1988 PLP 1510 (MLD)

MANZOOR HUSSAIN SIAL, J.‑‑This Letters Patent Appeal arises out of order dated 17‑11‑1966 of the learned Single Judge in Chambers, by which he accepted Writ Petition No. 2699‑R of 1963 and quashed order dated 31‑3‑1961 of the Settlement Commissioner Multan, as well as order dated 28‑4‑1962 of the Chief Settlement Commissioner, whereby, portion of property in dispute was transferred in favour of the appellants.

2. The relevant facts in brief, as established from record are that an evacuee composite property bearing one Survey Number, viz. 1254 and situate in Harm Gate Ward No. VIII Multan, a predominantly commercial locality, consisted of three portions. On the ground floor a portion of it described as shop was in possession of Muhammad Rafiq. The other portion on the ground floor and used as shop was in possession of Muhammad Rafiq. The other portion on the ground floor and used as shop was in possession of Qadir Baksh, whereas `Chaubara, on these shops having a staircase from inside the shop occupied by Muhammad Rafiq, was in possession of Muhammad Sabir. Muhammad Rafiq and Muhammad Sabir are brothers and 'hereinafter, referred to as appellants'. They are non‑claimants displaced persons, whereas Qadir Baksh is a claimant. Qadir Baksh died during the pendency of the appeal and his legal heirs have been unpleaded as respondents in the appeal. In April 1956, the Deputy Rehabilitation Commissioner, allotted the shop and Chaubara in possession of the appellants to them. Similarly on 18‑7‑1957, the shop in possession of Qadir Baksh, was allotted to him. On the commencement of the settlement operations the appellants (Muhammad Rafiq and Muhammad Sabir) filed N C S and N C H forms respectively for transfer of the shops and Chaubara in their possession. Qadir Baksh also filed C S form for the transfer of the shop to him. The Deputy Settlement Commissioner on 30‑11‑1959 passed order, which is available on page 23 of the Settlement file, to the following effect:‑ "Property No. 1254/VIII H consists of two shops below and a Chaubara above. (1) Shop 1254/A ‑ Muhammad Rafiq allottee ‑ NCS 241 and Chaubara Muhammad Sabir 1160 (2) Shop 1254/B ‑ Qadir Baksh s/o Choohar Bakhsh‑ allottee ‑ CS 510 This property having a Chaubara above becomes indivisible and is ordered to be transferred to Qadir Baksh s/o Choohar Bakhsh, who being a claimant, has preferential claim. He does not agree to combine the non‑claimant with him and their NCS & NCH forms are rejected. He shall however, have a right to remain in the shop and Chaubara in his possession for three years, Sd/‑ 30‑11‑1959". Aggrieved by the order of the Deputy Settlement Commissioner the appellants preferred‑appeal before the Additional Settlement Commissioner, but of no avail. The learned Additional Settlement Commissioner also treated the property as indivisible and on 26‑5‑1960 rejected their appeal. The appellants challenged those orders in revision and the Settlement Commissioner, vide his order dated 31‑3‑1961, accepted the same and on the basis of their possession, transferred shop and Chaubara to them while the other shop on the ground floor, in possession of Qadir Baksh was transferred to him. Qadir Baksh; who had previously been transferred the entire building, did not feel content with the order of the Settlement Commissioner, who had divided the property in accordance with the possession of the parties. He, therefore, filed second revision petition before the Chief Settlement Commissioner. It seems that at that stage he sought vertical division of the `Chaubara' with the shops. The Chief Settlement Commissioner rejected the revision and vide his order dated 28‑4‑1962 observed:‑‑ "The petitioner now in second revision petition asserts that the division is not feasible because on the top of shop the whole two storeys have been,, transferred to the respondent. He wants the Chaubara to be divided vertically with the shops. The plan presented to me by him does not indicate any possible manner under which the Chaubara could be vertically divided with the shop of Qadir Baksh. 1, therefore, reject the revision petition and uphold the decision of the Settlement Commissioner." Qadir Baksh, being dissatisfied with the orders of the Settlement Commissioner as well as the Chief Settlement Commissioner fled Constitutional petition in the erstwhile High Court of West Pakistan, which was allowed vide impugned order passed by the learned Single Judge in Chambers. Hence this appeal.

