P L D 1966 (W (PLP)

I am, therefore, convinced that the said property, consisting one flat and two shops have been wrongly treated as one residential unit as such it's transfer in favour of the respondent is irregular," By this order he directed that both the shops standing on the plot be disposed of through unrestricted auction. Petitioner's revision against this order before the Settlement Commissioner was dismissed by order dated 8th September 1961. His second revision was dismissed by the Chief Settlement Commissioner by order dated 25th April 1962. The petitioner has challenged these n orders in this writ petition.

3. Mr. Ziauddin Queshi, the learned counsel for the petitioner has urged that the learned Additional Settlement Commissioner and the higher Settlement Authorities have wrongly held the transfer in favour of the ground floor to the Petitioner as irregular and have failed to take into consideration clause (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He contended that where a building consists of a residential and business unit it is open to the Chief Settlement Commissioner or his delegatee to order that the whole of such building shall be deemed to be a shop or a louse. If this provision of law had been kept in mind, the Settlement Authorities could not hold the order of the Deputy Settlement Commissioner as irregular. The contention of the learned counsel appears to be well founded.

4. At this stage it may be mentioned that Haji Mohiuddin Respondent No. 4 at whose instance the learned Additional Settle ment Commissioner set aside the transfer of the ground floor in favour of the Petitioner has already got the adjoining property. It will be further noticed that the transfer in favour of the Petitioner was made by the Deputy Settlement Commissioner on 21st January 1960 on the following observations: "The C. H. application restored on file, and site inspected. ‑It is quite evident that the above‑mentioned property is a residential house consisting of a residential portion on first floor, one shop and a room on the ground floor. The shop was said to be in occupation of a local and now it is lying vacant. Hence the application of Haji Mohiuddin a non claimant in respect of the room on the ground floor has been rejected: There is no other application on the record pending for the transfer of this property. The entire building is indeed one residential unit, bearing one city Survey No.

912. Thus the entitlement of the entire Unit goes to the applicant Ghulam Hussain." This order was not challenged by Haji Mobiuddin Respondent No. 4 till 1961. . His appeal No. 865 of 1961 was found to be barred by time. But the learned Additional Settlement Commissioner treated it as revision and held the transfer of the ground floor as irregular. The question, therefore, for consideration is whether the Deputy Settlement Commissioner irregularly transferred the ground floor of the building in dispute to the Petitioner. The reasoning of the learned Additional Settlement Commissioner is that the property in question comprises three separate independent units as there are two shops 'on the ground floor and one flat on the first floor. He has observed that it is not situated in a predominantly residential area and, therefore, the shops on the ground floor could not be transferred as one single unit.

5. The learned counsel appearing for the Petitioner has urged that the learned Additional Settlement Commissioner has failed to take into consideration the definition of "shop" in section 2(12) and the powers conferred under it on the Settlement Authorities. It will be useful to reproduce the above mentioned definition for considering its effects on the facts of the present case: " `Shop' means evacuee business premises of any value in an urban area 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 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 maybe declared by the Central Government, by notification in the official Gazette, not to be shops within the meaning of this clause." Proviso second of this definition provides that where any such building or premises consist 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. It was, therefore, open to the Settlement Authorities to treat the property in dispute which was of a composite nature as a shop or a house. In the present case the Deputy Settlement Commissioner treated the entire property as a house and transferred it as such. There is much force in the contention of the learned counsel for the Petitioner that by adopting this method the learned officer concerned did not commit any irregularity and the learned Additional Settlement Commissioner was not justified to set aside the transfer in his favour on this short ground. In support of his contention the learned counsel appearing for the Petitioner has relied on the decision of the Supreme Court in Muhammad Siddiq v. Chief Settlement and Rehabilitation Commissioner (P L D 1965 S C 123). In that case also 'the question for consideration before their Lordships was an alleged irregular transfer. In that case the Deputy Settlement Commissioner. Sheikhupura, transferred two shops along with the Chaubara above to the appellant. This transfer was challenged on the ground that the appellant was entitled to the transfer of only one shop and the transfer of the other shop in his favour was irregular. Their Lordships considered this and set aside the order of the Settlement Authorities on the following observations: "The Deputy Settlement Commissioner accepted the recommendation of the Assistant Settlement Commissioner and in consequence, the two shops along with the Chaubara above, were directed to be transferred to Muhammad Siddiq as one Unit. As has been mentioned above, Muhammad Siddiq associated with himself, the other two appellants, with the permission of the relevant authorities and a provisional transfer order was issued to all three of them, on the 29th of March 1961, describing, the property transferred as a `shop'. Mr. Zafar contends that this order was within the powers of the Deputy Settlement Commissioner to pass, tinder the 2nd proviso to the definition of `shop' given in item 12 of section 2 of the Act, as he could declare any part of a composite building to be a `shop' or a `house'. This argument has considerable force. The transfer, therefore, was in accordance with the provisions of the Act and our attention has not been drawn to any scheme prepared under the Act, the provision of which could be said to have been contravened by the order in question. The order also suffers from no patent error or defect. It is, therefore, contended and with reason that the transfer in favour of the appellants did not fall within the definition of `irregular transfer' at all and could not consequently have been set aside on a reference made by the Enforcement Staff. This transfer was not challenged by any appeal or revision for a period of two years nearly, till the Enforcement Staff took up the matter at the instance of the respondent. The second proviso to the definition of `shop' has not been referred to, either by the learned Settlement and Rehabilitation Commissioner exercising the powers of the Chief Settlement Commissioner or by the High Court in their respective orders. They have proceeded in the assumption that the appellants had been transferred two `shops' whereas the Deputy Settlement Commissioner had actually treated the portion consisting of the two shops and the Chaubara above, as a single shop. It is to be noted that even under the first proviso to the definition of shop, more than one business unit would be collectively declared to be single `shop'."

