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Civil Appeals Nos. 75 of 1966, 11 of 1967 and Civil Review Petition No. 1 of 1965, decided on 11th January 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 1st October 1964, in Letters Patent Appeal No. 429 of 1963 and Letters Patent Appeal No. 329 of 1963).

AND

(On review from the judgment and order of the Supreme Court of Pakistan dated the 7th December 1964, in Civil Petition for Special Leave to Appeal No. 332 of 1964).

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958),

Sch., Part 11‑Shop‑Question whether claimant allottee in possession of two separate business units can elect to choose any one of two after having submitted his C. S. Form for transfer of both‑Special leave to appeal granted by Supreme Court to consider question.

(b) Appeal to Supreme Court‑Point not raised in grounds of appeal‑Allowed to be taken up at stage of argument.

(c) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958),

S. 2, Cis. (4) & (12)‑Words "residential unit" in first proviso to cl. (4) and "business unit" in first proviso to cl. (12)‑Interpretation of word "unit".

The interpretation of the word "unit" occurring in the first provisos to clauses (4) and (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 fell in for consideration in two appeals before the Supreme Court. On behalf of the appellants it was strenuously argued that what is to be included within the scope of this term cannot depend on the whim and caprice of an individual Settlement authority. It was urged that the word "unit" although not defined in the Act has definite historical back ground and it has now become almost a term of art with a definite connotation. In the two provisos as they stood unamended although the word "unit" had not been used, the intention of the Legislature had been made clear and a unit for the purpose of division of a house or shop was to be the portion in possession of a particular displaced person. The division, as such, could only be made on the basis of possession. The mere fact, therefore, that the words "residential/business unit" have been used in the amended provisions instead of the words "residential/business premises", it was argued, cannot be taken to have altered the intention of the Legislature. The word "unit", it was said, has been used merely because the word unit had, in the meantime, according to the practice of the Settlement and Rehabilitation Department, acquired a special signification, namely, that it referred to a portion of a building in possession of a displaced person according to the records of the Settlement and Rehabilitation Department, such as the property and survey registers. The amendments made in 1959, it was further contended, were not intended to arm the Settlement authorities with powers of further fragmentation but were rather intended to bring about a consolidation of the premises. Thus, it was said, a "unit" can have no relation to the structural characteristics of a building but is to be determined by the necessity of its user:

Held, it is, no doubt, true that in the provisos originally appended to subsections (4) and (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the word "unit" had not beer; used but it was said that where a building not declared to be a big mansion or hotel consisted of more than one "residential premises" or "business premises" and such premises were in the possession of several persons, the premises in possession of any one such person shall be deemed to be a "house" or a "shop" as the case may be. But by the amendments made in 1959 the word "premises" has been substituted by "unit" and it has been provided that even if such units are in the possession of several persons the whole of the building may still be deemed to be a "house" unless the Chief Settlement Commissioner orders otherwise. In the first portion of the amended provisions, the word "premises" has only been substituted by the word "unit" but this change when read along with the new power given to Chief Settlement Commissioner, to treat several "units" as a single "house" or a single "shop" notwithstanding the fact that each "unit" may be in the possession of several persons, 1s 1191 without significance. It clearly constitutes a departure from the previous rule that possession simpliciter by individual was to determine whether a building was to be treated as a single house or as many houses as there were persons in possession thereof. The word "unit" in the amended proviso is, therefore, necessarily dissociated from its possession. The new power given to the Chief Settlement Commissioner is clearly designed to give him the latitude to see that the utility of the premises to be transferred to an individual is not impaired. The word "unit" has, therefore, acquired a new signification which is more co‑related to the structural characteristics of the building itself and in this sense the word "unit" is clearly intended to mean a division of the whole building which can be regarded as the least necessary to form an integrated portion capable of having a separate entity and being used as a self‑contained portion. Such an interpretation is not only a reasonable interpretation but also one which is in consonance with the general principle that an interpretation which advances the object of the legislation should be preferred. The avowed object of the legislation is no doubt to compensate and rehabilitate as large a number of displaced persons as possible but in doing so the Legislature, it appears, must have realised that in making a permanent rehabilitation not only the possession but also the practical feasibility of the transferred premises or portion of a premises being utilised as a self‑contained residential or business premises should be kept in view. Hence the necessity for making a change and giving a discretion to the Chief Settlement Commissioner to depart from the rule that possession alone should be taken as a criterion for division. In the face of this radical change in the policy of the law it is hardly open to contend that the intention of the Legislature remained unchanged. The word "unit" has thus been used in the amended proviso in its ordinary or popular sense of an integrated portion of a building structurally capable of being used as a self‑contained portion.

