P L D 1965 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑The dispute in this appear under clause (10) of the Letters Patent relates to transfer under the Displaced Persons (Compensation and Rehabilitation) Act, 1958,, (hereinafter referred to as the Act) of Property No. S. W. III. 40‑S‑35, Krishan Nagar, Lahore. The Deputy Settlement Commissioner in exercise of the power delegated to him under section 2 (12) of the Act declared the property consisting of two shops and three residential units to be divisible and transferred the shops to their respective occupants, namely, Abdus Shakoor and Muhammad Saeed and the residential units to two out of the three occupants, namely, Umar Farooq, appellant, and one Fayyaz‑ud‑Din, thereby eliminating Muhammad Ismail, respondent No. 1 (occupant of the two rooms on the upper-floor).

2. Aggrieved by the aforesaid order, Muhammad Ismail went in appeal to the Additional Settlement and Rehabilitation Commissioner, Lahore, who affirmed 'the division made by the Deputy Settlement Commissioner, and on comparison of their respective entitlements found Umar Farooq better entitled to the transfer of the unit which included the portion in his occupation as well as in the occupation of Muhammad Ismail. Not feeling content with this order Muhammad Ismail filed a revision petition in the Court of Malik Fateh Khan, Settlement and Rehabilitation Commissioner, which was allowed to the extent that the transfer in favour of Umar Farooq was confined to the portion in his occupation and the two rooms in the occupation of Muhammad Ismail were directed to be transferred to him as an independent residential unit. From this order Umar Farooq filed a second revision petition in the Court of Sheikh Muhammad Rafiq, Chief Settlement and Rehabilitation Commissioner, which was rejected on 1st of June 1962, on the short ground that the record had not been summoned before the 13th of January 1962. Finally, Umar Farooq filed a belated Writ Petition No. 191/R of 1964. on numerous grounds out of which the main ground, namely, that since the property had been divided into four units by the Deputy Settlement Commissioner as a delegate of the Chief Settlement Commissioner the Settlement Commissioner in exercise of revisional jurisdiction could not interfere with that division was not pressed, while other grounds did not find favour with the learned Single Judge. The petition was, accordingly, dismissed in limine against which the present appeal is directed.

3. The ground which was given up before the learned Single Judge is re‑agitated before us in the light of the recent decision of their Lordships of the Supreme Court in Jalal Din and others v. Sheikh Muhammad Rafiq and others, (Civil Appeal No. 71 of 1963, decided on the 12th of November 1964) (PLD 1965 SC 261). It is maintained that in disagreeing with the view of this Court in Abdul Ghani v. Chief Settlement Commissioner (P L D 1964 Lah. 214), their Lordships have held that the exercise of power delegated to the subordinate Settlement Authorities by the Chief Settlement Commissioner under section 2 (4) of the Act was not open to review in an appeal or revision by the higher Settlement Authorities. This is, however, subject to the dictum of their Lordships that the extent of the power delegated to the subordinate Settlement Authorities is confined to pronouncing whether a house (or a shop) is for the purposes of transfer divisible into more than one residential and business units or not, e.g., in dealing with the first proviso to section 2 (4) of the Act their Lordships have observed as follows:‑ "It appears to us on a consideration of this proviso that another construction of the extent of power granted by it to the Chief Settlement Commissioner was not only possible but the more reasonable one under the circumstances. All that the proviso says is that the house shall be regarded as one unless the Chief Settlement Commissioner otherwise orders. These words may be granting to the Chief Settlement Commissioner only the authority to pronounce the house to be not one but divisible. It is not necessary to read into the words `otherwise orders' a power of actual division of a house into separate portions. The intention of the proviso could be that the Chief Settlement Commissioner will determine whether a house should be transferred only as a single unit or shall be capable of being converted into different units, but that once he decides that the house is divisible the Deputy Settlement Commissioner and other Settlement Authorities wilt iii the exercise of the ordinary powers, which they have, determine the particular portions into which house was to be divided and the interpretation that the power of actual division howsoever defective once made by the lowest Settlement Authority cannot be interfered with by any appellate or a revisional authority we are not inclined to accept as we will presently explain that the exercise of delegated power is subject to appeal or revision." Towards the end, the conclusions of their Lordships are summed up as; "(i) that the power granted to the Chief Settlement Commissioner by the first proviso to section 2 (4) is only a power of pronouncing a house to be divisible; and (ii) that the exercise of this power by a delegate is not subject to appeal or revision." The actual division of a house or a shop or composite property within the purview of sections 2(4) and 2(12) is, thus, not in the exercise of the power delegated to the subordinate Settlement Authorities by the Chief Settlement Commissioner and, as such, their orders in that behalf are open to the incidence of an appeal and revision to the higher Settlement Authorities. The learned counsel contended that by division their Lordships meant the fixing of the boundaries of each unit and not the number of units, but we see no warrant for it in the pronouncement of their Lordships and have, thus, no hesitation in rejecting the main ground raised in support of this appeal.

4. The other grounds raised before the learned Single Judge have likewise no substance. The contention that the record had not been summoned by Malik Fateh Khan before he had passed the impugned order on the 26th of October 1960, is not borne out by the record and it was significant that no complaint in this behalf was made in the second revision petition rejected by the Chief Settlement Commissioner on the 1st of June 1962. Similarly, once it is held that the portion in occupation of Muhammad Ismail is an independent residential unit there is no comparison of entitlement for its transfer between the parties. The same reasons apply to the last contention that as the appellant was found to be in prior possession of a portion of the house he was entitled to the transfer of the unit in possession of Muhammad Ismail, respondent, also.

5. In the view expressed above, this appeal has no merit and is dismissed in limine. K. B. A. Appeal dismissed.