This Constitutional Petition arises out of the following facts ;
1. The petitioner was allotted open evacuee Plot No 4311 situated on Art School Road, Quetta on 13th December 1952. Subsequently on 30th November 1959 he applied for its transfer and he was granted a P. T. O. Bearing No. 820 dated 21st January 1961. The P. T. D. Was also issued in his favour on 30th June 1967. The petitioner claims to have constructed a house on this plot same tunes between 1952 and 1959. The Municipal Committee allotted Nos.4-6/15 to have newly constructed house.
Urban Rent Restriction Ordinance, 1959 was moved before Civil Judge and Rent Controller. Quetta.
An order under section 13(6) of the Rent Ordinance was passed on 7th December 1974, but in view of the alleged non--compliance of this order. The learned Rent Controller struck off the defence of the respondent and ordered his ejectment. On appeal, however such orders were revised and the matter was remanded fog reconsideration on grounds which are not relevant for the present petition.
2. Till 10th March 1975 nothing seems to have happened on this application of the respondent. He moved another application on that day (Annexure 'F'), and a second application on 13th March 1975 Annexure (G), through which applications he, among other thing9, be prayed for early bearing of his original application.
3. In the meantime however, the Evacuee Property and Displaced Persons Laws (Repeal)
Ordinance, 1974 was promulgated on 13th September 1974 giving it retrospective effect from 1st July 1974. This Ordinance was subsequently replaced by an Act of the Parliament on 28th January 1975 (hereinafter called the Repealing Act). Section 2 (1) of the Repealing Act repealed various Evacuee and Rehabilitation Laws including he Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the Act). However the pending proceedings were saved by subsection (2) thereof. This subsection reads as follows;---- "(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officer as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal whish would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid ".
4. Acting under these provisions the Member Board of Revenue, Baluchistan, being the officer notified by the Provincial Government for the purposes of this subsection, passed the following orders on 19th June 1975 ;--- "The perusal of the record stows that Habibur Rehman petitioner submitted his application to Captain Saleh Muhammad the then Member, Board of Revenue, on 22-8-1973. The Member Board of Revenue called for report from his office, which was not submitted to him and is still pending, it is a pending matter because his application has not been finally disposed of by the Member, Board of Revenue. The application is admitted as pending."
5. The petitioner, feeling aggrieved by this order, has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan.
6. The only question for determination in this petition is whether the application of respondent dated 22nd August 1973 filed before the Member, Board of Revenue amounted to a "pending proceeding" in terms of sub--section (2) of section 2 of the Repealing Act. Mr. Iftikhar Muhammad the learned counsel for the petitioner contends that on the date this application was moved to the Chief Settlement Commissioner he had no revisional powers under the Act. Originally revisional posers were enjoyed by the Chief Settlement Commissioner under subsection (2) of section 2 of tae Act. Under such powers the Chief Settlement Commissioner could call for the record in any case or proceedings under the Act in order to satisfy himself as to the legality or propriety of any order to pass an appropriate order. But this provision was omitted by Ordinance 11 of 1962 came into force on 30th January 1962. After the omission of this sub--section the Chief Settlement Commissioner was completely divested of any revisional power. The legal position on the point is quite clear. But I am also fortified in this view by a judgment of the Lahore High Court reported as Hanzoor Ahmed v. Chief Settlement and Rehabilitation Commissioner (PLD 1975 Lah. 1331). Haji Sarfraz Khan, the learned counsel for the respondent also concedes to this position. Mr. Jafar Naeem the learned counsel for respondent No. 2 also states that the Chief Settlement Commissioner, on the relevant date, had no revisional power. Additionally it is also armed on behalf of respondent No. 2 that the Chief Settlement Commissioner, by his order dated 22-8-1973, bad not authorised the Settlement Commissioner to exercise his powers under section 20 (3) of the Act.
Not only that the Chief Settlement Commissioner had not authorised any Settlement Commissioner in the Province to exercise the revisional powers under subsection (3) of section 20 of the Act. Such powers could only be exercised by a Settlement Commissioner if delegation under this provision is made in his favour. This is plain from the language of sub-section (3) of section 20 of the Act where it says. A Settlement Com--missioner specially empowered in this behalf by the Chief Settlements Commissioner may----That means that at the time application dated 22nd August 1973 was moved there was no authority in the Province to entertain it.
