1972 PLP 302 (SCMR)

WAHEEDUDDIN AHMAD, J.‑This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in L. P. A. No. 112 of 1961, dated the 16th May 1961. By this judgment, the appeal was dismissed in limine. The property in dispute is house No. 176, New Anarkali, Lahore, which is 21 storeyed premises owned by one Lala Balkishan and comprises one business unit on the ground floor, one big shop, office rooms, two godowns, a store house and a residential unit above it, comprising inter‑floor and the first floor of the said building. On the 15th September 1947, the appellant's step‑son obtained possession of two godowns and courtyard on the ground floor and the entire residential unit on the upper floor, by allotment order of the same date. On the 25th February 1948, the business unit on the ground floor, excluding the portion in possession of the appellant's son, was allotted and taken posses sion by a partnership firm known as `United Publishers'. On the 14th April 1950, the appellant obtained possession of the portion of building previously in possession of her son by order of the Assistant Rehabilitation Commissioner, Lahore, allotting that portion to her. The United Publishers was a partnership firm formed at Lahore on the 9th March 1912, entered into by eight publishing concerns of Lahore. Respondent No. 3 is, a partner in the publishing concern of Sh. Ghulam Ali & Sons, Publishers and Book‑Sellers, Kashmiri Bazar, Lahore and respondent No. 4 is the Proprietor of S. Mumtaz Ali & Sons, Darul Ashaat, Railway Road, Lahore. The partnership firm of United Publishers sold itself in its entirety as a going concern along with all the business, good‑will, assets to a Limited Company known as Publishers United Limited. Respondents Nos. 3 and 4 are the Directors of the said Company. The appellant applied for the transfer of the entire property and respondent No. 3 also applied for its transfer as a partner of the firm of United Publishers. Respondent No. 4 also at the stage of the revisional proceedings, applied for the transfer of the property in dispute. On the 30th November 1959, in an ex pane proceeding, the Deputy Settlement Commissioner, treated the property as a shop and transferred it to respondent No.

3. The appellant challenged this order before the Additional Settlement Commissioner. The learned Officer, by order dated the 3rd March 1960, transferred the choubura to the appellant and referred the matter of the transfer of the shop to the Deputy Settlement Commissioner. In this connection, he observed as under :‑ "She is the allottee of the residential portion, which has to be separated from the business unit and, therefore, is entitled to its transfer only. 1, therefore, accept her appeal in so much that the residential portion should be transferred to her, where as the shop part of the property will remain with the respondent, if he is otherwise entitled to its transfer. It has been brought to my notice that the respondent is a local and has fraudulently submitted Form CS and then changed his form as a non‑claimant. The learned Deputy Settlement Commissioner should go into this aspect arid decide the case of the transfer of the shop purely on merits. The proceedings were ex parte and the respondent did not put in appearance in spite of service of notice to him." Both the parties challenged this order in two revisions before the settlement Commissioner. The revision petitions were heard by the Settlement Commissioner and judgment was reserved. On the 16th June 1960, respondent No. 4 intervened as Chairman of the Publishers United Limited and claimed the transfer of the property to him. By order dated the 16th June 1960, the Settle ment Commissioner upheld the order of the Additional Settlement Commissioner on the ground that the appellant has only applied for the transfer of the residential portion and remanded the case of respondents Nos. 3 and 4 to the Deputy Settlement Commis sioner for decision. In this connection, the learned Officer observed as under :‑-- "I have heard counsel for the parties. They have also filed written arguments which have been placed on record. From the record it appears that Mst. Ghulam Fatima sub mitted C. H. Form for the transfer of residential portion to her. I have seen the form wherein the petitioner has herself men tioned that the commercial portion of the building is in the possession of United Publishers, Book‑Sellers. Since she is not in possession of the commercial portion of the building which was not even allotted to her, she has no right to claim its transfer. The lower Court was, therefore right in dismissing her appeal for the transfer of this part of building." The learned Officer further observed as under :‑‑ "As regards the petition of Niaz Ahmad, I am of the view that the question of transfer of the commercial portion of this