P L D 1966 (W (PLP)

S. M. Zafar and Abid Hassan for Respondent No. 1. Dates of hearing: 9th and 10th February 1965. JAMIL HUSSAIN Rizvi, J.‑Bungalow No. 31, Queens Road, Lahore, is the bone of contention in this petition. Zinda Muhammad Khan, the father of petitioner, lived in the first‑floor while Sufi Fazal Muhammad, respondent No. 1, lived on the ground‑floor. Both of them applied for the transfer of the bungalow. The D. R. C. by his order dated the 17th of November 1959, rejected the CH form filed by Zinda Muhammad Khan on the ground that the bungalow was indivisible and Sufi Fazal Muhammad being the senior allottee was entitled to the transfer of the house. The appeal filed by Mst. Hamida Khanum petitioner was rejected by the Additional Settlement Commis sioner by his order dated the 12th of January 1960. He remarked that he would have divided the house if the parties were small claim holders but as both of them held big claims the house should not be divided just for the sake of accommodating two families as it was not originally designed for two families: The petitioner filed a revision petition and the Settlement and Rehabilitation Commissioner came to the conclusion that horizontal division could be made in a very convenient manner, more especially when the parties were related to each other. He directed that the first‑floor in plan Exh. P. 1 would be transferred to Mst. Hamida Khanum while the ground‑floor would be given to Sufi Fazal Muhammad. It was further directed that Mst. Hamida Khanum will have access from the points between `A' and 'B' and the respondent will construct an entrance anywhere in front of his lawn. The portion marked `ABCDE' would fall to the share of the petitioner. The garage in this portion would be given to her and the garage in the portion on the other side of the house would be given to Sufi Fazal Muhammad respondent. A wall would be constructed between the two points `A' and B' to separate the plot of either party. The petitioners would provide staircase for themselves at anyplace between the points `E' and D' to have an access to their first‑floor. Till such time as this was not done they will continue using the staircase which already existed in the verandah of the ground‑floor. This order was challenged by Sufi Fazal Muhammad by means of a second revision petition. The Chief Settlement and Rehabilitation Commissioner after inspecting the spot passed an order, the relevant portion of which is as follows :‑ "I have inspected the spot, and find division not possible, apart from being inconvenient and undesirable. The only stairs leading to the upper portion are from the front verandah on the ground‑floor. To have another staircase from outside would mean interfering with the privacy of the petitioner and rendering the small compound on that side useless. Then there is only one gate and to have another and erect a partition wall would mean to reduce width of the front lawn which is already small. The bungalow is also not a big one as was thought to be and holding it to be indivisible, I transfer the same to the petitioner who is the senior allottee." This writ petition has been filed by Mst. Hamida Khanum challenging the order passed by the Chief Settlement and Rehabilitation Commissioner. 2. During arguments, the learned counsel for the petitioner has confined himself to the following grounds :‑ (1) That the order passed by Malik Fateh Khan was in exercise of the delegated powers of the Chief Settlement Commissioner and since he had declared the house to be divisible, the Chief Settlement Commissioner had no jurisdiction to interfere in that order. Reliance is placed on the judgment of the Supreme Court in Jalal Din and others v. Sh. Muhammad Rafiq and others (Civil Appeal No. 71 of 1963). (2) That the powers of hearing second revision petitions were taken away on the 13th of January 1962 by Ordinance II of 1962, consequently Sh. Muhammad ~ Rafiq, who was exercising the delegated powers of the Chief Settlement Commissioner to hear second revisions, was not competent to hear it as with the powers of the Chief Settlement Commis sioner having been extinguished the delegatee also ceased to have those powers. (3) That Mst. Hamida Khanum petitioner claimed the transfer on the basis of the allotment and possession of her father while Sufi Fazal Muhammad respondent No. 1 claimed the transfer on the basis of the allotment and possession of his son. Thus, both the parties were indirect claimants so respondent No. I could not be preferred to the petitioner. We will first take up the contentions 2 and 3 raised by the learned counsel for the petitioner. On the 17th of March 1962 Ordinance XIII of 1962 was promulgated which directed that the pending second revisions, the record of which was called for under subsection (2) of section 20 of the said Act shall be heard and decided by the Chief Settlement Commissioner. It is admitted by the learned counsel that the records in this second revision petition had been called for before the 13th of January 1962. Thus this was a pending revision petition and it was the duty oil the Chief Settlement Commissioner to decide it on merits, and if the Chief Settlement Commissioner was required, under law, to decide it, then certainly the same could be heard and decided by his delegate. This contention of the learned counsel has, therefore, no force. Similarly, the contention 3 has also no force because both the parties being indirect claimants, they have an equal status and if the house cannot be divided the one who came into possession earlier would be entitled to its transfer. 