P L D 1962 (W P) Karachi 197 (PLP)

(5) that in the appeal before the Additional Settlement Commissioner only the validity of the order of the Assistant Settlement Commissioner placing the two portions of the house not in the petitioner's occupation is ear‑marked or involved and the transfer of the property to the petitioner was not questioned in these proceedings. The Additional Settlement Commissioner therefore had no jurisdiction to modify the order of the transfer to the petitioner in respect of the property ; (6) that the question of the ground floor in occupation of Habib Bank Limited was not the subject‑matter of the dispute before the respondents and there was no such question to be decided that the transfer of the ground floor to the petitioner is bad in law ; and (7) the order is bad because no notice on this question was ever given to the petitioner. The petition is hotly contested on behalf of the respondents. In the counter‑affidavit filed on their behalf it is pleaded that the impugned orders do not suffer from any illegality and were passed by competent authorities having jurisdiction in the matter. It is also pleaded that the property in dispute consists of three independent units and the respondents acted within jurisdiction in allowing the portion in occupation of the petitioner to remain with him and the other two portions to be put to auction. It is further pleaded that the petitioner is not entitled to get any relief because he has not come with clean hands inasmuch as the CH Form submitted by him contained mis‑statements of facts in respect of the portion of the property in his actual possession. Mr. Noorul Arfin, the learned counsel for the petitioner, has urged before me that the Provisional Transfer Order in favour of the petitioner dated 16th November 1959, is in accor dance with the provisions of the Settlement Scheme contained in the Schedule of the Displaced Persons (Compensation and Rehabilitation) Act of 1958, and as no other person was entitled to the property in dispute It was rightly transferred to his client. The learned counsel In this connection referred me to the definition of " house " in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, contained in section 2 (4) and " shop " contained in section 2 (12) of the said Act for showing that the whole of the property transferred to the petitioner was a house within the meaning of the definition given in the said enactment. He also referred me to the first proviso to the definition of " house " In section 2 (4) which reads as under "Provided that where any building or premises not so declared consists of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house." He then referred me to the second proviso to the definition of " shop " in section 2 (12), which is in the following terms " Provided further that where any such building or premises consists of both residential and business units, the Chief Settle ment 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." The learned counsel argued that the building in question was treated as a house by the Settlement Authorities and therefore the main question for consideration in this petition would be whether the Assistant Settlement Commissioner acted properly in transferring the entire house to the petitioner. In support of his contention that the officer concerned followed the directions in the Settlement Scheme contained in the Schedule of the Displaced Persons Compensation Act, he referred me to para. 1 and con tended that according to the manner laid down for disposal of urban Immovable property the petitioner being a claimant was the only person entitled to the property in dispute. The learned counsel relied in this connection on the first proviso to paragraph 1 of the Schedule which runs as under: " Provided that if a house or a part thereof is in possession of more than one person and one of them is a claimant, then the house shall be so transferred to the claimant." It is admitted at the Bar that the local who was occupying a portion of the first floor was not entitled to get it under paragraph 3 of the Schedule because the price of the portion in his possession exceeded Rs. 10,

000. Mr. Khalid Ishaque, the learned Additional Advocate‑General appearing for the respon dents was not able to point out any other provision of law or scheme which was applicable to this case. Mr. Nurul Arfin then referred me to the directions issued from time to time by the Chief Settlement Commissioner to the subordinate Settlement Authorities for implementing the Schedule for settlement purposes. He first referred me to the instructions issued by Memo. No. Comp‑Reh./59/5242, dated 22nd October 1955 for showing that under the instruction for the transfer of houses and shops in the possession of more than one person, the directions contained in this memorandum required that as far as possible efforts should be made to transfer the whole building to one person. In paragraph 2 of these instructions one of the broad principles hinted at is that a whole building as it existed on 14th August should normally be transferred to one person. Sub‑clauses (2) and (3) of this paragraph further provide that if a building can conveniently be partitioned vertically down to the ground floor so as to divide it into residential or business units each with an independent access, such partition tray be carried out where necessary and each unit transferred separately. It further lays down that a building consisting of one business unit and one residential unit above it in a predominantly commercial area should be treated as a, shop and the whole building transferred as a shop. Similarly, a building consisting of a business unit and a residential unit above it, situated in a predominantly residential area, should be treated as a house and transferred accordingly. Sub‑clause (3) of paragraph 2 of these instructions provides that where a building consists of more than two units some of which are residential and the others business units and it cannot be divided in accordance with the instruction at (2) above, and such units have independent access and can be utilised independently for residential or commercial purposes each such unit may be treated as a house or a shop as the case may be and transferred accordingly. But even in such cases it is enjoined on the Settlement Officers that efforts should be made to transfer the whole building to one person if practicable. The transfer in favour of the petitioner in this case was made on 16th November 1959 and these Instructions were fully applicable to him. The contention of the learned counsel for the petitioner that the petitioner being the only "claimant" within the definition of the Displaced Persons Compensation Act, the whole building was rightly transferred to him, has much force in view of the main provisions of the said enactment, the Scheme contained in Schedule I and the instructions issued by the Chief Settlement Commissioner under it. But Mr. Khalid Ishaque, the learned A. A. G. urged that it was open to the Settlement Authorities to divide a building into several units and to transfer them separately. This is quite correct but it raises a further question namely whether it can be done at any time and in all cases. This aspect of the case has received my anxious consideration and after going through the relevant provision, Schedule, Scheme and instructions discussed above, it is quite obvious to me that the Settlement Officers can exercise this power only to adjust the claim of more than one claimant, whether in possession or not or between claimant, non‑claimant, displaced persons and locals in accordance with the provision of the Schedule attached to the said enactment. If there is no such problem or dispute the question of exercising this power does not arise because it would conflict with the broad principle underlying the Scheme that the whole building as far as possible should be transferred to one person. I have no doubt in my mind that this power cannot be exercised with the object of ear‑marking properties for disposal by unrestricted public auction. Paras. 