P L D 1971 Supreme Court 498 (PLP)

The appellant has challenged this order in this appeal before us. Special leave was granted in this case to consider the question whether the High Court was justified in setting aside the order of the Settlement Commissioner on a technical ground when it had the effect of granting rights which were founded by law. Most of the time of this Court was taken by Mr. Mahmood Ali Qasuri, learned counsel for the respondent No. 2, to show that the portions of the property in dispute in possession of Nawazish Ali and Mohammad Alam have been transferred to Fateh Mohammad respondent No.

2. The contention of the. learned counsel has no force. The Chief Settlement Commis sioner's order dated the 22nd January 1961, is quite clear on this point. In para. 6 of his order, he observed as under :- "

6. Fateh Muhammad is occupying portion of ground 8oor. He is an allottee of the portion occupied by him. It has a separate access. He is, therefore, entitled to the transfer of the potion occupied by him as well as Sh. Khur aheed Muhammad.

7. The order of the lower Court is modified and this revision petition is accordingly accepted to the extent indicated above." It is thus quite clear that Fateh Muhammad was transferred the portion in his possession and the portion which was in posses sion of the appellant. It was for this reason that he moved the Miscellaneous application on the 7th June 1961, in which he alleged asunder :- "That the above said order does not show anything about the rooms occupied by Messrs Nawazish Ali and Muhammad Alam who neither filed any LH, CH or NCH Forms nor had contested at any stage and the rooms occupied by them admittedly fall within the portion as transferred to the petitioner." It was in this context that he prayed that the order dated the 22nd January 1961, be modified to the extent mentioned above. The decision of S. A. Mahmood, J. in Writ Petition No. 751-R of 1964, decided on the 15th June 1966, also shows that the portions in possession of Nawazish Ali and Mohammad Alam are still undisposed of. The learned Single Judge, in this connec tion, observed as under :- "The remaining rooms which were in possession of Sh. Khursheed Mohammad, Nawazish Ali and Mohammad Alam will have to be disposed of by the Settlement Commissioner as suggested by Syed Ijaz Hussain Shah." The decision in respect of these rooms was not challenged by Fateh Mohammad respondent No. 2 in any appeal before the Letters Patent Bench or before this Court. In these circumstances, the decision of the learned Single Judge on this point has become final and cannot be reagitated in these proceedings. The result of this discussion is that rooms Nos. 7, 4 and 3 and two verandahs on either side and courtyard falling on the right of red-line (G, E, F, D, C & H), mentioned in the order of Mr. Saeed-uz-Zaman dated the 17th March 1964, remain still undisposed of. Mr. Abdul Mannan, learned counsel for the appellant has contended that the petition moved by the appellant before the Chief Settlement Commissioner was a Miscellaneous application under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, and was not a review petition as has been mentioned in some of the orders of the Settlement authorities. According to the learned counsel, there was no question of limitation and, therefore, the High Court was not justified in holding that the order of the Settlement Commissioner was liable to be set aside as he has not applied his mind to this aspect of the case. On the other hand, Mr. Mahmood Ali Qasuri, learned counsel for respondent No. 2, has contended that it was a review petition and it was barred by limitation and was liable to be dismissed on this ground. After hearing the learned counsel for the parties, I am of the opinion that the contention of Mr. Abdul Mannan, learned counsel for the appellant, appears to be correct. As has been pointed out earlier, Peer Ahsan-ud-Din did not pass any order in respect of the portion occupied by Nawazish Ali and Mohammad Alain. The appellant, therefore, was perfectly justified in drawing the attention of the learned Chief Settlement Commissioner to this omission and asking him to transfer the undisposed of portion to him as he was in occupation of a part of the property in dispute. Such an application cannot be described as review application. It was for this reason that it was not treated as review application. It was a Miscellaneous application and the learned Chief Settlement Commissioner was quite competent in entertaining it. Similarly, the application filed by Fateh Mohammad was also not a review petition. It was also a Miscellaneous application by which he prayed the Chief Settlement Commissioner to transfer the portion in possession of Nawazish Ali and Mohammad Alam, to him. Mr. Abdul Mannan, learned counsel for the appellant, next contended that the learned Chief Settlement Commissioner has not applied his mind to the submission made by the appellant and has concurred with the view of the Settlement Commissioner (Policy), without expressing his own opinion. According to the learned counsel, in such circumstances, the learned Chief Settlement Commissioner cannot be said to have exercised the jurisdiction vested in him in accordance .with law and there was no proper disposal of the Miscellaneous application filed before him. In support of his contention, he has relied on a decision of this Court in the case-of Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others (PLD 1964 SC 829). At page 840, this Court observed as under "All the connected applications concerning the transfer of this house were also put up and attention of the Chief Settlement Commissioner was drawn to the fact that respondent No. 3's entitlement appeared to have somehow undergone an improvement at the review stage, although in the previous order the same Settlement Commissioner had himself doubted the validity of the said respondent's claim and transferred a portion of the house to him purely on humanitarian grounds. A second inspection of the premises was, in the circumstances, suggested. This was done by the Settlement Commissioner (Policy), but the latter in his note only dealt with the question of the divisibility of the house and proposed that all the petitions should be rejected. In these circumstances, we are of the opinion, that it behoved the Chief Settlement Commissioner to apply his own independent mind to the questions raised before him and to deal with the three revision petitions put. up before him in accordance with law. By merely countersigning on the note of the Settlement Commissioner (Policy), we are clearly of the view, the Chief Settlement Commissioner had not exercised the jurisdiction vested in him