(d) Interpretation of statutes‑Interpretation advancing object of legislation to be preferred.

(e) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Sch., Part II‑Shop‑Claimant allottee in possession of more than one separate business units submitting one C. S. Form for transfer of both‑Whether could at later stage surrender his claim in respect of one and whether has option to choose one or the other for transfer [Quaere].

Civil Appeal No. 75 of 1966

A. R. Changhez, Senior Advocate Supreme Court instructed by Kh. Mushtaq Ahmad, Senior Attorney for Appellant.

Muhammad Ishaq, Settlement Commissioner (Legal), instructed by Iftikharuddin Ahmad, Attorney for Respondent. ;

Civil Appeal No. 11 of 1967

Mian Mahmud Ali, Senior Advocate Supreme Court (Rafiq Ahmad, Advocate with him) instructed by M. Siddiq, Senior Attorney for Appellant.

Muhammad Ishaq, Settlement Commissioner (Legal), instructed by Iftikharuddin Ahmad, Attorney for Respondent.

Civil Review Petition. No. 1 of 1965

Mian Mahmud All, Senior Advocate Supreme Court (Rafiq Ahmad, Advocate with him) instructed by M. Siddiq, Senior Attorney for Petitioner.

Nemo for Respondent.

Date of hearing: 11th January 1968.

JUDGEMENT

HAMOODUR RAHMAN, J.‑---

These two appeals by special leave arise out of the same judgment of the High Court of West Pakistan whereby two writ petitions, namely, Writ Petition Nos. 637/R of 1960 and 7/R of 1961 were analogously heard and dismissed. This order was upheld on Letters Patent Appeals (Nos. 320 and 515 of 196)) as well by a Division Bench of the same High Court.

Leave was granted to Sh. Muhammad Hassan appellant) in Civil Appeal No. 11 of 1967 on the 7th of December 1964 to consider the following two questions of law:‑--

(1) Whether a claimant allottee, who is in possession of more than one separate business units or premises, can elected to take one or the other of them even after he has filed his C. S. form or a complete application for transfer

(2) Whether in view of the fact that the appellant had asked for the transfer of both the premises in his favour in his C. S. form he could at a later stage surrender his claim to one of the said premises

Since the petition for special leave filed by Abdul Majid Khan, appellant, in Civil Appeal No. 75 of 1966, was inter connected, leave was also granted to him on the 2nd February 1965. But in this case there was no specification of the grounds on which the leave was granted. It was only stated that leave to appeal is granted "as prayed in this case."

The appellant Sh. Muhammad Hassan subsequently filed a petition for the clarification of the order granting leave to appeal seeking thereby to raise other points as well This request was refused on 22nd December 1964. He then filed a Review Petition (No. 1 of 1965) for the modification of the leave granting order. This petition was ordered to be put up for consideration along with the appeal after notice to the opposite parties. We have now heard both these appeals which will be disposed of by this judgment, The dispute in these cases relates to evacuee premises Nos. x'/428 W/429 W/430 W/431, W/432 and W/433 situated in Ganj Mandi, Rawalpindi, a predominantly commercial area. The appellant Sh. Muhammad Hassan, a claimant displaced person from Hoshiarpur (East Punjab), was in 19.19, allotted premises No, W/429, which was shop, and 15 other rooms in premises No. W/432. The appellant Abdul Majid Khan was, in 1952, allotted premises No. W/431, which was also a shop and two otter rooms on the first floor of premises No. W/432. The remaining portions of No. W/432 premises Nos. W/428, W/430 and W/433 were allotted to locals. On; Raja Muhammad Azad was allotted 9 rooms in premises Ni. W/432 and one Malik Hakam Khan was allotted the remaining 13 rooms therein.

When Settlement operations started Sh. Muhammad Hassan, erroneously believing that all the above numbered premises formed one building belonging to the same evacuee owner, filed a C. S. form on 22‑6‑1959 for the transfer of premises Nos. W/429 and W/432 on evaluation basis. The appellant Abdul Majid who was also a claimant displaced person submitted his C. S. form on the 6th July 1959 for the transfer of premises No. W/431 alone but he mentioned therein that he was also in possession of two rooms in W/432 as an allottee and was using the same as godowns.

