supervision and control the Municipalities. The distinction has, however, to be made between control and supervision on the one hand and appellate power and revisional power on the other hand. The power of appeal and Revision cannot be impliedly inferred from the power to control and supervise activities of the Municipal Committee. We are of the view that Article 73 relied upon does not confer any appellate or Revisional power on the Government."

5. In view of the above discussion, the impugned order passed by Respondent No. 1 cannot therefore, be sustained in law.

6. The learned counsel for the petitioner has argued that the agree ment of association was never submitted by the petitioner and it was in cumbent upon the Settlement Authority concerned to examine the parties with regard to genuineness or otherwise of the documents in question and confront them with the averments made therein. He has submitted that in the absence of that no document can be admitted and hence acted upon. He has also raised certain other contentions. I am, however, not inclined to deal with the same as impugned order has been found to be without jurisdiction for the reasons discussed above.

7. For the aforesaid reasons, the petition is accepted and the impugned order dated 3rd of June, 1965 passed by Respondent No. 1, is hereby quashed being illegal, without jurisdiction and of no legal effect. Costs of the petition will be borne by Respondent No. 2.

Petition accepted.

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