P L D 1967 Lahore 786 (PLP)

The petitioner Mst. Bashir Bano is the successor‑in‑interest of her husband, Muhammad Azam Qureshi, and is in possession of one shop bearing No. 444 and 444‑A forming part of a composite building known as Thapar Building, situated in Adamjee Street, Rawalpindi Cantonment. The entire building consists of two shops on the ground‑floor and two residential flats on the first‑floor. When the settlement operations started, the D. S. C. by an order dated the 31st' of October 1959, transferred the entire building to the petitioner on the ground that she was the only claimant who had applied for its transfer. The respondent No. 2, Sh. Muhammad Anwar , who was in possession of the Chaubara above the petitioner's shop, filed an appeal which was, however, dismissed as time‑barred by the learned Additional Settlement Commissioner, by his order dated 16th of June 1960. It appears that no regular revision was filed by the contesting respondent against this appellate order, nor did the other occupants of the different units comprised in this property file any regular appeals. However, one Barkat Ali, who was in possession of one of the shops on the ground‑floor, presented a miscellaneous application to the learned Additional Settlement Commissioner, on the 16th of June 1960, i.e., the day on which the appeal of respondent No. 2 was dismissed as time- barred. On this application the learned Additional Settlement Commissioner recorded an order on the 24th of June 1960, directing the D. S. C. to look into the file of this case, and adding that in the near future such cases would be gone into by a committee and "it would be better that such cases which had been done in a hurry should be set right suo motu. He concluded this order by saying that he would like to see the file.

2. The respondent No. 2, also presented a similar miscel laneous petition to the Additional Settlement Commissioner, on the 19th of August 1960, and this application was also forwarded to the D. S. C. for investigation and any action he might deem necessary under the law.

3. The Deputy Settlement Commissioner re‑examined the matter in accordance with the two directives given by the learned Additional Settlement Commissioner on the two miscellaneous applications just mentioned. In his order dated the 20th of April 1961, the D. S. C. observed that the property consisted of two shops and two residential flats over them, and the inspection of the building showed that although the shops bore separate numbers, yet they appeared to be inseparable portions; and that in a similar case the learned Settlement Commissioner (Cantt.) bad given two shops along with two flats to one claimant by holding them to be indivisible. On this view of the matter, he concluded his order by saying that he did not want to change his previous decision under which the entire property had been transferred to the petitioner Mss. Bashir Bano as one unit.

4. Against this order of the D. S. C., two appeals were filed, one by the respondent, Sh. Muhammad Anwar, and the other by Barkat Ali. Both of them were disposed of by the Additional Settlement Commissioner, by his order dated the 27th of May 1961. He observed that the petitioner was entitled to the shop in her possession, whereas the other units should go to the persons in possession thereof. Aggrieved by this order, the petitioner went up in revision which was partly accepted by the learned Settlement Commissioner, by his order dated the 13th of July 1961, by directing that the Chaubara above the shop of the petitioner should also be transferred to her, for the reason that the respondent No. 2, Sh. Muhammad Anwar, had not applied for its transfer. As regards the other shop and the Chaubara over it, he transferred both of them to Barkat Ali. Not satisfied with this order, the petitioner filed a second revision petition claiming the rest of the property as well. The respondent Sh. Muhammad Anwar also filed a similar revision petition and both were disposed pf by the learned Chief Settlement Commissioner by his order dated 25‑10‑1961. This officer came to the conclusion that Sh. Muhammad Anwar was entitled to the transfer of the Chaubara in his possession, and that Mst. Bashir Bano had no right to it. As regards the shop in the possession of Barkat Ali and the Chaubara on top thereof, he directed that they should be disposed of by auction. The net result of the entire litigation, therefore, was that the petitioner was left only with one shop which had been in her possession. She applied for a review of this order, but the review application was dismissed on the 19th of April 1963.

5. The claim made in the present petition is that the petitioner is entitled to the transfer of the entire building as one unit, in view of the instructions contained in para. 2 (2) (c) appearing on page 69 of the old Manual of Settlement Law and Procedure. In the alternative, it is claimed that she is, in any case, entitled to the Chaubara above her shop, for the reason that the area being predominantly commercial, the Chaubara had to. be disposed of as a shop along with the commercial premises on the ground‑floor. The main contentions raised by Mr. M. S. Baqir, on behalf of the petitioner to challenge the orders passed by various Settlement Authorities depriving the petitioner of the benefit of the original order of the D. S. C. passed on the 30th of October 1959‑ (a) that the time‑barred appeal of Sh. Muhammad Anwar having been dismissed as such by the Additional Settlement Commissioner, there was no longer any jurisdiction left in him to get the matter reopened on miscellaneous petitions filed by Barkat Ali or respondent Muhammad Anwar; (b) that the respondent Muhammad Anwar, had not applied for the transfer of Chaubara in his possession, as has been observed by the learned Settlement Commissioner in his revisional order dated 13‑7‑1961, and therefore the Chaubara had to be transferred to the petitioner as an integral part of the shop in her possession; and (c) that in view of the instructions appearing on page 69 of the old Manual of Settlement Law and Procedure, it was incumbent upon the Settlement authorities to treat the Chaubara as a part of the shop and, therefore, orders to the contrary are without jurisdiction as held in Muhammad Bashir v. The Chief Settlement Commissioner and another (A P R 1963 (W. P.) Lah. 257).

