P L D 1963 (W (PLP)

For the purpose of Court reasonableness or otherwise of a thing is to be judged in the light of the provisions of the law which have application and if a Judge follows the ordinary standards of reasonableness in preference to those laid down by the law that is applicable he travels beyond his power, because he is amending the law which no system of law permits a Judge to do. An order of the Settlement Authorities in regard to divisibility or otherwise of a "house" cannot be questioned by petition for a writ. A Chief Settlement Commissioner, and in case they have been delegated his powers, the other Settlement Authorities are not bound to declare a house to be more than one house when parts of it are in possession of different persons, and a house can be declared by them to be more than one house only if parts of it are in possession of different persons."

5. I am bound 'by this decision of the Division Bench, with which I respectfully agree, and I am of the view that it is not for this Court to determine whether a house is divisible or not. The law clearly contemplates that a building or a premises used for residential purposes shall be deemed to be one house, even if it consists of more than one residential unit occupied by different persons, unless the Chief Settlement Commissioner declares otherwise. The power to declare that a residential building should be deemed to be more than one house vests in the Chief Settlement Commissioner. If the Chief Settlement Commissioner or the officers authorised by him to exercise his power in this behalf do not choose to declare a house as divisible, it is not for this Court to grant any such declaration on the ground that the refusal of the Chief Settle ment Commissioner or his officers to make the necessary declara tion is not reasonable. The result is that it is not for me to examine whether the present house should have been declared as divisible by the Settlement Commissioner, considering the fact that it has two entrances.

6. The next contention is that in the present case although the Deputy Settlement Commissioner treated the house as one, without making a specific declaration to this effect, yet the Additional Settlement Commissioner made a positive declaration that the house consisted of two independent units, and this declaration cannot be interfered with by the Settlement Com missioner, for the reason that the Additional Settlement Com missioner having exercised a power delegated to him, no other authority could interfere with his order. If this contention be correct, then the result would be that the house in question would have to be treated as two houses, as declared by the Additional Settlement Commissioner, notwithstanding a contrary opinion expressed by the Settlement Commissioner, and in that case the petitioner would be entitled to the transfer of that portion in which he has been residing.

7. The nature of the delegation of power made by the Chief Settlement Commissioner with regard to determining the divisibility or otherwise of a house has also been examined at some length by a Division Bench of this Court in L. P. A. No. 131 of 1961 Mst. Mahmooda Begum v. The Chief Settlement Commissioner etc (P L D 1962 Lah. 911) . Here again the judgment of the Court was delivered by my learned brother Shabir Ahmad, J., and the following observations made by his Lordship are relevant "

By the act of delegating his powers by virtue of subsection (2) of section 31 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner does not repeal the other provisions of the Act. Subsection (2) of section 31 is in the following words :‑ `(2) Subject to the provisions of this Act and the rules made there-under, the Chief Settlement Commissioner may, by noti fication in the Official Gazette, delegate ‑all or any of his powers under this Act to any Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner subject to such conditions, if any, as may be specified in the notification.' I am of the view that even though the order which only the Chief Settlement Commissioner could pass under the Act were passed by an authority subordinate to him by reason of the fact that power to pass the order had been delegated to such authority by means of an order issued under subsection (2) of section 31 of the Displaced Persons (Compensation and Reha bilitation) Act, 1958, the power of the Chief Settlement Com missioner to revise any order passed by any of his subordinates would exist, and the power of revision could be exercised by him in appropriate cases."

8. It would be seen that the view held by this Court is that the orders passed by the delegatees, declaring a house to. be divisible or not, are subject to the other provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which provide for appeals and revisions to higher authorities. This being the case, the declaration of divisibility granted by the Additional Settlement Commissioner could be reversed in revision by the Settlement Commissioner. The house must, therefore, be treated as indivisible, as held by the Settlement Commissioner.

9. Mr. Qadir Bakhsh requested that as recently their Lordships of the Supreme Court have granted special leave to appeal in Civil Petition No. 104 of 1961 (Mst. Amir Begum v. Umar Din etc.) to examine this very question, I should keep the present petition pending until the matter is decided by the Supreme Court. I regret I am not inclined to adopt this course, for the reason that the mere grant of special leave by the Supreme Court does not mean that the law laid down by a Division Bench of this Court is no longer good law. Sitting as a Single Judge, I am bound to follow the decision of the Division Bench, until such time as it is reversed by a larger bench of this Court or by the Supreme Court. In the second place, it is not known as to when the decision of the Supreme Court will be given, and it is desirable that writ petitions relating to rehabilitation matters should be disposed of as expeditiously as possible.