Subsequently, it was discovered that Nos. W/428, W/429 and W/430 formed a separate evacuee building belonging to one Mst. Krishna Vanti. Nos. W/428 and W/‑129 were shops on the ground floor and W/430 was a residential portion on the first floor consisting of six rooms, a kitchen and an open yard. It had a separate entrance from the road with a staircase leading to the first floor. Pre wises Nos. W/431, W/432 and W/433 formed another separate building belonging to Ram Kishore and Asok Kumar, commission agents. This also was a two‑storeyed building. Premises Nos. W/431 and W/433 were two shop rooms therein on the ground floor abutting on the road and in between these shop rooms was the main entrance leading to an open space. On each side of this open space were 9 small independent rooms with no interconnection between them. Similarly, on the first floor there were 11 rooms on each side opening on to a gallery surrounding tae open space. In the middle of the building there were two staircases leading from the open space on the ground floor to the gallery above. Sh. Muhammad Hassan was allotted 8 rooms on the ground floor and 7 rooms on the first floor. Out of these six were above the rooms in his possession on the ground floor and one above shop No. W/433.

The circumstance under which the appellant Muhammad Hassan was misled into applying for the transfer of troth a shop room (No. W/429) in one building and another building (No. W/432) was that both these two buildings were adjoining buildings having a common wall on the eastern side.

After this mistake was discovered the appellant Sh. Muhammad Hassan purported firstly to surrender his claim to shop No. W/429 and then to shops Nos. W/431 and W/433 but claimed the rest of No. W/432 as shop because he alleged that he had had all along been using the rooms on the ground floor as godowns in connection with his business as a wholesale dealer in salt and bad been using the rooms on the first floor as serais for the beparis who came to do business with him. The claim to the shops Nos. W/431 and W/433, on the ground floor, was given up because it was said that from before Independence they had been numbered separately in the Municipal Register.

Notwithstanding the Deputy Settlement Commissioner on the 15th of December 1959, transferred shop No. W/429 and one room exactly above it as a godown to Muhammad Hassan. Shop No. W/431 was transferred to Abdul Majid Khan with one room exactly above it and the shop No. W/443 was transferred to NRalik Hakam Khan, a local, and the remaining 37 rooms described in the D. R. C's order as "godowns" in W/432 were earmarked for disposal by unrestricted public auction.

Both Muhammad Hassan and Abdul Majid Khan preferred appeals against this order before the Additional Settlement Commissioner; Rawalpindi, who after inspecting the premises came to the conclusion that W/431 was a completely separate commercial unit and that so far as W/432 was concerned it was a huge double‑storeyed building consisting of 39 rooms, each of which had a separate and independent access having no inter‑connection with each other. He, therefore, held that each room of W/432 was "a completely separate business unit" which could not be treated as a godown attached to any of the shops.

Unfortunately, he too fell into sonic slight confusion as to the exact situation of these two buildings, for, at one place in his order lie appears to have said that the shops Nos. VV/428, W/429, W/431 and W/433 were four independent shops in this building", where as in fact W/ 428 and W/429 were situated in a different building, Be that as it may both these appeals were admitted by hire, the Deputy Settlement Commissioner's order was set aside and that the case was remanded back with the following directions;‑‑‑

(1) that the shop, should be treated as separate and independent commercial units,

(2) that each room in building No. W/432 was also to be treated as a separate and independent commercial unit and transferred to "individual occupants if otherwise found eligible",

(3) that the remaining units or rooms in W/432 were to be put to auction.

Against this order both Muhammad Hassan and Abdul Majid Khan again went up in revision before the Settlement and Rehabilitation Commissioner who by a brief order upheld the decision of the Additional Settlement Commissioner. But he closely described each room of W/432 as a "shop" and observed that since the description of the property proved that it could be "utilised as a salt market", the transfer of each "shop" could lie made on the merits to each occupant.

From this order Sh. Muhammad. Hassan alone went up in Second Revision but the same was rejected by the Chief Settlement Commissioner without even hearing the appellant Sh. Muhammad Hassan. The latter accordingly moved the High Court under Article 4 of the Laws (Continuance in Force) Order 1958 for the issuance of an appropriate writ by petition No. 637/R of 1960.

Abdul Majid Khan did not go up in Second Revision to the Chief Settlement Commissioner but invoked the writ jurisdiction of the High Court directly against the order of the Settlement Commissioner by Writ Petition No. 7/R of 1961.

