1985 PLP 1269 (SCMR)

Shahzad Jehangir, Advocate Supreme Court for Respondents. Date of hearing: 16th August, 1984. M.S.H. QURAISHI, J.‑‑ The dispute relates to a shop bearing No. BV‑6‑S‑29 situate at Hafizabad, District Gujranwala. It had suffered damage from fire during the disturbances in 1947. It was allotted in 1954 to Habib Ullah, father of respondent No. 1 who claimed to have been a partner of the evacuee in the business and to have been in its exclusive occupation. The shop was, however, put to auction on 9‑2‑1960 and was purchased by the petitioner. Habib Ullah and after his death, respondent No. 1 agitated the matter and having failed before the Settlement authorities, filed a writ petition before the High Court, in the result of which the case was remanded to the Settlement Commissioner by the impugned order, dated 10‑5‑1980. Aggrieved, the petitioner, who is the auction‑purchaser, has sought leave to appeal.

2. A question arose before the High Court whether the transfer of the shop attracted the provision‑of para. 21 of Scheme No.

1. This para. reads: "

21. Incomplete and damaged buildings.‑‑ If the building of a house or a shop was incomplete and uninhabitable on 14th August, 1947, or was rendered uninhabitable on account of natural calamity incendiarism or decay subsequent to that date, it shall not be transferred under this Scheme even .though it may have been completed or reparied subsequently." The case of the respondent before the High Court was that the shop having been burnt was not transferable because' of para.

21. On the other hand, the petitioner's contention there was that the shop was not completely burnt so as to render it uninhabitable and to attract para.

21. The High Court came to a tentative finding that "the property having been burnt during communal disturbances in 1947 was rendered, prima facie, uninhabitable and not liable to transfer under Settlement Scheme No. 1, because of the bar contained in para. 21 of the Scheme". The reason for remanding the case to the Settlement Commissioner was that, in the view of the High Court, the Settlement Commissioner "did not consider the relevant documents showing the nature of the property and passed the impugned order with undue haste".

3. As the question of the state of the property on 14‑8‑1947 and the applicability of para. 21 is yet to be finally determined we are not inclined to interfere with the order of remand passed by the High Court. However, as the finding of the High Court, on the question P whether the shop had been rendered uninhabitable is only tentative ` the observation of the High Court will not affect the determination oil the question by the Settlement authority. With this observation the petition is dismissed. M.I. Petition dismissed.