P L D 1969 Lahore 204 (PLP)

House No. 5‑8‑48, Block No. 14, Sargodha, is occupied by five persons. Two of the five occupants namely, Mangat Ali petitioner and Abdullah respondent No. 2 applied for its transfer. Both these applicants are claimants and in possession of certain portions of the house.

2. The Deputy Settlement Commissioner by his order dated 12.12‑1959 transferred the house as a whole to Mangat Ali petitioner. As regards Abdullah respondent, it was observed that he has put in a Form C.S. for shop in Block No.

3. Aggrieved by this order, Abdullah filed an appeal before the Additional Settlement Commissioner contending that he had filed a C.H. Form for this house as distinct from his C. S. Form for the chop. The learned Additional Settlement Commissioner observed that although Abdullah has consumed most of his claim in getting the shop, however, since the house in question is a double -storeyed building and is easily divisible, it should be divided. Mangat Ali petitioner was given a choice as to which half he would like to have as he had a bigger claim. He was given the half opening on the main road in accordance with his choice while Abdullah was given the other half which had an opening in the gali. Mangat Ali petitioner preferred a revision petition before the Settlement and Rehabilitation Commissioner and his principal objection before him, appears to have been that Abdullah respondent could not get the house as he had completely exhausted his claim while securing transfer of the shop. This contention was not accepted. So far as the question of division was concerned, the Settlement Commissioner observed that the house can be divided conveniently. He further remarked that it has access from either sides and the division made by the Court below cannot be said to be unfair. A further revision was taken to the Chief Settlement Commissioner by Mangat Ali but the same was dismissed without going into the merits on the plea that by the omission of subsection (2) of section 20 in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner had no jurisdiction to determine the matter. The present Writ Petition is directed against the order of the Chief Settlement Commissioner dated 26‑10‑1963.

3. The Writ Petition was admitted to a regular hearing to consider the question :whether a claimant after exhausting his compensation against the adjustment of the price of a piece of a property transferred to him remains a claimant thereafter, to prefer his claim to other properties. A conflict of opinion existed on the point. While in Muhammad Umar Khan v. The Chief Settlement Commissioner (P L D 1963 Pesh. 85) it was held that the entire compensation should be utilised for the transfer of one type of property (shops in that case) and it' thereby such a person's entire claim was exhausted he could not be treated as a claimant for purposes of transfer of another piece of property; a contrary opinion was expressed in the case of Noor Jehan Begum v. Settlement and Rehabilitation Commissioner, Karachi (P L D 1963 Kar. 709) namely that a claimant who has exhausted his claim still continues to be a claimant within the meaning of section 2 (2) and (3) of the his placed Persons (Compensation and Rehabilitation) Act, 1958 and is entitled to take advantage of the benefits arising out of that Act.

4. Learned counsel for the petitioner has stated that the view expressed in the latter case (P L D 1963 Kar. 709) receives support from the observations of the Supreme Court in the case of Abdul Majid Shaida v. Noor Jehan (P L D 1967 S C 221) wherein it has been observed that "even if compensation has been awarded either in cash or in the shape of property, in accordance with the scale fixed, to a claimant, it would riot destroy his status as a claimant, because, on the face of it, the compensation he has received, is only a proportion of his verified claim. The scale is subjected to revision from time to time and the possibility is still open that at some future date, the Government may, if circumstances permit, offer more compensation to the claimants, in respect of unsatisfied portions of their verified claim. In law, therefore, they continue to be 'claimant' as defined in section 2 (2) of the Act." Mr. Muhammad Sharif Baqir has stated that he has no arguments to address on the question on which the writ petition was admitted.

5. The only point raised and strenuously argued by the learned counsel is that the order of division made in this case is arbitrary and in excess of jurisdiction of the Settlement Autho rities and is liable to be declared as without lawful authority. According to the learned counsel neither the Additional Settlement Commissioner nor the Settlement Commissioner has at all adverted to the physical features of the property and although the building is double‑storeyed, it is a small one‑its area being only 5 Mar‑'as. Moreover, it has only one stair‑case, tine courtyard, and was owned and occupied before Indepen dence by a single individual, He further submits that the only ground given for declaring it as divisible is that it has separate accesses. This, it is urged, is not a sufficient ground for declaring the house to be divisible. The orders of the Settlement Authorities for this reason are liable to be quashed. In support of his contention the learned counsel has relied upon Mst. Hameeda Khanum v. Sufi Fazal Muhammad and another (P L D 1966 Lah. 139) wherein an order made by the Settlement Commissioner declaring the property to be divisible horizontally and directing certain alterations and other constructural changes in the property was held to be outside the scope of the authority, conferred under subsection (4) of section 2 of the Act. In the above cited case, it may be mentioned that the Chief Settlement Commissioner in revision had reversed the order of the Settlement Commissioner dividing the house and had declared the property to be indivisible. A writ petition was filed in the High Court wherein the action of the Chief Settlement Commissioner was challenged flu the ground that the order of the Settlement Commissioner dividing the property having been passed in exercise of the delegated powers of the Chief Settlement Commissioner, the said order of division could not have been interfered in the second revision petition and in this connection the case of Jalal Din (P L D 1965 S .C 261) was relied upon. The High Court held that although the Chief Settlement Commissioner could not have interfered with an order of division but found that the order of the Settlement Commissioner was beyond the scope of the powers contained in subsection (4) of section 2 of the Act and, therefore, the order of the Settlement Commissioner was liable to be quashed. This part of the decision of the High Court has been disapproved by the Supreme Court in the appeal taken from the said decision, and it has been observed:-- "The learned Judges said that before the Settlement Commissioner could exercise his powers to order transfer of a house as to two residential units, it was necessary for him to hold that there were in fact two residential units and that without holding to this effect the Settlement Commissioner had created two residential units by directing certain constructions and alterations, which was beyond his power. Speaking with due respect, that was not a sufficient ground on which the High Court coin? have avoided the duty under Article 63 of the Constitution to treat the decision of the Supreme Court in Jalal Din's case as binding, whenever the question came before it whether an order under the first proviso to section 2 (4) made by a delegatee was subject to the provisions of Chapter VI. The house in question was actually occupied in parts by two separate claimants, and in the absence of an order declaring that it was to be treated as divisible, it had to go as a single unit. Such an order had been made in the exercise of delegated power and the rule laid down by the Supreme Court in Jalal Dan's case was directly applicable at the time when the High Court pronounced its judgment, namely, that the order was not subject to revision on the point of divisibility before any superior Settlement authority." Mst. Hamida Khanum v. Sufi Fazal Muhammad P L D 1968 S C 101 at p. 111.

