P L D 1962 (W (PLP)

SHABIR AHMED, A. C. J.‑Third appeal under clause 10 of the Letters Patent of this Court is directed against the order passed by my learned brother S. A. Mahmood on the 7th of November 1961, whereby he accepted Writ Petition No. 178‑R of 1961, which had been presented by Dr. Abdur Rauf with a view to having the order of the Chief Settlement Commissioner dated the 16th of January 1961 and that of Mr. Farzand Ali Khan, Settlement Com missioner, Lahore, dated the 28th of April 1960, made ineffective so that Mr. N. M. Khan and his wife, who were respondents Nos. 2 and 3, respectively, in the writ petition, should not Interfere with his possession. The appeal has been presented by Mr. N. M. Khan and his wife with a view to having the writ issued by the learned Judge in Chambers quashed and the order of the transfer of some property made in favour of Mr. N. M. Khan restored. The Chief Settlement Commissioner has been impleaded, as respondent No. 1 and Dr. Abdur Rauf as respondent No. 2.

2. The dispute relates to a house situate on the Empress Road, Lahore. This house, which has been described in the official documents as bungalow No. 47, Empress Road, Lahore, had been allotted in the year 1955 to Dr. Abdur Rauf. Before Dr. Abdur Rauf was allotted bungalow No. 47, it had been in posses sion of some other persons, of whom two were Mr. Ansari and Mr. Sardar Hussain. Contiguous to bungalow No. 47, Empress Road, Lahore, is a house known as bungalow No. 45, Empress Road, Lahore. This house was given to Mr. N. M. Khan, who is a senior member of the Civil Service of Pakistan, on the 13th of October 1953, on an entirely temporary basis. The order by which Bungalow No. 45, Empress Road, Lahore, was given to Mr. N. M. Khan a copy of which order is on the record of the writ petition as Annexure `B', contained a clear stipulation that the allotment made in his favour will hold good only for such time as Mr. N. M. Khan is unable to get any residence at his place of posting and with the further stipulation that Mr. N. M. Khan's family will stay in Model Town in the house of Mr. Masud, a member of the Civil Service of Pakistan, who was then Secretary of Agricultural in the Punjab, and Mr. Masud will be allowed to stay in No. 45, Empress Road. Though the order of allotment in favour of Mr. N. M. Khan dated the 13th of October 1953, was to hold good only till such time as he did not get any accommoda tion at the place of his posting, bungalow No. 45, Empress Road, Lahore, appears to have remained in his possession through his family in spite of the fact that when he was posted as Chief Com missioner, Karachi, he was provided with an official residence. When applications were invited for transfer of houses under the provisions of the Displaced Persons (Compensation & Rehabilita tion) Act, 1958, Mr. N. M. Khan put in a form duly filled up. This form, which was an application for transfer of a house to him, made it clear that it was for 45, Empress Road, Lahore. This form known as Form C H‑House, by which is meant a form for transfer of a house put in by a claimant displaced person, contained 16 questions which had to be answered and one of these questions, namely, No. 10, was to the effect whether the house or part thereof was in the occupation of any person other than the applicant and his family, and i4 it was, what the name of such person was. Opposite this question Mr. N. M. Khan, as is clear from a copy of his application which is on the record as Annexure `C', made the following entry :‑ "A small portion is occupied by another family." Mrs. N. M. Khan also put In a form CH‑House for No. 45, Empress Road, Lahore. Against, question No. 10 of the form, the entry made by Mrs. N. M. Khan was "No", which meant that no part of the house for the transfer of which she was applying was in possession of any other person. The application of Mrs. N. M. Khan, which appears to have been sent from Lahore, bore the date 14th of July 1959, while that of Mr. N. M. Khan bore the date 21st of July 1959. Dr. Abdur Rauf, respondent No. 2 in this appeal, also put in an application for the transfer of bungalow No. 47, Empress Road, Lahore. This application was on Form. NCH‑House, because, though a displaced person, he was not a claimant. In the first instance, the three applications were considered by Deputy Settlement Commissioner, Lahore‑1, who by his order dated the 13th of January 1960, transferred bungalow No. 47, Empress Road, Lahore, to Dr. Abdur Rauf and bungalow No. 45, Empress Road, Lahore, to Mr. N. M. Khan. Against the order of the Deputy Settlement Commissioner by which bungalow No. 47, Empress Road, Lahore, had been transferred to Dr. Abdur Rauf, Mr. and Mrs. N. M. Khan presented an appeal in the Court of the Additional Settlement Commissioner, Lahore. This appeal was dismissed on the 9th of February 1960, by Lt: Col. J. D. Malik, Additional Settlement Commissioner, Lahore, who held that bungalows Nos. 45 and 47 were two separate houses and even h if they were deemed to be one house, the house was conveniently divisible into two parts. Against the order of Lt. Col. J. D. Malik, Mr. and Mrs. N. M. Khan presented a petition for revision. This petition was heard by Mr. Farzand Ali Khan. Settlement and Rehabilitation Commissioner, Lahore Division, who by his order dated the 28th of April 1940, accepted it and directed that both , bungalows Nos. 45 and 57, Empress Road, Lahore, be transferred "to the petitioner." Mr. Farzand All Khan, appears to have overlooked that not one person but two persons had presented the petition for revision which he was disposing of, but it is clear that his intention was that bungalow No. 47, which was held by him to be an annexe of bungalow No. 45, should be given to Mr. N. M. Khan along with bungalow No.

