P L D 1967 Karachi 292 (PLP)

This writ petition is directed against the order of the learned Settlement and Reh4bilitaticn Commissioner, Karachi, Hyderabad and Khairpur Division dated the 29th of September 1962.

2. The brief facts are that the dispute premises C. S. No. D‑1630/31 situated on Station Road, Sukkur, consists of two tenements, a shop on the ground floor and residential premises above it. The entire premises were allotted to the petitioner on 17‑4‑1949. The ground floor premises were in the occupation of one Abdul Aziz who is not a party to these proceedings. The petitioner filed an NCH form and Abdul Aziz an NCS form in respect of the premises in their occupation. On the 27th of August 1960, the Deputy Settlement Commissioner held Abdul Aziz to be a local and, therefore, not entitled to the property. He ordered the transfer of the entire premises to the petitioner "whose NCH form may be treated as NCH form" on an appeal filed by Abdul Aziz. The learned Additional Settlement Commissioner on the 12th of November 1950, held that the property was situated in a predominantly commercial area and that Abdul Aziz's case was not considered on the plea that he was a displaced person, and if the Deputy Settlement Commis sioner was convinced that it was a commercial area, he should have transferred the house to the petitioner Abdul Ghani and the shop should have been put to auction. He, however, reversed the finding with regard to the status of Abdul Aziz, holding that he was x displaced person and, therefore, entitled to the transfer of the shop which he ordered accordingly. In revision, the learned Settlement Commissioner in the impugned order dis agreed with regard to the status of Abdul Aziz holding that he was a local and therefore, "not entitled for the transfer of a commercial unit." He was also of the view that the petitioner was not entitled to the transfer of the shop as be was not in occupation of it. Consequently he ordered that the shop pre mises of the ground floor he disposed of by auction.

3. In the admitting note the point for consideration was whether the Settlement Commissioner could set aside the finding of the Deputy Settlement Commissioner, the delegates of the Chief Settlement Commissioner, that the premises in dispute is a shop.

4. Mr. Wasim Rizvi appearing for the Settlement Depart ment has referred to Ordinance 18 of 1965 "The Displaced Persons Laws Amendment Ordinance, 1965, which amended section 31 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958, adding subsection (3) to it, which reads as under:‑ "(3). Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) shall be, and be deemed always to have been, subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Commissioner, Additional Deputy or Assistant Settlement Commissioner, as the case may be, is so subject." This amendment therefore gives the Settlement Commissioner the authority to review or revise orders passed by any of his delegatees as under subsection (3) of section

31. It is clear therefore that the impugned order dated the 29th of September 1962, was passed by the Settlement Commissioner having the jurisdiction to do so.

5. Learned counsel for the petitioner has, however, argued that if the impugned order is held to be with jurisdiction, the learned Settlement Commissioner, in the context of the admitted facts of the case fell into an error in not ordering the transfer of the shop premises to the petitioner. The petitioner was considered to be disentitled to its transfer as he was not in occupation of the shop premises. Mr. Wasim for the respondents concedes that for purposes of transfer of these premises, possession or occupation of them is not necessary, nor a condition precedent.

6. Learned counsel for the petitioner refers to the instruc tions for the transfer of houses and shops dated the 22nd of October 1959, and the broad principles set out by the Chief Settlement Commissioner to be kept in view while disposing of houses and shops (Cf. p. 610 of the New Manual) and contends that in accordance with these instructions as contained in cl. 2 (c) at page 612 "a building consisting of one business unit and one residential unit above it, if situated in a predominantly commercial area, should be treated as a shop and the whole building transferred as a shop".

7. There is a concurrent finding that the disputed premises is situated in a predominantly commercial area. The trend of the orders is to treat the entire premises as one unit. There is no specific finding that the house should be divided and treated as two independent units. The learned Settlement Commissioner has referred to the premises as a Commercial Unit. In these circumstances, in my view, it has very rightly been urged that these disputed premises consisting as they do of a business unit and a residential shop above it in a predominantly commercial area, must be treated as a shop, the entire building should be transferred to the petitioner as a shop in consequence of the finding of the learned Settlement Commissioner in respect of Abdul Aziz.

8. Mr. Wasim for the respondents has urged that the impugned order is with jurisdiction and even if it be erroneous it cannot be interferred with. This contention is without substance for if Abdul Aziz has been held to be a local and the shop premises are a commercial unit in a commercial locality, the consequent finding must not be in conflict with the settlement law and the rules and directions in regard to it. According to the notification already referred to the entire premises had to be treated as shop premises and should have been transferred to the petitioner. The observations of Wahiduddin, J. in Pakistan Tobacco Co. v. The K. M. C. (P L D 1964 Kar. 468) relied upon by Mr. Was" to the effect that in writ jurisdiction Courts have declined to investigate disputed facts, do not help the respondent for the facts in the present case are not disputed, and the finding that Abdul Aziz is a local, has not been assailed.

9. It is also urged in this Petition that the decision of this Writ Petition must rest upon the sole point framed for considera tion, namely, the jurisdiction of the Settlement Commissioner. This ground is also without substance as the petition in pares. 9 and 10 of his Petition has clearly stated one of its grounds to be that the property in dispute should be considered to be one unit, that it being one unit its division into two unit, was erroneous and contrary to the Settlement Law and cannot therefore be set down in furtherance of the earmarking scheme for auction. The order of the Deputy Settlement Commissioner, Sukkur dated the 27th of August 1960, was clearly in consonance: of the spirit and the directions of the notification dated the 22nd of October 1959.

10. The result is that the order passed by the Settlement Commissioner dated the 29th of September 1962, is illegal and is set aside. The petitioner is therefore entitled also to the transfer of the shop premises by virtue of the P. T. O. in his favour dated the 16th of September 1959.

11. The petition is allowed with costs. K.M.A. Petition accepted.