3. Learned counsel for the appellants contended that long before Qadir Baksh deceased‑respondent had occupied shop on the ground floor, the property bearing No. 1254 stood already divided by the Rehabilitation Department. The shop in his possession had independent access on the ground floor, whereas the other shop had also separate access and staircase leading to "Chaubara" therefrom, in possession of the appellants constituted independent unit. It was_ next contended that the Settlement Commissioner and the Chief Settlement Commissioner treated the two portions as separate units by their manner of disposal, the learned Single Judge fell into error in holding that the two portions of the property constituted single unit. It was submitted that in the matter of the division of the property the discretion of Settlement authorities cannot be interfered with unless it is established that the discretion was arbitrarily exercised by the Settlement Authorities. It was further contended that the Settlement Commissioner as well as the Chief Settlement Commissioner acted in accordance with latest instructions issued on 30‑11‑1959 by the Settlement Department. wherein it is laid down that if the transfer of the whole building to one person will result in serious hardship and dislocate other persons occupying the same building, they may transfer only the portion in occupation of such person, if it has an independent access and transfer the other residential or business units in the building to other persons entitled to their transfer. Normally not more than one shop and one residential unit above it, comprising a self‑contained independent unit should be transferred to one person. It was submitted that the shop on the ground floor and `Chaubara' on the first floor having access from the shop in occupation of the appellants constituted an independent commercial unit. The other shop on the ground floor in possession of Qadir Baksh is also an independent unit having separate access. These units were consciously transferred by the Settlement Authorities in favour of the parties. It was lastly submitted that appellants had already paid price of the property transferred to them and Permanent Transfer Deed was issued in their favour on 14‑9‑1962. It will be a matter of extreme hardship for them if they are ousted therefrom after lapse of three decades. In support of his submissions learned counsel relied on Muhammad Hussain v. Settlement &. Rehabilitation Commissioner and others (1987 S C M R 1649); Mushtaq v. Muhammad Bakhsh alias Mian Muhammad (1982 S C M R 29); Umar Din v. Syed Muhammad Abdul Aziz Sharq etc. (P L D 1985 S C 265); Mst. Naznin Fatimah and others v. Syed Hussain Ahmad Shah and others (1984 S C M R 457), Mst. Gaiti Ara Begum v. The Chief Settlement Commissioner (1972 S C M R 269) and Syed Tasleem Hussain v. Muhammad Ishaq and 2 others (1987 S C M R 209).

4. Mr. Ahmad Nawaz Qaisarani, Advocate,. learned counsel for the Settlement Department appeared with the relevant record. He also supported the orders passed by the Settlement Commissioner as well as the Chief Settlement Commissioner whereby the property in dispute was divided and one unit thereof was transferred to Qadir Bakhsh whereas the other unit was transferred to the appellants. It was submitted that the building was initially divided by the Rehabilitation Department and allotted to different persons. The appellants are in possession of independent units and entitled to retain them as such in accordance with the latest instructions issued on 30‑11‑1959 by the Settlement Department.

5. Learned counsel appearing on behalf of respondent No. 1, on the other hand, contended that the property in dispute had all along been treated as one unit being located in predominantly commercial area. A portion of it in possession of the claimant, was rightly transferred as one unit to the claimant in preference to the appellants who are non‑claimants in possession of the other portion of the property. It was submitted that if the claimant is in possession of a part of the shop not only he is entitled to its transfer but can also have the other part thereof transferred in his favour despite the same being in possession of the non‑claimant. It was also contended that it is established from the survey register that property No. 1254 was one unit in August 1947 and required to be treated as one unit for the purpose of transfer. It was submitted that the division made by the Rehabilitation Department is of no significance for the transfer of the property to the persons entitled thereto. Learned counsel supported the impugned order and contended that Qadir Bakhsh being in possession of a part of the shop was entitled to the transfer of the entire property as one unit. It was also argued that the Settlement Authorities acted arbitrarily in not treating the property as a single unit. In support of his case, learned counsel relied on Ghulam Hussain and another v. Muhammad Sultan and others (1988 S C M R 224), Qamaruddin v. Chief Settlement Commissioner and another (1983 S C M R 345), i Sardar Abdul Aleem v. Abdur Rahim any: others (P L D 1968 Lah. 1398), Sh. Shabbir Hussain v. Abdul Rafoof and others (1977 S C M R 287) and Abdul Majid Khan v. The Chief Settlement Commissioner, Lahore (PLD 1968 SC 154).

