This is a petition under Article 98 of the Constitution of Pakistan, 1962 whereby an order dated 9-5- 1966 passed by Mr. A. G. Mohammadaily, Settlement Commissioner, Karachi is impugned. Mr. Saeeduzzaman has appeared for the petitioner and Mr. Abdul Nasir Khan for the respondents, who are the legal representatives of deceased respondent Muhammad Saleheen, The Settlement Commissioner has not defended the petition.
2. Briefly stated the facts of the case are that the petitioner is a non-claimant displaced person and is an allottee of a fiat bearing No. G/1 in a building situated on Plot No. P. B. 11/33/6 situated on Road A. M. 11, Frere Road, Karachi. It seems that the building in question has seven fiats and were in occupation of different persons. The petitioner in the first instance filed a N. C. H. Form for transfer of flat No. G/l, but one Muhammad Hussain, who was in possession of Flat No. G/2 did not apply for the transfer of the same and therefore the petitioner applied for transfer of both .9ats G/1 and G/2 on the basis that they were parts of one house.
Appendix IX regarding both fiats was issued in favour of the petitioner and a P. T. O. Was also issued on 22-7-61 which was followed by a P. T. D. On 2-5-62.
Respondent Muhammad Saleheen applied for transfer of, fiats Nos. G/5, 6 and 7 and a P. T. O. Was issued in his favour on 8-3-1961 which was subsequently cancelled on appeal filed by one Najeebullah. Mr. Muhammad Hussain, the occupant of flat No. G/2 transferred the possession to respondent Muhammad Saleheen sometime after December 1958 and after coming in possession, had made an application to the Deputy Settlement Commissioner to review the order of transfer of premises in favour of tide petitioner. This review application was dismissed on 25-6-1962 on the ground of lack of competence as the earlier order had been passed by Mr. I. M. Kehar, who was also a Deputy Settlement Commissioner. Respondent Muhammad Saleheen thereafter filed an appeal which was heard by Mr. Abdul Mateen Siddiqui, Additional Settlement Commissioner, Karachi. The Additional Settlement Commissioner held that although the appellant (respondent in this petition) was in possession of flat No. G/2, he had filed C. H. Form for flats Nos. G/5, 6 and 7, and therefore he was not entitled to transfer of flat No. G/2. It appears from the order of the Additional Settlement Commissioner that an allegation was made that the petitioner had obtained transfer by practising fraud on the Department and the Additional Settlement Commissioner stated in his order as follows :- "In case the respondent (the present petitioner) has secured transfer of G/2 by fraud or misrepresentation, the appellant can also move the Deputy Settlement Commissioner concerned - -under Clause 6(4) of Permanent Transfer of Property Rules of 1961."
This order was passed on 17-9-62.
3. On 23-9-63 viz. After a year of the order of the Additional Settlement Commissioner, respondent Muhammad Saleheen along with seven others filed an application under Rule 7 of the Final Transfer Rules before the Additional Settlement Commissioner, Karachi alleging that the petitioner was not entitled, to the transfer of premises which has taken place in his favour on 2-5-1962 and the prayer in the application was as follows;- "It is therefore prayed that immediate inquiry may kindly be initiated into the matter and it may kindly be held that the open space, the bath room, the latrine and the taps are meant for common use of the occupants of all the tenements of the building and do not form part of the tenements G/1 & G/2 above, which the opponent has got transferred by fraudulent means and by making misrepresentation."
This application came to be dealt with by the Settlement, Commissioner (Judicial), who forwarded it to the Deputy Settlement Commissioner for holding the inquiry. The report was made by the Deputy Settlement Commissioner on 11-11-1963 and ultimately on 26-12-63 this application under para. 7 of they Permanent Transfer Rules was heard by the Additional Settle--ment Commissioner (Judicial), Karachi, and dismissed. No positive finding was given with regard to any fraud having been played by the petitioner but the Additional Settlement Commis--sioner observed on a perusal of the record that respondent Muhammad Saleheen and the seven co-applicants were in the habit of making application one after another only to harass the petitioner. The Additional Settlement Commissioner did not find the matter a fit one for re-opening. Against this order, respondent Saleheen filed a Revision Application before the Settlement Commissioner, Karachi which was allowed. The Settlement Commissioner by this order directed that a P. T. O. Should be issued in favour of respondent Muhammad Saleheen which order is to the effect that the P. T. D.
