1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to Fazil Zaheer, local, who failed to obtain the transfer of a house on the basis of his possession, then as a converted property and even after conceding to the divisibility of the same on a claim made by Barkat A.I, to examine the following question of law arising in the case :-- "(i) that the suction sale in favour of respondents 1 and 2.In view of what he described as the prohibitory order dated 27-4-1962 by the Additional Settlement Commissioner was void ; and
(ii) that being a party in the proceedings before Khan Saeeduddin Khan, Settlement Commissioner, against which writ petition was directed, the petitioner was a necessary party to proceedings in writ jurisdiction and by excluding him from the proceedings, he was wrongly denied the opportunity to canvass for the propriety of that part of order of Khan Saeeduddin Khan by which he directed re-auction of the house."
2. The appellant claimed to be in possession of House No. S-62-R-18, Nisbet Road, Lahore since August, 1947. It was allotted to him. He filed L. H. Form on 7.8-1959 for its transfer. No formal order rejecting the form was available on the record but there were' entries in the relevant register (C. S. C-4) and nothings to show that it was rejected on account of being of much higher value than 10000 for which locals were eligible. The house was included in April, 1962 in the auction list. The appellant immediately made applications to, the Deputy Settlement Commissioner to delete the house from the auction list in view of his pending L. H. Form and he also moved the Chief Settlement Commissioner seeking the transfer of the property after its deletion from the auction list as a converted property as he was running a shafakhana and a dawakhana in the premises. On the 27th April, 1962 the Additional Settlement Commissioner refused the request of the appellant to delete the property from the auction list but ordered that "auction will not be confirmed till the case is thoroughly scrutinized and discussed." The Chief Settlement Commissioner passed on a similar application addressed to him to the Settlement Commissioner with the direction to deal with the case and to take suitable action if the property was a converted property. The Settlement Commissioner got the whole case examined and submitted a note dated 2-2-1962. The prominent features of this note were as follows :-
(1) The appellant had applied in Form L. H. For the transfer of the house but the house being of more than 10000 value and the petitioner being a man of means, his claim to it was rejected.
(2) The house was transferred to one Abdul Majid Khan and then the appellant left the pursuit of his L. H. Form.
(3) After the transfer in favour of Abdul Majid Khan was set aside the appellant claimed the property as a converted property.
3. On these facts he recommended that transfer to the appellant as a converted property should be refused and the house should be disposed of in public auction. The Chief Settlement Commissioner directed the Settlement Commissioner (Policy) to examine the case and report to him. The Settlement Commissioner (Policy) recommended "1 would suggest that if the value of the house is less than Rs. 10,000 the original L. H. Form of the applicant may be revived and the house transferred to him. There is not enough justific--ation for the transfer of the house as a clinic." The Chief' Settlement Commissioner on the 14th of May 1962 passed the following order on this report and recommendation :- "Please make sure from Deputy Settlement Commissioner concerned if the house is below Rs.
4. 10,000 in value."
5. It was found then that the house was not below Rs. 10,000 in value and was not transferable to him.
6. The appellant was informed about the rejection of his claim to it on 24-5-1962. In the meantime the property was auctioned by a Committee headed by Additional Rehabilitation and Settlement Commissioner on 4-5-1962 and P. T. D. Was issued to the auction-- purchaser, that is, the contesting respondents on 31-5-1962. The appellant then submitted another application dated 24th June, 1963 to the Chief Settlement Commissioner and in that application the appellant introduced the claim of one Barkat A.I also for the transfer of this very house. The Chief Settlement Commissioner ordered that his note may be sent to the Settlement Commissioner for disposal of the matter after hearing everyone concerned. The Settlement Commissioner. Mr. Muhammad Azhar, rejected on 18-10-1983 by a detailed order the claim of Barkat A.I for the transfer of the entire house on the ground that he was not ever in possession of it and also the revised claim of the appellant that the house be transferred by dividing equally between himself and Barkat A.I. The appellant moved yet another application, a miscellaneous one for that matter and addressed it to the Chief Settlement Commissioner which was sent down to Settlement Commissioner for examination and disposal. The two questions which were examined in extenso by the Settlement Commissioner in his order dated 14-2-1966 were as follows :- "(1) Whether the auction of House No. S-52-R-18 Nisbat Road. Lahore, held oft 4-5-1962 under the chairmanship of Mr. A. M. Bhatti Additional Settlement Commissioner, Lahore, was confirmed either by him or by any other competent authority.
(2) Whether in view of the order of Mr. S. M. Azhar, Settlement Commissioner, Lahore, dated 18-10- 1963 dismissing the claim of H. M. Fazil Zaheer transferee of the house in dispute and the appeal of one Barkat A.I, the validity of the auction cannot be examined even on the reference of the learned Chief Settlement Commissioner."
