P L D 1966 (W (PLP)

2. In his petition the petitioner alleges that he is a claimant displaced person and has been in possession of the whole of House No. 5/261, except a room which was in the occupa tion of Noor Hussain respondent as an old tenant, and that while the petitioner submitted his CH form in time, the respondent did not submit any application form, and the Deputy Settlement Commissioner, vide his order the 25th of November 1959, transferred the whole of the house to the petitioner and issued a provisional transfer order in his favour. The petitioner urged that even if the respondent had submitted any applica tion for transfer of the room in his occupation, the petitioner, being a claimant, had a preferential right to the transfer of the room in dispute in view of the first proviso to para. I of the Schedule to the Displaced Persons (Compensation and Rehabili tation) Act, 1958. The petitioner further contended that it was only in June 1960 that the respondent filed a time‑barred appeal before the Additional Settlement Commissioner, urging that as he had set up a flour grinding chakki in the room in dispute, he was entitled to its transfer as an industrial concern, and that this plea of the respondent found favour with the Additional Settlement Commissioner, who, by his order dated the 8th of August 1960, accepted the appeal of toe respondent and transferred to him the room in dispute as an industrial concern. The petitioner felt aggrieved with this order and went up in revision before the Settlement Commissioner, but his revision petition was dismissed on the 12th of October 1960. As is clear from the order, dated the 29th of April 1961, of the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner, a further revision petition of the petitioner met the same fate.

3. Noor Hussain respondent resisted the petition. He asserted that he filed an LH form on the 6th of August 1959 for the transfer of the property in dispute and it was duly registered and a receipt issued to him by the Settlement Department, and that the room in dispute having been con verted by him into an industrial concern and being an independent and a separate part of the building, was rightly transferred to him as a local, and that it had been transferred to the petitioner by the Deputy Settlement Commissioner without issuing any notice to the respondent and without considering his LH form that had been pending since the 6th of August 1959. The respondent averred that he filed his appeal before the Additional Settlement Commissioner immediately after he came to know of the transfer of the room in dispute to the petitioner and denied that he never applied for the transfer of the property in dispute on a prescribed form.

4. I do not think that the orders of the Settlement Authorities transferring the room in possession of the respondent as an industrial concern are sustainable as being in the exercise of lawful authority. The property in dispute is beyond all doubt an evacuee house. The room of the house which has been converted by the respondent into a flour mill is a part of that very house. None of the Settlement Authorities has held that the house comprises more that one residential unit. According to the definition of "house" given in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, an evacuee house is ordinarily to be treated as one unit unless it is otherwise ordered by the Chief Settlement Commissioner. Therefore, unless the Settlement Authorities below the Chief Settlement Commis sioner, in the exercise of their delegated authority, pronounced the room in occupation of the respondent, who is beyond al A question a local, to be an independent residential unit, it would remain a part of that house, and under proviso to para. 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a claimant who is in possession of a part of this house should be transferred the entire house. The Additional Settlement Commissioner, accepting the appeal of the respondent against the transfer of the whole house to the petitioner, transferred the room of the house in question as an industrial concern to the respondent in accordance with what he described as the "policy" of the Settlement Department that if a local undertakes to convert a house into an industrial concern, it should be transferred to him. No doubt, according to sub- para. (iv) of para. 3 of the Press note dated the 3rd of May 1960, B a house or a shop converted into an industrial concern which has not been allotted by the Industries Rehabilitation Board may be disposed of as an industrial concern under sub‑para. (iii) of para. 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, but the essential pre‑requisite for such a disposal is the property's being a house or a shop. Unless, therefore, the room in occupation of the respondent was pronounced by any of the settlement authorities to be an independent house in its own right and not only a part of House No. 5/261, it could not be transferred to a person other than the claimant of the house who was in occupation of it or a part thereof.