45. Against the order of Mr. Farzand Ali Khan, Pr., Abdur Rauf presented a petition for revision under Section 20(2) of t13e Displaced Persons (Compen sation & Rehabilitation) Act, 1958 . This petition for revision was dismissed by Pir Ahsan‑ud‑bin, Chief Settlement and Rehabilitation Commissioner, Pakistan, on the 16th of January 1.961. The main reason given by Pir Ahsan‑ud‑Din for his order was that Bungalow No. 47 was an annexe of bungalow No. 45 and conse quently it was desirable that the bungalow and the annexe should go to one person.

3. In the writ petition presented by him, Dr. Abdur Rauf asserted, inter alia, that the fact that Mr. N. M. Khan was a senior and influential member of the Civil Service of Pakistan was the reason for his getting as one house buildings which were actually two houses. He also made a number of other assertions with a view to showing that the order passed lay the Chief Settlement Commissioner as also that passed by Mr. Farzand Ali Khan, Settlement and Rehabilitation Commissioner, Lahore Division, were unsustainable. After considering the material placed before him, my brother, S. A. Mahmood, came to the conclusion that bungalow No. 47, Empress Road, Lahore, was not a part of bungalow No.

45. If this finding is correct, there can hardly be any doubt that Dr. Abdur Rauf was entitled to get bungalow No. 47, because the Displaced Persons (Compensation & Rehabilitation) Act, 1958, does not countenance the transfer of two houses to one person.

4. Sheikh Abdul Haq, learned counsel for the appellants, contended that as the question whether or not bungalow No. 47 was a part of bungalow No. 45 was purely one of fact, the learned Judge in Chambers traveled outside his jurisdiction when he entered on the determination of the question whether or not bunga low No. 47 was a part of bungalow No. 45 and that the appeal merited acceptance on the short ground that the learned Judge in Chambers had passed an order which he had no jurisdiction to pass.

5. If the contention of the learned counsel for the appellants that the learned Judge in Chambers had no jurisdiction to' go into the question whether or not bungalow No. 47 was a part of bungalow No. 45 is accepted, it is obvious that the appeal must succeed. I would, therefore, examine the soundness of this con tention of learned counsel for the appellants. It is hardly open to question that the power that a Tribunal authorised to issue a writ can exercise when dealing with an application for issue of a writ is much less in its scope than the power which a Tribunal which can hear an appeal or a revision petition can exercise. Learned counsel for the appellants was, therefore, right in saying that ordinarily a Court called upon to issue a writ has to accept as correct the findings of fact given by a Tribunal of exclusive jurisdiction. This., however does not mean that the findings of fact given by a Tribunal of exclusive jurisdiction are sacrosanct under all circumstances. I am clear in my mind that if a Tribunal of exclusive jurisdiction had when arriving at a finding of fact, misread the evidence, or had considered evidence which could not have been considered at all, or had failed to consider evidence which It was bound to consider should have considered, the finding of the Tribunal of exclusive jurisdiction cannot claim immunity from examination by the Court which possesses power to issue a writ against orders of a Tribunal of exclusive jurisdiction. My brother, S. A. Mahmood, was of the view that Mr. Farzand Ali Khan, Settlement and Rehabilitation Commissioner, Lahore Division, and Pir Ahsan‑ud -Din, Chief Settlement & Rehabilitation Commissioner, West Pakistan, had, without considering some material facts, given the finding that bungalow No. 47 was a part of bungalow No.