7. The Settlement Commissioner after an extensive review of the facts of the case gave a decision which was expressed to be under section 20 (3) of the Displaced Persons (Compensation and Rehabilitation) Act holding that "the auction held on 4-5-1962 was invalid. The P. T. D. Issued to the respondent on 31-5-1962 being of no legal value has to be ignored. House No. S-52-R-18 Nisbet Road should be re-auctioned in due course." A constitutional petition was then filed by the transferees of the house challenging this order of the Settlement Commissioner and they did not implead the appellant in the proceedings. The learned Judge in the High Court after examining the merits of the claim of the transferees held that the L. H. Form filed by the respondent stood rejected long before the auction. He was refused the transfer of the property as a converted one or on division with Barkat A.I. He found that the auction held in favour of the respondent was legal and proper, did not require confirmation and the P. T. D. That issued in his favour bad rendered the settlement authorities juntas officio in the matter. In the background of these facts leave was granted to examine the two legal points already reproduced. At the same time while granting leave the following observations were made with regard to the L. H. Form of the appellant :- "Mr. A. K. Brohi, learned counsel for the petitioner frankly conceded that the value of the house was more than Rs. 10,000 and, therefore, on the date when the petitioner originally filed his L. H. Form for the house, being a local was not eligible for its transfer. It was also conceded that the recent relaxation in favour of locals would not relate back to make the petitioner eligible on the .Date when he originally filed his L. H. Form."
8. There was an objection taken by the learned counsel for the contesting respondents that the appeal was barred by six days and there was no satisfactory explanation for this delay. This delay has been noted in the order granting leave to appeal. There is an application on record explaining the delay and seeking condonation. A note has also been put in by the learned counsel with copy of judgment in C.P.S.L.A. 751 of 1974 to support the contention.
9. The order of the High Court under challenge is dated 15-1-1974. A copy of it was applied for on 23-1- 1974 and obtained on 1-2-1974 and petition filedon 25-3-1974 but returned the same day for filing the grounds of writ petition and of the affidavit. These had been applied for on 18-3-1974 and became available on 26-3-1974 and the appeal was refiled on 1-4-1974, Grounds of writ petition and the affidavit were required (Order XI1I, rule 4 Supreme Court Rules, 1956) to be filed. The time taken in obtaining copies thereof provided the application for copies were made within time or within the extended time had to be excluded. As in this case application was made within extended time, after excluding the time taken for obtaining a copy of judgment and the grounds of writ petition the appeal is within time.
10. We have been taken through the record by the learned counsel for the parties and had also the benefit of hearing the learned counsel for the settlement department, though the department itself had been proceeded ex parte. The contention of the appellant is that he was a necessary party to the proceedings and his exclusion vitiated the judgment of the High Court. In fact, the appellant had moved a review petition in the High Court making this a ground for getting the impugned decision of the High Court re-opened. The High Court had disposed of this claim with the following order :- "There was no dispute before the Court in respect of the entitlement of any other contestant nor is the objection of non-joinder of the applicant as a necessary party sustainable in view of the unequivocal findings of the Settlement Commissioner that the applicant stood eliminated. No case has been made out for invocation of review jurisdiction. The application fails and is dismissed in limine."
11. The order of the Settlement Commissioner which was under challenge in the High Court had its basis in the order of the Chief Settlement Commissioner dated 30th January, 1964. That order bad the following operative part :- "A copy of Mr. Azhar's judgment dated 18-10-1963 given to me by the petitioner shows that be examined the claims of various parties and came to the conclusion that neither Faxal Zaheer nor Barkat A.I had any claim and that the house in question was rightly put to auction. Mr. Azhar, however, did not go in points mentioned in para. No 5 of Mr. Soofi's note concerns certain irregularities in the conduct of the auction of the house. I presume that Mr. Azhar did not thick it necessary to go into the matter because he came to the conclusion that none of the parties claiming the house had a case. The conduct of auction is a separate and independent fact and in, view of Mr. Soofi's observations it should have been gone into. The latest judgment by Mr. Azhar is no bar to an inquiry into this matter."
12. It will be clear from a perusal of this order- read with the earlier order of Mr. Azhar by which the appellant stood altogether eliminated that the sue mote revision if at all it was to take place, was to be confined to the conduct of the auction as such and nothing else. After having been so eliminated from the scene, in the sue motu revisional exercise of powers with regard to the conduct of auction the petitioner would not appear to be a necessary or a proper party. No relief was sought against him. There was no threat to any of his rights. He was, therefore, justifiably not impleaded in the constitutional petition filed in the High Court nor was the decision liable to be re- opened for want of hearing him.
13. As regards the jurisdiction of the Settlement Commissioner who passed the order dated 14th February, 1966 a perusal of the order itself would indicate as if the officer was sitting at the apex enjoying a plenary power to review, evaluate and oversee the conduct of every authority whether of co-ordinate jurisdiction or of subordinate jurisdiction. It is in this .Context that he implied a restraint or a prohibition in the order of the Chief Settlement Commissioner by observing as follows :- "In the face of the order of the learned Chief Settlement Commissioner, dated 28-4-1 62 calling for report as regards the petitioners' entitlement, although it does not say so in explicit terms that the house in question should not be auctioned, implied that the settlement authorities should stay their hands till such time as the representation of H. M. Fazil Zahir was not disposed of in accordance with law. I am clear in my mind that the settlement authority who included this property in the auction list, did so through an oversight quite oblivious of the fact that the learned Chief Settlement Commissioner was still seized of the . Representation of H. M. Fazil Zahir. If the inclusion of the house in the auction-sheet is not construed in this sense, the officer who was responsible for taking such a decision would have laid himself open to the charge of officiousness and insubordination."
