P L D 1963 (W (PLP)

4. The Deputy Settlement Commissioner by means of an order dated the 15th March 1960 (Annexure `C') dismissed the application and affirming the previous order of the former Deputy Settlement Commissioner transferred the whole of the property to the petitioner, to the exclusion of respondent No.

3. While passing this order the Deputy Settlement Commissioner came to the conclusion that as all the seven flats were served by a common stair‑case and as there was no shop or commercial unit in the property, the entire property was a single unit and, therefore, had to be transferred to one person. The application of respondent No. 4 was dismissed on the ground that the same was time‑barred and that of respondent No. 3 on the ground that he was not willing to accept the transfer of the whole of the property as one unit.

5. Against the order dated the 15th March 1960, passed by the Deputy Settlement Commissioner, both respondents 3 and 4 filed appeals before the Additional Settlement Commissioner. That officer by means of an order dated the 11th June 1960 (Annexure `D') dismissed the appeal of respondent No. 3, on the short ground that the appeal had been filed against the order dated the 15th March 1960 which had been passed in review and was, hence, not entertainable. The appeal of respondent No. 4 was, however, accepted and the flat in her occupation was transferred to her. While passing this order the Additional Settlement Commissioner held that Mst. Ejaz Begum, respondent No. 4, was an allottee, although the correctness of this finding is being challenged by the petitioner. As a result of this order the whole of the property, except one of the flats transferred to respondent No. 4, remained with the petitioner.

6. On the 21st May 1960 S. Irshad Hussain, respondent No. 5, who was in occupation of one of the flats, as an allottee, gave an application to the Additional Settlement Commissioner for transfer of that part of the property in his favour. As this application was, obviously, barred by time, the Additional Settlement Commissioner on the 28th May 1960 forwarded it to the Deputy Settlement Commissioner with the following order "May be accepted provided entire transfer price is adjustable against his own claim or associated claim."

7. On the 27th July 1960 the Deputy Settlement Commissioner, without giving any notice to the petitioner, in whose favour the whole of this property, excepting one flat, had been transferred by the Deputy Settlement Commissioner, accepted the application of respondent No. 5 and transferred the flat occupied by him in his favour.

8. The petitioner and respondent No. 3 filed revision petitions against the order dated the 11th June 1960 passed by the Additional Settlement Commissioner, before the Settlement and Rehabilitation Commissioner, Karachi. That officer by means of an order dated the 11th August 1960 (Annexure `E') held that the property in dispute was divisible, allowed the petitioner to retain only the flat which was in occupation of her son, transferred one of the flats to respondent No. 3 and affirmed the order with regard to the transfer of one of the fiats in favour of respondent No.

4. He ordered further that the remaining flats be disposed of in accordance with Settlement Scheme No. I. It is against this order that the present petition was filed under Article II of the Laws (Continuance in Force) Order, 1958. It was prayed therein that the order of the Settlement and Rehabilitation Commissioner be quashed and that of the Deputy Settlement Commissioner, by means of which the property in dispute was transferred to the petitioner, be restored.

9. The validity of the impugned order is challenged on more than sixty grounds, which have been mentioned in paragraphs 31 to 41 of the petition, but at the time of arguments the learned counsel for the petitioner referred to a few of these grounds and, therefore, in disposing of this petition I will confine my attention to these grounds only.

