' Facts leading to this Constitutional petition are that Property No. 1/12C6 bearing Survey No. B-1.2S- 47, Kutchery Road, Siaikot was transferred in favour cf the petitioner on 13.12-1959. After payment of the transfer price, he was issued Permanent Transfer Deed on 29-7-1963. One Ghulam Hussain, not a party to the proceedings, flied a form for transfer of undisposed of building site, under Martial Law Regulation No. I6 in respect of Plot No. 1, 1205-A. A report was submitted that the property applied for is neither entered in a survey register of this c lice nor in Municipal record for the year 1946-4-n It is situated between Property No. 1/1205 and 1/1206 and as such its property No. Is assigned as 1/1205-A. It seems a passage which has been converted as she p. This site has been blocked from the back side and there is no passage at all. It is an evacuee piece of land. It is in possession of Misty Ghulam Hussain for the last 12 years as stated by him". On 30-6-1972, the Deputy Settlement Commissioner held that "this plot (shop) be included in the next auction list, if otherwise it is still available for disposal and the applicant is not entitled to its transfer under the normal law/schemes". The matter was taken up by Mr. Muhammad Arif Rana, the learned Additional Settlement Commissioner, who passed an order to the following effect "Martial Law Regulation No. 86 has since not been saved by the Interim Constitution of Pakistan, the property be disposed of under normal law". This is vide order dated 29-6.1972. The auction proceedings were chaired by Mr, Muhammad Arif Rana, Deputy Settlement Commissioner. Permanent Transfer Deed was issued in favour of the auction purchaser. The petitioner filed an appeal against this auction. It was accepted by the learned Additional Settlement Commissioner who remanded the case to the Deputy Settlement Commissioner for decision "as to whether the disputed portion is a part of Property No. 1/1206 and, if it is found to be so, its auction in the name of Marizoor Hussain would stand cancelled". This is vide order dated 10-3-1973. The Deputy Settlement Commissioner came to the conclusion that "the portion of building No 1/1206 having been sliced away and assigned a new number 1/1205-A by the Settlement Department without any base is the part and parcel of building No. 1/1206 since permanently transferred to Bunyad Hussain petitioner. In other words, the portion under dispute was owned to Bunyad Husain as per Permanent Transfer Deed issued to him in 1963.
' The nutshell result is that the disputed portion was no more evacuee property after 1963 and it could not be auctioned in 1972. As this portion was neither evacuee property nor an Independent unit at the time of its auction 1972, thus its auction automatically stands cancelled as ordered by the learned Additional Settlement & Rehabilitation Commissioner in his above-referred remand order". This is vide order dated 14-5-1973. The auction purchaser, respondent No. 2, filed an appeal which was dismissed by the learned Additional Settlement Commissioner. He, then, filed a revision petition. Mr. M. Arif Rana, Additional Settlement Commissioner, exercising revisional jurisdiction, took up the matter and observed that "I have visited the spot in presence of the parties and have visualised that the property in dispute is a passage situated in-between two properties No. 1/1205 and 1/1206 and that the windows of 1/1205 and ventilators of 1/1206 open towards it. As it is evidently a common passage for both the properties 1/1205 and 1/1206, therefore, none of them can exclusively claim it". He, further, proceeded to observe that "I am of the opinion that as the passage was disposed of by allocating a separate number 1/1205-A and that Permanent Transfer Deed has been issued in both the cases, the Settlement Department was not authorised to upset the same.
The revision petition is therefore, accepted and the impugned order is set aside". This is vide order dated 7-5-1976. The petitioner now challenges this order by means of a petition under Article 199 of the Constitution.
3. Learned counsel for the petitioner has contended that the passage is a part of the property transferred to the petitioner leading to property N o. 1/1205 and after issuance of Permanent Transfer Deed in favour of the petitioner no part of it could not have been auctioned by the Settlement Department. It is, next, contended that Mr. M. Arif Rana, Additional Settlement Commissioner who accepted the revision petition of the respondent by means of the impugned order could not do so because he himself had earlier ordered that this disputed portion be put to auction and had himself chaired the auction proceedings. These auction proceedings were set aside on the appeal of the petitioner and case was remanded. On remand, the transfer in favour of the petitioner was found to be valid by the learned Deputy Settlement Commissioner and it was maintained on appeal by the appellate authority. This could not have been subsequently interfered with by Rana M. Arif in exercise of revisional jurisdiction. Learned counsel has placed reliance on Mrs. Saeeda Tasneem Ara v. The Province of West Pakistan and others (1) and also on a decision of my learned brother Mr. Justice G. M. Mirza in Writ Petition No. 1677/1(/74, decided on 11-12-1975. In the last-mentioned case, Mr. M. Arif Rana had submitted a report as a Deputy
(1) PLD 1967 Lah. 1112 ' Settlement Commissioner in respect of an application for transfer under Settlement Scheme No. VI. Subsequently, the property was disposed of under Settlement Scheme No. VIII. The matter came up before him in appeals and he disposed of the same. My learned brother Mr. Justice G. M. Mirza observed that ' I am inclined to agree with the learned counsel for the petitioner that when the appeals came before Mr. Arif Rasa he should have refrained from dealing with those as he had already expressed his opinion. It Is not only necessary that justice must be done but it is more essential that it must be seen to have been done. On this principle alone, this petition must succeed. I would, therefore, accept this petition, declare the impugned order to be without lowful authority and as such, of no legal effect. The Chief Settlement Commissioner is directed to entrust this case to a Settlement Commissioner other than Mr. M. Arif Rana, having jurisdiction in the matter so that the case be decided afresh".
