1968 SCMR 606 (PLP)

HAMOODUR RAHMAN, J.-The dispute in this case relates to an evacuee building situated at New Town, Mirpurkhas and belonging originally to one Sita Bai, wife of Kishan Chand. It was bounded on two sides, namely, the north and the south; by two roads. It also had separate entrances from each road leading to two self-contained portions each having two rooms in it with separate amenities. It appears, however, that the two portions were also inter-connected by communicating doors in the inter-middle wall. In the records of the Custodian of evacuee property, each portion was separately numbered as A-147 and A-141. The appellant, who is a non-claimant displaced person, after migration from India occupied, according to his own statement in his application, submitted to the Deputy Settlement Commis sioner in December 1960, the portion "on the southern side only" while the northern portion, which was the smaller portion, was occupied by one Mirza Rafiq Beg son of Mirza Zainul Abedin. The portion in the possession of the appellant was also subsequent ly allotted to him on the 2nd of March 1961, by an order of the Deputy Rehabilitation Commissioner, Tharparkar. The Settlement authorities thereafter, in their Survey Register, also registered the portions separately. No. A-147 was registered as Survey No. 337 and No. A-141 was registered, as Survey No.

340. On the 10th of July 1959, the appeallant filed N. C. H. Form for the transfer on evaluation basis, of premises "No. 334/147-A, Ward A, New Town, Mirpurkhas", but in para. 10 of the Form stated that "the northern part of the house is in the possession of Mirza Rafiq Beg son of Mirza Zainul Abedin." The gross monthly rent of the house as given in the N. C. H. Form was Rs. 6 per mensem. Mirza Rafiq Beg, it appears, did not apply, for the transfer of the premises in dispute or of the portion hi his possession. The Assistant Settlement Commissioner, Centre-I, Mirpurkhas, on the 19th of November 1959, transferred only the portion No. 334/147-A to the appellant. The portion bearing Survey No. 340/141-A was ordered to be disposed of under `the earmarking scheme and was included in the list of properties in this area available for disposal under the earmarking scheme as "C" category houses. This list was printed and published in 1959. The appellant filed no objection to the inclusion of the said portion in the earmarking list nor made any, application for the correction thereof nor filed any appeal against the order of the Assistant Settlement Commissioner. Thereafter, the respondent No. 1, in the usual course applied in,Form E for the transfer of the said portion under the earmarking scheme. Since no objection had been raised to the inclusion thereof in the earmarking list, a lottery was held in due course and the respondent No. 1 was declared to have been successful in drawing the said premises No. 340/A-141 in the lottery. The respondent No. 1, who is also a claimant displaced person, was then transferred the said portion and was given notice of transfer in Appendix No. III on the 25th of December 1959. Subsequently, a Provincial Transfer Order was also issued in his favour on the 27th of December 1959. Again no appeal, revision or other objection of any kind was filed by any one against the issuance of the said transfer order and documents but about a year later on the 2nd of December 1960, the appellant applied to the Settlement Commissioner, Mirpurkhas to treat the northern part as one unit along with the southern portion already transferred in his favour and transfer the same also to him to enable him to accommodate his large family. In this application there was no complaint that the appellant's N. C. H. Form had been misread by the Settlement authorities or that he had in fact applied for both the portions but due to any mistake or misunderstanding had mentioned -only one number in his Form. The tenor of the application, on the other hand, is that since the two portions of the premises are very small portions and it would be extremely inconvenient for a person with large family to live in one portion consisting of two rooms only, the two portions should be treated as a single unit particularly, since both portions belonged originally to a single evacuee owner and other houses similarly situated in the locality had also been so treated and transferred to one family. The Deputy Settlement Commissioner marked this applica tion to the Assistant Settlement Commissioner for "decision after site inspection" and the latter on the 29th of January 1963, cancelled the transfer of portion No. A-141 under the earmarking Scheibe to the respondent No. 1, and transferred it with A-147 to the appellant. The only reason given for doing so was that "the disposal of house No. A-141 to a different family in permanent phase of settlement will be one sort of creation of inconvenience to the occupant transferee of house No. A-147." Against this order the respondent No. I went up in appeal to the Deputy Settlement Commissioner. Before the latter, it appearsohe respondent No. 1 was not present although he had been duly notified of the date of hearing of the appeal. Neverthe less the Deputy Settlement Commissioner took additional.evidence produced at the instance of the present appellant, and confirmed the order of the Assistant Settlement Commissioner. It appears that the present appellant at this stage produced three witnesses to say that he was also in possession of portion No. A-141, but had accommcdated somebody else therein for a few days. But in spite of tins it was not considered necessary to afford the respondent No.