45. If the finding of the learned Judge in Chambers that material evidence which ought to have been considered had been ignored be correct, the contention of learned counsel for the appellants that the learned Judge had passed an order which he had no jurisdic tion to pass must fail.

6. Learned counsel for the appellants contended that at the time of the Partition of British India into Pakistan and India, the property comprised of bungalow No. 45 and bungalow No. 47, Empress Road, Lahore, belonged to Mst. Shakuntala Devi, who is a non‑Muslim evacuee and that though separate members, bunga low No. 47 and bungalow No. 45, were given to these buildings, they were both in fact one property and one house, the former being no more than an annexe to the latter house. He also referred to certain plans put in by former owners of the property in the office of the Municipality for the purpose of getting permission for building and wanted it to be inferred that bungalow No. 47 was but an annexe to bungalow No. `

45. I might mention that bungalow No. 45 came into existence long after bungalow No. 47 was built. It may be that bungalow No. 47 was originally an annexe to another house, but the fact remains that bungalow No. 45 was built long after bungalow No. 47 was. In these circumstances, very cogent evidence would be required for a finding that bungalow No. 47 was an annexe to bungalow No.

45. If the contention of learned counsel for the appellants had any force, almost the whole of it is lost when one takes into consideration some circumstances which are patent on the record. Some of the circumstances are these: ‑ (1) Ever since 1945, bungalows Nos. 45 and 47 have been treated as two houses. (2) When bungalows Nos. 45 and 47 were requisitioned under the Defence of India Rules, each was given to a different Government servant ; the occupant of bungalow No. 45 being Mr. N. B. Bach I. C. S. and that of bungalow No. 47 one Mr. R. K. Sehgal, whose precise official position is not known, though it cannot be doubted that he was a public servant. (3) When British India was partitioned, bungalow No. 47 was treated as a distinct entity from bungalow No. 45 and was allot ted to a person other than the one who was allotted bungalow No. 45. (4) In the registers of the Excise & Taxation Department the two bungalows are dealt with separately. (5) Even in the application which Mrs. N. M. Khan put in, it was not claimed that bungalow No. 47 was a part of bungalow No.

45. Can it be doubted that these circumstances prove beyond question that bungalow No. 45 and bunglow No. 47, Empress Road, Lahore, are two houses. Some at least of these circumstances, each one of which is weighty, have not been considered by Mr. Farzand Ali Khan and the Chief Settlement Commissioner. It was mentioned in the order of Mr. Farzand Ali Khan that the policy was that a bungalow ‑ should be transferred as a whole. The reasoning, coming as it does from an officer of a department which has divided houses in manners which very few people consider reasonable, is not convincing at all and cannot be given any weight. 7, Learned counsel for the appellants urged that under the law as it stands it was open to the Chief Settlement Commissioner to declare that two houses were to be deemed to be one house for the purposes of the Displaced Persons (Compensation & Rehabili tation) Act, 1958. I cannot accept this contention. The powers of the Chief Settlement Commissioner in this regard are contained in subsection (4), of section 2 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, which reads as follows "