6. The next ruling relied upon is Muhammad Iqbal Khan v. The Chief Settlement Commissioner and another (P L D 1965 S C 404). The obser vations made therein can the crucial question, in fact, run counter to the contention of the petitioner for it bas been observed in this ruling: "the learned counsel for the respondent appears to be contending that residential unit only means the place where all or most of the amenities needed in a comfortable residence are provided. If this contention were accepted a very large number of persons in this country would not be residing in any residential unit."

7. Reliance was placed also on Nazeer Ahmad v. Mst Sakina Bibi (P L D 1966 Lah. 264.) and Muhammad Ismail and another v. Chief Settlement Commissioner (P L D 1966 Lah. 326). In the first case it was held that the question whether a house is divisible or not is eminently within the jurisdiction of the Chief Settlement Commissioner or his delegate, but support was derived from the observation that "it may be dated that the Settlement authorities have given cogent reasons for their refusal to divide the house and, therefore, it is not a case where they have acted arbitrarily or capriciously in refusing to exercise the power vesting in them under the proviso mentioned above." While in the latter case, it was observed that when the Settlement authority has acted in an arbitrary manner, the question may arise whether such an arbitrary exercise of power should tie scrutinised by the High Court, in exercise of writ jurisdiction.

8. The examination of the rulings cited by the learned counsel for the petitioner shows that the proposition he is canvassing, viz., that the matter of divisibility can be questioned by this Court, in exercise of the jurisdiction under Article 98 of the Constitution, is not correct. No doubt it has been observed in some authorities that in the case of an arbitrary of capricious exercise of power, the High Court may scrutinize such an order, in the exercise of writ jurisdiction. This would be an exceptional case, and no precedent in this behalf exists, other than that of Mst. Hameeda Khanum where in the final order made by the Settlement authority itself was that the property was indivisible. An overwhelming onus would lie on the party which asserts that an order pronouncing a house to be divisible is arbitrary. In this case no such arbitrariness is evident. Five families have been residing in this property since 1947 and it transfer to two persons by division of the house into two portions, when separate accesses are available on both sides, can hardly by termed as arbitrary. Both the Additional Settlement Commissioner and the learned Settlement Commissioner have sound tar; house to be conveniently divisible. In these circumstances, the contention that the order dividing the house are arbitrary or in excess of jurisdiction is without merit.

9. Malik Amjad Hussain, learned counsel for the respondent No. 2, raised the objection that in the writ petition it is only the order ref the Chief Settlement Commissioner that has been challenged and the orders of the Settlement Commissioner and the Additional Settlement Commissioner have not been impugned. Since tae Chief Settlement Commissioner only held that he had no jurisdiction to hear the second revision petition, the quashment of his order was of no benefit to the petitioner, since it was only in the orders of the Additional Settlement Commissioner and the Settlement Commissioner that the house was directed to be transferred in parts. These orders, it is urged, not having been challenged in the writ petition, the petitioner is precluded from assailing their correctness at the hearing. A perusal of the writ petition bears out the correctness of this objection as no order except that of the Chief Settlement Commissioner has been challenged therein. However, the petitioner has attached copies of the order of the Additional Settlement Commissioner and the Settlement Commissioner smith the writ petition and has prayed fear the transfer of the whole house in has favour. This prayer cannot be granted unless the orders of the Additional Settlement Commissioner and the Settlement Commissioner are put out of the way. Consequently, the validity of these orders has been challenged impliedly. In this connection reference may be made to S. Abul A'la Maudoodi etc. v. The Government of West Pakistan etc. (P L D 1964 S C 663 at p. 791) where in the judgment of his Lordship Mr. Justice Hamoodur Rehman it was observed: "the prayer, as framed in the petition, is sufficiently wide and, in any event, the Court is not powerless to grant the relief that the justice of the cause requires to the same extent as if it had been asked for." I hold, therefore, that the writ petition cannot be held incompetent only because of the omission of the petitioner in not praying for the quashment of the orders passed by the Additional Settlement Commissioner and the Settlement Commissioner.

10. The upshot of the above discussion is that the writ petition stands dismissed. However, in the circumstances, there will be no order as to costs. Petition dismissed.