P L D 1965 (W (PLP)

WAHIDUDDIN AHMAD, J.‑

This Letters Patent Appeal is from the order of a learned Single Judge dated 13th April 1961, passed in Writ Petition No. 138/1958. By this judgment the learned Single Judge dismissed the writ petition on the short ground, that the appellant's contention that respondents Nos. 1 and 2 cannot be said to be in possession within the meaning of sub‑clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was not put forward before the Settlement Authorities and could not be raised for the first time in writ jurisdiction. The impugned order is reproduced below: "Mr. Akhtar Mahmood contended that respondents Nos. 1 and 2 cannot be said to be in possession within the meaning of sub‑clause (6) of section 2 of the Displaced Persons Act XXVIII of 1958. His contention was that these persons did not hold any allotment order from a competent authority within the meaning of sub‑clause (6) of section 2 of the Displaced Persons Act XXVIII of 1958. I have gone through the ground put before the Chief Settlement Commissioner. I have found that this ground has not been specifically taken. This is a question of fact. It was open for the respondents Nos. 1 and 2 if this ground was urged to have produced some order by a competent authority so as to show their possession within the meaning of sub‑clause (6) of section

2. New points cannot be raised at this stage. The petition is dismissed." Mr. M. A. I. Lakhani, the learned counsel for the appellant has referred us to the grounds of revision filed by the appellant before the Settlement Authorities to show that this point was specifically taken and the observations of the learned Single Judge are not based on correct appreciation of the facts. The learned counsel referred us to Ground No. 1 (f) of Revision No. 355 of 1960 filed before the Chief Settlement Commissioner which is as under: " The possession of Qazi Shujaatullah as well as Mohammad Rishad Wasti is in the capacity of relations as well as servants and as such they too cannot claim any independent status." On reference to the rest of the contention raised in the said revision petition it is quite plain that the appellant's case throughout was that he was the allottee of the entire bungalow since 1947 and allowed the contesting respondents and others who were his close relations, old friends, or servants, to occupy portion of it out of sheer courtesy, kindness and with a view to help displaced persons. It cannot, therefore, be doubted that the appellant has throughout challenged the possession of respondents Nos. 1 and 2 within the meaning of section 2 (6) of the Displaced Persons Act XXVIII of 1958 in the property in dispute. We are, therefore, satisfied that the learned Single Judge failed to notice this fact and dismissed the writ petition summarily on mis appreciation of the points raised by the appellant before the Settlement Authorities. We would, therefore, set aside the order of the learned Single Judge and proceed to consider the case of the parties on merits.

2. The material facts for disposing of the case on merits may be briefly stated. The dispute between the parties is in respect of bungalow bearing No. G. R. E. 11/555, Chaman Street, Jahangir Road, Karachi. The entire bungalow was allotted to the appellant on 23rd January 1947, by the Rent Controller. Later on, it was regularised by the Assistant Rehabilitation Commissioner on 26th November 1953. It is not disputed that Kazi Syed Shujaatullah, respondent No. 1 a near relative of the appellant came to Karachi in the year 1948 and was employed by the appellant and remained in his service till 1959. He is occupying one room on the ground floor of the said bungalow. It is also not disputed that Hakim Mohammad Rishad Wasti, respondent No. 2, another relation of the appellant came over to Pakistan after Partition and was employed by the appellant in his Unani Dispensary known as Zanana Dawakhana, and remained in his service till February 1960. At first he was accommodated by the appellant in a portion of the bungalow on the first floor but later on was shifted to one of the garages and then in the servant quarter over the garage. It is not disputed that he is now occupying the residential quarter over the garage.

3. It appears that appellant Zafar Niazi applied on a C. H. Form dated 1st June 1959, for the transfer of the entire bungalow claiming as its allottee by the Rent Controller and the Rehabilitation Authorities on the basis of alleged exclusive possession. Kazi Syed Shujaatullah respondent No. 1 also filed a C. H. Form on 15th July 1959, for the transfer of the entire bungalow but neither mentioned in it the date of his possession nor the fact or name of the parties who were occupying the different portions of the bungalow. On 16th July 1959, Hakim Mohammad Rishad Wasti respondent No. 2 also applied on a C. H. Form for the transfer of the entire bungalow. He. put forward the claim that he was in possession of a portion of the bungalow since 25th December 1947, and relied on the record of the Custodian in which he was recorded as a tenant and on the order of the Deputy Settlement Commissioner passed in December 1958. On 16th November, 1959, the Assistant Settlement Commis sioner after considering the claim of all the parties transferred the entire bungalow to the appellant and rejected the other claims. The dispute was then taken before the Deputy Settlement Commissioner, who by order dated 15th May 1960, set aside the order of the Assistant Settlement Commissioner on the ground that it was passed without jurisdiction. After considering the claim of the parties, he divided the property into two units. The main bungalow was transferred to the appellant and the out houses known as annexe were transferred to respondent No.

