MUHAMMAD HALEEM, Actg. C. J.-This appeal by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 6th of April, 1973, by which L. P. A. No. 1225 of 1966 was dismissed and the order of remand, passed in Writ Petition No. 616-R of 1963 was upheld.
2. The dispute in this appeal relates to the transfer of house No. SW/93-R/8, situate at Lower Mall, Lahore. It belonged to Nand Lal, an evacuee. At the time when the settlement operations began, one Mst. Hameeda Begum, a claimant displaced person and the predecessor-in-interest of the appellants; Ahmad Din, a local and the predecessor-in-interest of respondents 1 -- 4 and Muhammad Yasin were in occupation of portion of the house. Ahmad Din was running a bakery in the name and style of"English Bakery" in the portion in his occupation even from before Partition. It was Mst. Hameeda Begum alone who filed C. H. Form No. 5611 for the transfer of the whole house.
The Assistant Settlement Commissioner, exercising the powers of the Deputy Settlement Commissioner, by order dated 23rd November, 1959, transferred the entire house as a single indivisible unit to her who later paid its full price. On 22nd of December, 1959, she served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on Ahmad Din and it is alleged that some agreement was executed by which she agreed not to eject him for 10 years. There was also some settlement of the amount or rent to be paid and Ahmad Din was required to deliver possession of the garage on the ground floor but he did not vacate it and instead, taking benefit of the Press Note dated 3rd of May, 1960, issued under Para. 20 of Settlement Scheme No. 1, applied on 16th June, 1960, for the transfer of a portion in his occupation on the ground floor as converted property.
3. A report was called from the office by the Additional Settlement Commissioner which was submitted on 17th of June, 1960, wherein it was disclosed that Ahmad Din had not filed any form for the transfer of the portion in his possession as a local. The Additional Settlement Commissioner, thereupon, directed that the parties should be summoned and by order dated 4th of July, 1960, held that Ahmad Din had no case and that he had an option, if he thought so, to refer an appeal.
His application was, accord--ingly, rejected.
4. Ahmad Din again submitted another application 2nd of September, 1969, under the same Press Note seeking its transfer as an industry and an institution of public utility like a restaurant before the Additional Settlement Commissioner without disclosing that the entire property had already been transferred. The Additional Settlement Commissioner sought advice from the Settlement Commissioner (Policy) as in his view the case was not covered by the aforementioned Press Note.
The Settlement Commissioner (Policy), in his report dated 29th of October, 1960, addressed to the Chief Settlement Commissioner disclosed that the bakery should be treated on the same footings as a restaurant and that it should be transferred treated the person in possession on payment of prevailing value plus 50Y. Of such value under Para. 20 of the Settlement Scheme No. 1. The Chief Settlement Commissioner agreed with it as per his endorsement dated 11th of November, 1960, and sent back the case to the Settlement Commissioner (Policy) for implementing the decision who in his turn, by a memorandum dated 8th of December, 1960, addressed to the Additional Settlement Commissioner, communicated the decision for the transfer of the English Bakery' for Ahmad Din as converted property. The Additional Settlement Commissioner, on 15th of February, 1961, sent the case to the Deputy Settlement Commissioner for passing a formal order of transfer in favour of Ahmad Din but before the compliance of this formality, Ahmad Din was able to obtain a P. T. Q. On 7th of February, 1961.
5. The Deputy Settlement Commissioner served a notice on Mst. Hameeda Begum on 23rd of March, 1961, calling upon her to surrender her transfer documents upon which she applied for the review of the order of the Chief Settlement Commissioner. This application was sent for disposal to the Settlement Commissioner exercising the powers of the Chief Settle--ment Commissioner. By order dated 9th of November, 1962, the Settle--ment Commissioner held that, Mst. Hameeda Begum was not heard before the impugned order was passed and that as Ahmad Din had not filed an appeal or a revision against the transfer order in favour of the appellant, the miscellaneous application thereafter filed could not be entertained as it was barred by time. Further, he held that the earlier order of transfer in favour of Hameeda Begum could be reviewed under section 20 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, but that was conditional upon the compliance of subsection (5) of section 20. Lastly, it was held as under:- "I have my doubts as to the propriety of the transfer of the shop allegedly converted to a bakery in the name of the petitioner of which she was not in possession. It is argued that since this shop formed part of the main building, and, therefore, it was transferred to the petitioner by the Assistant Settlement Commissioner with the delegated ", powers of Settlement Commissioner were perfectly correct. However, since this order was passed as far back as 1959, I refrain from saying 5 anything about it."
