P L D 1967 Supreme Court 437 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, arises out of a judgment of a learned Single Judge of the High Court of West Pakistan, Lahore, dismissing a writ petition filed under clause 2(4) of the Laws (Continuance in Force) Order, 1958, to challenge the validity of an order of the Settlement Rehabilitation Commissioner, Lahore Division, passed on the 4th of June 1960. The dispute in this case relates to premises No. 49, Montgomery Road, Lahore, which is a three‑storeyed building consisting of both residential as well as business unit. The appellant, who is a claimant displaced person; obtained possession under an allotment order in 1948 of two complete rooms, a verandah and a kitchen situated on the upper most storey of the north‑eastern half portion of this premises. He also, it appears, occupied a middle room on the ground floor as a shop Thus when settlement operations started in 1959 he applied for the transfer of the entire premises on a CH form. The respondent Mst. Allah Rakhi, who too is a claimant displaced person, also applied for the transfer of the house on the basis of the possession of her son. He was, it appears, an allottee of one room on the ground floor as also another room on the first floor jointly with his mother under an order dated the 3rd January 1958. One Ghulam Haider Shah also submitted a CH Form for the transfer of the house on the basis of the possession of his son, respondent Iqbal Hussain, of three rooms on the first floor. The latter, who is a non‑claimant, had entered into possession on the 6th January 1950. The respondents 5, 6 and 7 herein are the heirs of the said Ghulam Haider Shah, who has since died. One Muhammad Yaqub, who was an allottee of one room on the ground floor, also applied on an NCH Form for the transfer of the house. His brother Karam Ilahi applied for the transfer of another shop room on the ground floor of which he claimed to be in possession. Some other persons, including one Maqsood Ali Khan, applied for the transfer of the premises claiming to be in possession of various other portions thereof. The Deputy Settlement Commissioner on the 3rd of February 1960, acting as the delegate of the Chief Settlement Commissioner, declared the premises to be divisible but he treated the south‑western portion as an independent unit in itself incapable of further sub‑division and transferred the same to Maqsood Ali Khan. But on the 8th February 1960, he purported first to divide the north‑western portion by declaring certain rooms in the ground floor to be shops and the rest of the portion as residential premises. The shop rooms were then divided into two shops. The one in possession of Muhammad Yaqub was transferred to the latter by treating his NCH Form as an NCS Form, but the one in possession of the appellant was ordered to be placed on the auction list. Subsequently on the 7th March 1960, even the portion declared residential in this separated north western part of the house was transferred jointly to Mst. Allah Rakhi and Ghulam Haider who had agreed to such joint transfer. The application of the appellant was rejected on the ground that he was a refugee from the village and his claim was only nominal he would not be able to pay the price of the house easily, even though he was the senior most allottee of this residential portion. The appellant went up in appeal to the Additional Settlement Commissioner who upheld the divisions of this portion into shops and residential units. He also upheld the finding of the Deputy Settlement Commissioner that each shop should be treated as a separate unit, but he reversed his finding with regard to the residential unit. He treated this as indivisible and setting aside the order of the Deputy Settlement Commissioner transferred it to the appellant on the ground that he was a senior allottee. He, however, upheld the order of the Deputy Settlement Commissioner regarding the shop in the possession of the appellant. He was held to be not entitled to claim the transfer of the shop in the possession of Muhammad Yaqub but with regard to the shop room in his own possession the matter was lift open, as an enquiry was then pending to find out if the appellant had filed any separate CS Form for the said shop. From this order Mst. Allah Rakhi and Ghulam Haider Shah went up in revision before the Settlement and Rehabilitation Commissioner. The latter reversed the decision of the Additional Settlement Commissioner and held that the residential portion was also capable of further division since the appellant himself had in his CH Form applied for the transfer of only the second floor as a separate and self‑contained portion. He, therefore, ordered that the appellant should get only the portion of which he was in possession and the remaining portions on the ground floor and the first floor should be transferred to Mst. Allah Rakhi and Ghulam Haider Shah jointly. In this appeal we are not concerned with the south‑western portion which has been allotted to Maqsood Ali Khan, for, none of the persons claiming transfer of that portion were either made parties in the writ petition in the High Court or have been joined as respondents in the petition for special leave to appeal filed in this Court. There is also no dispute now with regard to the transfer of the shops. Leave was granted in this case to consider one point only; namely, as to whether an order made in the exercise of the delegated powers of the Chief Settlement Commissioner by a Subordinate Settlement Authority could be subject to any appeal or revision. This question of law has, of course, been decided by this Court in the cases of Jalal Din v. Muhammad Rafaq (PL D 1965 S C 261) and Muhammad 1qbal Khan v. Chief Settlement Commissioner (P L D 1965 S C 404), where it has been held that the decision of the delegate acquires finality only if the question of the divisibility of a house has been decided by the Subordinate Authority but not as regards the mode or manner of division. Thus, if a Deputy Settlement