' Property No, S. 31-R. 147 (5), McLeod Road, Lahore is a composite building. Its various units are described by letters on the plan which is an accepted document by the parties and the Settlement Department. There is no dispute that the original plan formed part of the Settlement file and is available at page 221 in that file. Copy of the plan produced by the petitioners is not disputed by the respondents.
2. The dispute relates to unit 'E' which is a basement in the possession of respondent No, 2 at the time of` settlement operation and for which he filed an N. C. H. Form. Initially the entire building was transferred by the Deputy Settlement Commissioner by his order dated 30th November, 1959 to Aslam Mahmood and Mst, Nawab Begum claimant displaced persons. Appeals filed by other persons in possession of various units in the building were accepted by the Additional Settlement Commissioner and the case was remanded to examine the question of division vis-a-vis the entitlement of the respective occupants by his order dated 25th March, 1960. Against the remand order, the original transferees filed a revision before the Settlement Commissioner who dismissed the same on 15th September, 1960. Further revision was filed before the Chief Settlement Commissioner who dismissed the same on 14th July, 1961.
3. Then the original transferees filed W. P. No, 874-R of 1961 against the order of Additional Settlement Commissioner which was upheld upto the level of Chief Settlement Commissioner The writ petition was dismissed by the High Court on 5th October.
1961.
4. Before the case was taken up again by the Deputy Settlement Commissioner, the persons in possession of various units filed the plan referred to above in which the units were shown by letters with their statement of agreement that the building should be divided and transferred in the manner agreed between the parties. The Deputy Settlement Commissioner rejected this statement of agreement and proceeded to determine the entitlement of different persons in possession of various units in the building. Respondent No, 2 was not transferred unit 'E' which is the basement situate towards Hall Road. His case was rejected on the ground that he was not residing in the basement but living in Australia Building, Brandreth Road, Lahore. Another ground was that he was a Managing Partner in a Press situated outside Lohari Gate, Lahore. But it was admitted in the order passed by the Deputy Settlement Commissioner on 17th October, 1961 that he had applied for one of the basements which is towards Hall Road side. Respondent No, 2 filed an appeal against the order of the Deputy Settlement Commissioner before the Additional Settlement Commissioner who dismissed the appeal of the respondent on 18th August, 1963 with further observation that he was not the allottee and had not filed the Declaration of Eligibility and he was not living in the basement and form N. C. H. Filed by him was meant for residential property. This basement was rightly put in the Auction Pool. Respondent No, 2 then filed a revision before the Settlement & Rehabilitation Commissioner and that came up for disposal before Ch. Ali Ahmad the then Settlement & Rehabilitation Commissioner who by his order dated 21st December, 1964 held the respondent entitled to the transfer of basement applied for on his N'. C. H. Form but while closing the order in his case he referred to the basement as marked 'G though physically and on facts of the case of the respondent, it was marked 'E' which he somehow omitted to mention. Here it is pertinent to state that unit marked `G' is a part of the basement with a room on the ground floor, in possession of one Rashid who had not claimed its transfer. This portion, in the statement of agreement which was rejected by the Deputy Settlement Commissioner, was also claimed by the respondent but the case was decided on merits by the Deputy Settlement Commissioner and the Additional Settlement Commissioner and he was not held entitled even to the basement in his own possession. The Settlement Commissioner in revision had transferred the basement applied for on N. C. H. Form the particulars of which are given by him in his order with the description of the property claimed by the respondent and similar particulars are available in the order of the Additional Settlement Commissioner and Deputy Settlement Commissioner. Before the Settlement Commissioner, after rejection of his claim by the Deputy Settlement Commissioner and Additional Settlement Commissioner on merits, he pressed for the basement applied for and in his possession which was marked 'E' on the accepted plan. Thus it was by accidental slip and typographical error that letter `G' was written in the context of the transfer of the basement to respondent No, 2 instead of 'E'. Another event which needs mention was that the basement in possession of the respondent marked 'F.' was included in the auction list and the respondent made an application for the deletion of basement in his possession wrongly marked `G' in the order of the Settlement Commissioner and stay was granted on 7th December, 1963. Thus the auction was subject to the stay order and ultimately the basement in possession of the respondent was transferred to him with the wrong mark '0' on 21st December. 1964 by the Settlement Commissioner. Taking advantage of this mistake of letter '0' for `E', the auction was confirmed on 24th September, 1965 in favour of the petitioners who were issued the P. T.
