M. R. KHAN, J.---This appeal, by special leave, is directed against the judgment and order of a Division Bench of the High Court of West Pakistan, Lahore, in Writ Petition No. 1259-R of 1963 by which the case was remanded to the Chief Settlement Commissioner with direction to take up a review matter himself and to decide the same in accordance with law.
The dispute giving rise to the writ petition related to Property No. 214/B-III, situated in Sabzi Mandi, Montgomery (now Sahiwal), which is a double-storeyed building consisting of a shop and a residential portion having 10 rooms. The different portions of this property were in possession of several persons, including Muhammad Sharif respondent No. 1 and Khuda Bakhsh (appellant herein). The appellant, a claimant displaced person was in possession of the shop, four rooms on the ground floor and one room with a bath room on the first floor. He submitted both C. H. And C. S. Forms and prayed for the transfer of the entire building to him. The respondent No. 1, who was in possession of one room on the first floor is also a claimant displaced person and he filed one C. H.
Form. The Deputy Settlement Commis--sioner, by his order dated, the 3rd November 1959, transferred the entire building as one-unit house in favour of the respondent No. 1 considering him to be a prior allottee. The appellant's appeal against this order was dismissed on the 21st November 1959. The appellant then invoked the revisional jurisdiction of the Settlement Commissioner who, by his order, dated the 5th March 1960, declared the property to be divisible and transferred the shop in favour of the appellant and the residential portion in favour of the respondent No. 1. The appellant then made a second revisional application before the Chief Settlement Commissioner. Also the respondent No. 1 filed a second revisional application. The Chief Settlement Commissioner, by his order, dated the 18th May 1960 dismissed the second revision filed by the appellant, but the second revision of the respondent No. 1 was kept pending. Thereafter, the appellant made Writ Petition No. 224-R of 1961 challenging the order of the Chief Settlement Commissioner dismissing his second revision. In that writ petition, the Chief Settlement Commissioner filed a written statement on the 17th July 1961, expressing his desire to review suo motu his order under challenge in the writ petition. Accordingly, the appellant's writ petition was kept pending. Then, on the 5th February 1963, Mr. Muhammad Rafiq, Settlement Commissioner, in the purported exercise of his delegated power of review, set aside the earlier order of the Chief Settlement Commissioner, dated the 18th May 1960 and transferred the entire building to the appellant on the finding that the property was one indivisible unit. Consequent upon that order, the second revision of the respondent No. 1 which remained undisposed of till then was dismissed simultaneously. In this situation, the appellant's Writ Petition No. 224-R of 1961, which had been kept pending in anticipation of the suo motu review promised by the Chief Settle--ment Commissioner, was dismissed. Obviously, the said writ petition was dismissed on account of its having become infructuous as a result of the suo motu review. Thereafter, the respondent No. 1 filed Writ Petition No. 1259-R of 1963 out of which the present appeal has arisen. In the said writ petition, the respondent No. 1 took up the following grounds, amongst others :-
(1) Mr. Muhammad Rafiq, Settlement Commissioner, had no jurisdiction as delegated of the Chief Settlement Commissioner to review suo motu the earlier order of the Chief Settlement Commissioner, dated the 18th May 1960.
(2) The power of review was completely withdrawn by the Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance of 1962.
The learned Judges of the High Court found that the notification by which the power of review was delegated to Mr. Muhammad Rafiq, Settlement Commissioner was not publish--ed in the official Gazette as required by section 31 (2) of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958 and, as such, there was no valid delegation in favour of Mr. Muhammad Rafiq. They, however, took the view that the review matter not having been disposed of by a person competent to review, was still then pending. In the above view of the matter, the learned Judges set aside the order of Mr. Muhammad Rafiq passed on the 5th February, 1963 in the purported exercise of the delegated power of review and remanded the case to the Chief Settlement Commissioner for disposing of the review matter himself.
Leave was granted to consider if the view taken by the learned Judges of the High Court was legally correct.
