1. DORAB PATEL, J.-The dispute in this petition for leave relates to evacuee property in Sibi which was owned by the same owners, but according to the petitioner, there were two houses on the property bearing Nos. 1159 and 1160. After the establishment of Pakistan the numbers of these houses were changed to 1155 and 1155-A respectively and were occupied by different persons. On the promulgation of Settlement Scheme No. VII, the predecessor-in---interest of the first two respondents (hereafter called the said respondents) applied for the transfer of this property, but according to Mr. Ansari, the claim was only for House No. 1155 and not for No. 1155-A,-therefore, a P.
2. T. D. Was issued for house No. 1155 in due course, but later it was cancelled. Be this as it may, learned counsel was compelled to admit that the father of the petitioner took a lease of House No. 1155-A in 1970 from the said respondents or their father but according to the petitioner this was because the said respondents and/or their father bad illegally occupied No. 1155-A and claimed its ownership. The petitioner's further claim is that on coming to know that the said respondents were not entitled to House No. 1155-A, he applied for its transfer under Settlement Scheme No. VII. This application came up for hearing before the Assistant Settlement Commissioner, Sibi, who accepted the petitioner's contention that House No. 1155 and No. 1155-A were separate and independent houses, therefore, by his order dated 1-6-1,974, he held that House No. 1155-A had not been transferred to the said respondents, and as it was still in the Compensation Pool, be transferred it to the petitioner. The said respondents challenged this order in a Revision under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereafter called the said Act), as it then stood, and this Revision came up for hearing before the third respondent.
3. On an examination of the evidence on the record, the third respondent came to the conclusion that the local municipality had given a separate number namely House No. 1155-A, to a part of the evacuee property only "for facilitating the recovery of conservancy and other taxes. That the entire premises is one unit". Accordingly, be accepted the claim of the said respondents that the entire property bearing No. 1155 and No. 1155-A had been transferred to them and he allowed their Revision by his order dated 20th June, 1975.
4. As the transfer in favour of the petitioner was thus. Cancelled, he filed a writ petition in the Sind & Baluchistan High Court. In the events that happened, this writ petition was dismissed by a learned Single Judge of the Baluchistan High Court on two grounds. The first was that the petitioner was not entitled to the property in dispute under Settlement Scheme No. VII, because he had not been in occupation of the property claimed by him on 1-1-1961, and this finding had reference to paragraph 3(1) of the Scheme. The second ground was that the High Court could not in its limited constitutional jurisdiction interfered with the third respondent's finding that the entire evacuee property consisting numbers 1155 and 1155-A was one unit which was indivisible, therefore, he held that the petitioner had no locus standi to file a writ petition and on both these grounds, as dismissed the writ petition by his judgment dated 31st August, 1977. Hence this petition for leave.
5. Mr. Ansari admitted that the petitioner was not in occupation of the property claimed by him on 1st January, 1961, but his submission was that paragraph 3(1) on which the learned Judge of the High Court had relied was not applicable to properties in Sibi because it was a major village within the meaning of Settlement Scheme No. VII and not an extended area. In support of this submission, learned counsel referred us to a Notification from which it is clear that Sibi was not an extended are a within the meaning of paragraph 3 of Settlement Scheme No. VII. The before although there is force in learned counsel's submission, but it cannot help the petitioner's case unless he shows that there was an error of law in the third respondent's fending that the entire evacuee property was one house and not two houses as claimed by the petitioner.
6. As the Assistant Settlement Commissioner held in his order of 1-6-1974 that House No. 1155-' was a separate house, Mr. Ansari invited us to hold that this finding was correct because he submitted that it was the first conscious order passed by the Settlement Department. As the previous orders are not before us, it is not possible for us to accept the contention that this order was the first conscious order of the Settlements Department and on the other hand, this order throws very little light on that question whether House No. 1155-A was an independent unit or not, It is true that the Assistant Settlement Commissioner based his opinion on his inspection of the premises but as the third respondent was competent to set aside the finding of the lower tribunal, the mere fact that the Assistant Settlement Commissioner had formed an opinion that No. 1155-A was a separate house would not mean that the revisional authority was not competent to set aside that finding.
