1974 PLP 359 (SCMR)

(i) the shop in possession of Aziz Ahmad, a local, was numbered as 321/A ; (ii) the shop in possession of Masood Brothers was numbered as 321/B ; and , (iii) the rest was given the number 321/C. Sub‑unit No. 321/A was placed in the auction pool as Aziz Ahmad being a local was found not entitled to the shop. The shop No. 321 /B was transferred to the respondent No. 2, but orders in respect of the residential portions were reserved although it was opined that the contest with regard to this was only between the appellants on the one side and Abdul Aziz on the other side. Orders were reserved, because, it was found that Abdul Aziz possessed a joint compensation book with his brother which had been issued from Lyallpur. He was, therefore, required to obtain a certificate from the Additional Settlement and Rehabilitation Commissioner, Lyallpur, to the effect that no property had been transferred against this joint claim of Abdol Aziz and his brother. He had to produce the certificate within thirty days. Subsequently, however, Abdul Aziz voluntarily withdrew his claim. Hence the entire residential portion was transferred to the appellants. Although in the main judgment the Additional Settlement Commissioner had clearly indicated that only the shop No. 321/B would be transferred to the respondent No. 2, yet in the operative portion of the order, somehow or other, the chaabara above it was also included. The respondent No. 2 was, however, directed to make his own arrangements for access to the chaubara from the date the present occupants of the chaubara vacated the same. From this order, both the appellants and the respondent No. 2 went up in revision before the Settlement & Rehabilitation Commissioner, Multan. The latter took the view that the respondent No. 2 should not only have the chaubara above the shop transferred to him but also the compound and the kitchen in front of the chaubara. Similarly, the rooms in possession of three other non‑claimants, who had not come up in appeal or revision nor were anxious for the transfer of any portion of the premises, should also be transferred to the said respondent No.

2. The gallery between these three rooms, which consisted of two rooms and a small compound, was also given to the respondent No. 2, because, in the opinion of the Settlement Commis sioner, if it remained in the possession of the appellants, it would be a constant source of litigation and friction between the parties. The rest of the house, i.e., the rooms in possession of the appellants, together with the rooms in possession of Abdus Sattar, Ibrahim, etc. on the ground floor and the chaubara on the top of the shop of Aziz Ahmad, which had been put in the auction pool, were transferred to the appellants and the staircase was left in the joint use of the transferees. Against this order, three second revision petitions were filed, one by the appellants, the other by the respondent No. 2 and the third by Master Abdul Aziz. The Chief Settlement Commissioner dismissed the revision of Master Abdul Aziz, because, he had neither filed any appeal nor first revision before the Additional Settlement Commissioner or the Settlement Commissioner. With regard to the respective claims of the appellants and respondent No. 2, he repelled the contention of the appellants that they were also entitled to the second shop which was in possession of a local and upheld the order of the Additional Settlement Commissioner placing it in the auction pool, as also upheld the order of the Settlement Commissioner regarding the transfer of the portions in favour of the respondent No. 2 ; but accepted the claim of the respondent No. 2 that he should also be given a part of the courtyard in order to give him an‑approach to the three back rooms on the ground floor. The case was, accordingly, remanded for the division of the courtyard to the Settlement Commissioner who was directed after inspect ing the property to decide as to whether the courtyard was divisible or not, and if found divisible, to divide it conveniently. The appellants challenged this order in the High Court by a writ petition. A learned Single Judge of the former West Pakistan High Court, Lahore Seat, refused to interfere holding that there was no question of any competition between the appellants and the respondent No. 2, because, the building having been divided, the appellants could get no more than one house. By the transfer of the divided portion, their claim had been fully satisfied and they could not claim anything more. The question of the division of the property was a matter entirely within the scope of the powers of the Settlement Authorities and it was not for the High Court to interfere with it. A Letters Patent appeal from the above order was dismissed by a Division Bench of the same High Court in amine. Leave was, however, granted to the appellants by this Court to consider whether the respondent No. 2, who had only filed a CS form for the transfer of a shop, could, as an indirect claimant, be transferred more than the portions which were in the possession of his sons. Learned counsel appearing in support of this appeal has relied on paragraph (8) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The material portion of this paragraph reads as follows :‑ "A shop in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a shop which such parent, son, daughter or spouse does not claim under the provisions of this Schedule, and if there is more than one such shop, then, any one of the shops which the claimant desires to retain. shall be transferred to him at a price determined on evaluation basis ; It is contended that on the plain language of this paragraph only a shop in possession of a claimant or a parent, son, daughter or spouse of a claimant can be transferred to him and nothing more. This contention, however, overlooks the provisions of subsection (12) of section 2 of the above mentioned Act itself which defines a "shop" as follows :‑ "Shop means Evacuee business premises of any value in an Urban area or of the value of ten thousand rupees or more in a rural area together with godowns or store‑house, but does not include any building situated within the premises of an Industrial concern, or a building or premises declared under paragraph 16 of the Schedule to be a "Big Mansion" or hotel or such class of business premises in a rural area as may be declared by the Central Government, by Notifica tion in the official Gazette not to be shops within the meaning of this clause: Provided that where any building or premises not so declared consist of more than one business unit, and such units are in possession of several persons, then unless the Chief Settlement Commissioner, orders otherwise, the whole of such building or premises shall be deemed to be a Shop; Provided further 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." Under the second proviso to this subsection, it appears that where a premises consists of both residential and business units, the Chief Settlement Commis sioner 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 house or a shop. In the present case, however, what happened was that the Settlement Authorities at various stages included certain portions of the premises in the shop which was transferred to the respondent No.

2. This they could certainly do, as was indicated by this Court in the case oft 1ltuhammad Sidiuqe v. The Chief Settlement & Rehabilitation Commissioner (P L D 1965 S C 123). It was there clearly laid down that chaubaras over shops could be joined with the shops below them and could be treated as one unit for the purposes of transfer, This is exactly what has been done in the present case and, therefore, the appellants can have no legitimate cause for complaint. After such division no question of competition could arise between the transferees of the portions so divided. The appellants too, have, in fact, received portions which were not in their possession. They are not, therefore, in any worse position. There is also no evidence to show that the portions trans ferred to them cannot be utilised as an independent and integral unit complete with all necessary amenities. Learned counsel's contention that the portions which were not being used as a shop could not be transferred as a shop, is equally without any e substance. As has already been indicated, even rooms over chaubaras which are being utilised for residential purposes can be joined by the Settlement Authorities, if they so think fit, with the shops below them and transferred as shops. Learned counsel next tried to contend that the second revision before the Chief Settlement Commissioner was not competent, as the record had not been called until after the powers of revision had been taken away by Ordinance No. II of 1962, which came into force on the 13th of January 1962. This point was not urged before the Chief Settlement Commissioner or in the High Court nor was leave granted on this point. 7 his new contention cannot be allowed to be raised at this late stage as it necessitates investigation into facts. In any event the appellants, who were the petitioners before the Chief Settlement Commissioner, should have brought this defect to the latter's notice and not allowed him to assume a jurisdiction which he did not posses or, the date he disposed of the matter, viz., the 28th February 1962, vide, Ghulam Mohiuddin v. Chief Settlement Commissioner (P L D 1964 S C 829). For the reasons given above, we find no substance in any one of the contentions advanced in support of this appeal. This appeal is, accordingly dismissed ; hut, having regard to the special facts of this case, there will be no order as to costs. Appeal dismissed.