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Writ Petition No. 181‑R of 1959, decided on 22nd April 1960.

Order of Rehabilitation Officer passed with juris diction‑Cannot be allowed to be re‑agitated in High Court in writ petition on ground that order was "not justified"‑Constitu tion of Pakistan (1956), Art. 170.

S. 19 read with Ss. 3, & 11 (4)‑Central Government's Notification No. F. 1‑(1)/57‑R. 1, dated 2‑3‑1957, (Gazette of Pakistan 8‑3‑1957), delegating power to Provincial Government to appoint by notification Additional Rehabilitation Commissioners "for such purposes as may be specified"‑Provincial Government's Notifica tion not specifying such purposes (Notification No. 3049‑U.‑R R./57 dated 24‑6‑1957 (Gazette of Pakistan 5‑7‑1957), in relation to Z's appointment as Additional Rehabilitation Commissioner, (Rawalpindi Division) Central Government notification S. 3 (Act XVII of 1956), Notification No. F. 2(6)/56‑R./I. dated 15‑12‑1955, appointing all Additional Rehabilitation Commissioners in West Pakistan as Rehabilitation Commissioners in their respec tive areas "to dispose of revision petitions" under S. 11 (4) of Act (XVII of 1956)‑Held, Provincial Government's notification read with Central Government's notification not effective in confer ring powers of revision under S. 11 (4) on officer in question.

S. 11 (3) Appeal "not made over for disposal" by Rehabilitation Commissioner to Additional Rehabilitation Commissioner‑Latter officer not competent to dispose of appeal.

S. 11 (4) Revision‑Powers "very wide"‑Rehabilitation Commissioner not debarred from looking into case by reason of fact that appeal was time‑barred.

M. Sleem Chaudhri for Petitioner.

K. E. Chauhan for Respondent 2.

Date of hearing : 22nd April 1960.

By this petition Mst. Gillo prays for the issue of a writ of certiorari or any other appropriate writ to quash the order passed on the 6th of January 1959 by S. Ghias‑ud‑Din Ahmad, Commissioner, Rawalpindi Division, in the exercise of his powers as Rehabilitation Commissioner for that Division. The impugned order of Mr. Ghias‑ud‑Din Ahmad reversed that of Khan Zabur‑ul‑Hasan Khan dated the 13th of September 1958, wherein he described himself as Rehabilitation Commissioner, Rawalpindi and Peshawar Divisions. In his turn, Khan Zahur‑ul‑Hasan Khan had reversed the order of the Collector, Gujrat District who allotted the whole of ihata No. 14 of Chak No. 21, Tehsil Phalia, District Gujrat, to Zia‑ul‑Haq who is the second of the two respondents to the petition, the first respondent being the Rehabilitation Commissioner, Rawalpindi Division. The case of the petitioner was that as she had been in possession of half of the ihata in question ever since she came to Pakistan as a refugee in 1947, she could not be deprived of that part of the ihata which was in her possession without being given an opportu nity to be heard before an order adversely affecting her was passed by the Collector, and that the order of Khan Zahur‑ul‑Hasan Khan passed on the 13th of September 1958, had given her the relief she claimed to be entitled to. While the impugned order of the Rehabilitation Commissioner, Rawalpindi Division, directed that the ihata in dispute be thrown open for allotment and was to be allotted to a deserving refugee, with regard to Mst. Gillo it was said in the order that because she had re‑married and was residing with her husband who had been allotted one acre of land and as she herself held an allotment of two acres of land, she was not entitled to get any part of the ihata in question.

2. The learned counsel for the petitioner attempted to show that the order of the Rehabilitation Commissioner was not justified, but as it is not usual to issue writs on the ground that the finding of an authority with jurisdiction was not justified, I declined to allow the learned counsel for the petitioner an opportunity to show that the impugned order of the Rehabilitation Commissioner was not justified by the circumstances of the case.