7. But the Assistant Settlement Commis--sioner had also relied on the fact that the two houses bore separate Town Committee numbers. This circumstance too is not decisive by itself because the third respondent held, on an inspection of the record, that the municipality had given the two houses separate numbers only for facilitating the recovery of conservancy and other taxes.
8. Similarly the evidence that the two "houses were occupied by different persons relates only to the period after the establishment of Pakistan and does not help the petitioner's case. Mr. Ansari, therefore, stressed the fact that the two "houses" were divided by a wall, but as he was not able to give any particulars of this wall, it is not known when it was constructed. The only other circumstance retied upon by learned counsel was that one house was about double the size of the other, but far from supporting the petitioner's claim this circumstance goes against it, because it suggests that the smaller house was an appurtenance of the bigger house. On the other hand, the question whether the property consisted of one house or two houses was a question of fact within the exclusive jurisdiction of the Settlement authorities and on the pleas advanced before us, the High Court would not have been justified in interfering in a writ petition with the third respondent's finding that Houses A No. 1155-A was not a separate house.
9. Learned counsel's next submission was that the 'Assistant Settlement Commissioner---s order holding that there were two houses on the property, in dispute could have been challenged under paragraph 5 of Settlement, Scheme No. VII in an appeal before the Deputy Settlement Commissioner, therefore, the Revision filed by the said respondents against this order before the third respondent was not competent and the third respondent's order & was without jurisdiction.
10. But the petitioner had not raised this objection before the third respondent nor does he appear to have raised it before the High Court. And, it is also significant that he did not plead -in his length writ petition that he had raised this objection before the third respondent. In these circumstances on the rule laid down by this Court in Ghullam Mohi-ud---Din v. Chief Settlement Commissioner (PLD 1964 SC 829), even if this objection had been raised, the High Court would not have been justified in entertaining it.
11. Mr. Ansari, however, attempted to distinguish Ghulam Mohi-ud-Din's ease on the ground that the petitioner had only appeared as a respondent before the third respondent and, was, therefore, not estopped from pleading the bar of jurisdiction in a writ petition. In support of this submission only relied on this Court's judgment reported in Muhammad Afzal v. Member, Board of Revenue (PLD 1967 SC 314). But as we explained in Ghulam Fatima v. Muhammad Hussain (PLD 1976 SC 729) all that was laid down in Muhammad Afzal's case was that a writ would not be barred in every case in which the petitioner had failed to challenge the jurisdiction of Tribunal at the relevant time. As explained by us what was held in Muhammad Afzal's case was- "that in order to invoke the, discretionary remedy of writ petition the petitioner had to prove that "he was a mere passive spectator having no power to prevent the commission of the illegality". Now. A petitioner does not become a passive spectator before a tribunal merely because he was the defendant before that tribunal nor can he be said to be a passive spectator merely because the proceedings against him were by the Government. In order to succeed the petitioner has to show that he had "no power to prevent the commission of the illegality", namely, the usurpation of jurisdiction by the tribunal and it is difficult to see how he could show this if he took the chance of succeeding before the tribunal. However, the question would always be of the facts and circumstances of the case "
12. Now apart from the fact that it is difficult to believe that any litigant would be overawed by the Settlement authorities the petitioner has not even contended in the instant case that he was overawed by the third respondent therefore, he cannot be permitted to contend that the third respondent's order was without jurisdiction.
