1988 PLP 783 (CLC)

All the points noted above revolve round two misconceptions:‑ (1) the petitioners are transferees of two shops; (2) there is an observation of the learned Single Judge which must be acted upon by the Settlement Commissioner.

10. In order to appreciate the submissions being made it will be advantageous to reproduce the various findings and observations made in the previous round of litigation upto the Supreme Court judgment:‑ 6‑7‑60 Settlement Commissioner: "...and the whole property should be transferred to the petitioner (Kh. Muhammad Afzal) "as one unit." 20‑4‑

62. Chief Settlement Commissioner: " ....I, therefore, hold the shop in possession of the petitioner (Muhammad Sadiq) "to be a separate shop and transfer the same to him." 27‑6‑63 learned Single Judge: ...The impugned order" (i.e. the order of the Chief Settlement Commissioner) "is set aside as being without jurisdiction. The learned Single Judge also made the following observation after he allowed the petition:‑ "2.The order of Mr. Muhammad Rafiq, however, shows that there were two shops even before partition, one in occupation of Amar Nath and the other of Jai Lal, who were paying Rs.60 and Rs.20 P.M. The petitioner does not, therefore, appear to be entitled to two shops. He could only get both the shops if they are treated as one. It is, however, for the Settlement authorities to decide what action, if any, is necessary in this connection." 5‑1‑65 order in L.P.A. 364/63 filed by the petitioners to challenge the above observations: " ....The observations (of the learned Single Judge) do not amount to a considered decision that the property in dispute consists of two shops." 12‑3‑69 Order in L.P.A 334/64 filed by Muhammad Sadiq respondent " ....We ...set aside the order of the learned Single Judge dated 27th of June, 1963. As a result the order passed by Mr. S.M. Rafiq in second revision would stand." 21‑5‑76 Order of the Supreme Court: "We ....set aside the judgment and order passed by the Letters Patent Bench of the High Court and restore the order passed by the learned Single Judge dated 27‑6‑1963."

11. The operative parts of all the relevant orders as reproduced above do go to show that: (i) the learned Single Judge set aside the order of the Chief Settlement Commissioner, holding that there were two shops. As a result the order of the Settlement Commissioner occupied the field holding that the premises in occupation of the two parties was one shop. (ii) The order of the learned Single Judge was maintained by the Supreme Court. The conclusion reached, therefore, was that the petitioners could not be deprived of the stairs/shop applied for by the respondents. There is thus only one shop even if there are two business premises. The definition of the term 'shop' as given in section 2 (12) of the Displaced Persons (Compensation and Rehabilitation) Act takes care of a building with more business and residential units. The relevant portion reads as under:‑ "2 (12) 'Shop' means Evacuee business premises of any value in an urban area

Provided that where any building or premises not so declared consist of more than one business unit, and such units are in 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 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." Thus the matter stands finally concluded with a finding that both the units are one shop.

12. It may further be noted that the learned Letters Patent Bench in L.P.A. 364/63 observed that there was not decision of the learned Single Judge, that there were two shops, to allow on appeal. Further, if the learned Single Judge had thought, even for a moment, that there were two shops he could refuse relief. Rather, he observed that it was not for him but the Settlement Authorities to say if there were two shops. Again, as said above, the Settlement Commissioner had even exhausted his power of review vide his order dated 5th May, 1961. The order of the Settlement Commissioner holding that there was only one shop had become final and cannot be reopened.

13. It is to be further noted that even according to the observations of the learned Single Judge it was for the Settlement Authorities to hold otherwise provided the law permitted them. None of the Settlement Authorities even expressed its intention to take up that case what to speak of finding out if there was any power or authority permitting them to do so. The Displaced Persons (Compensation and Rehabilitation) Act was repealed with effect from 30th June, 1974. Only pending proceedings were saved. Admittedly there were no proceedings pending either because of a remand or for any notice issued under any valid power under the Act. The impugned notice issued in 1978 was, therefore, without jurisdiction and hence void and ineffective. In view of the above, the order dated 27th December, 1976, and the notice dated 30th September, 1970, issued by the Settlement Commissioner, are declared to be without lawful authority and of no legal effect. The parties are, however, left to bear their own costs. H . B . T . / M‑484/ L Petition allowed.