P L D 1963 (W (PLP)

Malik Muhammad Aslam Khan for Petitioner Nemo for Respondent. Date of hearing : 4th December 1962. The dispute in this case is with regard to a part of property No. F/2377 consisting of four shops and a residential house above them. Adjoining this property is another property bearing the same number and consisting of three shops and a residential house. The petitioner, Sh. Fazal Elahi, who was an old tenant of the residential portion of the first‑mentioned property, applied for its transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the Deputy settlement Commis sioner, by means of an order, dated the 18th February 1960, transferred the residential portion of the house in his favour when the matter came up in appeal, before the Additional Settlement Commissioner, be held that the value of the property in dispute was more than Rs. 10,000, and as the petitioner was a "local", it could not be transferred to him under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In coming to this conclusion, the Additional Settlement Com missioner considered both the residential portions of the property as consisting of a single indivisible house, and as the annual rent of this property was Rs. 594, its value came to more than Rs. 10,

000. The petitioner filed a revision petition against this order, and the Settlement and Rehabilitation Commissioner, by means of an order, dated the 17th October 1960, held that the portion in possession of the petitioner, which had been transferred in his favour by the Deputy Settlement Commissioner, was an independent house and, as such, it was less than Rs. 10,000 in value. It was represented to that officer by the respondents that the petitioner alone had not filed an application for transfer of this house, and, therefore, he remanded that case for deciding as to whether the petitioner alone was entitled to the transfer of this house or whether his brothers were also entitled to it jointly with him. The Deputy Settlement Commissioner, by means of an order, dated the 6th January 1961, came to the conclusion that the petitioner alone had made an application for transfer of this portion of the house, and as it had been held to be a separate unit, he transferred it in his favour. Against this order, the petitioner's brothers filed a revision petition which was accepted by the Settlement Commissioner on the ground that the whole of the residential portion of the property consisted of a single indivisible house and as its value was more than Rs. 10,000, it could not be transferred in favour of a local resident. He, therefore, ordered that this property should be disposed of by public auction. It is against this order of the Settlement Com missioner that the present petition was filed under Article 2 of the Laws (Continuance in Force) Order, 1958, and it was prayed therein that the said order be set aside and a writ of mandamus be issued, directing that the property in dispute be transferred in the petitioner's favour.

2. Although a notice of this petition was sent to the Chief Settlement Commissioner, nobody has appeared on his behalf. Ex parte proceedings are, therefore, being taken against him.

3. The main ground on which the order, dated the 15th July 1961, passed by the Settlement and Rehabilitation Com missioner, is challenged is that as the property was held to be divisible by the Deputy Settlement Commissioner as well as by the Settlement Commissioner who remanded the case for re‑decision, that order of divisibility could not be set aside in appeal and, hence, for the purpose of evaluating the property, only the portion in occupation of the petitioner should have been con sidered to be a separate unit and the whole of the property should not have been treated to be a residential house for that purpose To support this contention, the learned counsel referred to a recent judgment of the Supreme Court, delivered in Special Leave to Appeal Petition No. 58 of 1962, Ch. Bahar Muhammad v. The Chief' Settlement and Rehabilitation Commissioner and others, decided on the 4th April 1962. The facts of that case were almost similar to the present one, and it was pleaded before the Lordships that an order of the Deputy Settlement Commissioner holding a property to be divisible is passed in exercise of the powers conferred on him by the Chief Settlement Commissioner under clauses (4) and (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and such an order cannot be set aside in appeal or revision by higher officers. This contention found favour with their Lordships and they observed as follows :‑ "The next point urged is that the power to declare a house divisible or indivisible resides only in the Chief Settlement Commissioner and the other Settlement Officers exercise this power as a delegatee of the Chief Settlement Commissioner and, therefore, the Chief Settlement Commissioner had no power to interfere with the order of the Settlement Commissioner or the Additional Settlement Commissioner who had found the house to be indivisible. The argument is correct so far as it is urged that the Chief Settlement Commissioner could not interfere with his own delegated power, but learned counsel for the petitioner has overlooked that this argument, in fact, goes against the petitioner. The Deputy Settlement Commissioner had pronounced the house to be divisible. This he had done in exercise of a power delegated by the Chief Settlement Com missioner. His decision, therefore, could not hive been inter fered with by the Additional Settlement Commissioner."

4. Applying the same argument to the facts of the present case, no doubt will remain that the order of the Deputy Settle ment Commissioner, with whom the Settlement and Rehabilitation Commissioner agreed, holding the property to be divisible, could not, afterwards, be modified in appeal or revision, and as on the basis of that order the value of the property which was being claimed by the petitioner was less than Rs. 10,000, he was eligible to its transfer even though he is not a displaced person. I, therefore, accept this petition, declare that the order dated the 15th July 1961, passed by the Settlement and Rehabilitation Commissioner is of no legal effect and direct that the portion of the house in possession of the petitioner be transferred in his favour, in accordance with the provisions of para. 3 of the Schedule to the Displaced Persons (Compensation and Rehabilitation). Act, 1958. As the respondent is absent, I make no order as to costs. K. B. A./A. H. Petition accepted.