P L D 1963 Supreme Court 311 (PLP)

Civil Appeal No. 27 for 1963 Muhammad Hussain Advocate High Court of West Pakistan under rule 5, Order IV, S. C. Rules, 1956 (Shaukat Ali Advocate Supreme Court with him) instructed by Nazir‑ud‑din Attorney for Appellants. A. R. Shaukat Advocate Supreme Court instructed by Wali Muhammad Attorney for Respondent No.

1. Muhammad Nadir Advocate Supreme Court instructed by Iftikharuddin Ahmad Attorney for Respondent No.

4. Respondents No. 2 & 3 : Not represented. Civil Review Petition No. 4 of 1963 Mahmud Ahmad Qureshi Advocate Supreme Court instructed by Naziruddin Attorney for Petitioner. Respondents not represented. Dates of hearing : 16th and 17th April 1963. S. A. RAHMAN, J.‑This order will dispose of Civil Appeals 70 and 73 of 1962, 27 of 1963 and Civil Review Petition 4 of 1963, which involve the same point of law. The point common' to these appeals and the review petition is based on the conten tion that a Deputy Settlement Commissioner who exercises powers delegated to him by the Chief Settlement Commissioner should be held to have exhausted those powers and his order should be regarded as final and not subject to appeal or revision, by the higher officers. Leave to appeal was granted in the three appeals to consider this question which also falls for determination in' connection with the review petition. The facts of Civil Appeal 70 of 1962 are that the, appellant, Haji Fateh Muhammad, was transferred a building which included a residential portion and even shops, by order dated the 30th of October 1959. Before Partition the building was apparently wholly residential in cha, to but seven rooms on the ground floor have been consistely used as shops since then. It appears that the claims of the t to the 4th respondents who had been in possession of some or these shops and had also applied for transfer of the same premises to them had not been considered at the time the order of transfer was passed in favour of Haji Fateh Muhammad and they pressed their claims before the Deputy Settlement Commissioner by an application. After considering the claims of all these persons, the Deputy Settlement Commis sioner affirmed his previous order on 28‑11‑

59. The contesting respondents went up in appeal to the Additional Settlement Com missioner who modified the order passed by the Deputy Settle ment Commissioner and directed that two shops with a chaubara above, be transferred in favour of the 2nd, 3rd and 4th respon dents jointly, and one shop with a room on top, be awarded to the 1st respondent. The rest of the property was allowed to remain with the appellant. Muhammad Sharif, Ghulam Sarwar and Ghulam Sadiq, who were occupants of three shops in the premises were held not entitled to their transfer and the learned Additional Settlement Commissioner, as he put it, in order "to consolidate the possession" directed that the 1st respondent, Maula Bakhsh, be shifted from the shop in his occupation to that in the possession of Muhammad Sharif so that he could have the benefit of the room above that shop. The appellant feeling aggrieved, approached the Settlement Commissioner on the revisional side and that officer allowed the revision on the tech nical ground that the order of the Deputy Settlement Commis sioner being one passed on review, could not be appealed against. He agreed with the Deputy Settlement Commissioner on the merits too and by order dated 22‑6‑60, restored the position to that obtaining under his order. In further revision, however, Khan Farzand Ali Khan, exercising the powers of the Chief Settlement Commissioner, set aside the order passed in the first revision, adopted the scheme of division laid down by the Additional Settlement Commissioner but introduced a variation by directing that the shops allotted to the respondents by the Additional Settlement Commissioner should go to them and the remaining shops should be transferred to the auction pool. The appellant was thus left with the residential portion of the pro perty only. The appellant sought a writ of certiorari against this order from the High Court of West Pakistan but failed before a learned Single Judge and also before a Letters Patent Bench. The impugned orders were held to be within the jurisdiction of the Settlement Authorities. Mr. Aftab Hussain, on behalf of Fateh Muhammad, attempted to argue that all proceedings subsequent to the order passed by the Settlement Commissioner in revision, were bad in law as according to the Settlement Commissioner, the order of the Deputy Settlement Commissioner assailed before him was one passed in review, against which no appeal lay. Apart from the fact that this was not the point on which the appeal was admitted, it appears to have no force on merits either. What seems to have happened is that the appellant and the respondents who were all in occupation of portions of the premises, bad applied for their transfer and without considering the applications of the respondents or giving notice to them, the learned Deputy Settlement Commissioner passed an ex parte order in favour of Haji Fateh Muhammad. That could not be regarded as his final order qua the respondents' applications and indeed no copy B of the original order of the Deputy Settlement Commissioner has been produced to show that he had given due consideration to the claims of the other occupants. The contest inter partes having been brought to his notice, the learned Deputy Settlement Com missioner appears then to have applied his mind to the claims of the various applicants but arrived at the conclusion which be had already tentatively expressed in favour