1995 PLP 956 (MLD)

Secondly, that Jan Muhammad was a claimant; that the property, in dispute, irrespective of its commercial nature, was the part of a composite property; that Maula Bakhsh was a local. On these factors, it was represented vehemently that the Additional Settlement Commissioner was clearly correct in treating the property in dispute and residential portion as one unit and he was eminently correct in transferring it to Jan Muhammad. According to learned counsel, treating of the property as one unit was essentially the prerogative of the Settlement Authority and was not amenable to interference by this Court in Constitutional jurisdiction. Reliance was placed on Muhammad Siddiq etc. v. Chief Settlement and Rehabilitation Commissioner, Lahore etc. PLD 196.5 SC 123, Mian Rehmat Ali v. Khadeja Hakim PLD 1967 Lah. 29 at p.37, Muhammad Ishaq J v. The Chief Settlement Commissioner and others PLD. 1967 Kar. 605 and Abdul Majid v. Chief Settlement Commissioner etc. PLD 1967 SC

437. Thirdly, that being local, Maula Bakhsh had no right to challenge the order of the Additional Settlement Commissioner dated 16‑7‑1960. Fourthly, that the order passed by the Additional Settlement Commissioner, dated 16‑7‑1960 was never challenged by Maula Bakhsh and so had become final qua the parties.

5. The learned counsel for respondent Maula Bakhsh supported the impugned decision on the following three grounds:‑‑‑ Firstly, that the property in dispute was a business premises; that it formed part of a composite building which was situated in a commercial area known as Lakar Mandi; that it was treated by the' Deputy Settlement Commissioner in the first instance as business premises; that Maula Bakhsh was entitled to its transfer under Settlement Scheme No. VIII. Reliance was placed on Abdul Majid v. Chief Settlement Commissioner etc. PLD 1967 SC 437, Haji Muhammad Hanif v. Chief Settlement and Rehabilitation Commissioner and others PLD 1964 (W.P.) Lah. 261, Muhammad Amin v. Chief Settlement and Rehabilitation Commissioner, Karachi and others PLD 1966 (W.P.) Kar. 91, Mst. Zohra Begum v. Assistant Rehabilitation Mukhtiarkar and Assistant Settlement Commissioner, Sanghar and another PLD 1967 Kar. 784, Abdul Ghani v. The Settlement Commissioner, Khairpur Division and another PLD 1967 Kar. 292 and Muhammad Ishaq v. The Chief Settlement Commissioner and others PLD 1967 Kar.

605. Secondly, that the Additional Settlement Commissioner had passed order, dated 16‑7‑1960 and 17th August, 1960, without affording opportunity of hearing to Maula Bakhsh who was a necessary party, so the aforesaid order suffered from contravention of principle of natural justice that nobody shall be condemned unheard. Thirdly, that Maula Bakhsh was in possession of the property in dispute, that he had undertaken its repairs and its reconstruction in 1953; that Jan Muhammad was owner of a nominal claim and had submitted form to get the property in dispute and then sold it to someone else. In these circumstances, it was submitted that the decision rendered by the learned Single Judge‑in‑Chamber was just and in consonance with the calls of substantial justice.

6. From the foregoing narration, the following questions emerged for adjudication: (1) Whether the order of learned Settlement Commissioner dated 4‑4‑1966 and the order of learned Single Judge‑in‑Chamber dated 23‑6‑1966 are in defiance of principle of natural justice "that nobody should be condemned unheard"? (2) Whether the Additional Settlement Commissioner vide order, dated 16‑7‑1966, correctly treated the residential unit and property in dispute as one unit? (3) Whether Maula Bakhsh, a local, had no locus standi to claim transfer of the "property in dispute" to him?

7. As regards the first question, the answer to it is free from any difficulty. This question was resolved as far back as the year 1966 when the Supreme Court in Muhammad Siddiq and others v. Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1965 SC 123 held "that a person associated with the permission of Settlement Authorities acquires a vested right in the property purchased by him". This being the legal position, we have no hesitation in coming to the conclusion that Ehsanul Haq by means of deed of association dated 27‑2‑1967 had purchased the property in dispute and he was issued permanent transfer deed by the Settlement Authority. On these facts, he was a necessary party and had a right to be heard before passing any order against him. We further find that the order dated 23‑6‑1966 was passed by the learned Single Judge‑in‑Chamber in absence of Ehsanul Haq. The order of the learned Single Judge was, therefore, clearly in contravention of the rule laid down in Muhammad Siddique etc, v. Chief Settlement and Rehabilitation Commissioner, Lahore etc. (supra).