6. We have considered the contentions raised by learned counsel for the parties and have also perused the relevant record with their assistance. Admittedly before partition of the sub‑continent the property in dispute was one unit. It had a shop on the ground floor and a `Chaubara' thereon on the first floor. In the year 1952, the Rehabilitation Department considering the shop to be spacious one divided the same and allotted portions thereof to the parties. The shop on the ground floor was divided into two parts by intervening pucca wall, one shop on the ground floor in occupation of Qadir Bakhsh was allotted to him and the other shop with `Chaubara' on both the shops having independent access therefrom was allotted to the appellants. The Settlement Commissioner, as well as the Chief Settlement Commissioner also treated these portions of the building as independent units with separate accesses and transferred to the parties in possession thereof. The learned Single Judge, however, treated the entire property as one unit and Qadir Bakhsh claimant being in occupation of a part of it was found entitled to the transfer of the other part as well. The latest instructions issued by the Chief Settlement Commissioner on 30‑11‑1959 in supersession of instructions contained in memo dated 22‑10‑1959 entitled even an allottee/non‑claimant in possession of a portion of the building to its transfer if it constituted self‑contained independent unit. It will be useful to reproduce hereunder the relevant instructions issued by the Chief Settlement Commissioner on 30‑11‑1959:‑‑ '"Transfer of houses and shops in possession of more than one person: (Memo No. 7616‑Comp‑Reh/59 dated November, 1959). It has been reported that the instructions contained in this office Memorandum No. Comp‑Reh/59 dated 22nd October, 1959, on the above subject have created certain practical difficulties particularly in cases where a single claimant in occupation of a portion of the building, has applied for the transfer of a complete building to him consisting of more than one house or shop. The Chief Settlement Commissioner has, therefore, on reconsideration decided that the Deputy Settlement Commissioners may use their discretion and if they are satisfied that the transfer of the whole building to one person will result in serious hardship and dislocate other persons occupying the same building they may transfer only the portion in occupation of such person if it has an independent access and transfer the other residential or business units it the building to other persons entitled to their transfer. Normally‑ not more than one shop and one residential unit above it comprising a self -contained independent unit should be transferred to one person. In crier however, persons occupying a building are prepared to take the whole building jointly by mutual agreement, which will result in the settlement of a majority of such persons the whole building may be transferred to them on the basis of such agreement provided they are entitled to the transfer of the portions in their occupation. In order to enable the Deputy Settlement Commissioners to make judicious use of their discretion it has been decided to delete the words "in such cases also efforts should be made to transfer the. whole building to one person if practicable" occurring in Principle No. (3) on page 3 of the memorandum referred to above. It may be seen that the instructions incorporated in the Memorandum referred to above are in accord with the powers conferred upon the Chief Settlement Commissioner as contemplated under proviso to subsection (12) of Section 2 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, which reads as follows:‑ "(12) "SHOP"‑Shop means evacuee business premises of any value in an Urban area or of the value of ten thousand rupees or more in a rural area together with godowns or store‑house, but does not include any building situated within the premises of an Industrial concern, or a building, or premises declared under Paragraph 16 of the Schedule to be a "Big Mansion" or hotel or such class of business premises in a rural area as may be; declared by the Central Government, by Notification in the Official Gazette not to be shops within the meaning of this clause: Provided that where any building or premises not so declared consists of more than one business units, and such units are in possession of several persons, then unless the Chief Settlement Commissioner, orders otherwise, the whole of such building premises shall be deemed to be a shop. 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 be specified in the order, shall be deemed to be a shop or a house. The perusal of the order passed by the Deputy Settlement Commissioner reproduced hereinbefore, shows, that he was conscious that property No. 1254 consisted of two shops below and a Chaubara thereon and those were separately occupied by the parties, but held the property indivisible only because a Chaubara was located on the shops. The Settlement Commissioner as well as the Chief Settlement Commissioner on the contrary exercising the power of division transferred the units occupied by the parties on the basis of their possession. In our view, the Chief Settlement Commissioner in exercise of the jurisdiction vested in him under second proviso to subsection (12) of Section (2) C of the Displaced Persons (Compensation and Rehabilitation) Act was fully competent to exercise jurisdiction in the matter of the division of the evacuee property. In this regard the Supreme Court in Muhammad Hussain's case, cited above, held, relevant to the extent is reproduced below:‑ "All this shows that the Settlement authorities had treated the two portions as separate and independent units by, their manner of disposal. Therefore, the High Court fell into an error m holding that there was one unit and that was auctioned to respondent No.

