P L D 1969 Lahore 675 (PLP)

WAHIDUDDIN AHMED, C. J.‑This Letters Patent Appeal is directed against the order dated 20th of March 1964, of a learned Single Judge of this Court, dismissing in limine Writ Petition No. 2365‑R of 1963.

2. In this appeal the dispute between the parties is in respect of House No. H/424, Arya Mohallah, Rawalpindi, which is a double‑storeyed building. On 10th of February 1955, its upper portion was allotted to the appellant, who is a non‑claimant displaced person. At the time of the com mencement of Settlement operations, the appellant filed an N. C. H. Form for the transfer of the house to him. It is not disputed that the occupant of the ground floor, who was a claimant displaced person, did not apply for the' transfer of the property in dispute. The Deputy Settlement Commissioner concerned, apparently not being satisfied about the status of the appellant, called upon him to establish that he was a displaced person within the meaning of section 2 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. On the material placed before him the Deputy Settlement Commissioner, by order dated the 5th of April 1961, held the appellant to be a local. 7his decision was upheld by the Additional Settlement Commissioner vide his order dated the 8th of June 1961. As a result, on the 13th of December 1961, the house in dispute was transferred in ear‑marking proceedings to Mst. Aisha Bibi, the contesting respondent. On 7th of February 1962, the revision petition filed by the appellant was dismissed by the Settlement Commissioner. A second revision petition filed by him, being incompetent, was also dismissed. Thereupon, the appellant filed the above writ petition which, as stated at the very outset, was dis missed in limine, on the 20th of March 1964, mainly on the ground that the Settlement authorities, after due and proper inquiry, refused to hold the appellant to be a dis placed person and that being a finding of fact should not be interfered with in the writ jurisdiction of the High Court. This decision of the learned Single Judge is being challenged in the present Letters Patent Appeal before us.

3. In support of the appeal, Mian Abdul Khaliq, learned counsel for the appellant, has contended that the findings of the Settlement authorities are‑ (a) that the appellant was in the employment of Dehra Dun Municipality from 1921 to 1947, (b) that he resided in Dehra Dun and migrated from there after the Partition of the Indo‑Pak sub‑continent, (c) that the appellant held a gun licence granted by the local authorities of Dehra Dun, and (d) that he had his insurance effected in Dehra Dun. The learned counsel contended that though the appellant's forefathers originally belonged to Sialkot District, it is plain enough that the appellant had a permanent residence, or continued habitation, in Dehra Dun, which now forms part of India, and had no immediate intention of leaving the same but for the civil disturbances or the fear of such dis turbances in that area. According to the learned counsel, the Settlement authorities, while determining the status of the appellant, namely, that he was a local, have failed to take into consideration the relevant principles for such determina tion. In support of this contention, the learned counsel has relied on a Full Bench decision of this Court reported as Syed Haider Shah v. Mukhtar Husain Shah (P L D 1963 Lah. 548).

4. In reply, Mr. Abid Hasan Minto, learned counsel for the respondent, has urged (a) that assuming the findings of fact listed as (a) to (d) in paragraph 3 above are correct, it was still within the jurisdiction of the Settlement authorities to consider whether a person is or is not a displaced person, (b) that assuming the Settlement authorities erroneously decided the question of the appellant's status, this Court has no jurisdiction to interfere, it being purely a question of fact, and (c) that assuming that all the facts urged by the appel lant are found to be correct, the appellant cannot be held to be a displaced person.

5. The learned counsel for the contesting respondent, in support of his contention that the question whether a person is a local or a displaced person is a finding of fact and cannot be interfered with in writ jurisdiction of this Court under Article 98 of the Constitution, has relied on a decision of the Supreme Court in Abdul Latif Butt v. Major D. H. Qureshi and others (1968 S C M R 37). In that case their Lordships held that the decision whether the petitioner was a local or a displaced person from Jammu and Kashmir State lay within the exclusive jurisdiction of the Settlement authorities and it could not be said that in finding the petitioner to be a local the Settlement Commissioner had acted without lawful authority to warrant interference by the High Court under Article 98 of the Constitution. We are in respectful agreement with these observations of their Lord ships of the Supreme Court, and there can be no dispute with it as a proposition of law. The pertinent question in the present case, however, which calls attention is whether the Settlement authorities, while determining the status of the appellant as a local, applied the guiding principles laid down by this Court in Syed Haider Shah v. Mukhtar Husain Shah which were approved by their Lordships of the Supreme Court in Civil Appeal No. 62 of 1962 (Amirzada and another v. Mst. Sardar Begum and another), decided on the 25th of October, 1963. The guidelines in the Full Bench case were :‑ (i) That a person in order to qualify himself as a displaced person must have had a permanent residence or such continuous habitation in that part of British‑India which now forms India with no immediate intention of leaving the same but for the reasons given in the definition of the term `displaced person', and (ii) that in the case of persons who have the perma nent residences in that part of British‑India which now forms hart of Pakistan, it would be a question of fact to be decided in the circumstances and light of each case whet her the residence of these persons in that part of British‑India which now forms part of India was of such a character and nature that they would not have abandoned the same but for the civil disturbances or the fear of such disturbances in that area. The true position in law in such cases is, as held by their Lordships of the Supreme Court in Civil Petition for Special Leave to Appeal No. 283 of 1964, decided on 26th Novem ber 1964, whether the inferences which have been raised by the Settlement authorities could be legitimately made in the circumstances of a particular case. It is from this angle that we have to consider the question involved in the present appeal before us.