of Haji Fateh Muhammad. He had not in reality acted in review of his previous order and the contention raised therefore is un tenable. The point about the exercise of delegated powers rests on the definition of "house" and "shop" as given in clauses (4) and (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). "House" is defined therein as meaning "evacuee residen tial premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out‑houses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or out‑house is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential build ing 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". There are two provisos to this definition but we are only concerned with the first proviso, which is in the following terms: ‑ "Provided that where any building or premises not so declared consists of more than one residential unit, and such units are in the possession or several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house." Paragraph 16 of the Schedule to the Act which is referred to in this definition, reads as follows: ‑ "

16. Every building or premises, whether residential or commercial, declared by the Chief Settlement Commissioner or an officer authorized by the Central Government in this behalf to be a big mansion or hotel, shall be disposed of by unrestricted public auction Provided that no building the monthly rent of which in 1946 was less than five hundred rupees shall be declared to be a big mansion or hotel." "Shop" is defined in clause (12) of section 2, to mean: ‑- "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‑houses, if any, attached or appurtenant to such premises, but does not include any building situated within the premises of an industrial con cern, or a building or premises declared under paragraph 16 of the Schedule to be a big mansion or hotel Provided that where any building or premises not so declared consists of more than one business unit, and such units are in the 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." Another relevant provision, which falls to be considered in this connection is para. 20 of Settlement Scheme No. I, framed by the Chief Settlement Commissioner in exercise of powers conferred under the tact and under the directions of the Central the Government. This paragraph is couched in the following terms: ‑- "If a building which was a house or a shop on 14th August 1947, has been converted to some other use, the Chief Settlement Commissioner shall determine whether it is a house or a shop or any other type of property". It appears that the Chief Settlement Commissioner acting under this para. 20 of Settlement Scheme No. I issued general directions in the shape of a Press‑note, with the approval of the Central Government, for the guidance of his subordinate officers in dealing with converted properties within the meaning of this paragraph. These have been printed at page 139 et seq of the Manual of Settlement, Law and Procedure. Para. 2 of these instructions specifies that orders with regard to disposal of converted properties would be passed by the Additional Settle ment Commissioner of the area concerned, to whom such cases will be submitted by the Deputy Settlement Commissioners. This was, however, not a naked delegation of power without guidance as to the principles on which decisions were to be made. The opening part of para. 3 of these general instructions reads as below: ‑ "As a general principle the property will be disposed of according to the use to which it was being put on 20th December 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in the public interest according to its status at the time it became evacuee property." Then follow detailed instructions designated as "broad principles" applying to specified types of properties listed under nine heads. The 5th principle is to the effect that if a house is indivisible and the complete house or a major portion thereof has been converted into a shop, it may be disposed of as a shop. The sixth principle makes similar provision for an indivisible shop, which either completely or in part has been converted into a house. In the 10th clause, which appears to be a residuary clause, it is laid down that if a property is not covered by any of the above instructions the question of its disposal may be referred to the Chief Settlement Commissioner. The other instructions contained in this Press‑note are not material for our purpose. In none of the present cases the property involved is qualified to be declared a big mansion. It is further common ground between the parties that the Chief Settlement Commissioner by notification dated the 14th of October 1959, had delegated his powers under the provisos to subsections (sic) (4) and (12) of section 2 of the Act, to all Settlement Commissioners, Additional Settlement Commissioners and Deputy Settlement Commissioners in West Pakistan and Karachi. Section 20 of the Act relates to revisional powers. It pro vides that the Chief Settlement Commissioner may at any time and shall, on being directed by the Central Government, call for the record of any case or proceeding under the Act, in which any officer subordinate to him may have passed au order, for the purposes of satisfying himself as to the correctness, legality or propriety of such order and may pass such order in relation thereto as he thinks fit. Settlement Commissioners and Addi tional Settlement Commissioners could under this section be specially empowered by order of the Chief Settlement Commis sioner to exercise similar revisional jurisdiction in respect of orders passed by their subordinates. These