It appears that before the learned Single Judge in the High Court only two points were urged on behalf of the appellant Sh. Muhammad Hassan, namely:‑---

(1) that the Additional Settlement Commissioner had acted illegally in designating each one of the rooms of W/432 as a separate and independent unit, and

(2) that since he had given up his claim to the transfer of shop No. W/429 it was not open to the Settlement authorities to transfer it to him instead of shop No. W/432 for which he had opted.

Both these contentions were repelled. The first on the ground that it was not open to the High Court to go behind the finding of the Settlement authorities that each one of the rooms in W/432 was a separate shop and the second on the ground that once a complete application for transfer has teen filed it is not open to the applicant to make any further change therein or to exercise any option because the option should have been exercised before the application for the transfer was made. Similarly, with regard to the petition of Abdul Majid Khan, it was observed that since shop No. W/431 had been held to be an independent shop and the two rooms held by him in W/432 had also been held to be independent units be was not entitled to claim the transfer of more than one evacuee property. Both the writ petitions were accordingly dismissed.

The Letters Patent Bench also refused to interfere in the appeals filed by Sh. Muhammad Hassan and Abdul Majid Khan since in its view too the finding of the Additional Settlement Commissioner to the effect that each one of the rooms in No. W/432 was a separate business unit was one of fact, which could not be interfered with in the writ jurisdiction.

From the facts set out above, it appears, that there can be no dispute now with regard to the following:‑---

(1) That premises W/428, W/429 and W/430 constitute a separate building belonging to a different evacuee owner and that the sane have no connection whatsoever with premises Nos. W/431, W/432 and W/433 which constitute another building.

(2) That both buildings are situated in a predominantly commercial area and are buildings which have all along been used for business purposes.

(3) That the two shops and 39 or 40 rooms comprised in premises Nos. W/31, W/432 and W/433 are independent rooms having no connection with each other.

(4) That premises No. W/431 was from before Independence numbered separately in the Municipal Register and that premises Nos. W/431 and W/433 are independent shop rooms fin the possession of two different persons.

(5) That the final order of the Settlement authorities which even now holds the field is that of the Additional Settlement Commissioner dated 11‑8‑60 whereby the order of the Deputy Settlement Commissioner has been set aside and the case has been remanded for re‑consideration with the direction that each of the shops W/428, W/429, W/431 and W/433 as also each of the rooms in W/432 should be treated as "independent commercial units" and transferred to individual occupants if otherwise found eligible. The remaining units have been directed to put to auction.

It would thus appear that neither the Additional Settlement Commissioner nor any other higher Settlement authority has yet made any final adjudication on the question as to whether the appellant Sh. Muhammad Hassan can or cannot elect to ask for the transfer of one of the two or more premises of which he is an allottee and entitled under the law to its transfer. The only question that has so far been decided is as to the mode of division of these premises. The only question, therefore, that now arises for consideration is as to whether the Settlement authorities were right in treating each room comprised in premises No. W/432 as an independent commercial unit and since this is the real question now in issue we have allowed learned counsel appearing in support of the appeal of Sh. Muhammad Hassan to raise this question even though this was not a point on which leave was granted.

He has, of course, argued that the Settlement authorities had acted illegally and arbitrarily in holding that each of these rooms was an independent "commercial unit." According to him the word unit, although not defined in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, has a definite historical background and has now become almost a term of art with a definite connotation. As to what is to be included within the scope of this term, it is strenuously argued, cannot depend on the whim and caprice of an individual Settlement authority for then even a box room or a kitchen or a bath‑room may well be treated as a unit. This can obviously not be so, for the discretion given to the Chief Settlement Commissioner under the proviso to subsection (12) of section 2 of the Act, 1958, is not an uncontrolled discretion. This subsection is in these terms:--

"shop" means evacuee business premises of any value in an urban area or of the value of ten thousand rupees or more in a rural area together with godowns or store‑houses, if any, attached or appurtenant to such premises, but does not include any building situated within the premises of an industrial concern, or a building or premises, declared under paragraph 15 of the Schedule to be a big mansion or hotel or such class of business premises in a rural area as may be declared by the Central Government, by notification in the official Gazette, not to be shops within the meaning of this clause:

Provided that where any building or premises not so declared consist of more than one business unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a shop:

Provided further that where any such building or premises consist of both residential and business units, the Chief Settlement Commissioner may order that the whole of such building or premises, or such part or parts thereof as may be specified in the order, shall be deemed to be a shop or a house."

