1974 PLP 180 (SCMR)

Date of hearing : 8th October 1973. HAMOODUR RAHMAN, C. J.‑The dispute in this case relates to house No. 40, Ward No. 1, Mandir Gali, Lyallpur. It is a double‑storied building which was used for residential purposes by its evacuee owner ; but after Independence one room on the ground floor, which was originally used as a baithak, began to be used as a shop. The Rehabilitation Authorities allotted the whole house including the baithak to one Abdul Rashid in 1945, but in 1951 the residential portion was allotted to the petitioner, and on the 30th of October 1953, the baithak, treating it as a shop, was allotted jointly to Abdul Rashid, the respondent Abdul Ghafur and one Aziz Din. When settlement operations started, Sadiq who was a claimant applied for the transfer of the whole house. Mst. Ghulam Fatima wife of Aziz Din, who was also a claimant, applied for the transfer of the shop (baithak) on the basis of the possession of her son Abdul Ghafur. The Deputy Settlement Commissioner transferred the whole house to Sadiq. Ghafur and Aziz Din who were not claimants and had not applied for the transfer of the shop went up in appeal, but this was rejected by the Additional Settlement Commis sioner on the 9th of February 1960. In the revision, however, the Settlement Commissioner on the 20th of October 1960, transferred the shop to Mst. Ghulam Fatima although she had in the meantime died on the 1st of September 1960. From this order the petitioner went up to the erstwhile High Court of West Pakistan, Lahore Seat, to invoke its writ jurisdiction. It was dismissed on the ground that under subsection (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 the Settlement Commissioner had the jurisdiction to determine whether a premises or a building occupied by more than one person and consisting partly of residential premises and partly of business units is to be treated as a composite building or as a shop or as a house ; and in the present case, sine the Settlement Authorities have treated the premises as a resi dential house and a shop, the petitioner cannot claim the shop of which he was never in possession. This order has been upheld by a Letters Patent Bench of the same High court and the petitioner now seeks special leave to appeal. Learned counsel appearing on behalf of the petitioner has drawn our attention to the definitions of a "shop" and a "house" under section 2 of the above‑mentioned Act, and on the basis of these definitions sought to contend that the power given by the second proviso in subsection (12) is only available in the case of an evacuee business premises of any value in an urban area or of the value of Rs.10,000 or more in a rural area. This argument is based on the use of the words "such building or premises" in the said second proviso, but obviously a reading of the proviso would seem to show that it could not have been the intention of the makers of the law to so restrict it ; otherwise the power given to treat a premises used partly for residential purposes and partly for business purposes either as a shop or as a house would not have been available, for, obviously the evacuee business premises could never be treated as a residential premises. It seems to us more likely that the words "such building" referred to building or premises not declared as a big mansion or a hotel. It would appear that this is the interpretation that has hitherto been', adopted by the Settlement Authorities themselves and a large number of i properties have been dealt with on the basis of this interpretation. To accept the contention of the learned counsel will, therefore, create a further chaos in the settlement operations. In the circumstances, we are not disposed to grant leave to appeal in this matter, as we are satisfied that, whatever the correct legal interpretation of subsection (12) of section 2 of the said Act may be, substantial justice has been done in this case by the transfer of the portions in the occupation of each to him. We accordingly dismiss this petition but make no order as to costs although the learned counsel appearing for the caveator has asked for the same. Leave refused.