NASIM HASAN SHAH, J.--The dispute in this case relates to Property No. 44-B, Hasilpur, District Bahawalpur. It consists of to shops with the Chaubaras above them. One of these was in the possession of Din Muhammad, respondent No.3, and the other was in the possession of a local, Muhammad Sharif. On 13-10-1960, the Deputy Settlement Commissioner held that the property was already divided as it was occupied by to families. He, therefore, transferred the portion in possession of Din Muhammad to him alongwith the Chaubera above it. But the shop in possession of Muhammad Sharif was put on the auction list.
2. Din Muhammad appealed to the Additional Settlement Commissioner against this order without any success. His revision before the Settlement Commissioner also failed. He then filed a second revision petition before the Chief Settlement Commissioner and the latter on the 28th of April, 1961 passed the following ad interim order pending the hearing of the second revision:-- "Sale will not be confirmed till the decision of the revision petition. "
Notwithstanding this stay order, the portion was put to auction and sold to one Syed Muhammad Kazim, predecessor-in-interest of the present appellants on 7-5-1961.
3. Subsequently, the Chief Settlement Commissioner allowed the second revision and ordered the transfer of the disputed portion also to Din Muhammad. The auction-purchaser challenged this order by a writ petition in the High Court on the ground that the Chief Settlement Commissioner had no power to hear the second revision on 31-5-1962 and in any case, the order of the Chief Settlement Commissioner could not have been made without hearing him.
4. A learned Single Judge of the Lahore High Court, however, took the view that, as official acts had a presumption of regularity, the Chief Settlement Commissioner's order passed on 31-5-1962 had to be upheld. Furthermore, the auction gave no right to the auction-- purchaser as the auction and the subsequent confirmation of the auction could not have been made in view of the stay order passed by the Chief Settlement Commissioner. This order has been upheld in appeal by the Division Bench of the High Court.
5. A petition for leave to appeal was then filed in this Court and it was, inter alia, urged that on the 31st of May, 1962 when the Chief Settlement Commissioner accepted the second revision he had no power to do so because the records had not been called for before the 13th of January, 1962 in accordance with the provisions of subsection (2) of section 20 of Ordinance No. XIII of 1962.
6. Leave was granted to consider the question whether the Chief Settlement Commissioner lawfully exercised his jurisdiction in second revision on the date in question.
7. It is an admitted position that the second revision was filed before the Chief Settlement Commissioner by Din Muhammad respondent under subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This provision empowered the Chief Settlement Commissioner to call for the record in any case or proceedings in which the Settlement Commissioner or the Additional Settlement Commissioner or the Deputy Settlement Commissioner had passed an order for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and to pass such order in relation thereto as he thought fit. The said subsection (2) of section 20 was, however, omitted by Ordinance II of 1962 promulgated on 13-1-1962. But in order to remove doubts a new section, section 7, was inserted in the aforesaid Ordinance (II of 1962) by promulgating on 17th March, 1962, Ordinance XIII of 1962. This provision to the extent relevant is to the following effect:-- "7. Savings.--For the removal of doubts it is hereby declared that omission by this Ordinance of subsections (2) and (4) of section 20 of the said Act shall not affect any case or proceeding the record of which was called for under subsection (l) of section 20 of the said Act."
It is, therefore, evident that it were only such second revisions instituted before the Chief Settlement Commissioner before 13-1-1962 wherein the record of the case had been called for under the aforesaid subsection (2) of section 20 which could be proceeded with, after 13-1-1962 and that the Chief Settlement Commissioner was not empowered to hear and determine those second revisions which the record of the case had not been called for before the aforesaid date viz. 13th January, 1962.
8. The High Court upheld the order of the Chief Settlement Commissioner, dated 31-5-1962 mainly on the consideration that there is a presumption of regularity attaching to official acts. However, in view of the terms of Ordinance 11 read with Ordinance XIII of 1962 it appears to us that the intendment of the law in such cases was that a positive order passed by the Chief Settlement Commissioner should be available on the record indicating that the record of the case was summoned before 13th January, 1962.
9. In this case, we ourselves summoned all the record of the Settlement Department and have scrutinized the same with the help of the learned counsel of both the parties and find that no such positive order is available on the record. As no order by the Chief Settlement Commissioner calling for the record of the case exists, the order of the Chief Settlement Commissioner, dated 31-5-1962 stands vitiated and was liable to be declared to have been passed without lawful authority and to be of no legal effect.
10. We would, therefore, accept the appeal, set aside the order of the Chief Settlement Commissioner, dated 31-5-1962, as also the order B of the learned Single Judge of the High Court, as affirmed by the Division Bench of the said learned Court and declare that the order of the Deputy Settlement Commissioner, dated 13-10-1960 which was upheld by the Additional Settlement Commissioner, on appeal, and the Settlement Commissioner, on first revision, continue to hold the field.
11. The result is that the sale of the property in dispute through auction to the predecessor-in- interest of the appellants on 7-5-1961 was valid and legal and that the appellants are entitled to the shop alongwith the Chaubara on its top, in pursuance of the said auction.
12. The appeal is allowed in the above terms, leaving the parties to bear their own costs.
M.I.