T a dispute relates to shop No. U/301., situated in Cloth Market, Rawalpindi. It was allotted to the petitioner and one Muhammad Aslam jointly by the Rehabilitation authority on 1st October, 1947.
Later on, according to the petitioner, said Muhammad Aslam surrendered his rights in favour of Ghulam Mohy-ud-din brother of the petitioner. Thereafter they both carried on business in the shop. It is admitted that the petitioner is a claimant displaced person from district Ludhiana (India).
2. The petitioner and his brother, Ghulam Mohy-ud-Din, entered into partnership with Haji Feroze Din and his son Haji Zahoor-ud-Din, respondent No. 2, for carrying on business jointly in the shop in question vide partnership deed dated 28th September, 1965 Annex. --A'. It is not denied that the approval of the partnership business was not obtained from the Rehabilitation authority. According to respondent No. 2, partnership business was carried on till 31st October, 1956 and thereafter the partnership was dissolved as found by the learned Additional District Judge, Rawalpindi by his judgment dated 14th July, 1969 (vide Annex. `R/A'). According to the petitioner, he and his brother were physically ousted from the shop in question by respondent No. 2 and his father Haji Feroze Din deceased. This aspect is however, not admitted by the answering respondent. The judgment of the- learned Additional District Judge, as referred to above, also shows that the partnership was dissolved amicably by the parties themselves in 1956 and late Haji Feroze Din and respondent No. 2, his son, occupied the shop w.e.f. 1st November, 1956 exclusively. This fact however is not admitted by the petitioner, who claims that the possession of respon--dent No. 2 and his father was not undisputed, as the litigation between the parties has been pending for a long time and has not yet concluded. According to respondent No. 2, the shop in question as allotted in favour of his father after the dissolution of partnership. In support of that, photostat copy of the allotment order has been produced as Annex : IR/1'. It is, however, not denied that this allotment order was never produced before any of the Settlement authorities before whom the parties were litigating.
3. After the Settlement operations started, the petitioner and his brother Ghulam Mohy-ud-Din made an application before the. Assistant Rehabilitation Commissioner, Rawalpindi, for the restoration of the possession of the shop to them. This application was, however rejected by the said officer by his order dated 30th March, 1959 on the ground that both the applicants had delivered the possession of the shop of Haji Feroze Din deceased and his son respondent No. 2 voluntarily and had no locus standi to make any such application. The copy of the order is filed with the Writ Petition as Annex `R/2'. This order was appealed against before the Deputy Rehabilitation Commissioner, who reversed the impug--ned order and held that Haji Feroze Din deceased and his son were in unauthorised occupation of the shop. He also held the petitioner to be entitled to restoration of possession. As a consequence of that the Deputy Rehabilitation Commissioner ordered the notice of ejectment to be issued to Haji Feroze Din and his son respondent No. 2. This order was challenged is revision before the Rehabilitation Commissioner, who while agreeing with the findings of the Deputy Rehabilitation Commissioner, that Haji Feroze Din and his son were unauthorised occupants, however, decli--ned to eject them on account of the instructions issued by the Government that the displaced persons occupying the evacuee property should not be disturbed at that time.
4. Thereafter the petitioner and Haji Feroze Din submitted their respective CS Forms for the transfer of the shop, which was transferred by the Deputy Settlement Commissioner in favour of Haji Feroze Din. This order was however, set aside in appeal by the Additional Settlement Commissioner on the ground that Haji Feroze Din being in unauthorised occupation was not entitled to its transfer. He also did not agree with the contention of the petitioner that he was entitled to the transfer of the shop. The learned Additional Settlement Commissioner, therefore, ordered the shop to disposed of by auction. Both the revision petitions against the said order of the Additional Settlement Commissioner were also dismissed. The parties then filed second revision petitions before the Settlement Commissioner, Mir Ajam Khan with delegated powers of the Chief Settlement Commissioner, who dismissed both the revision petitions by order dated 15th April, 1961. According to the petitioner, he thereafter, filed a Review Application against the said order. It was sent through post under registered cover, acknowledgment due vide Annexs. `G' and `H'. The contention of the petitioner that he submitted any such Review Application against the said order is vehemently refused by the contesting respondent. It is, however, admitted that Haji Feroze Din had also filed a Review Application against the said order, which was accepted by Ch. Sultan Muhammad Khan, Settlement Commissioner, Rawalpindi Division, as delegate of the Chief Settlement Commissioner by his order dated 23rd August, 1962. According to the petitioner, his Review Application is still pending and has not been disposed of as yet in spite of his having made an application to Ch. Sultan Muhammad Khan, Settlement Commissioner that his Review Application should be disposed of. The petitioner, has now challenged the validity of the impugned orders passed against him through this Writ Petition.