13. However, even on the footing that it is a fit case for permitting the petitioner to challenge the third respondent's jurisdiction, the submission that the third respondent had been divested of his Revision al jurisdiction under section 20 of the said Act by paragraph 5 of the Settlement scheme relied upon is not correct. In order to appreciate the legal questions raised by the submission, it is necessary to refer briefly to the relevant provisions of the said Act, which was promulgated in 1958 and sections 10 and 16 (later section 16-B) empowered the Chief Settlement Commissioner to frame schemes with the approval of the Central Government for the transfer of immovable property to claimants, non-claimants or locals in accordance with the provisions of the Schedule to the said Act. All the Settlement Schemes except Scheme No. VII were framed by the Chief Settlement Commissioner in exercise of his powers under section 16 or 16-8 as the case be Section 10 also contained a similar power and the Chief Settlement Commissioner had framed Settlement Scheme No. VII on 7-8-1961 in the exercise of his powers under clause (b) of this section. Now this section, as originally enacted, read: "Subject to the provisions of this Act and the rules made there under, the Chief Settlement Commissioner may transfer or dispose of any property out of the Compensation pool
(a) on evaluation basis, or by sale, by means of auction or otherwise, in accordance with the provisions of the Schedule.
(b) in such other manner as may be approved by the Central Government."
14. This section was repealed by the Displaced Persons (Compensation and Rehabilitation)
15. Amendment Ordinance of 1962 on 13-1-1962, and the following provisions were substituted instead: "(1) Subject to the provisions of this Act and the rules made there under, the Chief Settlement Commissioner, or any other officer authorised in this behalf by him, may transfer or dispose of any property out of the compensation pool on evaluation basis, or by sale, by means of auction or otherwise, in accordance with the provisions of the Schedule.
(2) Notwithstanding anything contained in subsection (1), the Central Government may order the transfer in public interest of any property out of the compensation pool in such manner as it may deem proper."
16. This section was 'amended for the second time on 2nd June, 1965 by the Displaced Persons Laws Amendment Ordinance, 1965 and I will refer to this Ordinance as the Amending Ordinance and it is sufficient to state here that subsections (3) and (4) were added to section 10 by this amending Ordinance. These subsections read: "(3) Notwithstanding anything contained in subsection (1) the Chief Settlement Commissioner may prepare one or more Schemes for-
(a) the cancellation of transfer of properties made under that subsection to claimants, non- claimants and locals who have defaulted in payment of either the whole or any part of transfer or purchase price, or public dues ;
(b) the resumption of such properties or part thereof ; and
(c) the transfer, in any manner, of the property resumed and any other properties in the Compensation Pool, to persons against cash payment or the amount payable in Compensation Certificates issued under this Act."
(4) Any scheme prepared under subsection (3) shall not be executed without the prior approval in writing of the Central Government."
17. A few days after the amending Ordinance had gone into force, the President issued a Notification in the exercise of his powers under clause 1 of Article 143 of the Constitution by which he entrusted to the Government of West Pakistan the functions of the Central Government under the said Act, subject to the reservations set out in this Notification. The next relevant piece of Legislation is the Notification of 26th March, 1966 which reads: "No. 1404-Pol 66.-In exercise of the powers conferred by subsection (2) of section 10 of the Displaced Persons (Compensation and Rehabilita--tion) Act, 1958, read with the Government of Pakistan, Ministry of Agriculture and Works Notification No. F. 1(1) 65-SP., dated the 17th June 1965, and having received the approval of the Central Government, the Governor of West Pakistan is pleased to amend and reconstitute, with effect from the date of publication of this notification in the official Gazette, the existing Settlement Scheme No. VII, as follows."
18. Now it is on this revised Scheme that Mr. Ansari relies and I Now explain here that whilst this revised Scheme had received the approval of the two Governments, it was framed by Mr. S. H. Ikram, the Chief Settlement Commissioner. The revised Scheme introduced some changes in the manner in which property under the Scheme was to be transferred. But paragraph 5 the heading of which was "Application for transfer" also contained a provision that when an order for transfer had been passed by an Assistant Settlement Com--missioner, it could be challenged in an appeal before the Deputy Settlement Commissioner, and because the -Assistant Settlement Commissioner's order of 1-6-1974 had been challenged in a Revision before the third respondent (to whom the powers of the Settlement Commissioner had been delegated) Mr. Ansari's submission was that the third respondent's order was void because it was without jurisdiction.