Issued in favour of the petitioner was cancelled. Aggrieved by this order of the Settlement Commissioner, the petitioner has filed the present petition in this Court.
4. The contentions raised by the petitioner before me may be briefly stated as follows :-
(a) That the Settlement Commissioner being the Chief Judge, Small Causes Court, and Additional District Judge, Karachi, was not a Settlement Commissioner within the meaning of the Notification (PLD 1964 Central Statutes 145) whereby the District and Sessions Judges and Additional District and Sessions Judges of Karachi were appointed Settlement Commissioners by virtue of the powers of the Central Government in the matter of appointment of Settlement Commissioners under section 9 of the Displaced Persons Act XXVIII of 1958.
(b) That even if it is assumed that the Settlement Commissioner competently exercised jurisdiction, no revision lay against an order passed in pursuance of the Permanent Transfer Rules, 1961.
Besides the above contentions, some other contentions regarding merits of transfer in favour of petitioner were also raised before me, but in view of the order that I propose to pass, it is not necessary to consider those contentions.
5. With regard to the first point as to whether Mr. A. G. Muhammadally was a Settlement Commissioner within the meaning of section 9 of the Displaced Persons Act XXVIII of 1958, it will be profitable to reproduce the provisions of section 9 (1) of the said Act. It reads as follows:- "The Central Government may appoint a Chief Settlement Commissioner, and such number of Settlement Commis--sioners, Additional Settlement Commissioners, Deputy Settlement Commissioners and Assistant Settlement Commissioners and any other officers as may be necessary for the performance of duties and functions assigned to them by or under this Act and may by general or special order provide for the distribu--petition or allocation of work to be performed by them."
On 15th May 1964, the Central Government by virtue of powers conferred under section 9 (1) of the Displaced Persons, Act appointed District and Sessions Judges and Additional District and Sessions Judged of some Districts of West Pakistan to be Settlement Commissioners. The Notification is reproduced hereinbelow :------- "S. R. O. 367 (K1/64.fIn exercise of powers conferred by subsection (1) of section 9 of the Displaced Persons (Compensa--petition and Rehabilitation Act, 1958 (XXVIII of 1958) the Central Government is pleased to appoint the District and Sessions Judges and the Additional District and Sessions Judges named below to be Settlement Commissioners; Names of Districts.-Peshawar, Hazara, Mardan, Kohat, Bannu, Dera Ismail Khan, Rawalpindi, Jhelum, Gujrat, Campbellpur, Sargodha, Lyallpur, Jhang, Mianwali, Lahore, Sheikhupura, Gujranwala, Sialkot, Multan, Montgomery, Muzaffargarh, Dera Ghazi Khan, Bahawalpur, Bahawalnagar, Rahimyar Khan, Karachi Hyderabad, Khairpur and Quetta."
6. What is reproduces in the preceding paragraphs, conclusively shows that the District and Sessions Judges and Additional District and Sessions Judges in Karachi were invested with the powers of Settlement Commissioners. These powers were conferred on them as persona designate and only such person could exercise jurisdiction of theSettlement Commissioner who combined in himself the qualifications of an Additional District Judge as well as an Additional Sessions Judge.
7. Mr. A. G. Muhan7madally on the day that he decided the Revision Application (which decision is impugned in this petition) was a Judge of the Small Causes Court, Karachi. As Judge of the Small Cruses Court he exercised powers under the Provincial Small Cases Court Act. However, on 7 December 1965, by a Notification No. 13/9-H (Judl-W/65, he was appointed as Additional District Judge of the Civil District. Karachi. This appointment was made by the Government ofWest Pakistan, Home Deportment.
The Notification clearly shows that white Mr. A. G. Muhammadally had been appointed as Additional District Judge, he had not been appointed as an Additional Sessions Judge.