0. On 15th July, 1966 and P. T. D. On 9th November, 1966. The petitioners then served a notice under section 30 of the Displaced Persons (C. & R.) Act on the respondent on 28th July, 1967. Application for ejectment was filed by the petitioners against the respondent in March, 1968 and ejectment was ordered on 12th February, 1970 and the respondent was dispossessed in execution in July, 1970. In the meantime, on 5th November, 1969, the respondent filed an application before the Additional Settlement Commissioner for interpretation of the order of the Settlement Commissioner in which '0' was mentioned in place of 'E' indicating the basement in his possession actually transferred to him and so marked on the admitted plan. The application was refused by the Additional Settlement Commissioner on 6th February, 1970 on the ground that he was not the Officer who had passed the order in the revisional jurisdiction on 12th February, 1970, the respondent filed another application before Mr. Muqarrab Khan Settlement Commissioner. But on the application of the petitioners for transfer of case, the Chief Settlement Commissioner by his order transferred the case to Ch. Ali Ahmad the same Settlement Commissioner who had transferred the basement marked wrongly mentioned as '0' to the respondent sometimes before September, 1970. This fact is taken from the interim report submitted by Ch. Ali Ahmad, Settlement Commissioner in W. P. No, 600-R of 1970 filed by the respondent seeking correction in the order of the Settlement Commissioner passed in revision on 21st December, 1964. Ch. Ali Ahmad completed the tenure of his service and was retired. The application was transferred to Mr. Bashir Ahmad Settlement Commissioner and since the latter had already passed an order in the dispute it bad to be entrusted to some other Settlement Commissioner. At this stage, instead of transferring the application to some other Settlement Commissioner, the Chief Settlement Commissioner himself assumed the jurisdiction to decide the application which fact is briefly mentioned in the order dated 22nd September, 1971 passed in the Misc. Application in that writ petition moved by the petitioner which was disposed of on 29th September, 1970 with the observation that the Chief Settlement Commissioner would be completely free to pass such orders as were warranted by law.
The petitioners went satisfied with this order.
5. The Chief Settlement Commissioner, tracing the history of entire litigation and dispute between the parties, came to the conclusion very fairly and justly that marked `G' was an error apparent on the face of record in the order of the Settlement Commissioner dated 21st December, 1964 and it was really the portion marked `E' applied for in possession of the respondent which was transferred to him by that order. Thus the application of respondent was accepted after affording reasonable opportunity of being heard to the parties, by his order dated 25th October, 1971 running into seven pages. Against that order, the petitioners have come in this writ petition.
6. The first point argued by the learned counsel for the petitioners is the question of jurisdiction available to the Chief Settlement Commissioner for the acceptance of application for review filed by the respondent. In this connection, the learned counsel for the petitioner has relied upon section 21 (3) of the Displaced Persons (C & R) Act which is reproduced with advantage.
S. 21 (3). "Clerical or arithmetical mistakes in any order passed by an officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority or his successor-in-office."
' With the' aid of this provision, the learned counsel submits that the clerical and arithmetical mistake or error arising from any accidental slip or omission can be corrected only by the officer or authority who has passed the order or his successor-in-office. Since the Chief Settlement Commissioner was not the officer or successor-in-office of Ch. Ali Ahmad, Settlement Commissioner who retired from service by the end of 1970, he could not review the order in the terms of subsection (3) of section 21 of the Act. The attention of the learned counsel has been drawn to section 20 (3) as it existed 25th October 1971 that the Settlement Commissioners used to exercise the revisional powers because they were being specially empowered by the Chief Settlement Commissioner and that the Settlement Commissioner had no other revisional powers directly available to him. Further section 32 of the Act provided the over-all control on all proceedings pending before any officer subordinate to him in the matter of transfer. Since Ch. Ali Ahmad, Settlement Commissioner had vacated the office and no one had succeeded him and in that impracticable situation it was considered more appropriate, in the circumstances, to deal with the case by the Chief Settlement Commissioner himself. Further all duties and functions assigned to officers below the level of the Chief Settlement Commissioner have been subject to the superintendence and control of the Chief Settlement Commissioner under section 9 of the Act. The other factor is that the Chief Settlement Commissioner is the highest authority in the hierarchy of Settlement Department. It is a general presumption that a case is more fairly and justly dealt with at a higher level than at a lower level. Then also the parties have been afforded more than reasonable opportunity of being beard to place their sides of the case before the Chief Settlement Commissioner and no prejudice has been caused to the petitioners in the exercise of jurisdiction by the Chief Settlement Commissioner and passing the impugned order. Also writ jurisdiction is not to be exercised in aid of injustice. If substantial justice has been done in the case after hearing both the parties then the Constitutional Court is not to deprive the party of it lawful right. 1, therefore, see no substance in the argument of the learned counsel which is merely technical.