Commissioner declares a house to be divisible in the exercise of his delegated power under subsection (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, that decision cannot be disturbed in appeal or revision, but the appellate and revisional authorities can still say as to whether the manner in which the division has been effected is right or wrong. It follows from this that if the Subordinate Settlement Authority has not exercised the delegate power and not declared the premises to be divisible, it will still be open to the higher authorities to do so, for, the delegate cannot be considered in those circumstances to have exercised the delegated authority at all. In the present case, however, learned counsel appearing in support of this appeal has sought to raise a somewhat different question. He has contended that in the case of composite premises the position is different, for, under the scheme of the Act of 1958 where an evacuee building or premises consists of both residential and business units the Chief Settlement Commissioner c has first, under the second proviso to subsection (12) of section 2,; to order as to which part of such building or premises is to bet deemed to be a business unit and which a residential unit. This is a condition precedent to. the transfer of the premises, for, until this question has first been determined the scheme of transfer cannot be put into operation. We have no cavil at all with this contention but then he proceeds to argue from this that once this power under the proviso to subsection (12) of section 2 has been exercised there is no other power available for further sub‑division of either the business unit or the residential unit. In support of this contention reliance has also been placed on a decision of the Lahore High Court in the case of Muhammad 1smail v. Chief Settlement and Rehabilitation Commissioner (P L D 1966 Lah. 326), where it appears to have been held that "the provisions of section 2(12) authorise 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". 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 (4) and the first proviso to subsection (12) will arise only after the specification under the second proviso to subsection (t2) 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". There do not necessarily exclude the power given by subsection (4) on section 2 and the first proviso to subsection (12) itself. We see no force, therefore, 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 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 above mentioned 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 sub section (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 firs proviso of subsection (12), for, the second proviso of the latter only says that the specifications 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 his delegated power. There was no further interference by the Chief Settlement Commissioner. So even under the principle laid down in Jalal Din's case 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. In these circumstances, it is unnecessary to consider in the present case the second argument of the learned counsel that the change of law made since the decision of this Court in the case of Jalal Din and others by Ordinance No. XVIII of 1965 could not have been given retrospective effect, for, in our view, the decision of the Settlement Commissioner did not suffer from any infirmity even under the state of the law as it stood before the introduction of the amendment. It remains now to consider the last contention of the learned counsel. He contends that the decision of the Settlement Commissioner as to the divisibility of the premises is based upon irrelevant considerations and indeed is not a proper exercise of discretion at all, for, the Settlement Commissioner does not appear to have applied his mind to the relevant facts and circumstances of the case, in so far as the question of the divisibility of the, residential portion was concerned. An examination of the order of the Settlement Commissioner, however, reveals that there were as many as three grounds which the Settlement Commissioner took into consideration:‑ (i) that the second floor in the possession of the appellant, which consisted of two small rooms, one kitchen and one verandah, was a separate and self‑contained portion, (ii) that the appellant himself considered it to be so, as he applied in his CH Form for the transfer of only the portion in his possession alone and (iii) that it would not only cause no great hardship but would, on the other hand, advance the policy of the law to also divide the residential portion as the parties seeking its transfer were small claim‑holders living in the portions in their respective possession since Independence. These can hardly be described as irrelevant or insubstantial considerations. We are, therefore, not in a position to say that the decision of the Settlement Commissioner was either manifestly arbitrary or unjust or improper. In the circumstances, we find no ground upon which the High Court could have interfered with this decision of the Settlement Commissioner in its writ jurisdiction. The order sought to be challenged was competently made in the lawful exercise of the jurisdiction of the Settlement Commissioner and suffered from no such patent illegality or disregard of any rule of natural justice as would have entitled the High Court to interfere with it. For these reasons we are clearly of the opinion that this appeal must fail and is accordingly dismissed, but having regard to the fact that the appellant is only a small claim‑holder we make no order as to costs. It may be pertinent at this stage to also indicate that the appellant did not challenge the divisibility of the shops on the ground floor before the Settlement Commissioner. Before us also this question has not been argued, presumably, because each of the shops has been found to have separate openings directly to the road and were thus clearly independent units. A. H. Appeal dismissed.