6. On behalf of the contesting respondent, the position convassed by Kh. Muhammad Tufail is‑ (i) that the original order passed by the D. S. C. on the 30th of October 1959, was void and without jurisdiction as the D. S. C. had no power to treat all the four units as one house or one shop, in view of the clear provisions contained in the second proviso to clause (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1L58, and accordingly no legal rights accrued in favour of the petitioner on the basis of that void order; (ii) that the petitioner has no locus standi to claim the Chaubara in the possession of the respondent, or any other unit comprised in this property, in view of the proviso just referred to; (iii) that even if the original order of the D. S. C. be treated to be as one with jurisdiction, the Additional Settlement Com missioner was competent to interfere in the exercise of his revisional powers under subsection (4) of section 20 of the Act, as it then stood, in spite of the fact that he had earlier dismissed the respondent's appeal as time‑barred; and (iv) that in any case, substantial justice has been done between the parties by the Settlement authorities by transferring to them the respective units in their possession, and it would be frustrating the object of the Rehabilitation and Compensation Laws to deprive the respondent of the Chaubara in his posses ‑lion so that the petitioner might get two units instead of one.

7. The first question which needs to be considered in this case is regarding the locus standi of the petitioner and her entitle ment to claim the other units comprised in this property, besides the shop which is admittedly in her possession. It has already been stated that the property is a composite one, consisting of two shops and two residential units. The relevant provision of law applicable in such cases is undoubtedly the second proviso to clause (12) of section 2 of the Act, which defines the term `shop' as used in the statute, and stipulates that where any such building or premises consists of both residential and business units, the Chief Settlement Commissioner may order that the whole of such building or premises, or such part or parts thereof as may be specified in the order, shall be deemed to be a shop or a house. It will be seen that in the case of a composite building consisting of both residential and business units, the Chief Settlement Commissioner has to order whether the whole of such building or premises or any specified part or parts thereof shall be deemed to be a shop or a house. It is only after such a declaration has been given that the question of the transfer of the different commercial or residential units comprised in such a building could be considered. Now, the D. S. C. who dealt with this case in the first instance in his order dated 30th of October 1959, did not apply his mind to this aspect at all. He merely acted on the report of the Settlement Inspector dated the 17th of October 1959, in which the description of the various units comprised in this property was given and the names of the occupants were also stated. This report concluded with the remarks that only the petitioner Mst. Bashir Bano was a claimant out of the occupants and she had submitted a C. H. form for another property. The learned D. S. C. only approved the proposal made by the Assistant Settlement Commissioner that the property may be transferred to Mst. Bashir Bano claimant. The reports and the recommendations made by the subordinate Settlement authorities did not give an indication that they were alive to the duty cast upon them by the second proviso to section 2 (12) of the Act, vie that there has to be a declaration as to which part or parts of the property a to be treated as a shop or a house. It is only by implication that one can infer from this order that the D. S. C. treated the entire building as a shop so as to transfer it against the C. S. form of the petitioner.

8. The question of the proper interpretation to be placed on the second proviso, referred to above, was considered by a Division Bench of this Court in Muhammad Hanif v. Chief Settlement and Rehabilitation Commissioner and others (P L D 1964 Lab. 261), and the decision in the earlier case, Jalil Ahmad v. Settlement and Rehabili tation Commissioner, Hyderabad (P L D 1962 Kar. 197) was dissented from in so far as it related to composite properties of the kind with which we are dealing here. The learned Judges observed that‑ It is obvious that unless the Chief Settlement Commissioner decides to treat the whole or any part of the building as a house or a shop, the two portions are to be disposed of separately, one as a house and the other as a shop, according to their definition in section 2, clauses (4) and (12). The division of a house or a shop, of course, stands on a different footing." The learned Judges then proceeded to cite the example of a building consisting of several residential flats and shops which are not declared as big mansions and observed that‑ "It does not stand to reason that the occupant of one of those flats or shops can lay claim to the transfer of the entire building because there was no rival claimant." They concluded that the division of a composite property and inclusion of a part or parts thereof in the list of the evacuee properties to be sold by public auction is, therefore, eminently consistent with the object and scheme of the Act.