8. We, now, turn to question No.2. Its answer turns upon the construction of section 2(12) of Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) (hereinafter referred to as Act) and circular dated 23‑10‑1959. A plain look at section 2 of the Act shows that it defines the word "shop". This section has two provisos. The second proviso to this section is of relevance in this case. Under this proviso, the Chief Settlement Commissioner/his delegatee is authorised to treat the residential unit and a business unit in a composite property as one unit and vice versa. The Authority designated therein is to pass the order after taking into consideration the circumstance of each case i.e. whether the composite property is situated in a predominantly commercial area or a residential area, whether the business unit and residential unit have a separate access or not. Furthermore a local in possession of an evacuee shop was given right for the first time by means of clarificatory press note dated 23‑10‑1959. The aforesaid section of the Act and circulars were examined by a Division Bench of this Court in Haji Muhammad Hanif v. Chief Settlement and Rehabilitation Commissioner and others PLD 1964 (W.P.) Lahore 261, it was held therein:‑‑‑ "It is obvious that unless the Chief Settlement Commissioner decided to treat the whole or any part of the building as a house or a shop, the two portions are to be disposed of separately, one as a house and the other as a shop, according to their definition in section 2, clauses (4) and (12). The division of a house or a shop, of course, stands on a different footing. As observed by the learned Judge, the power to divide them may be exercised only to adjust the claims of more than one claimant, non‑claimant, or a local; otherwise the whole of the house or shop, although it consists of more than one unit in occupation of different persons, is to be disposed of as one. However, if a building consists of more than one house or shop, it does not follow that more than one house or shop are to be transferred to a claimant, non‑claimant or a local in possession of a part thereof. Take for instance, the case of buildings consisting of several residential flats and shops which are not declared as big mansions. It does not stand to reason that the occupant of one of those flats or shops can lay claim to the transfer of the entire building because there is no rival building. In this connection, it has to be borne to mind that claimants have a right to be compensated out of the evacuee pool which consists of the evacuee property as well as the proceeds of their sale. It is common knowledge that every evacuee displaced person has, not been compensated by transfer of the evacuee property. As observed by their Lordships of the Supreme Court in Rehmat Ullah v. Deputy Settlement Commissioner PLD 1963 SC 633, the claimants have a charge on an evacuee pool while non‑claimants and locals fall in the category of "other persons" who may be rehabilitated under the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). Sale of evacuee property by public auction will, undoubtedly result in accretion to the evacuee pool and out of it the claimants will be satisfied by cash payments. Another benefit which will accrue to them is that against their verified claims they can purchase evacuee properties in a restricted or unrestricted auction. The division of a composite property and inclusion of a part or parts thereof in the list of the evacuee properties to be sold by public auction is, therefore, eminently consistent with the object and scheme of the Act." This view was followed by this Court in Mst. Bashir Bano v. Chief Settlement Commissioner and another PLD 1967 Lah.

786. These provisions were materially considered before the Supreme Court in Abdul Majid v. Chief Settlement Commissioner, Lahore and others PLD 1967 SC 437, where it was held:‑‑‑ "This argument is, in our opinion, clearly untenable, for, we can find nothing in the Act which debars the Settlement Authorities from exercising the power under subsection (4) or even under the first proviso to subsection (12) of this very section after the power under the second proviso has been exercised. It seems to us that in the case of premises consisting of both residential and business units the power of division under subsection (2) and the first proviso to subsection (12) will arise only after the specification under the second proviso to subsection (12) has been made. Unless and until it is known as to which portion is' a house and which a shop, it is difficult to appreciate how the authorities can at all consider as to whether the residential portion (house) or the business portion (shop) is capable of further sub‑division. In our opinion, the words "shop" and "house" occurring in the second proviso have been used to signify a "business unit" and a "residential unit". They do not necessarily exclude the power given by subsection (4) of section 2 and the first proviso to subsection (12) itself. We see no force, therefor, in the contention advanced by the learned counsel. We are unable also to agree that the decision relied upon goes to the extent of supporting the contention now advanced by the learned counsel, for, it does not say that once the power under subsection (12) of section 2 has been exercised, no further division can be made. The powers given by the abovementioned two subsections are not mutually exclusive nor are they exhausted by a single exercise of the power under either of the two subsections. If, however, the High Court by the observation quoted earlier intended to lay down that a sub‑division can also be made under the second proviso to subsection (12) of section 2 of the Act of 1958 then to that extent its decision cannot be accepted as correct. The further sub‑division‑after the separation of the residential from the business portion even if made simultaneously will be referable to the powers given under subsection (4) of section 2 and the first proviso of subsection (12), for, the second proviso of the latter only says that the specification made thereunder shall be deemed to be "a shop or a house" and not "shops or houses". In the present case what actually happened was that the Deputy Settlement Commissioner after specifying as to which portions were to be treated as "a shop" and which as "a residential premises" further sub‑divided one portion into two shops but the residential portion was left undivided. He, therefore, did not exercise his delegated power in respect of the residential portion. The Additional Settlement Commissioner affirmed this so far as the non‑division of the residential portion was concerned but the Settlement Commissioner in revision reversed this and for the first time divided the residential portion in the exercise of this delegated power. There was no further interference by the Chief Settlement Commissioner. So even under the principle laid down in Jalal Din v. Muhammad Rafiq PLD 1965 SC 261 there was no question here of a superior Settlement Authority reversing in appeal or revision the decision made by a subordinate Settlement Authority in the exercise of his delegated powers as regards the divisibility of a house." The ratio deducible from the aforesaid discussion is as follows:‑‑‑ (i) That the Chief Settlement Commissioner/his delegatee was empowered under second proviso to section 2(12) of the Act to treat the various units of a composite evacuee property as one unit after taking into consideration the circumstances of each case. He was required to undertake this exercise after the application of mind to various circumstances i.e. whether the composite property was situated in a predominantly commercial area or residential area; that the business unit and residential unit were independent or not; whether the units had a separate and independent access. This exercise was to be done by the designated Authority with an object to accommodate as many persons as possible and to integrate them in socio‑economic dynamics of the society. (ii) That although the power under second proviso to section 2(12) of the Act was within the domain of the designated Settlement Authority, yet the Authority was to pass an order fairly, honestly and without any caprice. He was further required to take the aforestated circumstance into consideration objectively and not speculatively. The order of that Authority was subject to the Constitutional jurisdiction of this Court under Article 199 of the Constitution of 1973. (iii) From the perusal of press note dated 23‑10‑1959, it is evident that the locals were given a right to seek transfer of evacuee shops through unrestricted public auction. Under the above circular, the locals had acquired a substantial right to acquire the evacuee shops within the parameters of law. The locals were, therefore, necessary parties in the above exercise.