6. The learned counsel appearing for the respondents has urged that the divisibility of the property in dispute could be the subject‑matter of appeal and revision and therefore, the learned Additional Settlement Commissioner was justified in dividing it into two units: Unfortunately, this matter did not come up before the Additional Settlement Commissioner in his appellate jurisdiction. As already stated the transfer in favour of the petitioner of the entire building was made as early as in 1960. The claim of Haji Mohiuddin respondent No: 4 had been rejected on that date. He did not challenge this transfer for over a year. The learned Additional Settlement Commissioner did not interfere in his appellate jurisdiction with the order of the Deputy Settlement Commissioner but interfered with it in his revisional jurisdiction on the ground that a gross irregularity bad been committed by the Deputy Settlement Commissioner. Therefore, the question in the present case has to be considered entirely from that point of view. The question really for consideration as already observed is whether the learned Deputy Settlement Commissioner committed any irregularity. Mr. Rehanyl Hassan Farooqui has referred to the directions of the Chief Settlement Commissioner appearing at page 68 of the Manual. These instructions were also considered by their Lordships in the above‑mentioned case. In that connection their Lordships observed as under: "It is clear on a perusal of these instructions that they do not have the effect of subjecting the powers conferred by the second proviso to the definition of shop in the Act, on the Chief Settlement Commissioner admittedly to any limitations. His discretion is left unfettered in the light of the broad principles set out above. We are unable to accede to the suggestion that any of these instructions stood in the way of the Deputy Settlement Commissioner, treating the two shops and the Chaubara above, in this case, as a single unit and to transfer it as a `shop' to the appellants. Indeed, the spirit of these instructions would appear to be in consonance with the order passed by the Deputy Settlement Commissioner. Our attention was invited by Dr. Nasim Hassan Shah to some further instructions issued by the Chief Settlement Commissioner with regard to the transfer of houses and shops, in possession of more than one person, appearing at page 92 of the Manual of Settlement. These instructions too do not take away the discretion vesting in the delegates of the Chief Settlement Commissioner to make such divisions of the property, to be transferred, as they deem fit, so long as the Act or the various schemes framed thereunder are not contravened. It would appear, therefore, that the transfer in favour of the appellants was not an `irregular transfer' and could not have been interfered with under the order". In view of these clear observations it is quite obvious that the finding of the learned Additional Settlement Commissioner that the transfer of the property in dispute in favour of the petitioner was irregular cannot be considered as good and sound in law. I would therefore, hold that the order passed by the Additional Settlement Commissioner and confirmed by the higher authorities cancelling the transfer of the ground floor in favour of the petitioner was misconceived in law and cannot be sustained. In that view of the matter I would, allow this petition and quash the impugned orders of the Settlement Authorities. The result would be that the order of the Deputy Settlement Commissioner will be effective and the transfer in favour of the petitioner of the entire building will hold good.

7. In the result, subject to the above remarks, the petition is allowed but the parties‑are directed to bear their own costs. K.B.A Petition accepted.