in accordance with law and that there was no proper disposal of the revision petitions filed before him." The contention of the learned counsel appears to be well founded. As the Chief Settlement Commissioner, in the present case also merely countersigned the note of the Settlement Commis sioner (Policy), it cannot be said that he exercised the jurisdiction vested in him properly. Under the circumstances, the order of the Chief Settlement Commissioner dated the 4th June 1963, is illegal and void and has no validity in the eye of law. On this view of the matter, the contention of the learned counsel for the appellant that Mr. Saeed-uz-Zaman had jurisdiction to transfer the portions in possession of Nawazish Ali and Mohammad Alam, to the appellant has no force. Mr. Saeed-uz-Zaman's source of authority, was an order which is without jurisdiction and, therefore, any order passed by him cannot be treated as valid order. Apart from this, it is doubtful if the Chief Settlement Commissioner had directed the Settlement Commissioner to dispose of the portion in possession of Nawazish Ali and Mohammad Alam. No such direction was given in the order dated the 4th June 1963. In view of this, the High Court was perfectly justified in setting aside the order of Mr. Said-uz-Zaman. Mr. Mahmood Ali Qasuri, learned counsel for the respon dent No. 2, has urged that the appellant has no locus standi as he is a non-allottee and his claim has been rejected by the Settlement authorities and the High Court. In my opinion, this contention has no force. The order of Masud Ahmad, J., produced in the earlier part of the judgment, clearly shows that the claim of the appellant was rejected by him on the ground that he was held to be a non-allottee by the Settlement Commissioner. The distinction between an allottee and non-i allottee is no longer of any importance. This question was considered by this Court in the cases of Barkat Ali v. Muhammad Sharif and another (PLD 1966 SC 817) and Abdul Majld Shaida v. Mst. Noor Jehan and another (PLD1967 SC 221). It was held in these cases that a person holding an allotment order and the person in undisputed occupation of a portion of property stands on the same footing and that a person having an allotment order cannot have preference on a person who is a non-allottee. In the last mentioned case, it was observed at page 230, as under : . "The alternative stand, adopted by Mr. Lari, on behalf of the appellant, that as his client's son was an allottee, whereas the respondent was merely in possession without an allotment order, the former was to be preferred to the latter. has no legal basis, in the face of the decision of this Court in Barkat Ali v. . Mohammad Sharif. If the respondent was in undisputed occupation of the house, within the meaning of the notification, dated the 13th of October 1959, by which the definition of `possession' was extended so as to include within it, persons in undisputed occupation, subject to certain conditions, then she could not be defeated by the appellant, merely on the ground that his son, who was an occupant of the house, held an allotment order in his favour." Thus it is quite clear that the claim of the appellant was wrongly rejected on the ground that he was a non-allottee. Mr. Mahmood Ali Qasuri, learned counsel for respondent No. 2, has further urged that the portion in possession of the appellant has been transferred to respondent No. 2 and, there fore, he has no locus standi to the transfer of the portions of the -property which are still undisposed of. This contention has not impressed me. It cannot be denied that the appellant is in physical possession of one room and one garage. His possession in respect of garage may be disregarded but his possession in respect of one room of the property in dispute cannot be ignored. On the basis of his possession to a part of the property, he is entitled to get transfer of other portions of the property. This aspect of the question was considered in the case of Altaf Hussain and others v. Chief Settlement Commis sioner, Pakistan and others (PLD 1965 SC 68). It was held in that case th4t a person in possession of one room is entitled to get his claim determined in respect of the rest of the house. In this connec tion, this Court observed as under :- Initially, it appears, .he had based his claim in the first form on the possession of his son under an allotment. Later, he seems to have realized that he might fail on that ground in competition with an actual allottee in possession, unless he could show an equally good title in himself. He then by means of this second C. H. Form merely tried to comply with a formality in order to be able to draw attention to the fact that not only his son was in possession as an allottee but that he himself occupied a similar position in respect of a room in the same house. If that fact was in existence at all relevant times, it had to be taken notice of before the contentions of the parties could be placid in their proper perspective." In my view; the appellant can still claim the undisposed of portion of the property in dispute on the basis of his possession of one room in the property in dispute. Mr. Mahmood Ali Qasuri, learned counsel for respondent No. 2, also contended that according to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a person cannot claim more than what be has claimed in the C. H. Form. He referred to the C. H. Form filed by the appellant and contended that he had only claimed the portion in his possession. I have referred to the C. H. Form submitted by the appellant and in the note appended to the C. H. Form-it is stated as under :- "Portion occupied is quite incommodious for a big family of 9 members, some members of which do reside with the relatives and I would therefore request to provide chances for other commodious house." It is quite clear from this note that the appellant wanted to have a more commodious portion than the one which was in his possession. It cannot, therefore, be said that he is estopped from claiming any other portion of the property in dispute. After hearing the arguments of the learned counsel for the parties, I am satisfied that the Chief Settlement Commissioner has not exercised the discretion vested in him properly. He had merely countersigned the suggestion made by the Settlement Commissioner (Policy). I would, therefore, remand the case back to him to consider the claim of the appellant in respect of the portion of the property which is still undisposed of. In the result, the appeal is allowed to the above extent. In the special circumstances of the case, the. parties will bear their own costs. M. R. KHAN, J.-I agree. SALAHUDDIN AHMED, J.-I agree. Appeal partly accepted.