10. The first contention raised by the learned counsel was that as the Deputy Settlement Commissioner by means of his order dated the 15th. March 1960 (Annexure 'C') held that the property in dispute was a single unit, meaning thereby that it was indivisble, his order could not be modified by the Settlement and Rehabilitation Commissioner, who held that this property was divisible into seven different units. For this purpose the learned counsel relied on the observations of their Lordships of the Supreme Court made in Ch. Bahar Muhammad's case (Civil Petition for Special Leave to Appeal No. 58 of 1962). The facts of that case were that the petitioner, Ch. Bahar Muhammad, and one of the respondents applied for transfer of a property to the Deputy Settlement Commissioner, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. That officer held that the property was divisible and transferred a portion of it to the petitioner and another to one of the respondents. The petitioner filed an appeal before the Additional Settlement Commissioner who held that the property in dispute was indivisible and, therefore, transferred the whole of it to the petitioner. The matter was taken up in revision to the Settle ment Commissioner, who upheld the order of the Additional Settlement Commissioner. On a second revision filed before the Chief Settlement Commissioner, the order passed by the Settle ment Commissioner was set aside and the petitioner was allowed to keep one part of the property, while the other was transferred to one of the respondents. It was contended before their Lordships of the Supreme Court that as the Additional Settlement Commissioner in holding that the property was indivisible acted in exercise of the power delegated to him by the Chief Settlement Commissioner, his order could not be interfered with in revision and, therefore, the property could not be held to be divisible. This contention was accepted by their Lordships, but the petition was dismissed on the ground that the Deputy Settlement Commis sioner, who had also acted in exercise of the delegated authority, had held that the property was divisible and, therefore, his order could not be modified, in revision, by the Additional Settlement Commissioner. The relevant passage in the judgment of the Supreme Court, on which reliance is placed by the learned counsel, reads as follows:‑ "The next point urged is that the power to declare a house divisible or indivisible resides only in the Chief Settlement Commissioner and the other Settlement Officers exercise this power as a delegatee of the Chief Settlement Commissioner and therefore the Chief Settlement Commissioner had no power to interfere with the order of the Settlement Commissioner or the Additional Settlement Commissioner who had found the house to be indivisible. The argument is correct in so far as it is urged that the Chief Settlement Commissioner could not interfere with his own delegated power, but learned counsel for the petitioner has overlooked that this argument in fact goes against the petitioner. The Deputy Settlement Commis sioner had pronounced the house to be divisible. This he had done in exercise of a power delegated by the Chief Settlement Commissioner. His decision therefore could not have been interfered with by the Additional Settlement Com missioner."

11. In reply to this contention it was argued by the learned counsel for the respondents that what their Lordships held was that if an officer in exercise of the power delegated to him holds that a property is divisible, his order cannot be interfered with in appeal or, revision, but that their Lordships did not hold that if no such power was exercised and if a property was held to be indivisible, in that case also in exercise of appellate or revisional jurisdiction of the Settlement and Rehabilitation Commissioner, or the Chief Settlement and Rehabilitation Commissioner, could not interfere with the order passed by officers under them. In my opinion no such inference can be drawn from a plain reading of the relevant passage of the judgment of their Lordships. No doubt, in accordance with the provisions of clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, if a building or premises consists of more residential units than one and if such A units are in possession of several persons, the whole of such building or premises shall be deemed to be a house, unless the Chief Settlement Commissioner orders otherwise. The argument is that unless an order holding that such property consists of more units than one is passed, the power conferred by this provision of law has not been exercised and, hence, where a property is transferred as a single unit by an officer of the Settlement Department to whom such powers have been delegated, he does not exercise the delegated authority in making the transfer. The argument, on the face of it, appears to be plausible, but this argument does not seem to have been advanced before their Lordships of the Supreme Court, nor does the judgment indicate that their Lordships' view was it was only where a property has been held to be divisible that the power delegated by the Chief Settlement Commissioner has been exercised by an officer who has transferred such property. If the order of transfer of property is passed, without determining the plea as to whether the property is divisible or not, the argument might have some force, but where the officer concerned has applied his mind to the question as to whether the property is divisible or not and if he comes to the conclusion that it is not divisible and transfers it as a single unit, it cannot, in my opinion be urged that in doing so he did not exercise the power delegated to him by the Chief Settlement Commissioner under this provision of law. As held by their Lordships of the Supreme Court, therefore, the Settlement and Rehabilitation Commissioner, Karachi, could not have modified the order of the Deputy Settlement Commissioner, who had held that the property was indivisible and had transferred the whole of it to the petitioner.