2. This finding against the settled principle that the discretion of the Settlement authorities cannot be interfered with in the matter of division of property or its being treated as a separate unit in the exercise of Constitutional jurisdiction as this would amount to usurpation of discretion required to be exercised by the Settlement authorities under the law. There is, however, an exception to this rule, that is, where the order is arbitrary or capricious, then it is open to review but that is not the case here."

7. Similarly in Mushtaq Ali's case which goes very close to the facts and the legal position involved in the instant case, "a composite property" on Brandreth Road, Lahore, bearing only one survey number comprised of five commercial units in the basement, rive business units on the ground floor, a residential portion and a registered factory. Mushtaq Ali appellant was in possession of one of the commercial units in the basement since January 1951. His claim was that part occupied by him was independent unit and having a separate access from the road. Another business unit i.e. shop above the unit of appellant was in possession of Muhammad Bakhsh respondent. The dispute pertained only to the commercial unit above the unit in possession of the appellant‑which was treated as godown appurtenant to the shop and was transferred to. Muhammad Bakhsh respondent. On appeal the Additional Settlement Commissioner without disputing the fact that the appellant was using the unit in dispute as shop treated it as a part of and appurtenant to the shop transferred to Muhammad Bakhsh respondent and dismissed appellant's appeal. On revision the Settlement Commissioner treated the commercial unit in possession of the appellant as separate from the shop in possession of the respondent and without saying it in so many words, exercising the powers of division transferred both the commercial units separately, the shop to the respondent and the so‑called godown which was also treated as a shop to the appellant. The respondent challenged the order of the Settlement Commissioner before the Chief Settlement Commissioner in second revision but the same was dismissed." He further challenged the order of the Settlement Commissioner before the High Court in writ jurisdiction and the Division Bench of the High Court, Lahore allowed his writ petition. The matter was agitated by the appellant before the Supreme Court and the Supreme Court interpreting subsection (12) of Section 2 of the aforesaid Act held: "In our view, the business premises in the composite property having been divided by the Settlement Commissioner into two shops in exercise of the power of division, no valid exception could be taken to the order of transfer passed in favour of the appellant. The reliance of the learned Judge in the light of the above clarified position on Abdul Hamid Khan v. Settlement & Rehabilitation Commissioner (P L D 1966 S C 719) was accordingly not justified. Instead, the case was fully covered by the rule laid down by this Court in Abdul Majid v. Chief Settlement Commissioner and others (P L D 1967 S C 437), wherein second proviso to subsection (12) of section 2 was interpreted and discussed in detail. In this view of the matter, the division of the property having been made in exercise of lawful authority the interference by the High Court in its writ jurisdiction cannot be maintained and the impugned judgment is liable to be set aside. This is an established principle that the discretion exercised by the Settlement Authorities in matters of division of the evacuee property is subject to no interference in Constitutional jurisdiction of this Court, unless the division made is arbitrary or capricious. It may be observed that in the instant case the Settlement Commissioner as well as the Chief Settlement Commissioner by their orders transferring portions of the property to their occupants according to their possession manifestly, made conscious division of the property in accordance with the possession of the parties, these orders therefore, cannot be construed to be either arbitrary or illegal. The question whether the property was divisible or not lay within the exclusive jurisdiction of the Settlement Authorities. The authorities cited by learned counsel for respondents are distinguishable and are of no help to them. In Ghulam Hussain's case cited above petitioner before the Supreme Court was unable to show anything on the record to indicate that any competent Settlement authority had divided the property so as to form two units for disposal under the Settlement Scheme to different applicants and in those circumstances the respondent who was in possession of a part of the building was considered