3. The substantial contention of the learned counsel for the petitioner was that the Rehabilitation Commissioner, Rawalpindi, had no jurisdiction to pass the impugned order. It was urged that Khan Zahur‑ul‑Hasan Khan had passed the order dated the 13th of September 1958, in exercise of the powers of revision vesting in him, and therefore, the Rehabilitation Commissioner could not sit in judgment over it in the exercise of the powers of revision given to a Rehabilitation Commissioner by section 11 of the Pakistan Rehabilitation Act (XVII of 1956), hereinafter referred to as the Act. Section 11 of the Act is in the following terms :‑-

"(i) Any person aggrieved by an order under this Act, may prefer an appeal‑

(a) to the Deputy Rehabilitation Commissioner, where the order has been passed by an Assistant Rehabilitation Commis sioner ;

(b) to the Rehabilitation Commissioner, where the order, not being an order passed in appeal under clause (a), has been passed by a Deputy Rehabilitation Commissioner.

(2) The appeal shall be presented in such manner and within such time as may be prescribed.

(3) The Rehabilitation Commissioner to whom an appeal is preferred under clause (b) of subsection (1) may dispose of it himself, or make it over for disposal to an Additional Rehabi litation Commissioner.

(4) The Rehabilitation Commissioner may, at any time, either of his own motion or on perusal of an application made to him in this behalf, call for the record of any proceeding relating to any of the purposes of this Act, which is pending before, or has been disposed of by an Additional, Deputy or Assistant Rehabilitation Commissioner, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may after perusal of the record and without hearing any person or his counsel or autho rized agent pass such order in relation thereto as he thinks fit:

Provided that the Rehabilitation Commissioner shall not under this subsection pass an order revising or modifying an order affecting any person without giving such person an opportunity of being heard.

(5) The Rehabilitation Commissioner or Additional, Deputy, or Assistant Rehabilitation Commissioner, may, after giving notice to the parties concerned, review his own order, so far as justice may require, to correct errors or supply omissions which are apparent upon the face of the record.

(6) An order in appeal or revision under this section may, if the Authority making the order is of opinion that the appeal or application in revision is frivolous or vexatious, award special costs against the appellant or applicant and in favour of the respondent or the other party, to the extent of one hundred rupees in the case of an order by the Rehabilitation or Additional Rehabilitation Commissioner, and to the extent of fifty rupees in the case of an order by a Deputy Rehabilitation Commissioner."

The learned counsel for the petitioner contended that as Khan Zahur‑ul‑Hasan Khan had been made an Additional Rehabilitation Commissioner in June 1957, by means of notification No. F2(6)/56‑R/I dated the 15th of December 1956, which appeared in the Extraordinary Issue of the Gazette of Pakistan dated the 15th of December 1956, he was competent to hear a petition for revision and while doing so exercised the powers of a Reha bilitation Commissioner, with the result that a Rehabilitation Commissioner could not entertain a revision petition against orders passed by Khan Zahur‑ul‑Hasan Khan. The learned counsel for respondent No. 2 contended, however, that Khan Zahur‑ul‑Hasan Khan had not been authorized to hear petitions for revision and, therefore, the proceedings before him must be deemed to be an appeal and not a revision notwithstanding the fact that in his order dated the 13th of September 1958, Khan Zahur‑ul‑Hasan Khan said that he was exercising the powers of revision mentioned in subsection (4) of section 11 of the Act. He added that Khan Zahur‑ul‑Hasan Khan could not have even disposed of the applica tion of Mst. Gillo as an appeal because the appeal not having been transferred to him by the Rehabilitation Commissioner, Rawalpindi, Khan Zahur‑ul‑Hasan Khan was not competent to dispose of the application which could, in those circumstances be disposed of by the Rehabilitation Commissioner himself.

4. In order fully to understand the rival contentions raised, it is necessary to refer to some provisions of the Act and some notifications issued thereunder. The provisions of the Act that are relevant are sections 3 and 19 which are in these terms:‑-

"3. In order to carry the provisions of this Act into effect the Central Government may, by notification in the Official Gazette, appoint one or more Rehabilitation Commissioners and Additional, Deputy and Assistant Rehabilitation Commissioners for such areas or purposes as may be specified in the notifica tion.

19. The Central Government may, from time to time, subject to such conditions as it thinks fit, by an order published in the official Gazette, delegate any of its powers under this Act, including the powers of revision under section 12 to any Provincial Government or other authority, and such order may provide that any such Government or other authority may, with the previous approval in writing of the Central Government, authorize any officer or officers to exercise any or all of such powers."

