1989 PLP 385 (SCMR)

the exercise of its Constitutional jurisdiction. The dispute relates to Bungalow No. J.M. 872, (old No. J.M. 4/57), situate in New Town, Karachi. The appellant was in possession of the first floor by virtue of an allotment order dated 13th of November, 1948, while late S.M. Sayeed, the predecessor‑in‑interest of the respondents, occupied the ground floor in pursuance of the allotment order, dated 2nd March, 1949. Both the occupants filed NCH for the transfer of the whole building. The Deputy Settlement Commissioner upon spot inspection held that it was undoubtedly a bungalow which could not be sub‑divided and it had to be transferred as one unit to one person; and since the appellant was in occupation prior in point of time, he was transferred the bungalow as a whole by order, dated 10th November, 1959. It may be of interest here to recall that late S.M. Sayeed while attacking his entitlement pleaded before the Deputy Settlement Commissioner that he was a local but this plea was not accepted. Late S.M. Sayeed went in appeal against this order before the Additional Settlement Commissioner who, while it was pending, was promoted as Settlement Commissioner nonetheless he exercised jurisdiction as an Additional Settlement Commissioner and disposed of the appeal holding that the bungalow was divisible and further that the appellant was a local and not entitled to the transfer of the floor in his occupation as its value was in excess of Rs. 10,

000. He, therefore ordered this portion to be auctioned. As for late S.M. Sayeed's entitlement case was remanded to the Settlement Commissioner to determine as to whether he was a displaced person from Bihar, and if he was able to satisfy trim that he was so, then the portion in his occupation should be transferred to him. This order is dated 17th of October, 1960. Against this order, the appellant filed a revision before the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner who disposed it of by order dated 22nd of February, 1962, holding that he was a local and not entitled to the transfer of the portion in his occupation. The appellant next challenged this order through Writ Petition No. 747 of 1962 and succeeded as the High Court by its order, dated 23rd of August, 1965, set aside the order of the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner and ordered the revision of the appellant to be reheard on merits within two months. On remand, the Settlement Commissioner dismissed the revision again holding that the appellant was a local and not entitled to the transfer of the portion in his occupation. This order was passed on 31st March, 1967. The appellant again challenged this order through Writ Petition No. 269 of 1967 and succeeded as the case was remanded by order, dated 12th June, 1973, to the Additional Settlement Commissioner for the rehearing of the appeal. The Additional Settlement Commissioner by order dated 13th of April, 1974, upheld the order of the Deputy Settlement Commissioner, dated 10th of November, 1959, by which the entire bungalow was transferred to the appellant. It is note worthy to mention here that in the order it is recorded that the counsel for the respondent though present yet had failed to argue the appeal on behalf of his client on the pretext that some miscellaneous application was pending in the High Court under section 152 of the Code of Civil Procedure for the correction of a clerical error in the judgment dated 12‑6‑1973 passed in Writ Petition No. 269 of 1967 and, therefore, he had no option but to hear the case of the respondents and decide the appeal. Late S.M. Sayeed expired on 17th of May, 1974. His legal representatives who are now respondents in this appeal filed Writ Petition No. 636 of 1974 in the High Court and partly succeeded as the High Court by order dated 14th of October, 1978, held the house to be divisible and ordered that the portion in the respective occupation of the contesting parties be transferred to them. It may hereby observed that the High Court while dealing with the question of the divisibility of the bungalow has itself proceeded to decide this question on its own appraisal of the facts and in doing so pre‑empted the functions of the Settlement authorities holding that the house was indivisible. The Deputy Settlement Commissioner before passing the order dated 10th November, 1959, inspected the bungalow on 2nd November, 1959, and recorded a note on that date and according to him it was undoubtedly a bungalow and could not be sub‑divided and could only be transferred as a whole to one person. The Additional Settlement Commissioner who finally decided the case on remand also inspected the site and held:‑‑ "As it is, the bungalow has one main gate for entrance and one garage, one underground water‑tank and one overhead water‑tank, and one electric meter located therein. The first floor where the Respondent resides has an entrance from the back gate and has construction covering the entire roof of the ground floor." It would appear from the above that he treated it as one unit as the amenities were common although the bungalow was inhabited by two families on either floor. On this basis he upheld the order of the Deputy Settlement Commissioner. There is no other order of any Settlement authority to the contrary. The mere fact that it was occupied by two families would not by itself be a ground for the division of the bungalow. It may further be added that unless the Settlement Commissioner orders division, the building or premises even though it consists of more than one unit shall be regarded as one unit. This is clear from section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Therefore, this power was expressly conferred on the Settlement authorities exercising the delegated functions of the Chief Settlement Commissioner to order the division of the property. Further, the discretion exercised by the Settlement authorities in not B dividing the property was in conformity with the Memorandum No. Comp Reh./59/5242, dated 22nd October, 1959, wherein the Chief Settlement Commissioner gave out the broad principles to be kept in view while disposing of the houses and one of such principle as contained in para. 2(2)(b) was: "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." It was this principle which was kept in view for deciding the divisibility of the bungalow as each portion could not be divided into one independent and complete bungalow. In Muhammad Hussain v. Settlement and Rehabilitation Commissioner (1987 SCMR 1649), the exercise of discretion was given protection unless the order was arbitrary or capricious, and it was observed:‑‑ "Therefore, the High Court fell into an error in holding that there was one unit and that was auctioned to respondent No.

2. This finding is against the settled principle that the discretion of the Settlement authorities cannot be interfered with in the matter of division of property or its being treated as a separate unit in the exercise of Constitutional jurisdiction as this would amount to usurpation of discretion required to be exercised by the Settlement authorities under the law." In Shaukat Ali v. Settlement and Rehabilitation Commissioner (P L D 1973 SC 124), it was held while dealing with the argument with regard to the divisibility of the house:‑‑ "Again if the units are not structurally so compact or integrated as to be able to have a separate entity or be capable of being used as a self-contained portion then too division should not be made." In Azam Beg v. Deputy Settlement Commissioner (1970 SCMR 182). it was held that this jurisdiction was not amenable to interference in writ jurisdiction unless decision of the Chief Settlement Commissioner or his delegatee was fanciful or capricious. In Muhammad Yusuf v. Chief Settlement and Rehabilitation Commissioner (P L D 1968 SC 1Ol), it was held that the terms in which the power in question conferred by the first proviso to section 2(4) are stated do not allow interference by the Courts, in exercise of their power under Article 98 of the Constitution, with any decision by the Settlement authorities as to the divisibility or otherwise of the house. This observation is now hedged in with the limitation that the exercise of discretion should not be arbitrary or capricious. Nothing appears to us to indicate on record that this was so to render the discretion open to question. In this view of the matter if, at all, it appeared to the High Court that the; discretion was arbitrary or capricious then it should have referred the matter to the Settlement authorities for decision afresh on that question and not to exercise the power itself which is expressly conferred under the statute on the Settlement authorities. There was, therefore, a clear violation of the exercise of the power granted under the Act to the Settlement authorities. Therefore, on the conclusion of the hearing by a short order dated 20‑1‑1988, we set aside the order of the High Court, and recalled the writ with the result that the order of the Additional Settlement Commissioner dated 13‑4‑1974 held the field. The appeal was, accordingly, allowed but with no order as to costs. A.A./A‑360/S Appeal allowed.