6. In order to find out whether the learned Settlement authorities applied the guiding principles, enumerated above, while determining the status of the appellant as a local, it is necessary to refer to the decisions of the various Settle ment authorities before whom the matter was urged by the appellant. In this connection the learned Additional Deputy Settlement and Rehabilitation Commissioner, in his order dated the 5th of April 1961, observed as under :‑ "Mr. Bhutta (appellant) was asked to prove by means of documents about his stay at Dehra Dun which is attached with the file. It seems that Mr. Nazeer Ahmad Bhutta had some movable property said to have been claimed by him but the Custodian had denied having taken over any movable property belonging to him. I have inspected the house and it is fairly big and the structure too is above the ordinary. The rent of the house as given in the taxation department is Rs. 552 per annum. Nazeer Ahmad Bhutta states in his N. C. H. Form that he has been paying Rs. 9 for the upper portion which is untenable and unacceptable. Keeping in view the accommodation of the upper portion even if the rent of the upper portion is taken as Rs. 23 being half of the rent of the whole house, he does not fall in the category of those locals who can be accommodated in houses of the value of lower than Rs. 10,

000. I reject his application on N. C. H. Form as his bona fides of being a displaced person are not very convincing. Taking him as a local, I see no reason to transfer this house to him as a whole or in part and his application is therefore filed." Similarly, the learned Additional Settlement Commissioner, while considering the question before him on the point observed as under: "The appellant contends that he is not a local but a displaced person. He admits that he originally belongs to Village Kotli Bhutta in the Sialkot District. In his affidavit dated 29‑1‑1960 on the Settlement tile, he has admitted that he originally belongs to the area now form ing Pakistan, but was in India at the time of Independence in connection with the business and service. In the docu ments produced by him, there is a copy of a letter from the Assistant Custodian of Evacuee Property, Debra Dun to show that no movables of his were taken over by the Assistant Custodian, Dehra Dun. This gives the impres sion that he did not leave any movable there. The plea that he went to India for means of livelihood and stayed there till Partition does not bring him within the definition of a displaced person, for the simple reason that he is already a citizen of the area now forming Pakistan, and has not subsequently become a citizen of Pakistan. I, therefore, hold that the Deputy Settlement Commissioner came to the right conclusion in holding that he was a local, and I reject the appeal." In this connection, the learned Settlement Commissioner, in revision, has observed as under :‑ "I have heard the counsel for the petitioner who asserts that the petitioner was an Octroi Superintendent in Debra Dun at the time of Partition and he has produced before me some Insurance Policies debits receipts of his transferring licence in Debra Dun. He urges that he would have stayed on in India if no Partition had taken place. It appears to me that the petitioner left no property in Debra Dun and he was just a temporary employee of the local body. I perfectly agree with the view of the lower Courts that the petitioner being employee of the local body was not likely to stay permanently in Debra Dun if Partition had not taken place, as apparently he left no property there." It will thus be noticed that none of the Settlement authori ties has considered the point before them in the light of the guidelines propounded by the Full Bench for the purposes of determining the status of a person within the meaning of section 2(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. None of them, again, applied their mind to the question whether the petitioner had per manently settled in Debra Dun with no immediate intention of leaving Debra Dun, or even to the question whether the appellant had or had not the intention to abandon Debra Dun but for the civil disturbances or the fear of such disturbances in that area.

7. With the situation presented as above, we are left with no option but to hold that the Settlement authorities have failed to apply their mind to a question which, in the circumstances of the present case, conspicuously emerged out for their consideration, namely, whether the residence of the appellant in that part of British‑India which now forms part of India was of such a character and nature that he would not have abandoned the same but for the civil disturbances or the fear of such disturbances in that area. We have, therefore, come to the conclusion that in the present case it is not possible for us to hold that the findings arrived at by the learned Settlement authorities are of such a nature, which cannot be interfered with by this Court. We are satisfied that the learned Settlement authorities have errone ously omitted to take into consideration facts and circumstances which were necessary for the determination of the status of the appellant within the meaning of section 2(3) of the Dis placed Persons (Compensation and Rehabilitation) Act, 1958. We would, therefore, quash the order of the Settlement Commissioner and send back the case to him with the direc tion to decide the revision petition filed by the appellant in the light of the observations made above. It will be open to the parties to adduce fresh evidence before the Settlement Commissioner in support of their respective claims.

8. In the result, subject to the above remarks, the appeal is allowed, with no order as to costs. A. E. Appeal allowed.