1982 PLP 686 (SCMR)

The transfer was therefore made in his wife's favour who was a claimant.

3. An appeal was filed by Muhammad Siddique, the respondent in these appeals and a transferee of the other shop on the ground floor. The Additional Settlement Commissioner while deciding the appeal held "in view of the latest policy of horizontal division the flat can quite easily go to a third person. The flat is quite separate from the shops." Accepting the appeal he restricted these two contestants to the shops in their possession and placed the flat on top of the two shops in the ear‑marking scheme.

4. Both Muhammad Siddique and Mst. Iqbal Begum filed revision petitions. The Settlement Commissioner by his order, dated 5‑3‑1960 found that Muhammad Siddique had a larger claim while the husband of Mst. Iqbal Begum was not a claimant and her claim was a meagre one. He passed the operative order observing as follows: ‑ "The question is as to which of these two claimants should be given the fiat. It will be rather hard to the parties if the flat is put in the auction pool and the claims of the parties are altogether ignored." He further held :‑ , "Since Muhammad Siddique is also a displaced person and the flat is over his shop and the stair‑case also leads up from his shop and his claim is sufficient for the transfer price of the flat, I am of the view that the fiat should be transferred to him and should not go into the ear‑marking pool." Accepting his revision, the flat was transferred to him. A second revision petition, was then filed by Mst. Iqbal Begum. The Settlement Commissioner (Policy;) submitted a note that "strictly speaking Additional Settlement Commissioner was correct but as one shop could be transferred along with the residential unit no interference be made with the order against which second revision petition had been preferred. The Chief Settlement Commis sioner endorsed this view on 18‑9‑1960 by affixing his signature.

5. A review petition was filed which came up before the Settlement Commissioner invested with the powers of Chief Settlement and Rehabilita tion Commissioner. After visiting the spot, the Settlement Commissioner exercising powers of the Chief Settlement Commissioner came to the conclusion that "there was no doubt left in my mind that the flat is entirely a different unit having no connection whatsoever with the shops. I see no reason, why it should not be given to Umar Din who have been in possession of it since 1947 and who is also a claimant." It appears that Umar Din was impleaded as a party at that stage.

6. Two constitutional ‑petitions were filed against this decision of the Settlement Commissioner exercising powers of the Chief Settlement Commis sioner, one by Mst. Iqbal and the other by Muhammad Siddique, both contend ing that Umar Din could not be made party at that stage nor could an order be passed to his benefit in such proceedings, each in turn claiming the transfer of the flat. The learned Judge in the High Court held that the Settlement Commissioner exercising powers of the Chief Settlement Commissioner was not, in fact, a successor of the Chief Settlement Commissioner and, therefore, had no jurisdiction in the matter. Not only that, the earlier order of the Chief Settlement Commissioner Mr. Ahsan‑ud‑din dated 18th September, 1960 was also found to have been made without application of mind and on the strength of the decision of the Supreme Court in Ghulam Mohiud Din v. Chief Settlement Commissioner P L D 1964 S C 829, set aside. It was therefore ordered that the second revision filed by Mst. Iqbal would be deemed to be pending decision. Concluding the judgment the learned judge observed as follows: ‑ "I cannot help remarking that Umar Din, respondent No. 2, who had never assailed the order of the D. S. C. in an appeal or a revision would not be a party to the second revision petition before the Chief Settlement Commissioner now because he was never a party to it when the petition was disposed of before him in the manner referred to above."

7. Umar Din filed a Letter's Patent Appeal against this judgment of the High Court. The Letters Patent Bench while dismissing the appeal in limine made an observation in the following words: "We would therefore like to observe that in case the Chief Settlement Commissioner after hearing Mst. Iqbal and Muhammad Siddique in the revision petition comes to the conclusion as was arrived at by the Additional Settlement Commissioner in his order dated 21‑12‑1959 that none of them is entitled to the transfer of the chobara, then in that case he can consider Umar Din for the transfer of the said chobara on the basis of the C. S. Forms which he had submitted."