6. Ahmad Din next filed Writ Petition No. 616-R of 1963 in the High Court to challenge the order of the Settlement Commissioner dated 9th of November, 1962. The High Court, by order dated 7th of October, 1966, held that the Chief Settlement Commissioner could not delegate his powers of review under section 21 (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
Therefore, while delegating it to the Settlement Commissioner, he acted in excess of his powers and that on that ground the order dated 11th of November, 1962, could not be sustained. As the appellants had not been given an opportunity by the Chief Settlement Commissioner before endorsing his approval on 11th of November, 1960, the case was remanded to the Chief Settlement Commissioner for deciding the review application of the appellants afresh.
7. Against this judgment, the legal representatives of Mst. Hameeda Begum filed L. P. A. No. 1225 of 1966; and as Ahmad Din was effected by the order of remand, he too filed an L. P. A. Bearing No. 106 of 1967 which was dismissed as time-barred on 6th of April, 1973. The Letters Patent Bench, while disposing of the appeal, reversed the conclusion of the learned Single Judge that the Chief Settlement Commissioner had no authority to delegate his powers of review on the ground that such delegation had received validation by section 2 of Ordinance XXXI of 1972, [Settlement Commis--sioners (Validation of Orders) Ordinance], 1972. But again upheld the order of remand while directing that the reference made by the Additional Settlement Commissioner on the applications of Ahmad Din dated 2nd of September, 1960, should be decided afresh in accordance with law and the Press Note dated 3rd of May, 1960.
8. Leave to appeal was granted to consider the effect of Assistant Settlement Commissioners (Validation of Orders) Act, 1973, qua the powers exercised by the Assistant Settlement Commissioners transferring the disputed property in favour of Mst. Hameeda Begum, the predecessor-in-interest of the appellants.
9. Before the Letters Patent Bench, it seems, the respondents took advantage of the concluding portion of the Settlement Commissioner's order dated 9th of November, 1962, wherein he had expressed his doubt as to the propriety of the Assistant Settlement Commissioner's orders transfer- -ring the shop, housing the bakery, to Mst. Hameeda Begum which was not in her possession; and an argument was raised that as the second proviso to section 2 (12) of the Displaced Persons (Compensation and Rehabiltiation) Act, 1958, dealt with the disposal of the composite property, it was, accordingly, obvious from its terms that unless the Chief Settlement Commis--sioner decided to treat the whole or any part of the building as a house or a shop, the two portions were to be disposed of separately, one as a house and the other as a shop. Therefore, in the absence of such a declaration, the different portions of the composite property should have been disposed of separately and not as one single unit. In support of his submission, the learned counsel relied not only on the aforementioned statutory provision but also on Paragraph 2 (3) of Memorandum No. Comp-Reh./59/5542 dated 22nd of October, 1959, and on the cases reported in PLD 1964 Lab. 261 PLD 1967 Lab. 786 and PLD 1967 SC 437.
10. The High Court next examined this contention to ascertain from the record as to whether the impugned order of transfer itself disclosed the composite nature of the property and found, as a fact, on further examination of the record as well that the Assistant Settlement Commissioner was cognizant of the fact that the property was of a composite nature and as such he could not transfer it as he was not empowered to do so. It was the Deputy Settlement Commissioner who was delegated the powers under sub-clauses (4) and (12) of section 2 of the Act, and it was he who could have transferred it. The appellants, however, attempted to meet this argument by urging that even if the order was defective, still such defect stood cured by the orders of the superior Settlement authorities who had considered the contention as regards the lack of power and rejected it. For this, the appellants had relied on the decision in the case of S. Niaz A.I Shah v.
The Settlement Authorities (1968 Law Notes SC 5). The High Court, however, distinguished this line of reasoning on the ground that in the cited case, there was merely and irregularity in passing the order which rendered it voidable and not void as in the instant case, which was an incurable defect relating to lack of jurisdiction. Having held so the High Court next examined the propriety of the reference made to the Chief Settlement Commissioner as regards the disposal of the property on the ground of its converted use which culminated in the order of the Chief Settlement Commissioner dated 11th of November, 1960, but as that order was reviewed and validated subsequently, the High Court felt that reference should be decided afresh. Therefore, while remanding the case, it gave that direction. .