2. He rejected the claim of respondent No.

1. On appeal the Additional Settlement Commissioner, by order dated 22‑7‑1960, divided the bungalow horizontally. The upper floor of the entire bungalow including servant quarters over the garages was transferred to the appellant. The entire ground floor including the two garages was transferred to the respondent No.

1. This officer rejected the claim of respondent No.

2. In revision by order dated 29th August 1960 the Settlement Commissioner divided the bungalow vertically. The appellant's claim was only accepted in respect of 1/2, treated as a flat on the first floor. G/1 and G/2 two rooms on the ground floor, treated as one unit, were transferred to Kazi Syed Shujaatullah respondent No.

1. Portions G/4 and 1/1 were left over for considering the claims of those parties who were in their possession in case requisite applications were made on their behalf. The residential portion on the first floor of the out‑houses was transferred to Hakim Muhammad Rishad Wasti respondent No. 2, while the garages were transferred to the appellant alongwith the above‑mentioned flat. The appellant's revision before the Chief Settlement Commissioner was summarily dismissed by order dated 7th February 1961. The writ petition also met the same fate.

4. The facts that emerge from this discussion are that appellant is in occupation of the main bungalow except a room Gp/1 and two garages. In these portions he is residing with his sons and other near relatives. Respondent No. 1 is occupying one room Gp/1 on the ground floor of the main bungalow. Respondent No. 2 is occupying one room over the garages. The Settlement Authorities have divided the bungalow in dispute into more than three portions and transferred them in the following manner (1) G/1 and G/2 with courtyard on the ground floor transferred to respondent No. 1. (2) Residential portion over the garages transferred to respondent No. 2. (3) G/4 and G/5 with courtyard on ground floor has not been transferred to anybody. (4) 1/1 half portion of the first floor not transferred to anybody. (5) the other half portion of the first floor alongwith two garages transferred to the appellant.

5. Mr. M. A. I. Lakhani the learned counsel for the appellant has attacked the impugned orders on three‑fold grounds. Firstly, that respondents Nos. 1 and 2 cannot be considered to be in undisputed possession of any of the portion of the bungalow within the meaning of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958; secondly, that the division of the bungalow by the Settlement Commissioner is in utter disregard of the provisions of the Act and the instructions issued by the Chief Settlement Commissioner and thirdly, that in any case none of the respondents could get more than what was in their possession. In support of his contention the learned counsel has taken us through the entire record and strongly contended that the learned Settlement Authorities have not considered the most important question involved in this matter namely/whether respondents Nos. 1 and 2 can be considered to be in undisputed possession of the property in dispute within the meaning of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He urged that the appellant's case throughout was that he was an allottee of the entire bungalow and respondents Nos. 1 and 2 are occupying certain portions of the bungalow as his licensee, but this aspect of the case was not considered by the Settlement Authorities and the bungalow in question was divided merely because the contesting respondents at one time were recorded as tenants in the Custodian Department. In this connection Mr. Lakhani, referred us to certain documents on the record in support of the contention that none of the respondents have ever paid any rent in respect of the property in dispute to the though at one stage their names were recorded as tenants in the said Department, it was corrected as far back as in 1951 and a consolidated bill was issued in the name of the appellant. He further referred to a letter of the Deputy Custodian to the K. M. C. in 1956 informing them that the entire taxes be taken from the appellant. He contended that in law the Settlement Authorities should not have given any importance to an ex parte order passed by the Deputy Settlement Commissioner on 29th December 1958, after the target date fixed in October 1959, notification. Mr. Rizvi counsel for the contesting respondents has contested these contentions. In reply he contended that these respondents were in possession of certain portion in their own right and the Settlement Authorities have rejected the appellant's claim in this respect.