7. However it is very whemently argued on behalf of the respondent that the application dated 22nd August 1973 was a Miscellaneous Applica--petition, moved on the administrative side which could be entertained by the Chief Settlement Commissioner, in exercise of the powers conferred upon him by subsection (3) of section 9 of the Act. It is further argued that he could either mark it to a Settlement Commissioner for disposal or himself pass such administrative orders on it as be may have deemed fit. Sub--section (3) of section 9 of the Act empowers the Chief Settlement Commissioner to have 'General Superintendence and Control' over the Settlement Commissioner, Deputy Settlement Commissioner and Assistant Settlement Commissioner and any other officers.
In other words this provision enables him to have complete administrative control over the organisation of which he is incharge. But such powers have no bearing upon his judicial functions.
The two have to be distinguished from each other. No judicial orders could be passed by the Chief C Settlement Commissioner in exercise of his such powers, nor could he disturb or affirm any judicial order, passed by authorities subordinate to him, under this provision. I am fortified in this view by a judgment of the Lahore High Court in Shabir Hussain v. Chief Settlement and Rehabilitation Com--missioner (PLD 1973 Note 110 at p. 166). In this case subsection (2) of section 9 of Act came under interpretation which provides for General Superintendence and Control of the Central Government over the Chief Settlement Commissioner. Following observations made in that case can be quoted with advantage :--- "It was contended that since the Chief Settlement Commissioner has to discharge his functions and perform his duties under the General Superintendence and Control of the Central Government, therefore the Government of Pakistan can make any order considered as appropriate by it for and on behalf of the competent Settlement Authority. This interpretation is not spelled out from the language of this provision. This provision obviously deals with the administ--rative matters. The General Superintendence and Control of the Central Government does not mean that it can upset any judicial order passed by the competent Settlement authority or can interfere in the performance of judicial duties. The duties and functions to be performed by the various Settlement Authorities on the Judicial side. If the intention of Legislature in providing subsection (2) of section 9 had been to authorize the Central Government to interfere in the performance of judicial functions of the Settlement Authorities or to upset their judicial findings then the provision of subsection (2) of section 10 would not have been made available in the Act. The view that subsection (2) of section 9 deals with administrative matters gains strength from the use of the language in subsection (3) of section 9. As Chief Settlement Commissioner has to discharge his functions and perform his duties under the General Superintendence and Control of the Central Governments, similarly, the Settlement Authorities subordinate to him are to perform their duties under his control. It does not mean that the Chief Settlement Commissioner can upset the judicial finding of the Settlement Authorities subordinate to him or can interfere in the performance of their judicial functions under this prori9ion. He can do so only render the other provisions of the Act, specifically made available for this purpose."
8. The application dated 22nd August 1973 was made on the Adminis--trative side as is claimed by the learned counsel for the respondent himself.It could not form the basis to start any judicial proceeding. There are other rovisions in the Act which could be pressed into service for initiating judicial proceedings and as observed earlier they were not available at that time. Subsection (2) of section 2 of the Repealing Act refers to judicial proceedings, when it talks of pending proceedings.
The Member, Board of Revenue therefore could not assume jurisdiction by treating such application as a pending proceeding in terms of the Repealing Act.
9. But without conceding if this application were to be treated on the judicial side it was made to a person who did have any authority to grant any relief by way of revision. As observed earlier, the Chief Settlement Commissioner had not empowered any other authority to exercise such powers.
An application, which is moved before an authority which does not have the powers to dispose it of, is not a competently made application. In that event also it could not be treated as a 'pending proceeding', because the proceedings which are claimed to be pending have to be proceedings competently initiated. In Abdul Rashid v. Muhammad Hafeez (PLD 1963 Lah. 414) following observations were made with respect of pending proceedings ; "It is, however, clear that the phrase `pending proceedings' moans such proceedings (or suits etc.) only which were competent under the law, as it stood before the amendments, and cannot be interpreted to include proceedings which were not covered by the then existing law."
10. Haji Sasfaraz Khan, the learned counsel for the respondent, has vehemently contended that the Member Board of Revenue who is a person notified by the Provincial Government under subsection
(2) of section 2 of the Repealing Act, should be allowed to determine the competency of the application. This argument loses side of the fact that if the Member, Board of Revenue is permitted to do so it would amount to allowing him to p exercise a jurisdiction which does not vest in him.
Subsection (2) of section 2 of the Repealing Act confers jurisdiction upon him only when there are 'pending proceedings' in terms of this subsection.