1 to 12 of the said Schedule provides that both In cases of houses or shops firstly they would be transferred in the case of houses under paragraphs 1 to 4 and 6 and in the case of shops under paragraphs 8, 9 and 11 and those not so transferred shall be disposed of in such manner and subject to such terms and conditions as maybe prescribed. These are mandatory provisions and unless a property is incapable of transfer under the above mentioned paras or declared as big mansions and hotels under para. 16, it cannot be disposed of by unrestricted public auction Neither in the present case there was any dispute between rival claimants etc. nor the property in dispute could be declared as big mansion and on the view which I have taken of the question, Involved in the matter, the impugned orders suffer from a patent illegality and cannot be sustained. Apart from this the manner in which the petitioner's provi sional transfer order was cancelled Is open to serious objection. Mr. Khalid Ishaque failed to satisfy me that there existed any provision of law under which the Additional Settlement Commis sioner In appellate jurisdiction could convert the property into 3 units and direct the disposal of some of them by unrestricted public auction. The appeal before him was whether in the face of the Provisional Transfer Order in favour of the petitioner, the property could be transferred to Mst. Asafia Begum. This was the only question before him and I quite agree with the argument of, the petitioner's counsel that there being no cross appeal or revision, the learned appellate authority was incompetent to consider the validity or propriety of the transfer in favour of the petitioner. The learned Additional Advocate‑General con tended that the scope of enquiry became unlimited before the revisional authority. There is no doubt in my mind that the dismissal of the revision application by a revisional authority cannot give validity to an order passed without jurisdiction. But assuming for the sake of argument that the learned Settlement Commissioner was competent to decide the question of the transfer in favour of the petitioner in revision, it is clear from the impugned order that the learned officer failed to apply his mind to the provision of the Schedule of the said enactment and direction issued by the Chief Settlement Commissioner for the settlement of evacuee properties. The learned Settlement Commissioner failed to consider the question whether in the Rehabilitation record the property in dispute was treated as one building or of more than one unit. The documents produced on behalf of the opponents clearly establish that the property in dispute was treated as one house bearing Survey No. C/44‑2475/76. If that is so, the learned Settlement Commissioner had no juris diction to confirm the direction for the disposal of the portion not in occupation of the petitioner by public auction because accord ing to the Scheme contained in the Schedule of the Displaced Persons Compensation Act, the question of auctioning the property only arises if there is no person available for obtaining the property under paragraphs 2 to 7 of the Schedule. It appears to me that the proper stage for doing so was before the property was transferred to the petitioner. It was also open to the department to re‑open this question in exercise of their revisional power, but no such attempt was made. In the absence of any such proceedings, the orders of the Additional Settlement Commissioner and Settlement Com missioner are clearly without Jurisdiction. It further appears to me that the department in the absence of any other claimant was not justified in converting a small property into three units. The impugned order is in direct conflict with the instructions issued by the Chief Settlement Commissioner and instead of settling the evacuee property is likely to create future complication. The plan produced before me shows that the property in dispute could either be treated as a shop or a house and in either case under the Schedule the petitioner was entitled to get it. Mr. Khalid Ishaque was unable to convince me that the petitioner is not one of those persons who, if the property is treated as a whole, is not entitled to it under paragraphs 1 to 8 of the Schedule of the said enactment. In view of this the learned Settlement authorities clearly acted against the provisions of the Schedule to the Act and committed an error in directing that the other two portions of the property should be put to public auction. Mr. Khalid Ishaque, as a last resort, argued that the petitioner has not come with clean hands and cannot seek a discretionary relief from this Court. He urged that the petitioner has made mis‑statements in Form C H and obtained a transfer order in his favour by playing fraud on the Department. There is no allegation of fraud in the counter‑affidavit filed on behalf of the respondents. In the counter‑affidavit it is only suggested that the transfer order must have been passed in favour of the petitioner on the basis of mis‑statements. The record, on the other hand, reveals that no mis‑representation or mis‑statement of facts were made by the petitioner; even the orders of the Additional Settle ment Commissioner and the Settlement Commissioner make no reference to such allegations. There is no discussion, what to say of any finding, in these orders that the petitioner obtained the transfer order in his favour by mis‑representation or fraud. This allegation has no foundation and deserves no consideration. In the light of the above discussion it is quite plain to me that the property in dispute was treated by the Settlement Authorities as one building and that according to paragraph 1 of the Schedule the petitioner was the only person, being a claimant and in possession of a portion of the building, entitled to it. I am clearly of the view that the Assistant Settlement Commissioner acted in conformity with the provisions contained in the Schedule and directions of the Chief Settlement Commissioner and validly transferred the property in dispute to the petitioner. The learned Settlement Authorities in appeal and revision failed to notice these facts in deciding the question raised before them. The impugned orders suffer from an error apparent on the face of the record. Accordingly I quash the impugned orders and direct that a writ of certiorari be issued to the respondents informing them that the provisional transfer order dated 16th November 1959 in favour of the petitioner is operative. In the result, the petition is allowed with costs. K. B. A. Petition accepted.