1976 PLP 469 (SCMR)

HAMOODUR RAHMAN. C. J.‑The dispute in this case relates to property bearing No. P. 148 its Ward No. 4 of Lyallpur.; It is a single‑storied building comprising of a shop opening eon the Chiniot bazar and a residential portion behind the shop opening on to street No. 7, the petitioner war living in the residential portion as a tenant from before Independence. When settlement operations started, he filed an alleged form and the respondent No. 4 filed a C. S. for the shop, but the Additional Deputy Settlement Commissioner transferred both The shop and the residential por tion to the respondent No. 4, eliminating the petitioner on the ground that he was not destitute. An appeal riled before the Additional Settlement Commissioner by the petitioner was dismissed not only on the ground that it was barred by time but also on merits on the ground that the petitioner being a local who had inherited property from his parents was not eligible for the transfer. The Additional Settlement Commissioner, however, took exception to the trans fer of the residential portion to respondent No. 4 on his C. S. form arid, therefore, directed that the said portion be taken away from him and be placed on the auction list. On the 9th of August, 1961, the restrictions relating to the transfer to locals were relaxed by the Chief Settlement Commissioner's, memorandum No. 3033‑PL (49)‑Reh/61, and the petitioner thereupon filed a fresh application on the 22nd of September, 1961, for a review of the order passed in appeal by the Additional Settlement Commissioner. The Additional Settlement Commissioner actually sought permission of the Settlement Commis sioner to review the order. During the pendency of this review, the: respondent No. 4, on the 13th of February, 1962, bled a revision before the Settlement Commissioner, and on the 13th of February, 1962, the Settlement Commissioner accepted the same and upheld the transfer of the entire property to the said respondents, because, he was a displaced person and the whole property was one unit. On, coming to know of this order, tint petitioner, on the 14th of February 1962, filed another application for the review of that order alleging that he, had no notice of the revision proceedings and that his earlier review applica tion was still pending before the Additional Settlement Commissioner. This was rejected by the Settlement Commissioner on the 2nd of April, 1962 on the ground that, since a claimant displaced person was in possession of the property which was really one complete unit, the local could not get any share. The petitioner challenged this order by a writ petition in the former High Court of West Pakistan, Lahore seats. A learned Single Judge dismissed tae petition on the 13th December, 1965, and this decision was upheld in Letters Patent appeal on the 14th of June. 1973. The petitioner now seeks special leave to appeal, and it is contended on behalf of the petitioner that, under the second proviso to subsection (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. it is a condition precedent to the transfer of a composite building that the Settlement Commissioner should by order first deride also whether the premises should be deemed to be a shop or a house and then whether one shop or ore house. In the present case there is no decision as to whether it is a shop or a house and, therefore, without such a decision, no order for the transfer of the property could have been made. In support of this contention reliance is also placed on a decision of this Court in the case of Abdul Majid v. Chief Settlement Commissioner (P L D 1976 S C 437) where it was held that such a decision is indeed a condition precedent to the transfer of the premises. In the present case, however, there is another difficulty in the way of the petitioner. It appears that h9s appeal before the Additional Settlement Commissioner was dismissed, ore the 5th of November, 1960, not only can the ground that he was ineligible for the transfer of the property but also on tile ground that the appeal was time‑barred. Now, thin order, the petitioner did not challenged. He only applied for a review of that order on the 22nd of September, 1961, on the basis of the relaxation made by Chief Settlement Commissioner's memorandum dated 9th August, 1961. On merits, therefore, the appellate order of the Additional Settlement Commissioner became lineal. Nothing further could be done thereafter. In the circumstances, we see no merit in this petition which is accordingly dismissed. Petition dismissed.