special powers have in fact been conferred on them by notifications issued by the Chief Settlement Commissioner under this section from time to time. The position that emerges then is that under clauses (4) and (12) of section 2 of the Act, a premises, whether residential or commercial, is to be treated as one unit unless the Chief Settlement Commissioner or one of his delegates expressly declares otherwise. Some properties may be of a composite character that is to say, may include residential and commercial units. Such properties could be dealt with under these two provisions taken together. "Converted properties", however, fall specifically within para. 20 of Settlement Scheme No. 1 which does not stand on the same footing as a provision of the Act itself. This was a scheme prepared by the Chief Settlement: Commissioner himself and which he could vary from time to time, with the concurrence of the Central Government. Under this paragraph, the Chief Settlement Commissioner had laid down broad principles for dealing with converted properties. The powers exercisable by the subordinate officers in pursuance of those principles could not be said to be delegated powers. The Chief Settlement Commissioner could obviously not be expecte4 to personally pass orders in each individual case of converted property. The number of such properties within his jurisdiction would be very large. The only practical course open to him therefore was to issue general directions to be followed by him subordinates and this was actually what he did. The orders passed by the subordinate officers in pursuance of those guiding principles laid down by the Chief Settlement Commissioner, would. attract all the incidents of appeal, revision and review under the Act. It is clear that in Haji Fateh Muhammad's appeal, the pro perty in question is converted property. In view of the general instructions referred to above, it was not within the power of the Deputy Settlement Commissioner to depart from the normal rule that such properties had to be dealt with on the basis of their user on the 20th December 1958. If he wanted to depart from this position he could have only made a reference to the Additional Settlement Commissioner and he could not have, on his own, declared the property to be one residential unit, in spite of the fact that seven rooms therein were being used as shops. It is clear therefore that the Deputy Settlement Commissioner in this case was not really exercising powers as a' delegate of the Chief Settlement Commissioner but if he purported to depart from the general instructions issued under para. 20 of Settlement Scheme No. I, he exceeded his jurisdiction. He did not expressly invoke his powers as a delegate of the Chief Settlement Com missioner under clauses (4) and (12) of section 2 of the Act, while passing the order that he did and there is nothing else in the record to indicate that he was exercising such delegated powers. Indeed, unless he declared the property in question to be divisible under either of these two provisions, he could not be said to have acted as a delegate at all. The exclusive power of the Chief Settlement Commissioner was to order that a parti cular building shall not be treated as one unit. If a subordinate officer merely treats a property as one unit, he would be exercis ing his normal power and not acting as a delegate. The argument therefore cannot be sustained that the order passed by the Deputy Settlement Commissioner in this case exhausted the delegated powers of the Chief Settlement Commissioner and no interference with that order was possible at any higher level. The order passed by the Additional Settlement Commissioner in respect of the converted property involved in this appeal, was the first competent order in so far as it dealt with converted property and the variations introduced into it by higher officers were also justifiable under powers of revision conferred on them under section 20 of the Act. The High Court consequently very properly refused the writ prayed for in this case and no case has been made out for interference by this Court. The appeal is dismissed. We next take up the appeal of Mst. Amir Begum‑Civil Appeal No. 73 of 1962. The property, which is the subject‑matter of this appeal is a three‑storeyed building. There are two shops on‑the ground‑floor which were in the possession of Muhammad 3hafi and Pir Muhammad, who are not parties to these proceed ings. Besides the shops, there was a residential portion on the ground‑floor in the occupation of Umar Din and Abdullah, the first and second respondents, except for one room which was in the occupation of the appellant. The upper two storeys were wholly in the possession of the appellant. The Deputy Settlement Commissioner, by order dated 5‑1‑60, transferred the whole of the residential portion to Mst. Amir Begum, leaving the two shops with Pir Muhammad and Muhammad Shafi. Amir Begum as well as Umar Din and Abdullah appealed to the Additional Settle ment Commissioner against this order. That officer held the property to be divisible into separate units and regarded the two shops as independent of the residential portion. He dismissed the appeal of Mst. Amir Begum holding that she had no right to claim the transfer of the shops. Umar Din and Abdullah's appeal was allowed and they were allotted the whole of the residential portion on the ground‑floor, including the room, which was pre viously in the possession of Amir Begum who was thus confined only to the upper two storeys of the building. The Settlement and Rehabilitation Commissioner declined to interfere with this order