1983 PLP 844 (SCMR)

Nemo for Respondents Nos. 2 to

5. Date of hearing : 8th March, 1976. MUHAMMAD AKRAM, J.‑The dispute in this case relates to property No. S‑75‑R‑51, situated in Main Bazar, Old Anarkah, Lahore, a pre-dominantly commercial area. It is a composite property and consists of a shop on the ground‑floor and a residential premises at the top. Taj Muhammad petitioner is in possession of the First Floor while the shop is in the possession of Bashir Ahmad respondent. Both are allottees non‑claimants and filed their respective N. C. H. and N. C. S. forms for transfer. On the 20th November, 1959, the Assistant Settlement Commissioner, Centre‑11, Lahore, with powers of the Deputy Settlement Commissioner, transferred the entire property as a single indivisible unit to the respondent as the senior allottee. The order was upheld in appeal and affirmed in Revision rejected by Khan Farzand Ali Khan, Settlement and Rehabilitation Commissioner, Lahore Division, Lahore, on the 31st October, 1960. The petitioner went up in Second Revision which was accepted by Malik Fateh Khan, Settlement and Rehabilitation Commissioner with power of the Chief Settlement and Rehabilitation Commissioner on the 8th July, 1961, with the following observations :‑ "The rules of the Department are clear that in a commercial locality residential accommodation on top of a shop has to be disposed of separately. The petitioner has been in possession of the Chaubara even though as non‑claimant and as such was entitled to its transfer in preference to the resident, who was not in possession thereof." Dissatisfied, the respondent filed a Constitutional Petition against the order dated 8th July, 1961. A learned Judge of the Lahore High Court at Lahore accepted the petition on the 16th February, 1966. He observed that the order passed by Malik Fateh Khan, Settlement and Rehabilitation Commis sioner with powers of the Chief Settlement Commissioner was based on an incorrect assumption to the effect that the rules of the Department were clear that in a commercial locality residential accommodation on the top of a shop bad to be disposed of separately and that there was nothing in the statute, the rules and the instructions issued by the Chief Settlement Commissioner to warrant any such assumption. Therefore, the High Court, in accepting the petition before it quashed the order dated 8th July, 1961, and sent back the case to the Chief Settlement Commissioner for a fresh disposal of the Second Revision in accordance with law. After the remand eventually on the 30th January, 1967, Ch: Ali Ahmad, the then Settlement Commissioner with powers of the Chief Settlement Commissioner rejected the Second Revision of the petitioner. The petitioner then filed a Constitutional Petition against the order which was dismissed a learned Single Judge of the Lahore High Court at Lahore on the 20th November, 1973. The Court refused to interfere with the discretion lawfully exercised by the Chief Settlement Commissioner in transferring the entire property as single indivisible unit to the respondent. Hence this petition for Special Leave to appeal from this last order passed by the High Court. In this case on the 20th November, 1959, the Assistant Settlement Com missioner with the powers of the Deputy Settlement Commissioner found that the respondent was a Senior allottee in occupation of the shop situated in the main Bazar in a pre-dominantly commercial area and transferred the property to him as a single indivisible unit. The appeal of the petitioner against the order was rejected by the Additional Settlement Commissioner (Judicial) Lahore, after spot inspection. He observed that the possession of Bashir Ahmad was prior to that of Taj Din and that the former has a preferential right to the transfer and that the Deputy Settlement Commissioner was justified in transferring the whole to respondent. Ultimately, after the remand, on the 30th January, 1967, Ch. Ali Ahmad, Settlement Commissioner with powers of the Chief Settlement Commissioner, West Pakistan, Lahore examined the whole case afresh. It was contended before him that the authorities below had departed from its set Policy by treating the residential and commercial premises as a single indivisible unit. But repelling the contention, the Chief Settlement Commissioner observed that each case has got to be disposed of on its own facts. In his opinion, the property was held by the Deputy Settlement Commissioner to be indivisible and the Additional Settlement Commissioner, on an inspection of the premises, he did not find any reason to interfere with the transfer made to respondent the senior allottee. He. therefore, declined to interfere and rejected the Second Revision. In these circumstances, in our opinion, the High Court was justified in refusing to interfere with the excise of the discretion vested in the Settle ment Authorities under the Second Proviso to section 2(12) of the Displaced Persons (Compensation and Rehabilitation) Act. In Muhammad Nazir v. The Chief Settlement Commissioner, Lahore and others (1968 S C M R 1375) this Court held that the finding of the relevant authorities that the disputed Chaubara is a part of the shop, which is one of fact, was not amenable to reversal in Writ Jurisdiction and consequently the High Court was justified in declining to interfere. Similarly, in Muhammad Nawaz Khan and others v. Settlement Authorities and others (1969 S C M R 964), this Court repelled the contention that the house being in a pre-dominantly residential area the shops should have been included in the house and observed that it was really a question of mode of division and the Settlement Authority acted within its powers in putting the shop in the auction pool. On the other hand, the authorities cited on behalf of the petitioner are distinguishable and have no application to the facts and circumstances of this case. In Noora v. Settlement and Rehabilitation Com missioner and another (1969 S C M R 517) it was held that the High Court had the jurisdiction under Article 98 of the Constitution to reverse the finding which was on the face of the record unwarranted or based upon clear misreading of the evidence. In Abdul Rashid v. Muhammad Nazir (1970SCMR330), the Court found that the Settlement Authorities had failed to apply their mind at all to the question of divisibility or otherwise of the house. Similarly in Ajizur Rehman v. Habib Bano and others (PLD1972SC52), the Settlement Authorities did not apply their own independent mind to the question of divisibility of the house and held the same to be indivisible because both sides had contended that it was indivisible. The case was, therefore, remanded to the Chief Settlement Commissioner for his own decision in the matter. Also in Ch. Abdur Rahim v. Sardar Abdul Aleem and others (1972 S C M R 19), this Court was satisfied that the Settlement Authorities had failed to apply their own mind properly to the question of the divisibility of the property. But in the instant case the facts are distinguishable inasmuch as the Settlement Authorities, on a conscious application of their mind, have held the property to be indivisible and their finding was not open to review by the Superior Courts. At the hearing before us an attempt was made to contend that Tay Din petitioner was a senior allottee of the property as compared to Bashir res pondent. It is alleged that although the petitioner was allotted a portion of the property on the 29th April, 1954, but his possession related back from the 13th April, 1958. On the other hand, although the respondent was allotted the shop on the 17th November, 1953, but it was denied that his possession was from a date prior to that of the petitioner. It is, therefore, contended that the learned Single Judge was not justified in holding that the respondent, though an allottee of the shop on the 17th November, 1953, yet his possession actually related back to 1st January, 1950. But that does not solve the difficulty. In the instant case, on the material on the record, the Deputy Settlement Commissioner found the respondent to be a senior allottee and on appeal the Additional Settlement Commissioner held that his possession was prior to that of the petitioner. These findings do not appear to have been challenged before Ch. Ali Ahmad Settlement Commissioner and he. while upholding the transfer in favour of the res pondent, observed that he was the senior allottee out of the two. In these circumstances, we are unable to entertain this plea with sufficient material to support it. For the foregoing reasons there is no force in this petition which is dismissed. Petition dismissed.