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Writ Petition No. 839 of 1962,decided on 19th November 1965.

, . S. 2 (4) & Sch., Part I and Settlement Scheme No. 1, para. 1(6) ‑ Building, division of ‑ Settlement Authorities empowered not only to declare a building as one or more units but also to divide it if convenient and self‑contained residential or business units could be found in them‑Position as existed in 1947‑Not essentially to be kept in view‑Construction of a new stair‑case to make an Independent unit useable‑Permissible under law.

Manual of Settlement of 1960, p. 69 and Mst. Hamida. Khanum v. Sufi Fazal Muhammad and Sheikh Muhammad Rafique Writ Petition No. 2371/R of 1962.

Ibadat Yar Khan for Petitioner.

Umar Khan Tank for Respondent No. 1.

Rashiduddin far Respondent No. 2. ,

Dates of hearing: 15th, 17th and 19th November 1965.

This petition is directed against the order of the Settlement and Rehabilitation Commissioner, Karachi, dated the 10th of July 1961, by which vertical division of the property in dispute was ordered. The arrangement contemplated by it was as follows:

"The room on the roof of respondent No. 1 (present peti tioner) should not only to go to him, but also be vacated by the applicant within a fortnight of communicating this order to him failing which the respondent wilt be at liberty to seek a review of this order on that ground. The open ground attached to the building will also be divided by the Deputy Settlement Commissioner concerned under relevant rules."

In so far as full implementation of the above arrangement is concerned, I may mention that the room on the roof of the building which has been given to the present petitioner is vacant and no difficulty has been brought to my notice with respect to exercising of control over it on account of anything done by Professor Karrar Hussain, respondent No. 1, Counsel for respondent No. 1 has stated that his client has no claim to that room and has not used it. It is open to the petitioner to use it; but for that purpose he will have to find an independent access to it, and it is up to him to do so by constructing a new stair‑case. The open ground does not present any difficulty at present because, according to counsel for the parties, it has been divided by raising a wall as shown in the Plan produced by the parties.

2. The dispute between the parties, therefore, at present does not relate to the implementation of the above order. In order to be able to understand the nature of their disputes it is necessary to state that they relate to a property which according to the plans produced by the parties was built on the pattern of a bungalow. It appears that the petitioner and Professor Karrar Hussain, respondent No. 1, occupied it in 1948. The petitioner holds an allotment order in his favour for the whole bungalow. The bungalow consists of three rooms on the ground‑floor with a varandah on two sides and one room on the first floor, has a gate and a courtyard around which there is a boundary wall. The petitioner says that there are a garage and other constructions, which according to Mr. Ibadat Yar Khan are perhaps intended to be used as a Servant Quarter and a latrine. The petitioner is now in occupation of two rooms on the ground floor with varandah on both sides, and respondent No. 1 is in occupation of one room on the ground‑floor with Varandah on its both sides, he Was in occupation of the room which is on the first floor and the stair‑case which was intended to serve as the access to it is situated on his side. But the room on the first floor is situated on the roof of one of the rooms which are in occupation of the petitioner. Necessary appurtenances such as kitchens, bathrooms and W. Cs. now exist on the sides of both parties. Originally, there was one gate to serve as entrance to the bungalow but now there is a separate entrance which is used by respondent No. 1..

3. There was apparently no dispute between the parties up to 1959. Counsel for the petitioner and for respondent No. 1 agree that in 195y, or thereabouts, an agreement was made between their clients by which they settled the manner in which the sites respectively occupied by them were to be used. There is a wall which existed as the dividing wall between the portions which are in the use of these two parties. In 1959, an appeal was preferred by respondent No. 1 to question the order of a lower authority which was partly accepted, and the case was remanded for further decision. On remand, the case was decided in favour of the present petitioner. The view taken was that the whole bungalow was one unit. Respondent No. 1 went in appeal against that order which was dismissed. He then preferred a revision which was accepted. It was held that there were two units. The room on the first floor was to remain with the present petitioner and the portion which was in the possession of respon dent No. 1 was to be used by him. The petitioner, therefore, preferred a second revision which was dismissed. The order dismissing the second revision is not material because it has only confirmed the order made in the first revision. That order is dated the 10th of July 1961, and is Annexure "C" to this petition. The petitioner has now come to this Court under Article 98 of the Constitution.