1. Any opportunity of rebutting the evidence taken at this late stage. The respondent No. 1 then went up for revision to the Additional Settlement Commissioner who reversed the decision of the lower Settlement authorities and held that the northern portion bearing Survey No. 340 and Custodian No. A-141 was an independent unit in occupation of Mirza Rafiq Beg ever since 1952. Furthermore that the appellant had not filed any form for the transfer of this unit of property. It could not, therefore, be amalgamated with the house bearing Survey No. 344 and .Custodian No. A-147 which already stood transferred to the present appellant. In a Second Revision filed by the present appellant, however, the Settlement Commissioner, Karachi, relying upon the inspection note of the Assistant Settlement Commissioner reversed the decision of the Additional Settlement Commissioner and held that the two portions constituted one joint premises and were only partially independent tenements. Therefore, to transfer them to two different persons would lead to more litigation between the parties. He, accordingly, set aside the order- of the Additional Settlement Commissioner and restored that of the Deputy Settlement Commissioner but directed that respondent No. 1 should be given a chance of selecting some other, independent house of approximately the same value. Against this order the respondent No. 1 invoked the writ jurisdiction of the High Court contending that after the fist of properties available for disposal under the earmarking list had been prepared and published and no objection had been filed thereto, the Settlement authorities had no jurisdiction to revise the list or set aside the order of transfer in his favour under the said scheme or to treat two independent premises which had even before Independence been so treated and separately numbered in the City Survey Register as one premises. The Settlement Commissioner had, ft was camplained, in fact, illegally amalgamated two independent houses into one. The High Court took the view that the application filed by the present appellant on the 2nd- of December 1960, "was not meant to be a new application but to point out the mistake which the respondent (now appellant) had made at the time of making his original application," yet allowed the writ on the ground that the lower Settlement authorities had no power to declare the premises to be indivisible after one -of them had, in the exercise of the power delegated to' him by the Chief Settle- - ment Commissioner, held that they were two independent units. That decision being a decision trio the divisibility of the premises could not subsequently be revised by the Settlement Commissioner as he had purported to do by his order of the 21st December 1962. The latter order was, therefore, declared to be of no legal effect and set aside. Leave was granted in this case to consider whether the power exercised by a subordinate Settlement authority as a delegate otthe Chief Settlement Commissioner could subsequently be revised by a higher Settlement authority. This question has been decided by this Court in the case of Jalal Din and others v. Sh. Muhammad Rafiq (PLD 1965 SC 261) but thereafter the law has again been amended by the Displaced Persons Laws (Amendment) Ordinance No. XVIII of 1965, whereby this power of revision has teen specifically conferred upon the higher Settlement authorities with retrospective effect. The position, therefore, now is that the point on which leave was granted is no longer available to the appellant as this appeal has to be decided according to the altered law and under this the Settlement Officer 8 would have been competent to revise the order of the Additional Settlement Commissioner. -In these circumstances we have given liberty to the parties to argue the real and substantial question in issue in this case, namely, as to whether the two portions Nos. A-141 and A-147 really form two independent portions or do they both constitute one house. In this connection our attention has been drawn to the City Survey Plan, prepared in 1927, which was produced in the High Court. This discloses that the two portions were even then separately numbered as two independent premises. There can be no doubt, therefore, that even though both the portions belonged to one owner and were capable of being used as a single unit they were in fact; being used from before Independence as two separate units and had certainly in the post Independence period been in the occupation of two different persons, namely, the appellant and Mirza Rafiq Beg. It cannot, therefore, be said that the Additional Settlement Commissioner had acted illegally or unreasonably in holding that the two portions constituted two independent units under the Settlement law. Apart from this we are also unable to agree with the High Court that the application made by the present appellant to the Deputy Settlement Commissioner on the 2nd December 1960, was really in continuation of his previous application for the transfer of the premises. Its plain reading satisfies us that the appellant-was by this application really asking the Deputy Settlement Commissioner to give him the portion A-141 also on compas sionate grounds even though it had never been treated as a part of A-147 for which alone he had applied in his N. C. H. Form. His application was, therefore, really a new application for the review of the previous order passed by the Deputy Settlement Commissioner disposing of portion A-141 under the earmarking scheme to the respondent No.

1. This power of review was never possessed by the Assistant Settlement Commissioner nor could the Deputy Settlement Commissioner review any order passed by himself or by any of his predecessors-in-office without first obtaining the sanction of the Additional Settlement Com missioner under section 21(1)(b) of the Act, as it stood before its amendment in 1962. The order for cancelling the transfer to respondent No. 1 and amalgamating the two portions was, therefore, even on this ground an illegal order and bad rightly been set aside by the Additional Settlement Commissioner. He had thereby done substantial justice in the case, particularly, since the appellant took no steps either to object to the inclusion of the disputed portion in the earmarking list or to move against its transfer to the respondent No.

1. It was only a year later- that the appellant thought of this device of getting the order reviewed. We are, therefore, of the view that there is no valid ground for interference in this case as substantial justice has been done by the High Court in restoring an order which was a just order in the Circurhstances of the case. This appeal is accordingly dismissed but since it is bein disposed of on a ground other than the ground on which was granted, we make no order as to costs. Appeal dismissed