Acting under section 19 of the Act, the Central Government issued a notification delegating some powers under section 3 to the West Pakistan Government. This notification, which is No. F.1‑(1)/ 57‑R. I. dated the 2nd of March 1957, and appeared in the Gazette of Pakistan dated the 8th of March 1957, reads as follows :‑--

"In exercise of the powers conferred by section 19 of the Pakistan Rehabilitation Act, 1956, (XVII of 1956), the Central Government is pleased to delegate to the Government of West Pakistan, its powers udder section 3 of the said Act, to appoint, by notification in the Official Gazette, Additional Rehabilitation Commissioners for such areas within the administration of the Government of West Pakistan for such purposes as may be specified in such notification."

Then comes the notification by which Khan Zahur‑ul‑Hasan Khan was appointed Additional Rehabilitation Commissioner for Rawalpindi Division. This notification which bore No. 3049‑U R.R./57 and the date the 24th of June 1957, and appeared in the Gazette of Pakistan dated the 5th of July 1957, was issued by the Government of West Pakistan in exercise of the powers of appointment delegated to it by the Central Government by the notification to which a reference has already been made. The notification regarding the appointment of Mr. Zahur‑ul‑Hasan Khan is in the following terms:‑--

"In exercise of the powers under section 3 of the Pakistan Rehabilitation Act, 1956 (XVII of 1956), delegated by the Central Government, the Governor of West Pakistan is pleased to appoint Mr. Zahur‑ul‑Hasan, P. C. S., as Additional Rehabilitation Commissioner for Rawalpindi Division, with effect from the date of his taking over as such."

5. The contention of the learned counsel for respondent No. 2 was that the notification whereby the West Pakistan Government appointed Khan Zahur‑ul‑Hasan Khan as Additional Rehabilita tion Commissioner for Rawalpindi Division did not specify the purposes for which he was appointed as the Additional Rehabi litation Commissioner, and as the order of the Central Government delegating the powers of appointment to the West Pakistan Government said that the purposes for which a Rehabilitation Commissioner was appointed by the Provincial Government must be specified in the notification by which the appointment was made, Khan Zahur‑ul‑Hasan Khan could not exercise any powers of Additional Rehabilitation Commissioner. I am not prepared to accept this argument in its entirety, but it is clear that the notification of the West Pakistan Government which only said that Khan Zahur‑ul‑Hasan Khan was appointed Additional Rehabilitation Commissioner for Rawalpindi Division did not confer on him the power to hear revision petitions. How ever, by his appointment as an Additional Rehabilitation Commissioner, Khan Zahur‑ul‑Hasan Khan did get powers which the Act conferred on Additional Rehabilitation Com missioners. One of these powers is mentioned in subsection (3) of section 11 of the Act which has been reproduced above. According to this subsection, an Additional Rehabilitation Commissioner is competent to hear all appeals which may be transferred to him by the Rehabilitation Commissioner.

6. It was contended by the learned counsel for the petitioner that notwithstanding the fact that the Provincial Government had not specified the purposes for which Khan Zahur‑ul‑Hasan Khan was appointed Additional Rehabilitation Commissioner, that officer did in law get the powers to hear revision petitions which should ordinarily be heard by the ‑Rehabilitation Commissioners. T he reliance of the learned counsel for the petitioner was on notification No. F. 2(6)/56‑R./I. dated the 15th of December 1956, whereby the Central Government had appointed with effect from the 22nd of September 1956, the Additional Rehabilitation Commissioners in the Province of West Pakistan as Rehabilita tion Commissioners for their respective areas for the purposes of disposal of applications under section 11 (4) of the Act against the orders of Assistant, Deputy and Additional Rehabilitation Commissioners other than themselves. The learned counsel for the petitioner contended that because all Additional Rehabilitation Commissioners in West Pakistan had been given the powers of Rehabilitation Commissioners for the purposes of hearing revision petitions under section 11 (4) of the Act, Khan Zahur‑ul‑Hasan Khan automatically got those powers. Whether or not this argument of the learned counsel for the petitioner would have substance if the appointment of Khan Zahur‑ul‑Hasan Khan as Additional Rehabilitation Commissioner had been made by the Central Government is a question with which I need not deal for purposes of this case, but I am clear in my mind that the appointment of Khan Zahur‑ul‑Hasan Khan as Additional Rehabilitation Com missioner by the West Pakistan Government did not confer on him the power to dispose of applications for revisions under section 11 (4) of the Act. It will be noticed that the notification of the Central Government, whereby the Provincial Government was authorised to make appointments of Additional Rehabilita tion Commissioners which were ordinarily to be made by the H Central Government under section 3 of the Act said in clear terms that an Additional Rehabilitation Commissioner who was appoint ed by the West Pakistan Government by virtue of the powers of appointment delegated to it under section 19 of the Act should exercise only those powers which were specified in the notification making the appointment. The notification with regard to Khan Zahur‑ul‑Hasan Khan's appointment as Additional Rehabilitation Commissioner issued on the 24th of June 1957, which has been reproduced in paragraph 4 above, did not specify the powers which Khan Zahur‑ul‑Hasan Khan could exercise. If the notifica tion in question had said that Khan Zahur‑ul‑Hasan Khan was competent to exercise the powers vesting in Rehabilitation Commissioners under section 11 (4) of the Act, the officer could have exercised the powers of revision given by subsection (4) of section 11 of the Act, but as the Provincial Government did not say that it was conferring those powers on him he was, in my view, incompetent to exercise them.