in revision and a further revision to the Chief Settlement Commissioner was also dismissed after taking reports from the Deputy Settlement Commissioner but without calling the parties. The attempt to obtain a writ from the High Court also failed. Dr. Nasim Hassan Shah who argued the case for the appellant in this case suggested that a Deputy Settlement Commissioner possessed powers under the Act normally, to decide whether a particular building consisted of more than one "house", under clause (4) of section 2 of the Act without reference to the first proviso. If that be the correct position then obviously the order in the present case was not referable to the delegated powers of the Chief Settlement Commissioner mentioned in the first proviso and the point on which the appeal was admitted would automati cally vanish. The suggestion, however, does not appear to be based on sound premises. It was contended that the first proviso to clause (4) of section 2 applied only to buildings, which were quali fied to be big mansions but had not been declared as such under paragraph 16 of the Schedule to the Act. The proviso is express ed in the negative form and can be reasonably interpreted to include within its ambit all properties which in fact have not been declared to be big mansions whether they be qualified to be s D declared or not. This has been admittedly the departmental cons truction so far, of this proviso and we see no strong reason to depart from it in the present case. Dr. Nasim Hassan Shah, in the alternative, placed reliance on the second proviso to clause (12) of section 2 of the Act, which empowers the Chief Settlement Commissioner to order that a building consisting of both commercial and residential units be declared as a whole or in part, to be a shop or a house. The building in this appeal is obviously a composite one as it contains two shops besides the residential portion. So far as the two shops are concerned, the Deputy Settlement Commissioner as well as all the higher authorities treated them as separate units and even if the Deputy Settlement Commissioner could be said to have exercised his powers as a delegate, in this respect, there has in fact been no interference by the higher officers with his decision in this regard. The Deputy Settlement Commissioner further, could not be said to have exercised the delegate's power in declining to divide the residential portion itself under clause (12) of section 2 of the‑ Act. The delegate's power was under this provision to order a division. In so far as he passed no such order it could E not be said that he had exercised any but his normal powers under the Act. Such an order was subject to all the incidents of appeal and revision and no exception could be taken to the modifications of such an order by the higher authorities in the Settlement hierarchy. It may be mentioned that the Deputy Settlement Commissioner did not expressly say that he was exercising any powers as a delegate of the Chief Settlement Commissioner and there is no other indication to point to such a conclusion. Some argument was raised as to whether it was not Incum bent on the Chief Settlement Commissioner in second revision to have heard the parties before passing an order rejecting the revision petition. Initially, it seems, an order was conveyed to the appel lant informing her that her revision petition was rejected by the Settlement Commissioner. This position seems to have been rectified later when the Chief Settlement Commissioner himself called for reports from his subordinates and then ordered that the revision petition be rejected on 22‑8‑

60. Section 20 of the Act lays no obligation on the Chief Settlement Commissioner to exercise his revisional powers unless he is directed to do so by the Central Government. If be, therefore, declined to exercise his powers of revision in this case, he had the discretion to do, so and the order in question could give no cause of action to the appellant to ask for a writ from the High Court to quash the order as she did. This appeal too, therefore, fails and is hereby dismissed. The position in Civil Appeal No. 27 of 1963, which was presented on behalf of Ch. Muhammad Latif and Ali Muhammad, is not very much different from that obtaining in the above two appeals, so far as the point of exercise of delegated power by the Deputy Settlement Commissioner is concerned. The Deputy Settlement Commissioner merely passed an order on 2‑1‑60, on a report made by an Assistant Settlement Commissioner, in which the latter had given various reasons why out of the several occupants of the property, Muhammad Latif and Ali Muhammad, claimants, should be given the whole property. He pointed out that out of the occupants, Muhammad Ramzan and Said Muhammad were non‑claimants, Tahir Hussain and Nawab Din, though claimants, were non‑allottees who had not paid any rent for the one or two rooms in their possession since their occu pation and that Muhammad Latif and Ali Muhammad who were not only claimants but also allottees, were preferable to all these persons for transfer of proprietary rights. The lieputy Settlement Commissioner merely agreed with the proposal and ordered the issue of a transfer certificate to the appellant. It is clear there fore that he was exercising his normal powers under the Act and the question of exercise of delegated powers does not arise. In appeal, the Additional Settlement Commissioner declined to interfere with the order of the Deputy Settlement Commis sioner so far as one of the occupants, Nawab Din, was concerned. He further held the house to be vertically divisible