8. It is unnecessary to mention that District Judges and Additional District Judges in the Province of West Pakistan function under the West Pakistan Civil Courts Ordinance, 1962. It is alsoclear that the functions of a District Judge are limited to exercise of jurisdiction as a Principal Civil Court. On the other hand, Sessions judges and Additional Sessions Judges are appointed by the Provincial Government by virtue of powers under section 9 of the Code of Criminal Procedure. The functions that have to be performed by the Sessions Judges and the Additional Sessions Judges are to be exercised by them and are also regulated by the Code of Criminal Procedure. It would thus appear that sot only in the matter of appointment but also in the matter of performance of duties and exercise of jurisdiction, there is marked and distinguished difference between the two functioa1ries.
It is also vary apparent that a person by mere appointment as District Judge or Additional District Judge could not be deemed to have been appointed as a Sessions Judge or Additional Sessions Judge.
9. Although this point had not been specifically taken by the learned counsel for the petitioner in his petition but he has argued at length on this point. In ground No. 1 of his memo. Of petition, it hasth been stated that respondent No. 1 had no jurisdiction to proceed and to decide the Revision Application, but this objection was taken perhaps because the Advocate for the petitioner wanted to base his case in regard to lack of jurisdiction, on the ground of validity of the transfer of this Revision Application, by the District and Sessions Judge, Karachi to Mr. A. G. Muhammadally.
However, since the petition does state that respondent No. 1 had acted without jurisdiction, I have considered this contention from that angle.
10. Although there is no direct case-law on the point, the learned Advocate for the petitioner has referred to some cases where the question was in relation to Additional District Judges exercising jurisdiction under section 15 of the West Pakistan Urban Rent Restriction Ordinance. This Ordinance was enacted in 1959, and section 15 (1) (a) of the Ordinance contemplated conferment of jurisdiction to hear appeals against the orders of Controllers on District Judges. In practice however, the District Judges, presumably on the reasoning that a District Judge included an Additional District Judge, used to transfer appeals for hearing to the Additional District Judges. In the case of Syed Ahsan A.I v. Jaffar A.I and 4 others (PLD 1964 Kar. 418) Mr. Justice Waheeduddin (now a Judge of the Supreme Court) expressed that in view of section 5 of the West Pakistan Civil Courts Ordinance, 1962, an Additional District Judge could perform the functions of a District Judge.
The point had also come up for consideration in an earlier case before a Full Beach of West Pakistan Hieh Court. Lahore in the case of Mst. Aziz Begum v. Shaikh Noor Muhammad (PLD 1962 Lah. 887) and the majority of the learned Judges who decided the case held that an Additional District Judge was not competent to hear appeals against the orders of the Controller under the West Pakistan Urban Rent Restriction Ordinance.
However, to cut short the point, the Legislature amended the provisions of section 15 of the West Pakistan Urban Rent Restriction Ordinance by West Pakistan Ordinance XXXII of 1962 and added the words "An Additional District Judge" in section 15(1) of the Ordinance so that after the amendment the District Judges and Additional District Judges performed the functions of the Appellate Authority under the Ordinance.
11. The aforesaid cases only go to show that persona designate must have full qualifications before being able to exercise jurisdiction. In the cases referred to above, the position was whether an Additional District Judge was included in the word District Judge in section 15 of the Ordinance. 'This controversy existed despite the fact that both District Judges and Additional District Judges had co-extensive powers and had to be appointed by virtue of the same statute, besides their functions being the same. In the present set of circumstances it will be seen that a person in order to be able to exercise jurisdiction as a Settlement Commissioner had to combine in himself the qualifications both of a District Judge as well as of a Sessions Judge. As shown above, the two functionaries are appointed in pursuance of different provisions of law and the duties to be performed by them are also diverse. It is, therefore, clear to me that unless and until the persona designate was both an Additional District Judge and an Additional Sessions Judge, he could not be considered to be a properly constituted tribunal. On that reasoning I am of the view that Mr. A. G.
Muhammadally was coram non judice in relation to the proceedings and the impugned order, therefore, is a nullity in law and Without jurisdiction and of no legal effect.
