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Civil Appeal No. 130 of 1965, decided on 28th May 1968.

(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 17th August 1964, in Writ Petition No. 1195 of 1964).

, Sch., Part II read with Settlement Scheme No. 1, para. 21‑Shop incomplete or damaged on 14‑8‑47 Expressly excluded from transfer under Settlement Scheme No. I-- Person claiming to have repaired such shop and in possession (though a local) can validly claim its transfer under paras. 5 & 6 of instructions issued by Chief Settlement Commissioner and appearing at p. 422 of Settlement Manual (new edition) provided said instructions issued under S. 10 of the Act.

Ghulam Mujadid Mirza, Senior Advocate Supreme Court (Kh. Shaukat Ali, Advocate Supreme Court with him) instructed by Hakim Ch. Muhammad Sardar Khan, Attorney for Appellant.

Respondents Nos. 1 to 3: Ex parte.

Saeed Akhtar, Advocate Supreme Court instructed by Tanvir Ahmad, Attorney for Respondent No.4.

Date of hearing :.28th May 1968.

The appellant, Sh. Habibullah, is a local resident of Waizrabad. He applied for the transfer of a shop to the Settlement Authorities .on the plea that it, had been burnt during the disturbances in 1947 and that he had rebuilt it, with the permission of the requisite authority. His application was turned down by the Settlement Authorities and he failed to obtain redress, in writ jurisdiction, from the High Court of Vilest Pakistan. Special leave to appeal was granted to him, as it was contended on his behalf that after the partly burnt shop was allotted to the appellant, he reconstructed it and that the relevant evidence had been ignored by the departmental authorities. It was further contended that, even on the findings recorded by the Settlement Commissioner, the appellant was entitled to the shop, in accordance with the instructions issued by the Chief Settlement Commissioner, in respect of such properties.

We have been taken through the various orders, passed by the departmental authorities in this case, by Mr. G. M. Mirza, on behalf of the appellant, and Mr. Saeed Akhtar, on behalf of the respondent No. 4. The respondent got this property as an auction‑purchaser after the request of the appellant for transfer had been turned down. We have also referred to the original file of the department for clarification of certain points.

The appellant's case apparently was, as is evidenced by his application to the Deputy Settlement Commissioner at page 5 of the paper book, that the shop had been burnt down during the disturbances of 1947 and that he had rebuilt it, after obtaining the sanction of the Tehsildar, Wazirabad, and the Municipal Committee, Wazirabad. He spent about Rs. 1,000 on the repairs. Later, he had been allotted this shop, in a regular way, by the Assistant Rehabilitation Commissioner. He prayed that the shop, which had been included in the auction list, should be deleted therefrom.

On this application, being presented to the Deputy Settlement Commissioner, he apparently called for a report from the Rehabilitation Inspector who submitted his report on 1‑2‑1960, to the effect that this particular shop, according to the survey register, had been re‑constructed. Below this report, the Deputy Settlement Commissioner recorded his own laconic order to the effect that the appellant had only replaced one door of the shop and could not be said to have re‑constructed it. There is nothing to show that the Deputy Settlement Commissioner had visited the shop himself, and indeed what is recited in his order was contrary to the report of the Inspector.

On appeal, the learned Additional Settlement Commissioner also recorded a brief order in which he said that the appellant was not entitled to the transfer of the property, as right up to 1951, his exact status could not be determined. This officer thought that he had got into the property "somehow or the other" and now claimed that he had reconstructed it. He expressed the opinion that this was not correct. Again, it may be remarked that this observation was contrary to the entry in the official record itself. The appellant took the matter, in revision, to the Settlement Commissioner who noted that the contention raised on behalf of the appellant was that the shop had been partially damaged and he had rebuilt it. On this ground, the learned Settlement Commissioner thought, he was not eligible for its transfer.

The High Court took the view that as the Settlement Authorities had found that the building was only partially damaged and was never completely destroyed by fire or any other cause, the appellant was not entitled to its transfer in accordance with paragraph 13 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, read with Settlement Scheme No. VI.

Mr. G. M. Mirza has drawn our attention to the fact that the appellant had obtained sanction of the Municipal Committee, Wazirabad, for re‑construction of the shop and we also find, on reference to the original file, that as long ago as 1947, the shop had been allotted by the Tehsildar to the appellant. In 1951 again, the Assistant Rehabilitation Commissioner formally issued an allotment order in his favour. The survey register entry showed that it was re‑constructed. It appears that the Deputy Settlement Commissioner gave no opportunity to the appellant to substantiate his claim and passed the order adversely to him, without hearing him. The higher officers also did not go into the relevant facts and did not even refer to the material which existed in the file.

This property was not liable to transfer under the Schedule to the Act read with Settlement Scheme No. I, as paragraph 21 of that Scheme expressly excludes incomplete or damaged buildings from the scope of this Scheme. With regard to such buildings, separate instructions were issued by the Chief Settlement Commissioner which appear at page 422, etc., of the now departmental Manual. Mr. Mirza claims that his client was entitled to the transfer of this property, on the facts appearing from the record, under paragraphs 5 and 6 of these instructions.

Mr. Saeed Akhtar, on behalf of the respondent, suggested that these instructions have no legal validity. For the time being, however, we may assume in favour of regularity of official acts and the inference would be that these instructions were probably issued under section 10 of the Act, after approval by the Central Government. If that be the position, they would be legally valid. This would, however, be a question for determination by the department itself to whom we propose remanding the case.

We are unable to agree with Mr. Saeed Akhtar that paragraph 5 of these instructions was independent of paragraph 6 thereof and that under these paragraphs, the appellant was not at all eligible. We consider that if he had re‑constructed the shop as he claimed, then he would be eligible under these paragraphs for transfer of the shop. The further argument raised by Mr. Saeed Akhtar that the appellant had obtained adjustment in his rent to the extent of Rs. 328, on account of the repairs he had effected to the shop and consequently, his eligibility was destroyed, does not impress us. This may only mean that he has no investment in the property within the meaning of paragraph 6 of the instructions and, therefore, may have to pay the full price as assessed under these instructions. However, his entitlement to the property, because of re‑constructing it and being in occupation of it, would not be affected by this circumstance.

We are also unable to agree with Mr. Saeed Akhtar that in such cases the shop after re‑construction must be transferred under the Schedule to the Act. These re‑constructed shops are governed by the special instructions issued by the Chief Settlement Commissioner and, as observed above, they are excluded expressly from Scheme No. I framed to give effect to the Schedule.

The upshot of the whole discussion is that proper consideration has not been given by the departmental authorities to the relevant facts appearing from the official record of the case and, therefore, there has been no proper disposal of the case in accordance with law. We, therefore, allow the appeal, set aside the orders passed by the High Court and declare the order passed by the Departmental Officers, to be without lawful authority. We remit the case to the Settlement Commissioner who will now bear in mind all the relevant facts in the light of observations made above; record such evidence as the parties may place before him and then dispose of the cause in accordance with law. It will open to the respondent to raise such legal points before the Settlement Commissioner as may be available to her. Costs will be costs in the cause.

Appeal accepted.

Case remanded.

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