4. Mr. Ibadat Yar Khan appearing for the petitioner has advanced two arguments in support of the contention that respondent No. 1 should not be allowed to occupy the portion which has been in his occupation. His first argument is that there was one unit and one bungalow in 1947 and that that is the date which is relevant for deciding as to whether the property in dispute is to be treated as one unit or not. Secondly, counsel has argued that the Settlement Authorities have no power to divide any building but have the power only to declare whether it consists of one unit or more.

5. The above two contentions have been supported by counsel by referring to the definition of "House" as given in section .2 (4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and by referring to sub-para. (6) of para. 1 of the' Settle ment Scheme No. 1. He has also referred to the instructions which appear at page 69 of the Manual of Settlement of 1960 as well as to the observations made by Mr. Hashim Raza as the Chief Settlement Commissioner in his order which is reproduced at page 113 of the Manual of Settlement, 1960. In support of his argument that the Settlement Authorities have power only to declare whether, a property consisted of ace unit or more and not to divide it, he has produced a certified copy of a Judgment of a Division Bench of this Court given at Lahore in Writ Petition No. 2371/11 of 1962 in Mst. Hamida Khanum v. Sufi Fazal Muhammad and Sheikh Muhammad Rafique.

6. I may, to begin with, discuss the contention of Mr. Ibadat Yar Khan that for considering whether a certain property consisted of one unit or more, the relevant date in 1947. He has referred to sub‑para. (6) of para. I of the Settlement Scheme No. 1 which is as follows :‑---

residential premises' referred to in the proviso to subsection (4) of section 2 of the Act, means a building or part of a building so designed or subsequently converted with the permission of a Custodian or a Rehabilitation Authority as to admit of being used by an independent family for residential purposes."

From the above definition it is clear that the nature of a building is to be seen by looking at its design as it originally was or as it was subsequently altered, provided the alteration was made with the permission of a Custodian or a Rehabilitation Authority. In other words, the decision as to whether a building consisted of one unit or more is not dependent on any change that was made without the permission of a Custodian or a Rehabilitation Authority, But this sub‑pare was deleted by a notification dated the 22nd of October 1959. 1n the place of the sub‑paragraph the following instruction was issued along with others :‑---

"In accordance with the general principle contained in the definitions of house and shop a whole building as it existed on the 14th August 1947, should normally be transferred to one person."

The above instruction according to counsel omitted the possibility of taking into consideration any alteration made subsequent to 1947. But it is to be noted that the instruction reproduced above has taken away the rigidity of the treatment which was to be given to buildings for deciding whether they consist of one unit or more. In this connection another instruction which was issued at the same time as above, is as follows:‑

"If a building can conveniently be partitioned vertically down to the ground‑floor so as to divide it into independent and self‑contained residential or business units each with an independent access, such partition may be carried out where necessary and each unit transferred separately. While carrying out such partition, sufficient space should be allowed for passages and other easements."

The above instructions lead to the conclusion that the power of the Settlement Authorities was not only to declare a building consisting of one unit or more but also to divide it if convenient and self‑contained residential or business units could be found in them. Moreover, it would appear from the above instructions that importance to the position as it existed in 1947 has not been given.

7. Along with the above instructions there is another instruction which specifically relates to bungalows. It is as follows :‑---

" Bungalows should as far as possible, be transferred as complete units except in very obvious cases where they can be divided into more than one independent and complete bungalow." '

The words, "as far as possible", cannot indicate that rigidity is not to be attached to this instruction.

8. I may mention that the Judgment of a Division Bench of this Court delivered at Lahore, a certified copy of which has been produced by Mr. Ibadat Yar Khan to these proceeding, contains the following observations with respect to the time which is relevant for deciding as to whether a building consists of one unit or more :‑

"The condition precedent is that the house as it stood at the time of the transfer should consist of more than one residential unit and in that event if it is in possession of more than one person the Chief Settlement Commissioner or his delegate will have power to declare that the house shall not be deemed to be one house."