8. The Chief Settlement Commissioner on remand took up the second revision petition of Mst. Iqbal Begum and disposed it of by order, dated 17‑2‑1968. He held that the flat was an independent unit and neither of the contesting transferees of the shops was entitled to the transfer of the fiat. As regards the claim of Umar Din, he made the following observations :‑ "After arriving at the above conclusion, the case of Umar Din is to be considered. He was deprived of the transfer of the flat mainly on two grounds. Firstly his son had made a statement on behalf of his father Umar lain to the effect that they were riot prepared to get the flat transferred but it appears that his son was not duly authorised by his father in this case. Secondly Umar Din did not pursue the matter when his claim for the transfer of the shop was rejected by the Deputy Settlement Commissioner. I, however, remand the case of Umar Din to the Deputy Settlement Commissioner for disposal according to law after hearing Umar Din and keeping in view the relevant aspects of the case. In case Umar Din is not found entitled to the transfer of the flat it should be auctioned."

9. Both Mst. Iqbal Begum and Muhammad Siddique felt aggrieved by such a disposal of the second revision and again preferred separate constitutional petitions each in turn claiming the transfer of the flat as a part of the shop transferred. The learned Judge in the High Court came to the conclusion that the Chief Settlement Commissioner in exercising powers under subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) had to satisfy himself about the correctness, legality or propriety of the order dated 5‑3‑1960 of the Settlement Commissioner and as he had given no reason showing that the order of the Settlement Commissioner was deficient, lacked any of these requirement, the order suffered from an infirmity. The learned Judge further observed "The learned Settlement Commissioner was justified in treating the flat on the first floor as an extension of one of the shops below. It appears from the record that it was all along treated as an integral part of the building which should either go with one shop on the ground floor or with the other." It was noted by the learned Judge that the Settlement Commissioner had based his conclusion on an erroneous fact that the approach to the flat was by a stair‑case from the shop of Muhammad Siddique. Nevertheless, the reasons given for transferring the flat to Muhammad Siddique was otherwise considered sound. As regards the objection that none of the transferees. of the shops had applied for transfer of the flat, the learned Judge observed :‑ "The learned Chief Settlement Commissioner held Muhammad Siddique to be a non‑claimant for the flat on the ground that this was a C. S. Form and not a C. H. Form but it is to be noted that this flat does not bear any independent number and Siddique had applied on a C. S. Form for the acquired property bearing No. S‑37‑R‑

104. Therefore he could claim the transfer of the fiat on the basis of the same C. S. Form treating it to be an integral part of the property and once it was so treated there could be no legal objection to its transfer in favour of Muharhmad Siddique." From these facts the learned Judge concluded that the Chief Settlement Commissioner whose order was impugned before him lacked the lawful authority to pass that order and declared so while allowing the petition of Muhammad Siddique and dismissing that of Mst. Iqbal Begum. The result was that the transfer of the flat remained in the name of Muhammad Siddique as ordered by the Settlement Commissioner.