10. Once the house is treated as indivisible, i.e., as one house, only one person can get it transferred. Both the peti tioner and respondent No. 2, Nasir‑ud‑Din, are claimants, and, therefore, according to the second proviso to the first paragraph of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the house has to be transferred to the claimant who obtained prior possession. Mr. Qadir Bakhsh contends that as the petitioner obtained possession in January 1948, which possession was regularised by a valid allotment order on the 7th of December 1958, he is the person in prior possession, because the respondent No. 2 admittedly obtained possession of the house in April 1953.

11. The term "possession" is defined in clause (6) of section 2 of the Displaced Persons (Compensation and Reha bilitation) Act, 1958, as meaning "possession obtained in pur suance of an order passed on or before the twentieth day of December 1958 by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government". The second proviso to this definition lays down that the Central Government may, by order in writing, direct that a class or classes of such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the Order, be deemed to be in possession for the purpose of this Act.

12. From the definition given above, it is clear that the occupation of the petitioner from the 16th of January 1948 to the 7th of December 1958 was not possession within the meaning of the law, for the reason that it was not in pursuance of a valid allotment order, such as is mentioned in the definition. It is only from the 7th of December 1958 that the petitioner can be said to be in possession in accordance with the definition given in the Act. However, it was contended by Mr. Qadir Bakhsh that the allotment order obtained by the petitioner on the 7th of December 1958 was in the nature of a regularisa tion order and had the effect of validating his possession from the date of its inception, namely, the 16th of January 1948. A reference to the allotment order in question (copy at Annexure "R. L" to the written statement), however, does not support this contention of the learned counsel. This is a brief document and may be reproduced here with advantage. It contains the following note by subordinate rehabilitation officers :‑ "Petitioner was summoned and his statement was recorded by the D. R. C. on 26‑11‑58 at p.

121. He states that he is residing in the room in question since Partition and has paid the rent up to 31‑10‑

58. The petitioner is a refugee claimant. According to him, a claim worth Rs. 14,112 has been verified in his favour. He is residing in the room since long and has paid the rent up to 31‑10‑58. , It is, therefore, recommended that the room in question may be allotted in his favour. Its allotment falls within the jurisdiction of D. R. C. (U). Submitted for orders." Below this note is an order by the Deputy Rehabilitation Commis sioner dated the 7th of December 1958, saying : "Approved".

13. It seems to me that the above document cannot be interpreted as ‑having any retrospective effect. There is no doubt that the recommendation made by the subordinate officers does mention the fact that the petitioner has been residing in the room since long and has paid the rent up to the 31st of October 1958, but these facts are mentioned to justify the issuing of an allotment order, and there is no recommendation that the allotment should take effect from a specified date in the past. In fact, the Rehabilitation officers have given no definite finding as to the date of occupation of the petitioner. In other words, in my view, the allotment order dated the 7th of December 1958 is only prospective in effect and does not have the effect of converting the previous occupation of the petitioner into legal possession as defined in the Act. The starting point for that possession remains the 7th of December 1958. This date is subse quent to the date of possession of the respondent No. 2.

14. It was then contended that if the order of the 7th of December 1958 is not accepted as having retrospective effect and regularising the possession of the petitioner from the year 1948, then the petitioner may be given the benefit of a noti fication issued by the Central Government on the 13th of October 1959, under the second proviso to the definition; as reproduced earlier. The second proviso to the definition, of the term "possession" was introduced by Ordinance No. LIII of 1959 on the 28th of September 1959, and acting in pursuance thereof, the Central Government notified, on the 13th of October 1959, that even those persons who had not obtained possession in pursuance of a valid allotment order issued before the twentieth of December 1958 may be deemed to be in possession under certain conditions. It would be well to reproduce the notification here :‑ "No. F. 1, (27)/59‑SI, 13th October 1959. In exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation)Act, 1958 . (XXVIII of, 1958), the Central Government is pleased to direct that a claimant, a non-claimant displaced persons or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty‑first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such; amount is adjusted against his claim."

15. In order to attract the application of this notification, the following conditions appear to be necessary : (a) That the person concerned should not have obtained possession of the house or shop, as the case may be, in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958. (b) That he should have been in undisputed occupation of the house or the shop since before the twenty‑first day of December 1958. (c) That no other person should otherwise be entitled to the transfer of such house or shop in pursuance of a final order passed by competent authority before that day. (d) That the rent and other public dues in respect of the house or shop should have been paid by the occupant from the date of his occupation, and if he is a claimant, such amount can be adjusted against his claim.