2. In this Act, unless there is anything repugnant in the subject or context . . . . . (4) `house' means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out‑houses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or out house is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 16 of the Schedule to be a big mansion or hotel: Provided that where any building or premises not so declared consists of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settle ment Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house: Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including out‑houses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house :" This provision of law makes‑it clear that the Chief Settlement Com missioner has the power to say that what is but one house in the ordinary sense are more houses than one for the purposes of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, but it is clear that he has not been given the power to say that what is more than one house in the ordinary sense is, but one house for the purposes of the Displaced Persons (Compensation & Rehabilita tion) Act, 1958. This follows not only from the plain meaning of subsection (4) of section 2 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 reproduced above, but is also deducible from the declaration of the Legislature of the purpose for which' the Displaced Persons (Compensation & Rehabilitation) Act, 1958, was passed. The object of this law was the settlement of as many refugees as possible and if in the absence of very clear language to that effect it were to be inferred that the Chief Settlement Commissioner was competent to declare that what was clearly, more than one house in the ordinary sense was to be deemed to be one house for the purposes of the Displaced Persons (Com pensation & Rehabilitation) Act, 1958, the whole object of the Act could be set at naught by the Chief Settlement & Rehabilitation Commissioner. In the course of his assertions regarding the vast powers of the Chief Settlement Commissioner, I asked learned counsel for the appellants whether if the Chief Settlement and Rehabilitation Commissioner were to declare that all evacuee houses in West Pakistan are one house for the purposes of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, this Court In the exercise of its writ jurisdiction, would be powerless to interfere with that order, and he came out with the surprising reply that even if the Chief Settlement & Rehabilitation Commissioner were to pass an order of the above type, it would be immune from scrutiny by this Court in the exercise of its writ jurisdiction, though he was careful to add that the Chief Settlement Commissioner was not likely to pass an order of such great atrocity. It is obvious that the contention of the learned counsel for the appellants is difficult to accept. One purpose of law is to define powers, of persons who have been authorised to pass orders and if an order which purports to have been passed under a law amounts to setting at naught the purpose of the law under which it purports to have been passed, the order cannot be deemed to be an order under the law and Its being made ineffective by a Tribunal which has no other power but a power to issue a writ would be allowed, by the law. Mr. Mahmud Ali, who argued the case on behalf of Dr. Abdur Rauf, respondent No. 2, contended that Mr. N. M. Khan and his wife not being allottees of bungalow No. 45 were not entitled to its transfer and the appeal must fail on the ground that even if the order of the learned Judge in Chambers was incorrect, it was not open to them to have it corrected by filing an appeal. Learned counsel pointed out that the allotment in favour of Mr. N. M. Khan by means of the order, a copy of which is on record as Annexure `C', was of a purely temporary nature which remained in force only till such time as Mr. N. M. Khan got the residence of the Chief Commissioner at Karachi, and, therefore, neither Mr. N. M. Khan nor his wife could be considered to be in possession of the bungalow for the purposes of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. In reply to this contention of Mr. Mahmud Ali, Sh. Abdul Haq, learned counsel for the appellants, and Mr. Ishaq Muhammad Khan, Settlement Commissioner Legal, who appeared for the Chief Settle ment & Rehabilitation Commissioner, referred to the reply which had been put in on behalf of the Chief Settlement Commissioner to the writ petition presented by Dr. Abdur Rauf in which reply it had been said that the temporary order of allotment in favour of Mr. N. M. Khan had been extended afterwards. Mr. Mahmud Ali pointed out that no order of allotment was produced and asserted that none existed. His contention was that Mr. N. M. Khan and his wife were in unauthorised possession of bungalow No. 45, Empress Road, Lahore, and could, therefore, claim the transfer of the house only If there was no other person entitled to get the house. Elaborating this argument Mr. Mahmud Ali said that If it be assumed that bungalow No. 47 was a part of bungalow No. 45, Dr. Abdur Rauf having admittedly been in possession of bungalow No. 47 ever since 1945 had a better claim to the entire house than Mr. N. M. Khan or his wife and, therefore, they could not question the transfer made in his favour but he could, if he chose to do so, question the transfer made in favour of Mr. N. M. Khan or his wife. This contention of Mr. Mahmud Ali has force, but as I have on the basis of other grounds come to the conclusion that the appeal has no merit, I would not give a considered decision on the question raised by Mr. Mahmud Ali with regard to Mr. N. M. Khan and his wife being incompetent to get any part of bungalow No. 45 if Dr. Abdur Rauf wanted to take that bungalow or that part of it which was In his possession.

9. In view of what I have said above, I would dismiss the appeal. The result of this, order will be that bungalow No. 47 would be transferred to Dr. Abdur Rauf. Before I part with the case I might mention that there are some windows in house No. 47 which overlook house No.

45. It speaks well of Dr. Abdur Rauf, respondent No. 2, that In his writ petition he offered to close those windows so that he does not cause any inconvenience to or interfere with the privacy of his neighbours. In order that the offer made by Dr. Abdur Rauf in his writ petition should be acted upon by him, I would direct that the windows alluded to shall be closed. I would further direct that the appellants shall pay his costs of this appeal to respondent No.

2. NAZEER AHMED MAHMOOD, J.‑I agree. K. B. A. Appeal dismissed.