11. The High Court found that the Assistant Settlement Commissioner was not competent to transfer the composite property as the Chief Settlement Commissioner, had not delegated to him his powers under clauses (4) and (12 of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Further, the High Court has held, as a fact, that the Assistant Settlement Commissioner was cognizant of the fact that the house was a composite property comprised of residential as well as business units. Eminently, therefore, when the case was heard before the High Court, the Assistant Settlement Commissioner could not exercise the powers of the. Chief Settlement Commissioner in terms of the second proviso to section 2 (12) of the Act, namely, of declaring the composite property as a house which was a prerequisite for exercising his powers of transfer which un, doubtedly he had. But by section 2 of Act XLVI of 1973, the vailidity was given to any order made by an Assistant Settlement Commissioner passed in exercise of the powers of the Chief Settlement Commissioner. The language of this section is all embracing and intended to cover the inherent lack of jurisdiction on the part of the Assistant Settlement Com--missioner to pass an order of the kind, impugned in these proceedings. Accordingly, the inherent defect, as found by the High Court in the order, disappears.
12. The learned counsel for the respondent nonetheless contended that validation was given to the competency but not to the other requisite of the second proviso if there was any failure to observe it. This requisite pertained to the declaration that despite the property being composite, it was treated as a house. Accordingly, its absence, the residential and the business units should have been transferred separately. In support of it. The learned counsel for the respondent relied on cases reported in PLD 1967 SC 437 and PLD 1967 Lah. 786. This submission was not raised, before the High Court in its present form and it was, therefore, that the High Court had only attended to the competency of the Assistant Settlement Commissioner to exercise powers under the second proviso to section 2(12) of the Act. The High Court had applied its mind to the decided cases and reached the conclusion as it did as to the incompetence of the Assistant R Settlement Commissioner to exercise his power to dispose of composite property. The argument as regards the absence of declaration also is without substance. There is no dispute about the Assistant Settlement Commissioner not being cognizant about the composite nature of the property. The error is merely in regard to its non-mention in the order itself in specific words. However, a perusal of the order would show that while determining the entitlement of Mst. Hameeda Begum, he had referred to the occupation of the respondent of a portion of the house whose use, on inspection would have been apparent, in respect of which be bad not submitted a form for its transfer. There was, thus, an indirect mention of the composite nature of the property which to all intents and purposes would suffice in the facts and circumstances of the case. The non-use of specific words would, in our view, be an error of a technical nature and hardly sufficient to destroy the efficacy of the order.
13. There is, however, a declaration that the property, though composite in nature, has been treated as a single independent unit, as envisaged in the second proviso to section 2 (12) which fulfils the requirement. Aside from it, it is difficult to conceive that such an argument would be tenable considering the text of section 2 of the Assistant Settlement Commissioners (Validation of Orders)
Act, 1973, which was intended to cover not only the competency but also the other forms of defect arising from the improper exercise of powers of the Chief Settlement Commissioner.
14. It was next urged by the learned counsel for the respondents that the application dated 16th of June, 1960, should have been treated as an appeal and as this was not done, there was failure to exercise jurisdiction. Reliance for this contention was placed on Ch. Altaf Hussain v. The Chief Settlement Commissioner (PLD1965SC68). No analogy can be drawn from the facts of the above case as the application in that case was filed within limitation and the only objection levelled against it was that it was not property presented In these circumstances, the objection was regarded as merely technical. However, in the case under consideration, the application was beyond time and it was not filed against the order of transfer but an independent claim was trade for the transfer of the portion in the occupation of the respondent as converted property. This could not, in terms, be treated as an appeal.
15. As upon the finding of the High Court that the transfer order was void, the disputed house became available for transfer but as we have now held that the defect in the exercise of the power has been validated by Act XLV of 1973 [Assistant Settlement Commissioners (Validation of Orders)
Act, 1973] there is no scope for re-opening of the case as the transfer in favour of Mst. Hamida Begum stands finally concluded. We would also like to observe here that the Press Note dated 3rd of May, 1959, cannot also be pressed into service as it would not be applicable to cases which had already been disposed of before its promulgation,