6. In order to appreciate the contention of the parties we have carefully examined the various orders passed by the Settlement Authorities. In none of them the Settlement Authorities have considered the status of respondents Nos. 1 and 2 in respect of the property in dispute. Although the learned Deputy Settlement Commissioner admitted the appellant to be the allottee of the bungalow in dispute and the occupation of the contesting respondents "through the generosity and kindness of Zafar Niazi or possibly as measures of convenience since they were both his employees and accommodation was scarce, whatever the persons," yet he was influenced by the fact that Muhammad Rishad is an undisputed occupation of the annexe. The learned Additional Settlement Commissioner, however, did not take into considera tion the appellant's contention and was influenced by the bare fact that "other persons are residing in different tenements though recorded as tenants or not". The learned Settlement Commissioner approached the question under consideration without taking any note of the appellant's contention. It would be useful to reproduce his observations which are as under: "Parties are all relations. Mr. Niazi is the editor‑proprietor of an Urdu Magazine `Naqqad' and both Mr. Shujaatullah and Mr. Wasti were his employees. Evacuee Property Register shows five tenements on the ground floors G/1 to G/5. According to it, G/1 is in possession of Mr. Shujaatullah, G/2 in possession of Mr. Saeed Ahmad, G/3 Mr. Wasti, G/4 Mr. Shabbir Hassan and G/5 Mr. Rashid Ahmad. As to the first floor of the main building, according (to) Evacuee Property Register 1/1 is in possession of Mr. Hakim Bashir Ahmad and 1/2 in possession of Mr. Zafar Niazi. From the record of the Rehabilitation Department produced before me, I am satisfied that an order was made by A. C. A. S. No. 6775 dated 28th of August 1953, for the issue of a consolidated rent bill in the name of Mr. Zafar Niazi. But on an application made by Mr. Syed Muhammad Rishad Wasti, the order was vacated by Mr. Marghub Ahmad, Deputy Rehabilitation Commissioner (Rents) on 30th December 1958, and this action was approved the same day by Mr. Bashir Ahmad, Additional Rehabilitation Commissioner. In his order dated 30‑12‑1959, Deputy Rehabilitation Commissioner held that both EPR and CUS 2 Registers show Mr. Wasti as a recorded tenant. As an order finally stands, Mr. Wasti's application stands allowed and bills were to be issued separately to each tenant, as recorded in E. P. R. While on behalf of Mr. Zafar Niazi, this order is attacked on the ground that the had not been given notice and an opportunity to be heard. The same objection is raised on behalf of Mr. Wasti, in respect of the order of A. C. A. S. As both the orders were passed ex parte, there is nothing to choose between the two. I shall prefer to go by the status quo as it existed before the date of the first order, namely that the tenements as recorded in the Evacuee Property Register and CUS 2 Register." It is thus perfectly clear that the learned Settlement Authorities only considered the contesting respondents status on the basis that they were the recorded tenants of the portions in their occupation in the Custodian Department. The did not consider the contention of the appellant that respondents were is licensee an be in possession of the 'property in dispute within the meaning of section 2 (6) of the displaced persons (Compensation and Rehabilitation) Act 1958. In our opinion, the grievance of the appellant that due weight was not given to this aspect of the case is quite legitimate. There is clear indication in the impugned orders that the learned Settlement Authorities have failed to notice one of the most important legal aspects of the case, namely, whether the contesting A respondents could be considered to be in possession of the property in dispute within the meaning of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The impugned orders are completely silent on this question.

7. It was next contended that the division of the property was done in utter disregard of the instructions of the Department for the transfer of the houses contained in para. 2 sub‑clause 2 (b) at page 69 of the Settlement Manual. The instructions of the Chief Settlement Commissioner in this respect are reproduced below: "Bungalows should as far as possible, be transferred as complete units except in very obvious cases where they can be divided into more than one independent and complete bungalow." Mr. Lakhani contended that these instructions have been completely disregarded and the entire bungalow has been divided into mushroom compartments. The grievance of the appellant in this respect cannot be considered to be without foundation. The learned Settlement Authorities have not divided the bungalow on any principle whatsoever. On the one side the portion in possession of the members of appellant's family has been taken away and left undisposed of. While on the other hand respondent No. 1, who is occupying only a room on the ground floor was given an additional portion, which was further augmented in the P. T. O. by another portion. Even the so‑called annexe has been divided into two portions. Thus the Settlement Authorities have completely disregarded the above‑mentioned instructions and have divided the property in dispute without regard to the status of the contesting respondents and the portions of the bungalow in possession of the contesting parties. It is needless to point out that main object of dividing a property is to meet the claims of the parties in possession but we were informed at the hearing that during the pendency of this writ petition some strangers have been able to get the portion of the bungalow on tender basis.

8. Besides the Settlement Authorities have not even considered the effect of notification dated 13th October 1959, published at page 361 of P L D 1959, (Central and Provincial Statutes Section) under which "a claimant, a non‑claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty‑first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day". They have completely ignored this aspect of the case and have even transferred those portions of the property to respondent No. 1, which are admittedly not in his possession.

9. On the whole we are satisfied that the learned Settlement Commissioner while considering the case of the bungalow in dispute failed to apply his mind to the facts of the case and the law applicable. There are obvious errors in the impugned order passed by him. G/3, which is on the ground floor of the main bungalow was treated as upper floor of the annexe. None of the authorities touched the question of the open land appertaining to the bungalow and left it undecided which is likely to be a cause of further litigation. We, therefore, consider this a fit case in which the impugned orders should be set aside and the matter should be sent back to the Settlement Authorities for disposal in accordance with the law. We have refrained to express any opinion on the merits of the case because it was likely to prejudice the parties.

10. Accordingly the appeal is allowed. As a result a writ will be issued to the respondents directing the Deputy Settlement Commissioner concerned to reconsider the whole case in the light of the above observation and dispose of the bungalow in dispute 8 in accordance with the law. It will be open to him to consider the question whether in the circumstances of this case it would be at all feasible to divide the bungalow in dispute. In the special circumstances of the present case, the parties are left to bear their own costs. K. B. A. Petition accepted.