10. The narration of the facts and the resume of the orders passed bring out certain features of the case which admit of no doubt or controversy at this stage. These are as follows :‑ "(i) The building was a composite property, that is, comprising residential as well as business units, two each, thereby attracting the exercise of powers reserved. for the Chief Settlement Commissioner, or his delegate in second proviso to clause (12) of section 2 of the Act in the following words: - Provided further that where any such building or premises consists of both residential and business units, the Chief Settlement Commissioner may order that the whole of such building or premises or such parts thereof as may be specified in the order, shall be deemed to be a shop or a house. (ii) In the very first attempt at exercising this power under second proviso to clause (12) of section 2 of the Act each of the four units was taken to be a separate transferable unit. About three of them there was no difficulty in disposal as the occupants got it. As regards the fourth unit, i.e. the flat the occupant being hot in competition, the compara tive claim of the transferees of the two shops was considered and Hakim Muhammad Iqbal preferred. Thus the flat was treated as part of the shop transferred to him. (iii) The Additional Settlement Commissioner deciding the same question in appeal kept intact the separateness of the flat and placed it in the earmarking scheme. (iv) The Settlement Commissioner dealt with the same question in revision and on an erroneous factual assumption, that the stairs to the flat are located in the shop transferred to Muhammad Siddique respondent directed its transfer to him as a part and portion of his shop. (v) In second revision the strict legal position and the correctness of the exercise of this power by the Additional Settlement Commissioner was noted but the order of the Settlement Commissioner with regard to apportionment of flat as between the contesting parties was left undisturbed. This order was held by the High Court to be vitiated on account of non‑application of mind. (vi) The review petition was disposed of by an authority which was not competent to dispose it of so its result is left unnoticed. (vii) The first round of litigation concluded by disposal of the Letters Patent Appeal whereby the Chief Settlement Commissioner was asked to dispose of afresh the revision petition of Mst. Iqbal Begum with the reservation that if neither of the contestants was found entitled to it then the claim of Umar Din occupant could be considered." In the judgment of the High Court under appeal, a view has been taken of the revisional powers of the Chief Settlement Commissioner and of the powers conferred by second proviso to clause (l2) of section 12 of the Act which it is difficult to sustain. Though the powers of the Chief Settlement Commissioner under section (2) of section 20 of the Act were taken to be wide enough to test the correctness, legality or propriety of the orders impugned before him an omission to mention the specific defect was taken to vitiate the order. If the infirmity or defect "floated on the surface" or was otherwise readily discernible, the vitiation could not be the result. The learned Judge himself noted that the Settlement Commissioner had based his order on a ground of fact, namely the location of stairs in the shop of respondent, which was patently incorrect, but denied to the Chief Settlement Commissioner the power in revision to give full effect to rectification of this mistake by interfering with the order. The learned Judge limited the powers of the Chief Settlement Commis sioner under second proviso to clause (12) of section 2 of the Act to order that the flat "should either go with one shop on the ground floor or with the other" simply because it was all along treated as an integral part of the building". No such limitation is contained in the law. None follows by necessary implication either. On the‑other hand, his powers appear to be uncontrolled except by his own concept of what is just, proper and fair in given situation. A common feature of all the orders passed in exercise of power referable to second proviso is that they treat the flat as the third property and thereafter apply the test of prior allotment, prior possession, larger claim or better entitlement of the two contesting parties. Such would not have, been the exercise if in exercise of that power the flat had been assimilated to one of the shops as a structural unit or as necessary for the beneficial occupation or enjoyment of any of these shops. The Chief Settlement Com missioner's order takes note of all these facts and coming to the conclusion that the flat was an independent residential unit not required to be transferred as an adjunct of any of these shops, ordered so. His power to re‑examine the exercise of his own powers under second proviso delegated to subordinates was never disputed. On the facts of the case, the Chie Settlement Commissioner did not lack the legal authority to interfere in the exercise of powers by Settlement Commissioner under second proviso to clause (12) of section 2 of the Act. His conclusion that the flat required disposal as a residential unit independently of the two shops was not open to interference in constitutional jurisdiction as violating the law or in excess of his jurisdiction. It was a fact that none of the transferees of the shop had claimed any portion of the property not already in the possession. The question of intervention of Umar Din and its stage is not really material. Once it was decided that the flat was to be disposed of as a separate unit, the transferees of the shops would lose their very locus standing The existing law governing the disposal of ouch available properties will take over and all those who can advance their claim, consistently with it may do so, This is what the order of the Chief Settlement Commissioner accomplishes. The upshot of the discussion is that both the appeals are allowed, the judgment of the High Court is set aside and the order of the Chief Settlement Commissioner is restored. Parties are in the circumstances left to their own costs. Appeal allowed.