5. Besides, from the Press note published on pages 547 and 548 of the new Manual of Settlement Law' and Procedure, it is clear that in order to obtain transfer of an industrial concern an application has to be made on a particular form relating to the transfer of industrial concerns. From the written statement of the respondent it would seem that he had not made, any application on any such form and that the only application that he had made was on an LH form. Although he has represented in his written statement that in his application on LH form he had applied for the portion in his occupation as art industrial concern, yet despite an opportunity having been given to the learned counsel for the respondent to produce a copy of the LH form submitted by the respondent showing that he had applied for the transfer of the portion in dispute as an industrial concern, no such copy has been produced. On the other hand, the copy of the entries from the relevant register Exh. C/R merely shows that on the 8th of August 1959 the respondent had only filed an LH form regarding House No. 5/261. There is no mention in this copy of the circumstance that in the LH form mentioned therein the respondent had asked for the portion in dispute as an industrial concern. What is more, the learned counsel for the petitioner has produced his application made to the settlement authorities for supplying him with a copy of any LH form filed by the respondent. The endorsement (Annexure C/4) of the office on this application is to the effect that no copy of any such form can be furnished as from the record it appears that there is no such form in existence. Learned counsel for the petitioner has also filed another application made to the Deputy Settlement Commissioner asking for a certified copy of any application regarding the respondent's having applied for installation of a flour mill in the property in dispute. This application was returned to the petitioner with the endorse ment that from the examination of the record it appeared that there was no such application there. An application made by the respondent for obtaining a copy of his application for transfer of House No. 5/261 as an industrial concern has also been produced by the respondent. This also bears an endorse ment to the effect that no such file is in existence and that, therefore, no copy can be furnished.

6. It is clear from the circumstances set out above that the respondent had never applied for the transfer of the portion in his occupation as an industrial concern. The only form that he had filed before the settlement authorities was on an LH form for the transfer of House No. 5/261 and not for any portion thereof as an industrial concern. The Settlement Authorities in transferring the portion of the house in occupation of the respondent have referred to some policy of the Department to C the effect that the houses converted into industrial concerns cats be transferred to locals, but Unless this policy is warranted by law, it must be held to be illegal. As already pointed out, there is no legal sanction for such a policy if what is meant by this policy is that locals can be transferred even portions of a house as industrial concerns without the necessity of their being determined to be separate independent units. It is significant that none of the Settlement Authorities has held this portion as an independent unit, not forming part of House No. 5/261. Nowhere in the orders of the Settlement Authorities has the room in occupation of the respondent been described as a house, and it is apparently only a house of a shop in its entirety which can be transferred as an industrial concern after it has been so converted.

7. Nor is there any force in the plea of the respondent that the plea of the petitioner that the respondent was not entitled to the transfer of the portion in dispute as an industrial concern, was not entertain-able by this Court in the exercise of its writ jurisdiction. Apart from the fact that in Riaz Hussain D Shah v. Chief Settlement and Rehabilitation Commissioner and others (P L D 1963 Kar. 927) it was held that pleas on pure questions of law could be raised even though they had not been raised before the Settlement Authorities, it appears to me that it is not factually correct that the petitioner had not raised this plea before the Settlement Authorities. Grounds Nos. 2 and 3 of the revision petition (Annex C/1) of the, petitioner before the Settlement Commissioner are as follows:‑ "(2) That the learned lower Court misinterpreted the policy re: transfer of property converted to other uses. The said policy is applicable to whole houses and whole shops and not part of the houses. (3) That the portion in occupation of the respondent is a small part of the house and is its integral part." It is clear from the above two grounds that the case of the petitioner before Settlement Commissioner was to the effect that House No. 5/261 was one residential unit and no part thereof could be transferred to the respondent as an industrial concern. Similarly, ground No. 2 of the revision petition of the petitioner before the Chief Settlement Commissioner embodies the aforesaid plea of the petitioner. This ground, is as follows:‑ "That the property had always been treated and used as a residential house since before partition. The house is situated in the residential area and under the Municipal Act no portion of the house could be converted in to a flour grinding premises. The Municipal Authorities have been issuing notice to the respondent and have passed resolutions for its removal outside the city. . . . . . And further grounds Nos. 5 and 6 of that revision petition also contain the plea in question. They are as follows:‑ "

5. That the baithak in question was never an industrial unit before portion. Even now it has been improved into one against public policy. Part IV of the Schedule to the Act regarding the transfer of industrial concerns and factories is clearly not applicable to this case. It would rather be a misuse of the policy to carve out one room of a house and hand it over to a local, who is not entitled to it under any provision of the law.

6. That the petitioner is entitled to the transfer of the whole house under paragraph 2 of the Schedule to the Act, which has been contravened by the impugned

7. For the reasons set out above, I hold that the orders, dated the 8th of August 1960, the 12th of October 1960 and the 29th of April 1961, of the Settlement Authorities transferring the portion in dispute of House No. 5/261 to the res pondent as industrial concern are illegal. I, therefore, accept ing the writ petition direct the Chief Settlement Commissioner to retransfer the room in question to the petitioner as a part of the house already transferred to him under the order, dated the 25th of November 1959, of the Deputy Settlement Commissioner. In the circumstances, I make no order as to K. S. A. Petition accepted.