Mr. Ghulam Mujaddid Mirza, learned counsel for the appel--lant produced a copy of the Notification, dated the 26th April, 1962, which purported to have delegated the power of review of the Chief Settlement Commissioner to certain officers including Mr. Muhammad Rafiq, Settlement Commissioner. The said noti--fication is reproduced below: "NOTIFICATION No. 1313-Admn-Reh. 62----In partial modification of the previous Notification issued from time to time in relation to delegation of my power under section 20 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, I, Ahsan---ud-din, C. S. P., Chief Settlement Commissioner, Pakistan by virtue of the powers vested in me by section 31 (2) of the said Act, do hereby delegate my powers under section 21 (1) ibid as amended uptodate to the following Settlement Commissioners in their respective jurisdiction, in respect of such review cases as had been filed before 10-1-1962 against orders passed by me under section 20 (2) of the said Act.
Sr. No. Name of Settlement Commissioner H. Qrs
1. Raja Muhammad Zia Ullah Khan, P. C. S. Lahore
2. Ch. Sultan Muhammad, P. C. S. Lahore
3. Sh. Muhammad Rafique Lahore
4. Syed Ijaz Hussain Shah Lahore
5. Mian Ghulam Shabbir Multan
6. Ch. Ali Ahmad, P. C. S.Lahore
2. These officers will also dispose of such review cases as may be entrusted to them from time to time.
Dated Lahore, the(Sd.) Ahsan-ud-Din, 26th April 1962. Chief Settlement and Rehabilitation Commissioner, Pakistan."
Admittedly, this notification was not published in the official Gazette as required by section 31(2) of the Act. Without entering into any discussion as to the effect of non-publication of the noti-- fication in the official Gazette, it may be safely said that the notification quoted hereinbefore conferred no jurisdiction on Mr. Muhammad Rafiq, Settlement Commissioner to review the earlier order of the Chief Settlement Commissioner dated the 18th May 1960. The reasons for this are more than one. Firstly, the notification was issued on the 26th April 1962, whereas the very power of review was taken away on the 13th January 1962 by Ordinance No. II of 1962. The notification in question was thus unauthorised. Secondly, the notification itself did not delegate the power of suo motu review. Lastly, no review, as conceded by the learned counsel for the appellant, was pending from before the 13th January 1962, the target date mentioned in the notifica--tion itself. For these reasons, while the learned Judges of the High Court were right in holding that Mr. Muhammad Rafiq had not been validly invested with the power of review, they were not right in remanding the case with the direction to dispose of the review matter by the Chief Settlement Commissioner himself.
When no review petition was ever filed and the intention of the Chief Settlement Commissioner as expressed in his written state--ment in the appellant's Writ Petition No. 224-R of 1961 was only a wish to review suo motu and when the power of review was taken away by law with effect from the 13th January 1962, there was no point in remanding the case to the Chief Settlement Commissioner for review of his earlier order made in respect of the disputed property on the 18th May 1960.
The learned counsel for the appellant realised the legal post--tion as stated above, but made a serious grievance that his client is going to suffer for no fault of his. He allowed his Writ Petition. No. 224-R of 1961 to be dismissed and, on the legal plane, he is; going to lose this appeal also. It is true that the appellant allo--wed his writ petition to be dismissed as the review order had been made in his favour, but he may make a prayer in the High Court for restoration of his writ: petition on the ground that it was allowed to be dismissed on the grounds of its having become infructuous because of the favourable order of review. So far as the present appeal is concerned, it is liable to be dismissed, but the order of dismissal of the appeal does not mean that the High Court's order remanding the case to the Chief Settlement Commissioner holds good. As the power of review ceased to be available, the High Court's order remanding the case is vacated, but the order of that Court quashing the order of Mr. Muhammad Rafiq passed in review on the 5th February 1963, is upheld.
With the above observations, we dismiss the appeal without any order as to costs.