3. We will now take up the first contention of the learned counsel. It is urged that under first proviso to subsection (4) of section 2 of the ‑Displaced Persons (Compensation and Rehabilitation) Act, 1958, in case a building consists of more than one residential 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 house. That these powers of the Chief Settlement Commissioner having been delegated to the Settlement Commis sioner Malik Fateh Khan and he in exercise of those powers having ordered the house to be divided amongst the two parties the order of Malik Fateh Khan passed as a delegate of the Chief Settlement Commissioner could not have been interfered with by the Chief Settlement Commissioner while hearing the second revision petition. As already remarked, the learned counsel relies on the judgment of the Supreme Court in Jalal Din's case referred to above. In reply the learned counsel for respondent No. 1, has urged that since the petitioner had not raised this contention before the Chief Settlement and Rehabilitation Commissioner when he heard the second revision petition the petitioner cannot be permitted to raise it in this petition. Reliance is placed on Ghulam Mohyuddin v. The Chief Settlement and Rehabilitation Commissioner (PLD 1964 S C 829). We do not think that the objection of the learned counsel for respondent No. 1 can be given effect to in the present case. In Ghulam Mohyuddin's case the facts were that Ghulam Mohyuddin had filed a second revision petition before the Chief Settlement Commissioner and this circumstance prevented the Settlement Commissioner in law from exercising his powers of review. However, Ghulam Mohyuddin at the time of the hearing of the review did not raise this objection but actually participated in its hearing on merits and thus he took a chance of an order being passed in his favour. In these circumstances, the Supreme ‑ Court refused to issue a writ of certiorari quashing the order passed on review because the conduct of the appellant disentitled him to that relief: In the present case the law was not settled on the point whether the order of a delegate was subject to appeal and revision till this judgment of the Supreme Court was delivered on the 2nd C of November 1964. In these circumstances, it cannot be said that the petitioner was at fault in not raising this contention at the time of the hearing of the second revision petition. We would, therefore, repel this contention of the learned counsel for respondent No. 1. The learned counsel for respondent No. 1 conceded that in view of the judgment of the Supreme Court in Jalal Din's case if the delegate exercised the powers delegated to him the delegator cannot interfere in the order passed by the delegate. It is, however, urged that for the exercise of the powers under proviso I to subsection (4) to section 2 of the Act it‑ was necessary that there should be more than one residential unit in existence before the Chief Settlement Commissioner or his delegate declares the house to consist of two indepen dent residential units. That it is not permissible to create two residential units out of one house. That the property in dispute was a bungalow with one entrance and a compound and one staircase leading to the first‑floor and that the instructions of the Chief Settlement Commissioner in Memo. No. Comp‑Reh/59/5242, dated the 22nd of October, 1959 para. 2, sub‑para. (2) (b), clearly provide that bungalows should so far as possible be transferred as complete units except in obvious cases where they can be divided into more than one independent unit as complete bungalows. The learned counsel has drawn our attention to the judgment of the Supreme Court dated the 26th of June 1964 in Mr. N. M. Khan's case (Civil Appeal No. 143 of 1963) and to the order of Mr. Hashim Raza as Chief Settlement and Rehabilitation Commissioner, dated the 28th of January 1963 and has urged that so far as bungalows were concerned, only in cases when there were two independent houses built in one compound the Settlement Authorities could hold them to be two independent residential units. That in the present case it was clear that the bungalow was one, that it was in occupation of one family before partition and that the mere fact that the first‑floor eras in the occupation of the petitioner would not mean that the bungalow consisted of two residential units. That during the days of influx of the refugees several families occupied one residential unit because of the paucity of accommodation although the house did not consist of more than one residential units. That the power to declare a house as more than one residential unit presupposed the existence of more than one residential units, that there was no power in the officer to create two residential units out of one by ordering the addition of a staircase and the building of a wall or the opening of a separate entrance. That in the present case Malik Fateh Khan has not held that there existed two separate residential units but he had tried to carve out a portion out of one residential unit and then declare the house to consist of two residential units. This evidently was not the intention of the Legislature. The condition precedent is that the house as it stood at the time of the transfer should consist of more than one residential units and in that event if it is in possession of more than one person the Chief Settlement Commissioner or his delegate will have power to declare that the house shall not be deemed to be one house. The learned counsel for respondent No. 1 has relied on Rex v. The Commissioner for Special Purposes of Income‑tax ((1888) 21 Q B D 313) and Rex v. City of London (1951 A E R 195) and has urged that the existence of certain state of facts must be shown to the Tribunal or body before it proceeds to do certain things and then only it will have the jurisdiction to do such things but not otherwise, We consider that the contention of the learned counsel for the respondents has much force because before the Settlement Commissioner could exercise his powers to order the transfer of the house a two residential units it was necessary for him to hold that there existed two residential units. Malik; Fateh Khan, Rehabilitation Commissioner, did not hold that the house consisted of two residential units, he by ordering some constructions and alterations created two residential units and then directed that the house be transferred to the two parties. He was quite wrong in saying that the parties were related. We are, therefore, of the view that the order of Malik Fateh Khan, was without jurisdiction. Although it was set aside by the chief Settlement and Rehabilitation commissioner on other grounds we refuse to issue a writ in favour of the petitioner, the result of which would be to bring to life an order which we hold was without jurisdiction. 4. In view of what has been stated above, we would dismiss this petition, but there will be no order as to costs. K. B. A. Petition dismissed.