16. The petitioner does not fulfil the first condition because on the date of the notification, i.e. the 13th of October 1959, he was not a person who had not obtained possession of the house in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, for the reason that he had in fact obtained a valid allotment order on the 7th of December 1958. In other words, when the notification was issued, the petitioner was already a person in autho rised possession of the house as defined by law, although that possession dated only from the 7th of December 1958. He was thus not one of those persons for whose benefit this notification was issued.

17. Even if it be assumed, for the sake of argument, that the petitioner was in unauthorised occupation of the house on the date of the notification, i.e., the 13th of October 1959, then it appears to me that he does not fulfil the third condition stated above, because by that date the respondent No. 2 had been entitled to the transfer of the house in pursuance of a final order passed by a competent authority before the twentieth day of December 1958. It will be recalled that the respondent No. 2 had obtained possession in pursuance of a valid allotment order in April 1953, and on the basis of his possession, he had become entitled to the transfer of the house, a against the petitioner, whose possession was not recognised as such in the eye of law until the notification of the 13th of October 1959. To put it differently, transfer rights had already accrued to respondent No. 2 in pursuance of the allotment order held by him, before the notification of the 13th of October 1959 appeared in the field to give legal recognition to the rights of persons who were in unauthorised occupation of shops and houses. It is clear that the phrase "final order" used in the last sentence of the main part of the notification cannot have reference to the actual transfer order, because before the twentieth day of December 1958, no transfer orders were being issued. Thus the final order mentioned in, this notification is that order which creates an entitlement for transfer and not the transfer order itself. Now, if the petitioner is deemed to be a person who was occupying the house without a valid allotment order on the 13th of October 1959, then he cannot defeat the rights of respondent No. 2 who had already become entitled to the transfer of the house under the law in pursuance of a valid allotment order held by him, dating back to the year 1953.

18. There is another aspect which might be mentioned, namely, that the petitioner had already submitted his C. H. Form on the 1st of June 1959 and the respondent No. 2 had done the same on the 20th of June 1959, and both were basing their, claims on valid allotment orders in their favour. It could not be otherwise, because on the 1st of June 1959 the notification, just mentioned, had not come into being, and, therefore, the petitioner could not have based his claim on his unauthorised occupation, dating from the year 1948. This also shows that the petitioner's case was not covered by the notification of the 13th October 1959. It may further be remarked that applications from those, who were eligible to apply under its terms, were invited by the Chief Settlement Commissioner by means of his notification dated the 28th of October 1959, and the last date was fixed as the 10th of November 1959, and the applicants had to file a declaration of eligibility, as a substitute for allotment orders. The petitioner did not apply under this procedure, and for a very good reason, namely, that he had already submitted his application on the 1st of June 1959 as a person who was in possession in pursuance of a valid allotment order issued before the twentieth day of December 1958.

19. For the reasons given above; I have come to the conclusion that from the 16th of January 1948 to the 6th of December 1958 the petitioner was in unauthorised occupation of one room in the house in dispute, and that occupation did not confer any right on him to claim the transfer of the house. From the 7th of December 1958 he is in possession, as defined by law, in pursuance of a valid allotment order issued by the Deputy Rehabilitation Commissioner, but this order is not retrospective in operation and does not have the effect of converting the previous unauthorised occupation of the petitioner into legal possession. The petitioner's case is not covered by the notification issued by the‑ Central Government on the 13th of October 1959 in pursuance of powers conferred by the second proviso to the definition of the term "possession", for the reason that on the date of the issue of the notification the petitioner was no longer a person in unauthorised occupation, and even if he were, he could not defeat, the entitle ment to transfer which had already accrued to respondent No. 2 in pursuance of his valid allotment order, dating back to 1953.

20. The result is that the date of possession of the peti tioner must be regarded as the 7th of December 1958 ands that of the respondent No. 2 as the 1st of April 1953: The house being indivisible, and both the parties being' claimants, the claimant in prior possession is entitled to the transfer of the house. Such a claimant is respondent No: 2 and not the petitioner.

21. Mr. Qadir Bakhsh finally pointed out that the Settlement Commissioner was in error in observing that the petitioner had been allotted a plot of land in the Gulberg Scheme of Lyallpur City. This assertion of the learned counsel is correct because there is on the record a report by the Lyallpur Improvement Trust that no such plot has been allotted to the petitioner. But this fact has, however, no bearing on the questions in issue, and the decision of the Settlement Commissioner is not based on this ground alone.

23. In view of the conclusion arrived at above, the petition fails and is hereby dismissed with costs. A. H. Petition dismissed.