9. Applying the above principles to the facts and circumstances of this case, it becomes quite clear that Jan Muhammad was in possession of the residential unit, which had a separate staircase and a separate access; that the property in dispute had a separate access towards Lakar Mandi; that the property in dispute was situated in predominantly commercial area known as Lakar Mandi. It is also not in dispute that Maula Bakhsh had been allotted the property in dispute as back as in 1952; that he had repaired and reconstructed it with the permission of the Settlement Authorities. The name of allottee was incorporated in the papers of Settlement Department. These facts are even uncontradicted before us. The Deputy Settlement Commissioner, in the first instance, had taken cognizance of the aforesaid premises and decided to dispose it of through unrestricted public auction. Surprisingly enough, the Additional Settlement Commissioner, while passing the order dated 16‑7‑1960, did not advert to the aforesaid circumstances. He did not issue any notice to Maula Bakhsh, whose name as allottee stood incorporated in the Settlement Record. He passed the order in unhealthy haste. This is discernible from the contents of the order, dated 16‑7‑1960 wherein an incorrect name of the allottee in possession of the property in dispute was recorded. On the facts, noted above, we are in no manner of doubt that Maula Bakhsh was a necessary party and was clothed with legal right to participate in the disposal of the property in dispute through unrestricted public auction under press note dated 23‑1‑1959. This being the position, the orders passed by the Additional Settlement Commissioner dated 16‑7‑1960 and 17‑8‑1960 were clearly in defiance of principle of natural justice that "nobody should be condemned unheard". This being the position, the orders passed by the Additional Settlement Commissioner, noted above, were clearly coram non judice, and any subsequent superstructure built upon them is clearly without any legal foundation and cannot survive. We, therefore, accordingly declare that the order of the learned Additional Settlement Commissioner dated 16‑7‑1960 and 17‑8‑1960 are without any legal support and as such are declared nullity in the eye of law. Taking the above discussion to logical conclusion, we have no other option but to hold that the learned Single Judge‑in‑Chamber had also passed the order, dated 23‑6‑1966 without affording opportunity of hearing to Ehsanul Haq associatee. The order of the learned Single Judge, therefore, cannot he sustained on the above conclusion. So is the position of order of the Settlement Commissioner, dated 4‑4‑1962.

10. For the foregoing conclusions, we accept all the three L.PAs. Nos.1062, 1143 and 1361 of 1966. In result, the order of the Additional Settlement Commissioner dated 17‑6‑1960 the order of the Additional Settlement Commissioner dated 7‑8‑1960, the order of the learned Settlement Commissioner dated 4‑4‑1962, the order of the learned Single Judge of the High Court dated 23‑6‑1966 and the order of the learned Single Judge of this Court dated 8‑6‑1966 are hereby set aside: These cases are hereby remitted to the concerned notified officer with a direction to decide the competing claims of Jan Muhammad, Maula Bakhsh and Ehsanul Haq after affording them opportunity of hearing and strictly in accordance with law. The learned notified officer shall decide the matter within a period of nine months from the receipt of the order of this Court. In view of the nature of the question involved in these L.PAs. we are not inclined to burden any party with costs. AA./J‑124/L Appeal accepted.