4. Learned counsel for respondent No. 2 has submitted that the petitioner is not entitled to relief because the petitioner has not challenged the jurisdiction of Mr. M. Arif Raoa before him to hear the revision petition on the ground that the officer had earlier dealt with the case. The petitioner having submitted to the jurisdiction and awaited for a favourable decision is not entitled to turn round and ask for setting aside of the order when that had come out to be adverse. He has, next, contended that there is no allegation, nor, is that a fact that Mr. M. Arif Rana was either aware of the previous proceedings or had any biased mind. Consequently, his order having been passed innocently is not liable to be interfered with.
5. From the statement of facts and contentions of the learned counsel for the parties, it is quite obvious that property No. 1/1206 was transferred to the petitioner as long ago as 1963. A passage to praperty No. 1/1205 converted into shop and assigned number 1/1205-A was nine years later ordered to be auctioned by Mr. Arif Rana, as Additional Settlement Commissioner. He himself chaired the auction thereof on 29-9-1972. When these proceedings were challenged by the petitioner, the appellate authority allowed the appeal. The case was remanded to the learned Deputy Settlement Commissioner, The Deputy Settlement Commissioner held the disputed portion to be part of the property transferred to the petitioner. This order was maintained on appeal.
Thereafter, Mr. M. Arif Rana, exercising revisional jurisdiction, took away the same portion from the petitioner. Now, it is quite clear that Mr. M. Arif Rana having himself ordered disposal of the disputed portion through auction and having disposed of the disputed portion as a Chairman of the auction committee could not hear the revision petition against the appellate order which had set aside the auction conducted by him. It is patent that a person who exercises original or appellate jurisdiction cannot hear revision in respect of the same proceedings. It is so obvious a proposition of law that it hardly requires any authority. The principles go much further. A person who expresses an opinion about a matter at one stage cannot adjudicate the same subsequently. Reference may be made to the case of Mubarik All Bhatti v. Mr. Faiyaz All Khan, District Manager, Provincial Transport Service, Lyallpur and others (1). A person who sees the site of a crime in the absence of the concerned parties so as to better understand the cases when brought before him is not entitled to sit on the trial. Tumahole Bereng and others v. The King (2). So much so that a
(1) P L 1963 Lah. 8 (2) PLD 1949 P C 47 semblance of justice not being seen to be done is enough to avoid an adjudication. In the Queen's Bench Division in the case of R. v. East Kerrier Justices Ex parte Mundy (1), Lord Goddard, C. J.
Observed that "although I cannot for the moment trace the authority, I think it has certainly been said more than once in this Court that it is not right that the justices' clerk should retire with the justices. It has been said over and over again that the decision must be the decision of the justices, not the decision of the justices and their clerk, still less the decision of the clerk and, if the clerk retires with the justices, people will inevitably form the conclusion that the justices' clerk may influence the justices, or may take some course which it is for the justices alone to take". Lord Devlin observed that" we are not dealing with a case of actual injustice. If we were, that would be the end of the matter and clearly the conviction would be quashed. We are dealing with an infringement of the rule that justice must not only be done, but must also manifestly appear to be done and accordingly we are dealing with the matter of form. The Courts have held in the past that it is important not only that justice should be done, but also that it should be seen to be done, and that a person who has been found guilty should know there has been no actual injustice. It is preferable that he should go free rather than that rule should be infringed". These observations would also dispose of the contention of the learned counsel for the respondent that the learned Officer who dealt with the case on revision had no bias, or, had not known that he had previously dealt with the case. Both these factors are not material. What is material is that justice is not only done but must appear to have been done. How can a person who feels aggrieved of an order passed by an officer which he gets set aside in appeal can feel that justice has been done to him when the revisions jurisdiction is exercised by the same Officer who had passed the initial order adverse to him? The case of the present petitioner is on a better footing than that of the petitioner in the case referred to above decide by my learned brother Mr. Justice G. M. Mirza.
6. In view of what has been stated above, the order of Mr. M. Arif Rana, learned Additional Settlement Commissioner date 7-5-1976, is not in accordance with law and is declared to have been passed without lawful authority and of no legal effect. The learned Chief Settlement Commissioner is directed to entrust this case to a Settlement Commissioner other than Mr. M. Arif Rana having jurisdiction in the matter so that the case is decided afresh. The other contentions briefly raised by the learned counsel for the parties about merits of the case are not dealt with for the reason that the case is being sent back for re-hearing, lest that is prejudiced. It would be open to the parties to raise all pleas available to them before the learned Settlement Commissioner.
Thus, this petition is allowed but the patties are left to bear their own costs in the circumstances.
(1) (1952) 2 All E R 144