7. It having been held that Khan Zahur‑ul‑Hasan Khan was incompetent to exercise the powers of revision given by section 1 I (4) of the Act, it remains to consider what the result of his order dated the 13th of September 1958, which was set aside by the Rehabilitation Commissioner, would be. It is not known whether the application of Mst. Gillo which was disposed of by Khan Zahur‑ul‑Hasan Khan by his order dated the 13th of Septem ber 1955, prayed for exercise of appellate or revisional jurisdiction, but it is clear that he was inc competent to deal with it. If it was an application for revision, which he treated it to be, he could not hear it because, as already explained by me, he did not possess the powers to hear petitions for revision under section 11 (4) of the Act. If, on the other hand, the application prayed for the exercise of appellate powers, even then he was incompetent to hear it C because as mentioned already, the Rehabilitation Commissioner had not sent it to him for disposal, and he could not, therefore, dispose of the appeal. In either case, therefore, the order of Khan Zahur‑ul‑Hasan Khan was without jurisdiction and could not confer any rights on Mst. Gillo in whose favour it was passed.

8. This brings me to the question whether the impugned order merits being quashed on any ground. If the facts had been as alleged in the petition, namely that Khan Zahur‑ul‑Hasan Khan possessed the powers of revision the order of Mr. S. Ghias‑ud -Din Ahmad, Commissioner Rawalpindi Division acting as Rehabi litation Commissioner for that Division, would, have been without jurisdiction. But, as I have shown, the order of Khan Zahur‑ul Hasan Khan was without jurisdiction and it follows that the order of the Rehabilitation Commissioner cannot be declared to be without jurisdiction. Now arises the question whether the order was incompetent for any other reason. Ordinarily the order of the Collector Gujrat District, who appears to have acted as the Deputy Rehabilitation Commissioner for that district, by which the ihata in dispute had been allotted to Zia‑ul‑Haq, respondent No. 2, should have been questioned by an appeal presented by Mst. Gillo to the Rehabilitation Commissioner, Rawalpindi Division, but she failed to follow the correct course and chose to seek relief from the Additional Rehabilitation Commissioner, who was incom petent to grant her the relief which he granted. When the matter came up before the Rehabilitation Commissioner in the form of a revision petition he passed the impugned order, and as it is clear that the order would have been the same even if Mst. Gillo had presented the appeal to the Rehabilitation Commissioner, no question of the order being without jurisdiction arises. The appeal of Mst. Gillo had, by the time she presented an application for revision before the Rehabilitation Commissioner, become barred by time, but by reason of that fact the Rehabilitation Commissioner was not debarred from looking into the case and passing such order as he thought fit because the power which was conferred on the Rehabilitation Commissioner by subsection (4) of section 11 of the Act is very wide. The fact that petition for revision was not presented by Mst. Gillo did not deprive the Rehabilitation Commissioner of the authority to exercise powers of revision and, therefore, the impugned order was not without jurisdiction.

9. In view of what I have said above, it is clear that the impugned order of the Rehabilitation Commissioner dated the 6th of January 1959, not being without jurisdiction, no occasion for issue of a writ arises. The petition is consequently dismissed, but the parties are left to bear their own costs.

A.H. Petition dismissed.

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