entitled to the transfer of the entire building. In the instant case, however, the Settlement Commissioner and the Chief Settlement Commissioner transferred in favour of the parties the portions of the property in their possession. The parties were allottees of the respective portions and pursuant to final transfer of the same they were accordingly issued permanent Transfer Deeds. In Qamar Din's case refereed to above it was observed by the Supreme Court that the division of the property on the basis of possession was not sacrosanct. The Settlement Author ties' orders dividing the house into two units and maintained by the Division F which of the High Court were based on no material justifying that each unit m as independent and self‑contained. The order of division on the basis of possession was wholly arbitrary and the respondent in that case failed to establish his entitlement either on the basis of his possession or that of his daughter. The house was, therefore, directed to be transferred as a whole to the appellants. In the case in hand it is established on the record that the shops on the ground floor have independent separate accesses, and divided by a Pacca wall; they are self‑contained independent units as such the rule enunciated in this case is inapplicable. In Sardar Abdul Aleem's case, referred to above, a part of the house was in occupation of an office, the Settlement Authorities on that account assumed that the same was divisible unit. It was observed that the mere fact that a part of the unit was being used as an office would not in itself indicate that the residential premises was divisible. In the instant case not only the Rehabilitation Authorities divided the property but the Settlement authorities also held the property in dispute divisible and transferred separate units to the occupants in accordance with their possession. In Shabbir Hussain's case, also the Supreme Court had observed in respect of the mode of division of an evacuee house. It was held that the question of division of the evacuee properties lies within the domain of statutory functionaries, the Superior Courts interfered only when the power of division was exercised not in judicious manner. The dictum laid down in this case rather goes against the respondent, inasmuch as that the mutter of division of the property lies within the domain of the Settlement Authorities and the superior Courts, would not ordinarily interfere in the matter of division. The prayer made for upsetting the division made by the Settlement Authorities regarding the division of residential premises way disallowed and it was observed that the Memorandum dated 22-‑10‑1959 regarding the division of the residential premises stood approved which hay the effect of depriving one party of the use and the superstructure therein. In the instant case the respondent who is transferee of the shop on the ground floor, therefore cannot extend his hand to any other portion of `Chaubara' for vertical division. Abdul Majid's case lastly, cited by leaned counsel for respondents is also of no help to him, because in that case the Supreme Court while interpreting the proviso to subsection (12) of section 2 of the aforesaid Act, explained the word `Unit' to mean an integrated portion of the building structurally capable of being a self‑contained portion. In the instant case, the shop transferred to Qadir Bakhsh deceased as a unit and the shop and Chaubara' transferred to the appellants as another unit with independent and separate accesses, had been used as self- contained portions for the last over three decades. Another aspect of the case which considerably engaged our attention was; that the orders passed by the Settlement Authorities in dividing the property in accordance with the possession of the parties, were eminently just and in consonance with the principle that the Settlement laws are designed to accommodate as large a number of displaced persons as was possible in the given situation. The appellants admittedly were prior allottees than Qadir Bakhsh, the predecessor‑in‑interest of the respondents, who came later in the building and could not in equity be allowed to oust the appellants from the property in dispute. The upshot of the above discussion is that the order passed by the Settlement Commissioner in dividing the property and thereby transferring its portions to the occupants in accordance with their possession, confirmed by the Chief Settlement Commissioner was liable to no interference in Constitutional jurisdiction of this Court. We, therefore, set aside the impugned order of the learned Single Judge, allow this appeal and restore the aforesaid orders with no order as to costs. M.Y.H./M‑994/L Appeal allowed.‑‑