12. In fact even the Advocate for respondents has not contested the above position and has only prayed that the matter be remitted for re-hearing by the Settlement Commissioner. I have given anxious consideration to this request and I find that this request is not maintainable in law. The facts that have been given by me In the earlier part of this judgment show that the respondent's predecessor first made an application before the Deputy Settlement Commissioner challenging the issuance of P. T. O. In favour of the petitioner. This application was made on 25-6-1962. Against this order of the Deputy Settlement Commissioner, the respondents filed an appeal before Mr. Abdul Mateen Siddiqui which was also dismissed by an order dated 17-9-62. However, in the penulti--mate para. Of the Additional Settlement Commissioner's order a suggestion was made to the effect that if the respondent considered the grant of P. T. O. In favour of the petitioner to be a product of fraud or misrepresentation, he could move the proper authorities for action under Permanent Transfer of Properties Rules, 1961. It seems that thereafter the respondents were pursuing remedy under these rules. Annexure `H' to the petition is an application made by the respondents on 23-9-1963 and the title of this application reads as follows : - "An application under Rule 7, Final Transfer Rules."
This application was clearly not an application for the: purpose of setting-up or founding the claim of respondents; but contained a prayer that an inquiry may be initiated in the matter and further that it may be held that the open space, the bath room, the latrine and taps are meant for common use of the occupants of all the tenements of the building. In this, application the respondent has not made a prayer for transfer of the premises in his favour but he was only interested in having the transfer in favour of the petitioner cancelled on, ground of fraud or misrepresentation. In this application a. Report was called for from the Deputy Settlement Commissioner which is annexure ---I--- to the petition and on 26-12-63 this petition was dismissed by the Additional Settlement Commissioner for the .Reasons that are reproduced below :- "Parties called and heard their Advocates at quite length. Record perused. From the perusal of the case papers it is revealed that the applicants were parties in appellate and revisional Courts against the respondent but they could not get any redress from there. Hence they were probably waiting for the issuance of P. T. D. In favour of the respondent so as to take one more chance for creating trouble for the respondent. D. S. C.'s report dated 11-11-63 perused.
From the perusal of record it is revealed that the applicants are in the habit of making applications one after another just to harass the transferee. Since the property has been trans--feered finally and the applicants did not get any relief from appellate or revisional Courts I do not think it is fit case for reopening at this stage hence the same is rejected."
13. The question then arises whether the respondents had any right of further appeal or revision against this order passed by the Additional Settlement Commissioner. The Permanent Transfer Rules, 1961 provide a complete Scheme in the matter of cancellation of Permanent Transfers and also the procedure that has to be adopted. Under Rule 6 (4), an Inquiry into the allegations of fraud or misrepresentation has to be made by a Settlement Authority after affording a reasonable opportunity of hearing to the parties. Rule 6 (5) provides that when a Permanent Transfer is required to be amended, varied or cancelled, a carbon copy of the order passed, shall at the time of passing the order be issued to the Transferee free of costs and if he does not desire to file an appeal or revision, as the case may be, the Settlement Authority shall emend, vary or cancel the Permanent Transfer Deed In accordance with his findings. Rule 6 (6) deals with appeals and revisions against orders passed by virtue of Rule 6 (5). This rule reads as follows :- "If a transferee desires to file an appeal or revision, as the case may be, then the entry shall not be amended, varied or cancelled until the expiry of a period of 15 days of the passing of the order or the disposal of the appeal or revision, which--ever is later."
The above-quoted sub-rule clearly shows that a right of appeal or revision exists only in favour of transferee to the exclusion of every one else. It is needless to say that a right of appeal or revision is a creature of Statute and unless theStatute specifically confers such a right, it does not exist. It is, therefore, clear that respondent Muhammad Saleheen had no right of appeal or revision against the order of the Additional Settlement Commissioner and the Revision Application before the Settlement Commissioner was not at all maintainable as it was not made at the instance of the petitioner who was the transferee, but at the instance of respondent who had no right of appeal or revision. That being so, the entire proceedings before Mr. A. G. Muhammadally were misconceived and not maintainable. Even for this reason, the impugned order is ultra vires and of no legal effect.
For the reasons that I have given I see no justification for remanding this case to the Settlement Commissioner for re-hearing.
14. No other point by way of argument was placed before me by the learned counsel for the respondent.
15. In the result, this petition is allowed and the relief granted is that the impugned order (Annexure `K' to the Petition) is quashed as the same is ultra vires and of no legal effect. In the peculiar circumstances of this case, I leave the parties to bear, their own costs.
K. B. A.