12. This finding, however, does not conclude the matter, because the question still remains whether the petitioner had a preferential right, as against the respondents and was, therefore, entitled to this property to the exclusion of the other party. As stated in the beginning of this judgment, the petitioner herself is not an allottee of the house in dispute, nor was she in "possession" within the meaning of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Her claim for transfer of this property was based on the fact that her son was an allottee since the 3rd July 1948 and, as such, she was entitled to be considered to be in "possession" because of the provisions of paragraph 1 of the schedule to the aforesaid Act. This paragraph was the subject of interpretation, in Ch. Altaf Hussain and two others v. Shabbir Hussain and two others (P L D 1961 Lah. 449) and it was held therein that a person can take benefit of the possession of his, or her, parent, son, daughter or spouse only if c there is no other applicant, but not where more applicants than one have applied for transfer of the same property. The relevant passage of the judgment is at page 463 of the reported authority and reads as follows:‑ "The intention which the Legislature had in mind was quite clear, namely, that if there is only one application for a house and the applicant is not in possession of the property, he can take the benefit of possession of his parent, son, daughter or spouse and get the property transferred, at a price determined on evaluation basis. If, however, there are more than one applicants, then the one who is a claimant will have preference, as against the one who is not. If both are claimants and both are in possession, the claimant who had obtained prior possession will get preference over the other. In either of such cases the applicant will not be entitled to take benefit of the possession of his parent, son, daughter or souse." This case was taken up in appeal before a Division Bench and the view expressed above was approved by that Bench, as would appear from the following passage at page 203 of the reported judgment The Chief Settlement Commissioner v. Ch. Altaf Hussain and others (P L D 1962 Lah. 189). "Now, the language employed in the opening part of paragraph 1 of the Schedule to the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, makes it clear that an applicant for transfer of a house can take advantage of the possession of a parent, spouse, daughter or son provided the applicant is a claimant and there is no one else to compete with the applicant. The two provisos to the paragraph deal with entirely different situations and come into play only in those cases in which there are more than one applicant for transfer of a house‑a case entirely different from the one to which the opening part of the paragraph is applicable." In view of these two authorities, I am of opinion that as the petitioner was not herself in "possession" of this property within the meaning of the aforesaid Act she could take the benefit of her son's possession if there were no other applicants for this property and not otherwise. The learned counsel for the petitioner, however, contended that even if this interpretation be accepted as correct, as the respondents were not entitled to have the property in dispute transferred, they could not be deemed applicants for the purpose of transfer and, therefore, the whole of the property should have been transferred in favour of the petitioner alone. For deciding this question it is necessary to determine as to whether the contention of the learned counsel is correct that the respondents could not be deemed to be applicants for the purpose of transfer of this property.

13. So far as respondent No. 3 is concerned, the petitioner's contention was that as he waived his right to get the whole of the property transferred and as the property had been held to be indivisible, he could not be deemed to be an applicant for the transfer of this property. A reference to the order dated the 29th October 1959, (Annexure `A') passed by the Deputy Settle ment Commissioner would show that although that officer found this property to be divisible he transferred the whole of it to the petitioner, because, at that stage, respondent No. 3 surrendered his right in favour of the petitioner and stated that his deferred payment was not sufficient to meet the evaluation price of the whole building. After the case was remanded by the Additional Settlement Commissioner and the matter was inquired into by the Deputy Settlement Commissioner, this respondent, again, stated that he was not willing to accept the transfer of the entire property as one unit. When the matter came up before the Settlement and Rehabilitation Commissioner there also this respondent did not ask for the transfer of the whole property, but as that officer held that the property was divisible and as this respondent was willing to get a portion of the property, the flat in his occupation was transferred in his favour. As at no stage this respondent was prepared to get the whole of the property in dispute transferred in his favour, the contention[ raised by the learned counsel for the petitioner is not without force and it can very safely be held that this respondent cannot be considered as an applicant for this property.

14. The claim of respondent No. 4 (Mst. Ejaz Begum) was disputed by the learned counsel for the petitioner on the following grounds (1) That she was not an allottee of the property in dispute and as there was, at least, one other applicant, namely, the petitioner, to whom this property could be transferred, she could not claim benefit of Notification No. F. I. (27)/59‑SI, dated the 13th October 1959, issued under section 2 (6) of the Act, according to which on a fulfillment of certain conditions a person who was not holding an allotment order could be deemed to be in "possession" for the purpose of transfer. (2) This respondent filed an application for transfer on the 31st December 1959, after the time for submission of such applications, which had been extended by Notification dated the 13th October 1959, had expired and no new Notification, but an order, for extension of time for the purpose had been issued on the 26th December 1959. (3) According to Settlement Scheme No. I such applications had to be filed before the Deputy Settlement Commissioner and hence, the Additional Settlement Commissioner to whom this application was presented was not competent to admit it.

15. With regard to the first ground, it was pointed out by the learned counsel for the respondent that the Additional Settlement Commissioner in his order dated the 11th June 1960 (Annexure `D') had held that this respondent had been allotted this property in 1948. The correctness of this finding was disputed by the learned counsel for the petitioner, but as, normally, in exercise of the jurisdiction conferred by Article 98 of the Constitution this Court does not go into disputed questions of fact and as there is nothing on the record to show that respondent No. 4 was not an allottee of this property, it was not obligatory for her to fulfil any of the conditions laid down by the Central Government's Notification, dated the 13th October 1959, issued under section 2 (6) of the Act, and, hence, she could apply for transfer, even if someone else was entitled to the transfer of this property.