9. It will be seen that according to the learned Judges, there could be no question of the transfer of an entire composite property by being treated automatically as one unit. In other words, in the absence of a specific declaration to this effect, the various units must be disposed of separately. In the case before their Lordships there were no other rival claimants and yet it was held that the sole applicant could not lay claim to all the units comprised in that property. In the instant case, there are other applicants for the other units comprised, in this property. It seems to me therefore that it is clear that the petitioner could not, in these circumstances, lay claim to the other commercial and residential units comprised in this property, unless of course a specific declaration was made by the Chief Settlement Commis sioner or his delegate that the entire property has to be disposed of as one house or one shop. The only officer who disposed of this property as one unit was the D. S. C. who has already stated) did not make any such declaration. All the other officers who dealt with this case held that the property in dispute consists of two shops and two residential flats, each of which is occupied by a different person. The result, therefore, is that the petitioner has no locus standi to claim the transfer of any unit other than the one in her possession. On this short ground alone the petition is liable to be dismissed.

10. The reference to paragraph 2 (2) (c) of the instructions appearing on page 69 of the old Manual of Settlement Law and Procedure, is irrelevant. This particular paragraph deals with a building consisting of one business unit and one residential unit above it, but the building now in dispute consist of two residential flats and two commercial units. The case of such a building is dealt with in sub‑paragraph (3) of para. 2 of the instructions in question, and this sub‑paragraph makes it clear that‑ "Where a building consists of more than two units some of which are residential and the other business units and it cannot be divided in accordance with the instructions at (2) above, and such units have independent access and can be utilised independently for residential or commercial purposes each such unit may be treated as a house or a shop as the case may be and transferred accordingly. In such cases also efforts should be made to transfer the whole building to one person if practicable." It will be seen that although this sub‑para. concludes by saying that efforts should be made to transfer the whole building to one person, yet in substance the directive is that each unit, if having an independent access, should be disposed of separately as a house or a shop as the case may be. This is precisely what has been done in, this case as a result of the spot inspection carried out by the Settlement officers.

11. Coming now to the question of jurisdiction of the Additional Settlement Commissioner to reopen the matter after he had dismissed the time‑barred appeal of respondent No. 2, regarding this very Chaubara, it is true that ordinarily it would not be open to the same officer to re‑open the matter, but on the relevant date subsection (4) of section 20 of the Act conferred revisional powers on the Additional Settlement Commissioner and, therefore, the orders passed on the two miscellaneous applications, one by Barkat Ali and the other by Muhammad Anwar, respondent can be treated as being orders in the exercise of his revisional powers. The learned counsel for the petitioner has referred to the observations of their Lordships of the Supreme Court in Azmar Ali v. Chief Settlement Commissioner (P L D 1964 S C 240) in which it was observed that once an appeal bad been dismissed as time‑barred by the Additional Settlement Commissioner, it was not open to the Settlement Commissioner, acting in revision, to consider the matter on merits without first adverting to the question of limita tion. Those observations do not appear to me to be attracted in the instant case. It is not a case where a superior authority ha examined the merits of the case without considering the question of limitation. Here it is the same officer who is now invoking hi, revisional powers, obviously for the reason that he could not interfere in the appeal which was time‑barred. In my view the dictum in Azmat All's case does not prohibit such a procedure.

12. Considering the position which has emerged, as a result of the foregoing discussion, it is clear to me that in the first place the order passed by the learned D. S. C. transferring the entire property to the petitioner was against the provisions contained in the second proviso to clause (12) of section 2 of the Act and the instructions contained in sub‑para. (3) of para. 2 of the instructions appearing on page 69 of the old Manual of Settlement Law and Procedure. For this reason, this order must be treated as void and without jurisdiction and cannot be made a basis of the conferment of any legal right to the transfer of the entire property to the petitioner; and therefore, the question that this order had acquired finality hardly arises. Secondly, the petitioner has no locus stands, for the same reasons, to lay any claim to the transfer of the other units comprised in this property. Finally, it is clear that the orders now passed by the Settlement authorities have indeed done sub stantial justice between the parties, in accordance with the aims and objects of the Rehabilitation and Compensation laws, by trans ferring to them the respective units in their possession. For all these reasons, I have come to the conclusion that no justification is made out for interference by this Court with the orders passed by the Settlement authorities. The petition, therefore, fails and is hereby dismissed, but the parties are left to bear their own costs. K. B. A. Petition dismissed.