building has not been fully gone into. As mentioned above, one Syed Hamid Ali has also a claim for this portion of the building. The lower Court, was therefore, right in directing the Deputy Settlement Commissioner concerned to go carefully into the question of transfer of commercial part of the building and decide this on merits. At least there is also another claimant whose entitlement to this part of the building has not been gone into." The matter was then taken to the Chief Settlement Commissioner in revision by the appellant. The second revision petition was dismissed by order dated the 14th December 1960. The appellant challenged these orders in Writ Petition No. 200/R of 1961 and a learned Single Judge of the former High Court of West Pakistan, Lahore, dismissed it in limine on the 3rd March 1961. The appellant remained unsuccessful in Letters Patent Appeal No. 112 of 1961 which was also dismissed in limine on the 16th May 1961. The appellant applied for a certificate in Civil Miscellaneous No. 678/S of 1961 under Article 158(1)(a) of the Constitution of 1956 and the petition was dismissed on the 20th April 1964. Special leave was granted in this case on the 6th October 1964, to consider the question whether in a case where premises consisting of a residential portion and a shop were situate in a predominantly commercial area, the whole was to be treated as a shop, and the appellant would in accordance with the definition of shop which would in such a case include the residential portion be entitled to the whole of the premises, being the allottee' of the residential portion. In support of the appeal, Mr. Fazal‑i‑Mahmood, learned counsel for the appellant has firstly contended that the Chief Settlement Commissioner has himself laid down in respect of the property which consists of a shop and a choubara if situated in a commercial area to be treated as whole as a shop and transferred as such. Secondly, he contended that the interpretation of section 2(12) of the Displaced Persons (Compensation and Rehabilitation) Act, also leads to the same conclusion. Thirdly, he contended that it is not a case of actual exercise of a division. The division in this case has not been made on proper apprecia tion of the facts. Lastly, he contended that the case has been decided on the assumption by the Settlement Commissioner that the appellant has only applied for the transfer of the residential premises. This assumption of the Settlement Commissioner and the High Court is incorrect. In support of the first contention, the learned counsel has placed reliance on the case of Muhammad Bashir v. Chief Settle ment Commissioner (A P R 1963 .ah. 257). In this case, a Division Bench of the West Pakistan High Court directed the Settlement Authorities to transfer the shop in dispute to the appellant along with choubara. In this case, the High Court has discussed the Memo. No. Comp Reh./59/242 dated the 22nd October 1959, which was issued by the Chief Settlement Commissioner. Paragraph 2(c) of this Memo. is in the following terms. :‑-- "A building consisting of one business unit and one residen tial unit above it, if situated in a predominantly commercial area, should be treated as shop and the whole building transferred as a shop." While interpreting this instructions, the High Court observed as under :‑ "It appears to us that the above reproduced clause (c) of paragraph 2 of the Memo. means that acting under the pro visions of‑ subsection (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner had passed an order that the cases, like the present, ,a shop and the residential premises above it shall be deemed to be one shop. That the Chief Settlement Commissioner could make such a declaration is hardly open to question and we will, therefore, have to assume that the shop and the choubara was one shop and then to consider whether the claim of the appellant to the shop was rightly rejected by the Settlement authorities." It will, however, be noticed that the attention of the High Court was not drawn to instructions issued at page 92 of the Manual of Settlement (Old Edition), which read as under:‑ "It has been reported that the instructions contained tin this office Memorandum No. Carup‑Reh./59 dated 22nd October 1959, on the above subject have created certain practical difficul ties particularly in cases where a single claimant ‑in occupation of a portion of the building has applied for the transfer of a complete building to him consisting ' of more, than one house or shop. The Chief Settlement Commissioner, has, therefore, on reconsideration decided that the Deputy Settlement Commis sioners may use their discretion and if they are satisfied that the transfer of the whole building to one person will result in serious hardship and dislocation other persons occupying the same building they may transfer