16. The second ground raised by the learned counsel, in my opinion, is not without force. On the 19th May 1959, the Chief Settlement Commissioner issued the first notification. under Settlement Scheme No. I inviting applications from claimants, non‑claimants and others for transfer of property under that scheme. This notification has been printed at page 305 of the Manual of Settlement Law and Procedure. According to it, such applications were to be submitted by the 15th July 1959. The period for submission of such applications was extended from time to time and on the 28th October 1959, a notification for this purpose was issued, under which such applications could be submitted by the 10th November 1959. That notification is printed at page 73 of the Manual. On the 26th of December 1959, instead of issuing a similar notification, the Chief Settlement Commissioner passed an order empowering the Additional Settlement Commissioner to continue to accept applications for transfer in "deserving and exceptional cases." The contention of the learned counsel was that as according to section 11 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and paragraph 2 of Settlement Scheme No. I the period within which such applications were to be submitted was to be fixed by notification, the order dated the 26th December 1959, passed by the Chief Settlement Commissioner could not have conferred any such power on the Additional Settlement Commissioners to admit time‑barred applications. No satisfactory reply was given by the learned counsel for the respondent to this contention and, therefore, agreeing with the petitioner's counsel, I hold that after the expiry of the period fixed by the notification dated the 28th October 1959, no fresh applications for transfer of such property could be submitted.

17. The third ground raised by the learned counsel, namely, that the Additional Settlement Commissioner was not compe tent to admit any application for transfer is also not without any force. A reference to paragraph 6 of Settlement Scheme No. I would show that all applications for transfer were to be submitted to the Deputy Settlement Commissioner of the area in which the property in question was situated. That Scheme did not empower the Additional Settlement Commissioner to admit such applications, nor, without amendment of the Scheme could such a power be conferred by the Chief Settlement Com missioner on the Additional Settlement Commissioner. I, therefore, hold that respondent No. 4 could not be deemed to be an applicant for the transfer of this property, although her time barred application was admitted by the Additional Settlement Commissioner.

18. As stated above, Irshad Hussain, respondent No: 5, submitted an application for transfer of the property to the Additional Settlement Commissioner, on the 21st May 1960, which was admitted by him on the 28th May 1960, and on its basis, about two months' afterwards, namely, on the 27th July 1960, the Deputy Settlement Commissioner, without notice to the petitioner, transferred one of the flats in his favour. The correctness of the order passed by the Additional Settlement Commissioner, admitting this time‑barred application, is disputed by the petitioner on the same grounds on which the correctness of a similar order passed in favour of respondent No. 4 is being disputed. For reasons given above I am of opinion that the Additional Settlement Commissioner was not competent to admit this time‑barred application and, hence, this respondent could not be deemed to be an applicant for the purpose.

19. The validity of the order of transfer passed by the Deputy Settlement Commissioner in favour of respondent No. 5 was challenged on two further grounds: it was contended firstly, that no notice was given to the petitioner in whose favour the whole of the property in dispute, except one flat, had been transferred prior to the 27th July 1960, and secondly, that the Deputy Settlement Commissioner in transferring one of the fiats to this respondent, reviewed his previous order without obtaining sanction of the Additional Settlement Commissioner, as required by section 21 of the Act. Both these contentions appear to be correct. There is nothing on the record to show that the Deputy Settlement Commissioner obtained sanction of the Additional Settlement Commissioner, before he reviewed his previous‑ order and transferred one of the fiats to this respondent. There is also nothing on the record to show that any notice was given to the petitioner, before the impugned order was passed. On these two further grounds also the order of transfer passed in favour of respondent No. 5 is liable to be quashed.

20. To sum up, my findings are that the order passed by the Deputy Settlement Commissioner transferring the whole of the property to the petitioner, in exercise of the power delegated to him by the Chief Settlement Commissioner, could not be modified, in revision, by the Settlement and Rehabilitation Com missioner, that respondent No. 3 had waived his right to get the whole of the property transferred and, hence, no part of the property could be transferred in his favour, that the Additional Settlement Commissioner was not empowered to admit the applications given by respondents Nos. 4 and 5, after the period prescribed for the purpose had expired, and that the order of transfer of a part of the property passed in favour of respondent No. 5 suffers from the further defect that that order was passed without notice to the petitioner and without obtaining previous sanction of the Additional Settlement Commissioner. I, therefore, accept this petition, declare that the orders passed by the Additional Settlement Commissioner, the Settlement and Rehabili tation Commissioner and Chief Settlement Commissioner are of no effect so far as the rights of the petitioner in the property in dispute are concerned, quash the order of the Deputy Settlement Commissioner transferring a part of the property in favour of respondent No. 5 and declare that the petitioner shall be entitled to retain possession of the whole of the property, in pursuance of the order dated the 15th March 1960, passed by the Deputy Settlement Commissioner. I further direct the respondents to pay the costs of this petition to the petitioner. n. H Petition accepted.