7. The second contention raised by the learned counsel for the petitioner is that the application for review submitted by the respondent before the Settlement Commissioner had suffered from laches. The case of the respondent was in the hands of the learned counsel who according to his ability and understanding, filed the application before the Additional Settlement Commissioner instead of the Settlement Commissioner. Then on refusal, application was submitted before the Settlement Commissioner and that application was entrusted by the Chief Settlement Commissioner to the officer who had passed the order but to the misfortune of the respondent he had retired and the application was sent for by the Chief Settlement Commissioner to be heard by him personally. Even the respondent had taken an appropriate step at the proper stage by filing an application for the stay of auction and on that application order was made that the confirmation of the auction should not be done. Thereafter the auction took place during the subsistence of stay order and that was a sufficient fact to post the petitioners with the knowledge that the property being purchased by them was seriously in dispute in proceedings started by the respondent for the retention of that property. The earlier writ petition No, 600-R/70 filed by the respondent remained pending and was disposed of on 8th November 1971 after the order was passed by the Chief Settlement Commissioner on 25th October 1971. It cannot, therefore, be said on clear facts that the respondent had delayed the action mala fide or his counsel prosecuting the proceedings had the motive to delay the decision of the application before the retirement of Ch. Ali Ahmed, Settlement Commissioner who had passed the original order of transfer in favour of respondent in the year 1964.
8. The other contention raised by the learned counsel for the petitioners is that it was not a case of clerical or arithmetical mistake or error arising from accidental slip or omission. In this connection, he has first referred to a case under section 152 of C. P. C. That if a right had accrued to the third party meanwhile, the jurisdiction conferred in that behalf should not be exercised. In the present case, petitioners have been the party to the litigation with the respondent right from the year 1964.
Secondly, the right of the petitioners was subject to the result of litigation. Thirdly, the case of the petitioners was depending on letter 'G' and not the acquisition of any real property which stood transferred to the respondent by order of the Settlement Commissioner dated 21st December 1964.
Other submission of the learned counsel for the petitioners is that the respondent had also claimed the portion marked 'G' alongwith portion marked `E' in his N. C. H. Form. In this connection, he has drawn the attention of this Court to the statement of agreement filed by the various persons in possession of the property before the Deputy Settlement Commissioner after the remand. While making the submission, the learned counsel has overlooked the fact that this statement of agreement was not accepted and acted upon by the Deputy Settlement Commissioner who rejected the form of the respondent. There is a clear statement of fact of the claim of respondent made in the N.C. H. Form. His N. C. H. Form, even according to the order of the Deputy Settlement Commissioner, was for one of the basements which is towards Hall Road side. The statement of claim is further affirmed by the Additional Settlement Commissioner in his order dated 18th August 1963. Similar is the statement available in the order of the Settlement Commissioner dated 21st December 1964 who transferred the basement to the respondent but in the last sentence instead of letter 'E.' had written letter '0' which is an error apparent on the face of the record. The whole discussion while determining the entitlement of the respondent was concerned with the basement in his possession. Physically and on facts it was the basement which was applied for and in possession that was transferred to the respondent. Thus the submission has no substance and is against the facts on the record.
9. In view of the above discussion, I have come to the conclusion that substantial justice has been done by the Chief Settlement Commissioner in accepting the application for correction of the order of transfer passed in favour of the respondent. No interference, in the circumstances, is called C for with the order of the Chief Settlement Commissioner impugned in this writ petition. This petition has no force and is dismissed but no order as to costs.