P L D 1966 (W (PLP)

2. The residential portion was in possession of the appellants and some other persons. The case of the appellants is that the said other persons surrendered their rights in favour of the appellants, as is evident from Annexure "A" attached with the writ petition, and, consequently, the Deputy Settlement Commissioner, by his order, dated the 22nd of March 1960, transferred the entire residential portion to the appellants. Against the order of the D. S. C., two appeals were referred one by one Saeed-ul-Islam and the other by the appellants who claimed another shop in addition to the one which had already been transferred to them by the D. S. C. The Additional Settlement Commissioner, by his order, dated the 2nd of June 1960, dismissed the appeal of the appellants with regard to the other shop which had been put into the auction pool by the D. S. C. and with which we are not concerned in the present proceedings. As regards the appeal of Saeed‑ul‑Islam, that was also dismissed, and he was not transferred any portion of the house in dispute. The Additional Settlement Commissioner, however, divided the residential portion into two parts and allowed one portion to remain with the appellants and put the other into the auction pool. The relevant portion of his order reads as follows "The house being a very big one, can be divided into two portions, as already reported by R. I. So I divide it into two portions and give one portion, in the occupation of Muhammad Ismail and his brother, to him and the other portion on the top of the shop of Muhammad Ismail be reserved for earmarking. By putting this portion in the earmarking, some claimants will be accommodated and some claims settled. Muhammad Ismail and Khuda Bakhsh, on the other hand, have sufficient accommodation in half of this house."

3. The appellants filed a revision petition and so did Saeed -ul‑Islam. The Settlement Commissioner, by his order, dated the 31st of October 1960, rejected both the revision petitions. As regards the appellants, he wrote as follows :‑‑‑ "As regards Muhammad Ismail and Khuda Bakhsh, the portion in their possession has been transferred to them, the rest of the portion which they want to have was not in their possession. This was rightly transferred to the auction pool." The appellants then filed a second revision before the learned Chief Settlement Commissioner, who wrote as follows "I have considered the petition and have also seen the orders of the learned Settlement and Rehabilitation Commissioner. I find that there is no special reason requiring my interference. The petition, therefore, stands rejected."

4. Thereafter the appellants filed a writ petition in this Court under Article II (4) of the Laws (Continuance in Force) Order, 1958. This writ petition was dismissed by Muhammad Daud, Khan J., in limine. He held that the question of divisibility is not justiciable in writ jurisdiction. The appellants have filed the present Letters Patent Appeal against the said order of the learned Single Judge. The Letters Patent Appeal was admitted to consider, that when the divisibility of a house has been pronounced by a Settlement Authority in an arbitrary manner, is it open to scrutiny by the High Court in the exercise of writ jurisdiction or not? The second point on which the Letters Patent Appeal was admitted was to see whether the order passed A by a delegatee of the Chief Settlement Commissioner on the point of divisibility was final or not. The second point need not detain us any further, because, according to the latest amendment in the law on the subject as contained in Ordinance XVIII of 1965 all orders passed by delegatees of the Chief Settlement Commissioner on the question of divisibility are appeal-able and revisable. In view of this change in law, there is no force in this objection.