I respectfully agree with the above observations and feel that in view of the several developments that have taken place and the requirements that are necessary to serve the object of the Law of Settlement, it would not be right every time to go back to the situation that existed in 1947 to decide as to whether a building which is to be granted for use of a claimant was one unit in 1947 or not. In this case, the bungalow, though originally designed to serve as one unit, consisted of at least two units at the time at which the impugned decision was made. It is true that the, two units had been created by the construction of necessary appur tenances by Professor Karrar Hussain, respondent No. 1. All the same the Settlement and Rehabilitation Authorities could take note of the existence of two units at the time of making the Impugned order dated the 10th of July 1961 (Annexure 'C' to this petition) and treat the building as consisting of two units.

9. The above discussion disposes of the first contention of Mr. Ibadat Yar Khan. His second contention as noted above is that the Settlement Authorities had no jurisdiction to divide a building but had the power to declare only as to whether it consisted of one unit or more. In view of the above decision this argument loses its importance. The view taken above is that there were at least two units; therefore, the order of the Settlement and Rehabilitation Commissioner of the 10th of July 1961, could clearly declare this fact. Counsel has criticised the declaration by contending that they were not two complete units. There are two incomplete units according to counsel because the room which was on the first floor and had been given by the Settlement and Rehabilitation Commissioner to the petitioner but it was accessible by a stair‑case from the side which has been given to respondent No. 1. The room, therefore, cannot be used by the petitioner unless a new stair‑case is built. Additionally, a counsel has contended that there is a motor garage in the courtyard of the building which falls to the share of the petitioner but there is no motor garage in the portion which falls to the share of respondent No. 1; therefore, an appurtenance it was intended to be a part of such house as existed in 1947. Its absence from the share of respondent No. 1 indicates that it is incomplete. This second contention of counsel has the merit of being imaginative, but actually absence of the garage is not fell by the respondent. The mere absence of a motor garage will not in the circumstances lead to the conclusion that the unit which fell to the share of respondent No.1 is incomplete. The: first contention of counsel made it necessary that special thought be given to it, particularly because of an observation in the Judgment of the Division Bench of this Court, a copy of which has been produced by Mr. Ibadat Yar Khan as mentioned above. The learned Judges have observed in it as follows :.‑--

"That the power to declare a house as more than one residential units pre‑supposed the existence of more than one residential units, that there was no power in the officer to create two residential units out of one by ordering the addition of a stair‑case and the building of a wall or the opening of a separate entrance."

On close examination of the above observation I have farmed the view that it relates to a situation where two units are created out of one unit and the purpose is achieved by effecting construc tional alterations. In this case the situation is not of that nature. Two units do exist and have rightly been declared to be existing. A complication arose because in one unit there is one room which is not accessible at present because there is no independent stair‑case in the portion which has been allotted to the petitioner. That stair‑case was originally constructed on the side which has been given to respondent No. 1. In these circum stances the question arose whether on account of non-accessibility to that one room, the conclusion should be that there are no two units, or the utility of that room should be left to the good sense of the petitioner by constructing a new stair‑case. To my mind it would amount to being influenced too much by the constructional nature of the building as it existed in 1947 or earlier. It would amount to disregarding the existence of fully useable two units, merely, because access to one room cannot be had without constructing a new stair‑case. There are two units without that room. It is to be noted that the construction of a new stair‑case will not create two units but will only make‑t one room of one unit useable and such a construction to my mind is permissible under law. Even the views of Mr. Hashim Raza, which he has expressed in his order on which counsel has relied and which have been reproduced at page 114 of the Settlement Manual, 1960, indicate that construction of a new portion is not to be ruled out. Such construction is presumable if it creates convenience for the parties. He has for instance observed in that order as follows:‑--

"Dr. Pirzada should in that even either use the old gate on Habibullah Road which has been disused for some time or open another gate in his portion of the lawn.".

In this case there is no possibility for the, petitioner using the old stair‑case but the absence of that possibility does not take away the usefulness and convenience of the main portion and the utility of necessary appurtenances of the unit which the petitioner has been given. He can use one room which is on the first storey by creating a new convenience of a stair‑case. I am inclined to think that there is no reason to interfere with the views that have been taken by the Settlement Commissioner in his order dated the 10th of July 1961 (Annexure "C"). I, therefore, dismiss this petition.

A.E Petition dismissed.

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