14. He further found that in the matter of his L. H. Form the appellant had been condemned unheard "not only when his house was included in the auction list without disposing of his L. H. Form but also when his revision was receiving anxious consideration at the hands of the learned Chief Settlement Commissioner". The Settlement Commissioner found no judicial order on the file holding that the auction of house No. S-52-R-18, Nisbet Road, Lahore, should take place on 4-5-1962. He found that the auction cannot stand because the revision of H. M. Fazil Zaheer had not been finally, disposed of by the learned Chief Settlement Commissioner. The report of the Settlement Commissioner was held to be a mere expression of opinion never approved by the Chief Settlement Commissioner. It was concluded that the appellant had been deprived of not only of the hearing but of a vested right of offering his bid its the auction of an evacuee property which has been in his occupation for the last sixteen years. He found that the auction had never been confirmed. He found the P. T. D, to be incapable of transferring any rights.
15. A Settlement Commissioner exercising powers and jurisdiction under section 20 (3) of the Displaced Persons (Compensation & Rehabilitation) Act could not set aside and ignore the effect of two orders of the Settlement "Commissioners who were authorities of co-ordinate jurisdiction and had passed orders which they could pass. It will be clear that the jurisdiction possessed and exercised by the Settlement Commissioner in passing the order dated 14-2-1966 was controlled by what his predecessors had done in the matter earlier. He could not even if so directed by the Chief Settlement Commissioner exercise his powers of sue mote revisional powers in a manner to interfere with or upset the orders of other Settlement Commissioners.
16. Taking first of ail the question of the regularity of the auction and the effect of irregularity, if any, committed, we have the final orders of the Settlement Commissioner dated 22-6-1962. In order to understand the effect of this order which has not been noted by any of the authorities dealing with the case the background has to be understood fully. When the appellant addressed tin application to the Deputy Settlement Commissioner to the effect that the house should be deleted from auction list till his L. H. Forts was disposed of, the Additional Settlement Commissioner after obtaining a report from the Deputy Settlement Commissioner and disagreeing with his report passed an order on 27-4-1962 that "auction will not be confirmed till the ease is thoroughly scrutinized and discussed". This order has been taken to be a prohibitory order and a restraint order. It will be seen that it was parsed by an Additional Settlement Commissioner and sought either to, restrain another Additional Settlement Commissioner or to limit the authority of his own successor in the matter of dealing with the property. Probably the latter was the case, for it cannot operate as a restraint order on an authority of co-ordinate jurisdiction, It was found that the auction was held by a Committee presided over by the Additional Settlement Commissioner himself and the bid was confirmed by the Deputy Settlement Commissioner considering it to be the intention and object of the Additional Settlement Commissioner who was presiding at the auction. His explanation and that of the Additional Settlement Commissioner was obtained. It was found to have been done in good faith, in the normal course of functioning of these authorities. The Settlement Commissioner finally dealing with this conduct of his subordinates in the matter of auction ordered "seen. In future confirmation should be done by the Additional Settlement Commit.
17. Sinner alone. He tray regularise this." It will be seen that all aspects of the irregularity or the illegality in the conduct of the auction came to the attention of the concerned authorities including the higher authority of Settlement Commissioner and it was dealt with finally by the order reproduced above and the matter ended with that. It was not open, therefore, to succeeding Settlement Commissioner to invoke his suo motu revisional authority even though he may have been directed by the Chief Settlement Commissioner in the matter to re-open, and overthrow this order of the Settlement Commissioner, an officer of co-ordinate jurisdiction.
18. The Settlement Commissioner passing the Impugned order in 1966 committed another jurisdictional error by reading a prohibition or a restrain on the statutory power of the functionaries simply because the Chief Settlement Commissioner was seized of a miscellaneous application filed by the appellant which was got examined under his orders. The specific reasoning of the Settlement Commissioner has already been quoted above. It is an elementary principle of law that mere filing of a revision petition or an appeal does not operate as a stay order. A prohibition or a restraint on the statutory powers cannot be inferred or implied but must be clearly expressed and communicated. The Settlement Commissioner was, therefore, wholly unjustified in inferring that there was an implied or implicit direction not to hold the auction, on the proceedings initiated by the Chief Settlement Commissioner on a miscellaneous application of the appellant re-opening the matter which had been dealt with at all levels time and again.
19. A perusal of Mr. S. M. Azhar's order which is an order passed after hearing every party concerned will show that the claim of the appellant on his L, H. Form on the basis of converted property and in association or in combination with Barkat A.I failed and good reasons were given for it. That order could not also like the other order be re-opened in suo motu revisional jurisdiction by another Settlement Commissioner of co-ordinate jurisdiction. The entire proceedings resulting in upsetting the orders passed by the Settlement Commissioners and in ordering re-auction of the property was without jurisdiction and was rightly set aside by the High Court. We do not find any merit in this appeal which is dismissed with costs.