P L D 1964 (W (PLP)

M. YAQUB ALI, J.‑The property in dispute consists of seven shops situated in a commercial locality of Dera Ghazi Khan and a residential premises at their back. Haji Muhammad Hanif (appellant), a claimant and in possession of the residential portion only, applied for transfer of the whole of the building and the Deputy Settlement Commissioner, in the first instance, accepted his form. Subsequently, on the instructions of the Chief Settlement Commissioner, to whom numerous complaints were made, the Deputy Settlement Commissioner reviewed his earlier order and confined the transfer in favour of the appellant to the residential portion.

2. Dissatisfied with the said order of the Deputy Settlement Commissioner, Muhammad Hanif preferred au appeal to the Additional Settlement Commissioner, who dismissed it on the ground that the blue print of the building showed that the shops were built as a separate commercial unit. That decision was affirmed by the Settlement Commissioner and the Chief Settle ment Commissioner for similar reasons.

3. Having exhausted his remedy under the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), the appellant moved Writ Petition No. 1755/R of 1962, inter alia claiming that the entire building consisted of one property and it should have been transferred to him instead of a portion of it being included in the list of evacuee properties to be sold by public auction. By order, dated 26th June 1963, our learned brother S. A. Mahmood rejected the petition on the finding that the property was situated in a commercial area and, as such, the shops were to be separated from the residential and disposed of according to law. The present appeal under Clause 10 of the Letters Patent is directed against that order.

3. Reliance is placed on Jalil Ahmed v. Settlement and Rehabilitation Commissioner (P L D 1962 Kar. 197) in which our learned brother Wahiduddin has laid down that a composite property can be divided only in cases of competition for transfer between more than one applicant and not for the purpose of including a part or parts thereof in the list of evacuee properties to be sold in an unrestricted public auction. The relevant discussion at page 202 reads as follows :‑ "This aspect of the case has received my anxious considera tion and after going through the relevant provisions, 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 earmarking 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 trans ferred 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 may be 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."

4. We have given our anxious thought to the reasons which appealed to our learned brother, but with great respect find ourselves unable to subscribe to his view. The transfer of a composite property consisting of commercial and residential (units) is not covered by the First Proviso to the definition of the house or a similar proviso to the definition of the shop in section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Its transfer is covered by the Second Proviso to section 2(12) of the Act, which reads as under :‑ "Provided further that where any such building or premises 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 b specified in the order shall be deemed to be a shop or a house." It is obvious that unless the Chief Settlement Commissioner decides 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 exercises 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 applicant. In this connection, it has to be borne in 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 (P L D 1963 S C 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. An other 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.

5. We are, accordingly, of the opinion that unless the Chief Settlement Commissioner or his delegate has declared a composite property or a part or parts thereof to be one property, each composite of it is to be disposed of separately.

6. Dismissed in limine. A. H Appeal dismissed.