19. I observed earlier that section 10 was amended twice but despite the amendments the only power delegated under this section was the power to transfer property from the compensation poof. And as observed by Craies on Statute Law (Seventh Edition, p. 297)-- "The initial difference between subordinate legislation and statute law lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority --------- "
20. As the only power delegated under section 10 was about the transfer, of property, the obvious question which arises for consideration is of the vires of paragraph 5 of the revised Settlement Scheme in so far as it seeks to prescribe the manner in which an aggrieved party could challenge an order for the transfer of property under the Scheme.
21. Mr. Ansari relied only on clause (c) of subsection (3), of section 10 but clause (b) of subsection (3) is also relevant to the submissions advanced. In the first place this was the provision under which the Central Government could transfer properties. Secondly, the question is of the meaning of the word 'transfer' and the word is to be found birth in clause (b) and in clause (c). Now according to all the dictionaries, the word 'transfer' mean conveyance and it is very clear that it means nothing more than this in clause (b). Therefore, in the absence of some very clear indication to the contrary, the word "transfer" must be given the same meaning in clause (c) on which Mr. Ansari relied. This subsection (c) reads as follows: " ......The Chief Settlement Commissioner may prepare one or more Schemes for :-- (a)---------------------------. .
(b) ---------------------------..
(c) the transfer, in any manner, of the property resumed and any other properties in the Compensation Pool . ..................
22. There is nothing in these words to lead to the inference that the Legislature had intended to depart in this clause from the ordinary meaning of the word "transfer" or to give it a meaning different from that in clause (b). Secondly, sections 19 and 20 of the said Act contained exhaustive provisions for appeal and revisions which were applicable to all orders of transfers passed by the Settlement authorities under the various Schemes. That is why the Scheme did not and could not contain any provisions about appeals or revisions, and the provision for appeals relied upon by learned counsel was to found for the first time only in the revised Settlement Scheme No. VII. But in deciding the vires of delegated it is the duty of the Courts to in the words of Greene M. R. In Carltona Ltd. v.
23. Commissioners of Works ((1943) 2 All E R 560) that the legislative power which a delegate claims to exercise "is one which falls within the four corners of the powers given by the Legislature". No as 1 observed earlier in the first place the delegation of a power to pre para Scheme for regulating the transfer of property cannot be stretched to include the power to frame a scheme for regulating appeals against such transfers because that would be contrary to the plain meaning of the word "transfer". Secondly, the Legislature had itself made exhaustive provisions about appeals and revisions in the said Act and if it had intended by the amending. Ordinance to confer a power on its delegate, the Chief Settlement Commissioner, to make regulations which could override the provisions of sections 19 and 20 of the said Act, it would have made a clear provision in this respect by enacting that the Chief Settlement Commissioner would have power to frame -schemes notwithstanding anything contained in the said Act. Now Mr. Ansari wanted 'us to read the opening words of subsections (3) in this manner, but I do not see how the words"notwith--standing anything contained in subsection ((1943) 2 All E R 560)" of section 10 can be read to mean notwithstanding anything contained in the said Act. Additionally, I would also point out here that the amending Ordinance had amended sections 19 and 20, and if the Legislature had any intention of delegating to the Chief Settlement Commissioner the power of amending sections 1 and 20, it would have enacted accordingly in the amending Ordinance. As it did not, in all the circumstances discussed, in my humble opinion, paragraph 5(3) of the revised Settlement Scheme dated 26th March, 1966 is ultra vires, and the said respondents could only challenge the Assistant Settlement Commissioner's order of 1-6-1974 in the manner prescribed in the said Act.
24. Now before its repeal in 1974, the said Act had been amended for the last time by the Evacuee Property and Displaced Laws (Amendment) Act, 1973. By this amendment section 19 was omitted and section 20 was amended in consequence. As a result under this section as amended the said respondents could challenge the Assistant Settlement Commissioner's orders only before the Settlement Commissioner (namely the third respondent).
25. This is precisely what they did, therefore, petitioner had very properly no objected to the third respondent's jurisdiction. But the third respondent was entitled in the exercise of his direction to set aside the order of the Assistant Settlement Commissioner. He did so and for the reasons given earlier, it is clear that the petitioner had not made out any case in support of his plea that the third respondent's order was without lawful authority. I would, therefore, refuse leave and dismiss the petition.