P L D 1967 Karachi 605 (PLP)

In law under the Displaced Persons Act, 1958 a claimant or a non‑claimant displaced person is entitled to obtain the transfer of a house and a shop separately. Abdul Majid Khan and S. M. Raza for Petitioner. Assistant Advocate‑General for Respondents. Date of hearing: 3rd January 1966. This order will dispose of Writ Petition No. 418 of 1963 and Writ Petition No. 616 of 1963 which arise out of an order passed by the Settlement Commissioner, Sukkur dated 19th April 1963. By this order the learned officer directed that the upper floor of the property in dispute be disposed of by public auction.

2. In the above‑mentioned two Writ Petitions the subject matter of dispute is a building bearing No. B‑3271, situated on Frere Road and Tek Singh Street, Sukkur. This evacuee property consists of three‑room shops on the ground floor and two rooms each on the first, second and third floor. The entire ground floor is in possession of Allahbux and the first, second and third floor is in possession of Muhammad Ishaq and his relatives. Petitioner Muhammad Ishaq in Writ Petition No. 418 of 1963 is also in possession of property bearing No. B‑3198, Frere Road, Sukkur. This was transferred to him as a shop on 23rd March 1960.

3. It appears that the property in dispute was in its entirety transferred at one time to Muhammad Ishaq and later on to Allahbux. On 21st August 1960 Mr. Abdi, the then Deputy Settlement and Rehabilitation Commissioner directed that the previous orders be reviewed. This order was challenged by Allahbux in Revision No. Addl. Seta/R. 385/60, before the Additional Settlement Commissioner, Hyderabad. Before the learned officer both the parties agreed that the previous order passed by the subordinate authorities be ignored and the dispute between the parties be decided on merits. Accordingly, the Additional Settlement Commissioner by order dated 21st October 1960, decided that the shops on the ground floor be transferred to Allahbux and the residential portion above them be transferred to Muhammad Ishaq Allahbux challenged this order before the Chief Settlement Commissioner which was summarily dismissed. In Review Application No. 571, the Chief Settlement Commissioner by order dated 28th September 1961, remanded the case back to the Settlement Commissioner with a direction that if Muhammad Ishaq has been transferred some other residential property, the residential portion of the property in dispute may not be transferred to him, and to further consider the claim of Allahbux to the residential portion of the property in dispute. The matter was considered by the Settlement Commissioner who by order dated the 19th April 1963, set aside the transfer of the residential portion of the property in dispute in favour of Muhammad Ishaq. He further rejected the claim of Allahbux in respect of the residential portion and directed that the property in dispute be disposed of by public auction. Both Allahbux and Muhammad Ishaq have challenged this order in the above‑mentioned two writ petitions.

4. After hearing learned counsel for the parties, I am satisfied that petitioner Allahbux is not entitled to claim the residential portion of the property in dispute. The learned Additional Settlement Commissioner by order dated 21st October 1960, has divided the property into two units. The ground floor was treated as business premises and the upper floors were treated as independent residential unit. It is not disputed by Mr. Raza, learned counsel for the petitioner Allahbux, that the Settlement Authorities have jurisdiction to treat a property in such manner under section 2(12) of the Displaced Persons Act, 1958. Learned counsel has not been able to satisfy me that the Settlement Authorities in this respect have committed any error or have not acted in accordance with law. In my opinion, in a case where the property is of a composite nature it is open to the Settlement Authorities to treat a portion of it as business premises and the rest of it as residential premises. I would, therefore, hold that the learned Settlement Commissioner was fully justified in rejecting the claim of Allahbux in respect of the residential portion of the property in dispute.

5. As regards the claim of Muhammad Ishaq, the learned Settlement Commissioner set aside the transfer in his favour in respect of the residential portion of the property in dispute only on the ground that another property had been transferred to him. The learned Settlement Commissioner failed to notice that the other property transferred to him was a business premises and not a house. The property in dispute was transferred to Muhammad Ishaq as a house. In law under the Displaced Persons Act, 1958 a claimant or a non‑claimant displaced person is entitled to obtain the transfer a house and a shop separataly.1e The ground, therefore, on which the transfer of the petitioner Muhammad Ishaq was set aside is wholly erroneous and cannot be maintained in view of the provisions of the relevant law. Mr. Wasim Rizvi, learned counsel for the Department, has conceded this point. I would, therefore, hold that the Settle ment Commissioner was not justified in setting aside the transfer of the residential portion of the property in dispute in favour of petitioner Muhammad Ishaq. Accordingly, the impugned order is set aside so far as it affects the claim of Muhammad Ishaq.

6. In the result, I would allow Writ Petition No. 418 of 1963 and dismiss Writ Petition No. 616 of 1963.with no order as to costs. K. M. A. Order accordingly.