only the portion in occupa tion of such person if it may in independent access and transfer the other residential 'or business units in the building to other persons entitled to their transfer. Normally not more than one shop and one residential unit above it comprising a self contained independent unit should be transferred to one person." It will thus be seen that under these instructions discretion has been given to the Settlement authorities to divide the property into two units and to transfer the property in accordance with the possession of parties. In our opinion, ‑ the instructions of the Settlement authorities are of a directory nature and the Settlement authorities are entitled on proper appreciation of the facts before them to divide the property into two portions. In the present case, however, the Settlement authorities have not exercised the discretion properly. They have wrongly assumes that the appellant has applied only for the transfer 'of residential portion in her possession. We have seen the C. H. Form and 'are satisfied that the appellant has asked for the transfer of the, entire property, The Settlement authorities have also not considered whether on the facts of the present case it is desirable to divide the property into two, portions arid transfer it separately to the persons in possession of the same. In view of this we find much force in the contention of Mr. Fazl7i‑Mahmood that the matter may be sent back to the Chief Settlement Commissioner to decide whether the property in dispute was a shop and whether the entire property should he transferred to the appellant. Mr. Muhammad Akram, learned counsel for respondent No. 4 has drawn our attention to the 'fact that after the dismissal of the revision petition by the Settlement Commissioner, the Deputy Settlement Commissioner has transferred the shop to respondent No. 3 arid as the appeal has hot been filed against that order, this Court is not competent to pass any effective order. The con tention of the learned counsel has not, impressed us. The order for the transfer of the shop in dispute to respondent No. 3 was passed during‑the pendency of the petition for certificate under Article 158 of the Constitution. It was passed ,on a remand order. In our opinion the decision on the remand order is subject to the decision of the appeal by the Supreme Court. In support of this‑ Mr. Fazl‑i‑Mahmood, learned counsel for the appellant, has referred to a decision of the Indian jurisdiction in Shiromani Gurdwara Parbandhak Committee, Amritsar and others v. Raja Shiv Rattan, Dev Singh and others (A I R 1955 S C 575). It‑was, held in that ease as under; "Where the High Court, after passing a final order, has remanded the case to the trial Court for proceeding in accord ance with law and the decree of the trial Court after remand is passed between the date of an application for leave to appeal to the Supreme Court from the order of the High Court and the date on which leave was granted the decree of the trial Court even if not appealed against, must, in the circumstances, be taken to be subject to the result of the appeal to the Supreme Court, and cannot ,be said to be conclusive so as to prevent the Supreme Court from dealing with the appeal and setting aside or modifying the judgment of the High Court and making a fresh order of remand to that Court itself." In the light of the above decision it is perfectly clear to us that the decision of the Deputy Settlement Commissioner is subject to, the order passed by this Court. Since we have reached the conclusion that the Settlement authorities have not applied their mind properly to the facts of the present case and have failed to exercise the discretion properly, we set aside the order of remand of the Settlement Commissioner passed thereafter and direct the Chief Settlement Commissioner to go into the question and decide whether the property in dispute should be treated as a shop or it should be divided into two portions. While doing so, the learned Officer will take into consideration the definition of `shop' in section 2(12) of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958; and the instructions issued in this behalf by the Chief Settlement Commissioner. Before parting with this case, it may be pointed out that the entitlement of respondents Nos. 3 and 4 is not free from difficulty. It is for consideration whether they are entitled to the transfer of the portions in possession of Publishers United Ltd., on the ground that they are its Directors or partners. In the result, subject to the above remarks the appeal is allowed and the case is remanded back to the Chief Settlement Commissioner for decision at an early date. The costs of this appeal will depend on the result of the decision of the Chief Settlement Commissioner. Appeal accepted. Case remanded.