5. As regards the first point that where the divisibility of a house has been pronounced in an arbitrary manner, whether it is open to scrutiny by the High Court or not, there again we have the latest pronouncement of the Supreme Court in Muhammad Iqbal Khan v. Chief Settlement Commissioner etc. (PLD 1965 S C 404) g where their Lordships have held that to hold the house divisible is a quasi judicial function and is amenable to scrutiny by the High Court like any other quasi judicial finding, provided a proper case for interference is made out. The actual passage as given in head note (b) is as follows "Held, that an order passed by a Settlement Authority, holding a building or premises to consist of more than one residential unit' by virtue of proviso to section 2 (4), Displaced Persons (Compensation and Rehabilitation) Act, 1958, would not always be liable to attack on the ground that more than one residential unit did not exist. If the decision of the question whether one or more units existed depended on belief or disbelief of witnesses, or appreciation of evidence, a finding by the Additional Settlement Commissioner could not be ignored even by a Court, being an order passed in the exercise of a quasi‑judicial way of jurisdiction. It would have first to be set aside in the proceeding by way of certiorari. It may be different if there was no dispute about facts and the Additional Settlement Commissioner assumed jurisdiction on a misinter pretation of the law that granted him jurisdiction. It has also to be pointed out that under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, orders made by officers under that Act are final `save as otherwise expressly provided and are not liable to be questioned in any Court'. An order passed under the Act can, therefore, be challenged either in accordance with the Act or under Article 98 of the Constitution." "Where a house had two entrances one on the road and one in the lane, two kitchens, two courtyards, two deohris, two stair cases, two store rooms and twelve rooms and a number of families had been residing in the house at the time when the question of its transfer arose and all of them excepting one held allotment orders in their favour: Held, that the house consisted of `more than one residential unit."

6. Applying the above law, we are to see whether the division, which in this case has been made by the Additional Settlement Commissioner of bifurcating the residential units into two portions and which has been maintained by the learned Settlement Commissioner and the Chief Settlement Commissioner is arbitrary and in excess of jurisdiction or not. Under Second Proviso to subsection (12) of section 2 of the Act, it is laid down that where any such building or premises (which has not been declared as a big mansion or a hotel, or which is not situated within the premises of an industrial concern), consists of both residential and business units, the Chief Settlement Commissioner may order that the whole of such building or premises or such part or parts thereof, as may be specified in the order, shall be deemed to be a shop or a house. This provision of law, covers such types of buildings which are of a composite character, namely, in which there are business units as well as residential units. In the case of such a composite building, it is the power of the Chief Settlement Commissioner to declare which portion is to be a house. In the instant case, the Deputy Settlement Commissioner declared the whole of the residential portion as a house. This was in the exercise of his powers as a delegatee of the Chief Settlement Commissioner under section 2 (12) to make divisions. His order, according to Ordinance XVIII of 1965, was subject to appeal and revision. The Appellate Authority, namely, the Additional Settlement Commissioner, in the exercise of that power in appeal, held that only that portion from the residential portion should be deemed to be a separate house for the purposes of transfer to the appellants which was in their physical possession. The portion which was not in their physical possession but was in possession of other persons, he said, would be a separate house. According to the order of the Additional Settlement Commissioner he divided this composite property now counting from the overall point of view, into four shops and two houses. One shop was given to appellant No.

1. The other shop was purchased by appellant No. 2 in auction, and out of the houses, one house was transferred to the appellant and the other house was put in the auction pool. Had the change in law not come by Ordinance XVIII of 1965, the position of the case would have been different. In that eventuality, the appellants would have been justified on the basis of the authority of the Supreme Court in Jalal Din and others v. Sheikh Muhammad Rafiq, Settlement & Rehabilitation Commissioner, etc. (P L D 1965 S C 261), in submitting that when the Deputy Settlement Commissioner exercised the delegated powers in dividing the property than that was final. But the effect of that decision has been destroyed by Ordinance XVIII of 1965 and now the orders making divisions of the properties are as much amenable to appeals and revisions as any other orders passed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned counsel for the appellants submitted that once the portion was declared a house, then onward from that declaration it fell within the scope of section 2 (4) of the Act, and should be regulated in accordance with the provisions contained therein. This contention has no force because the provisions of section 2 (12) authorize the Settlement Authorities to declare as many residential units in a composite building as they like to hold just as they can hold that there are so many shops or business units in a composite building.

7. The upshot of the above discussion is that the actions of the Additional Settlement Commissioner or of the Settlement Commissioner or of the Chief Settlement Commissioner cannot be said to be arbitrary or in excess of their jurisdiction. This was a composite building and here they were within their authority, to declare that the property should be considered to consist of two residential units and four business units.

8. There is no force in this appeal which is hereby dismissed leaving the parties to bear their own costs. K. B. A. Appeal dismissed.