5. Many contentions have been raised by the learned counsel for the parties. However, after hearing the lengthy arguments, I am mostly con--cerned, at present, with the validity or otherwise of the impugned order passed by Ch. Sultan Muhammad Khan as delegate of the Chief Settlement Commissioner, whereby he accepted the Review Application of Haji Feroze Din deceased and held him to be entitled to the transfer of the shop in ques--tion. Nothing has been brought on record to show by any of the parties that Ch. Sultan Muhammad Khan, who was delegate of the Chief Settlement Commissioner, under subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, bad also been specifically delegated the powers of review by the Chief Settlement Commissioner under subsection (2) of section 3 of the Act.
According to law, (a Settlement Commissioner as delegate revisional powers by the Chief Settlement Com--missioner cannot be deemed to be automatically armed with the powers of reviewing his own order as delegate of the Chief Settlement Commissioner. The power of Review in this context cannot be regarded as ancillary to the revisional power conferred on the delegate. The Revisional power and the power of review of his own order conferred on the Chief Settlement Commissioner are contained in two separate sections of the Act and accord--ing to law delegation of power under one .Section cannot be construed to carry with it a delegated power under the other section also. The power of review is creature of the statute and it cannot be said that the delegate exercising the revisional power under subsection (2) of section 20 has inherent powers to review the order passed in his capacity as a delegate. Reliance in this respect can be placed upon Zainab Khatoon v. Ghulam Shah (PLD 1965 SC 55). If Ch. Sultan Muhammad Khan had also been armed with the review power under subsection (2) of section 31 of the Act alongwith the revisional powers, then the impugned order would not have been subject to any attack. The same view has been followed in Muhammad Sharif v. Sh. Muhammad Rafique, Settlement and Rehabili--tation. Commissioner, Lahore (PLD 1968 Lab. 263). It was held that unless the delegation of powers is made by means of a notification in the official Gazette, the same cannot be deemed to have been conferred upon the officer concerned.
He as such was not competent to pass the impugned order and the same I liable to be set aside on this ground.
6. It is contended that after the promulgation of Ordinance 11 of 1962 as amended by Ordinance XIII of 1962. The provisions as contained in subsections (2) and (4) of section 20 and subsections (1), (I- A) and (2) of section 21 of the Act bad been omitted. The amending Ordinance came into force on 17th March, 1962 and was deemed to have taken effect on 13th January, 1962. It is submitted that after the promulgation of this Ordinance, when the power of review had been taken away the review application which was accepted on 23rd August, 1962 was liable to be dismissed on the ground that it has become incompetent. This contention, however, is not correct. The Review Application was admittedly filed by Haji Feroz Din deceased in May, 1951, when the said Ordinance had not been promul--gated. The question, therefore, which arises for consideration in view of the above discussion, is whether any review proceedings were pending immediately before the commencement of the Ordinance, namely, before 13th January, 1962. According to law the word `pending' mean nothing more than `undecided or awaiting decision or settlement'. An action is considered in law pending from the time of its commencement of proceeding. In the present case review Application was filed by Haji Feroze Din in May, 1961, long before the said Ordinance came into force. According to law, the said application was awaiting decision and, as such, it was pending at the time when the Ordinance was enforced. The said application, therefore, cannot be thrown out on the ground that it had become incompetent after the said Ordinance was promulgated. It was to be disposed of by a competent authority. Since it was disposed of by a tribunal, which was not competent to dispose of the same. Therefore, according to law it would be deemed to be still pending and liable to be disposed of by an authority which is competent to dispose it of in accord--ance with law. Reliance in this respect can be placed upon Ghulam Mohyud Din v. Chief Settlement Commissioner (PLD 1964 SC 29). According to law, there is no bar for a Settlement Commissioner with delegated powers of Chief Settlement Commissioner under section 31 (2) of the Act review the order passed by an officer exercising the delegated powers of the present case, Mir Alam Khan, Settlement Commissioner with delegated revisional powers of the Chief Settlement Commissioner rejected the revision petition of Haji Feroz Din deceased against which the Review Application was filed since the revisional order was passed by a delegate of the Chief Settlement Commissioner, therefore, according to law his order can be reviewed by another Settlement Commissioner who has been delegated powers under subsection (2) of section 31 of the Act by the Chief Settlement Commissioner.
7. It has been vehemently argued by the learned counsel for the petitioner that the Review Application submitted by his client has not been disposed of as yet. In support of this contention, unattested copy of the Review Application alongwith the postal receipt as well as the acknowledgment receipt has been filed. No observation at this stage can be made as to whether any such Review Application of the petitioner was filed in November, 1961. If it be so, then the same would be competent and still pending in spite of the promulgation of Ordinance X111 of 1962.
8. As the decision in this case has been made on the sole point, mentioned above, therefore, there is no need to deal with the other conten--tions raised by the learned counsel for the parties, They will be at liberty to raise whatever points they like before the authority hearing the Review Application.
9. As a result of the above discussion, the Writ Petition is accepted and the impugned order dated 23rd August, 1962 is hereby set aside being illegal, without jurisdiction and of no legal effect. The case is remitted to the Chief Settlement Commissioner to be decided afresh in accordance with law and in the light of the observation made above. There will, however, be no order as to costs.