and directed that one portion marked "X" be given to Syed Tahir Hussain and the bigger portion marked "Y" be transferred to Muhammad Latif and Ali Muhammad. The Settlement Com missioner, Peshawar, in revision modified this order by directing that the portion allotted to Tahir Hussain be put to auction and be not given to either party. The ground of this decision was that Tahir Hussain was in illegal occupation of the property. On a further revision being preferred, Khan Farzand Ali Khan exercising special revisional powers under subsection (2) of section 20 of the Act, restored the property in the occupation of Tahir Hussain to him as he was a claimant and in possession since long. In the High Court, in support of a prayer for a writ to quash the order it was contended that the house was indivisible but the High Court declined to go into this question. The point was also raised that Tahir Hussain was not in possession in pursuance of any valid allotment order. In reply, it was observed by the High Court that by virtue of the amplified definition of the term "possession" under the Act, undisputed occupation of the house before a certain date, also conferred a right of transfer on the claimant. The order was passed by a learned Single Judge which was upheld by a Letters Patent Bench on appeal. The only point on which the appeal was admitted was whether the order of the Deputy Settlement Commissioner alleged to have been passed as a delegate of the Chief Settlement Commissioner, was liable to interference in appeal or revision by his superiors. The premises itself is found to be incorrect as the Deputy Settlement Commissioner neither purported to nor in fact exercised any powers as a delegate. This appeal too con sequently fails and is hereby dismissed. There then remains the Civil Review Petition No. 4 of 1963 filed by Subedar Hidayat Ali. His petition for special leave to appeal was dismissed by this Court by order dated 16‑1‑

63. The petitioner was in occupation of a part of a bungalow on Mayo Road, Lahore. The Deputy Settlement Commissioner had transferred the whole bungalow to him in preference to the other occupants of the building. The order was set aside in appeal and the bungalow was directed to be partitioned between the petitioner and the first respondent, Syed Karamat Hussain. The petitioner had sought permission to associate three other persons with himself in order to acquire the whole bungalow. It was held that the questions as to whether the bungalow was divisible and as to what portion should be transferred to the petitioner, were entirely within the jurisdiction of the Settlement Authorities and there was no scope for interference with those orders in writ jurisdiction. Mr. Mahmud Ahmad Qureshi who appeared in support of the review petition, drew our attention to the order of the Deputy Settlement Commissioner at page 15 of the original petition for special leave to appeal and contended that as this officer had expressly considered the question whether the building was divisible or not and had come to the conclusion that it was not so divisible, he had in fact exercised his powers as a delegate of the Chief Settlement Commissioner, under clause (4) of section 2 of the Act. As has been observed above, however, the delegate's power was only to declare whether the house should be regarded as consisting of more than one unit. If it was treated merely as one building the order was really passed under the normal powers of the officer exercisable under the Act and was not relatable to his powers as a delegate. Mr. Mahmud Ahmad Qureshi also suggested that the first proviso to this clause of section 2, could only be attracted to a building which was qualified to be a big mansion but was not declared as such. This argument would effectually demolish the stand of the learned counsel that while declaring the property to be a single unit, the Deputy Settlement Commissioner had exercised powers delegated to him by the Chief Settlement Commissioner as the building in question is not‑such as could have been declared to be a big mansion, so that on his showing, the first proviso to clause (4) would not be attracted. It is admitted that apart from this proviso no power exists under the Act to divide the pro perty into separate units. No question then of the exercise of delegated powers could arise on this view. As stated above, however, we have found that the view is open to grave question. It is not at all clear whether the Deputy Settlement Commis sioner in this case had in fact applied his mind to the question of divisibility of the premises. There was only a report before him of the Assistant Settlement Commissioner who mentioned this aspect of the case beside giving other reasons why Subedar Hidayat Ali should be given the whole house. The Deputy Settlement Commissioner merely agreed with the conclusion and ordered issue of a transfer certificate in his favour. It by no means follows that he had agreed with the finding of no divisibility of the house because his preference for Subedar Hidayat Ali in competition with other occupants could be based on other grounds. In the circumstances, it cannot be urged successfully that there was any exercise of delegated powers by the Deputy Settlement Commissioner such as could not be disturbed by the superior officers on appeal or revision. No ground has been made out for review of the previous order of this Court and the petition is dismissed. In view of the circumstances of these cases we leave the parties to the three appeals and the review petition to bear their own costs in this Court. A.H. Appeals dismissed.