The above provisos, it appears, were introduced by an amendment made in 1959 by the Displaced Persons (Compen sation and Rehabilitation) (Second Amendment) Ordinance, 1959. Prior to such amendment this subsection read as follows:‑---

"shop" means evacuee business premises of any value in an urban area or of the value of ten thousand rupees or more in a rural area together with godowns or store‑houses, if any, attached or appurtenant to such premises, but does not include any building situated within the premises of an industrial concern, or a building or premises declared under paragraph 15 of the First Schedule to be a big mansion or hotel:

Provided that where a building not so declared consists of more than one business premises, and such premises are in the possession of several persons, the premises in the possession of any one of such persons shall be deemed to be a shop."

The proviso to the definition of a "house" given in sub section (4) of section 2 has also now been changed by the same Ordinance of 1959. Before the amendment this subsection stood as follows:‑

"house" means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out‑houses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or out‑house is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 15 of the First Schedule to be a big mansion or hotel:

Provided that where a building not so declared consists of more than one residential premises and such premises are in the possession of several persons, the premises in the possession of any one of such persons shall be deemed to be a house."

Now it is as follows:‑---

"house" means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out‑houses, if any, attached to or appurtenant to such premises notwithstanding that any such garden, ground, garage or out‑house is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 15 of the Schedule to be a big mansion or building or premises in a rural area as may be declared by the Central Government, by notification in the official Gazette, not to be houses within the meaning of this clause:

Provided that where any building or premises not so declared consist of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house:

Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including out‑houses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as a part of the house."

It will be observed that in the unamended provisions, although the word "unit" had not been used, the intention of the Legislature had been made clear and a unit for the purposes of division of a house or shop was to be the portion in possession of a particular displaced person. The division, as such, could only be made on the basis of possession. The mere fact, therefore, that the words "residential/business unit" have been used in the amended provisions instead of the words "residential/ business premises", it is suggested, cannot be taken to have altered the intention of the Legislature. The word "unit", it is said, has been used merely because the word unit had, in the meantime, according to the practice of the Settlement and Rehabilitation Department, acquired a special signification, namely, that it referred to a portion of a building in possession of a displaced person according to the records of the Settlement and Rehabilitation Department, such as the property and survey registers.

The amendments made in 1959, it is further contended, were not intended to arm the Settlement authorities with powers of further fragmentation but were rather intended to bring about a consolidation of the premises. Thus, it is said, a "unit" can have no relation to the structural characteristics of a building but is to be determined by the necessity of its user.

It is, no doubt, true that in the provisos originally appended to subsections (4) and (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the word "unit" had not been used but it was said that where a building not declared to be a big mansion or hotel consisted of more than one "residential premises" or "business premises" and such premises were in the possession of several persons, the premises in possession of any one such person shall be deemed to be a "house" or a "shop" as the case may be. But by the amendments made in 1959 the word "premises" has been substituted by unit" and it has been provided that even if such units are in the possession of several persons the whole of the building may still be deemed to be a "house" unless the Chief Settlement Commissioner orders otherwise. In the first portion of the amended provisions the word "premises" has only been substituted by the word "unit" but this change when read along with the new power given to Chief Settlement Commissioner to treat several "units" as a single "house" or a single "shop" notwithstanding the fact that each "unit" may be in the possession of several persons, is not without significance. It clearly constitutes a departure from the previous rule that possession simpliciter by an individual was to determine whether a building was to be treated as a single house or as many houses as there were persons in possession thereof. The word "unit" in the amended proviso is, therefore, necessarily dissociated from its possession. The new power given to the Chief Settlement Commissioner is clearly designed to give him the latitude to see that the utility of the premises to be transferred to an individual is not impaired. The word "unit" has, therefore, acquired a new signification which is more co‑related to the structural characteristics of the building itself and in this sense the word "unit" is clearly intended to mean a division of the whole building which can be regarded as the least necessary to form' an integrated portion capable of having a separate entity and being used as a self‑contained portion.

Such an interpretation in our view is not only a reasonable interpretation but also one which is in consonance with the general principle that an interpretation which advances the object of the legislation should be referred. The avowed object of the D legislation is no doubt to compensate and rehabilitate as a large number of displaced persons as possible but in doing so the Legislature, it appears, must have realised that in making a permanent rehabilitation not only the possession but also the practical feasibility of the transferred premises or portion of a premises being utilised as a self‑contained residential or business premises should be kept in view. Hence the necessity for making a change and giving a discretion to the Chief Settlement Commissioner to depart from the rule that possession alone should be taken as a criterion for division. In the face of thin radical change in the policy of the law it is hardly open to the appellant to contend that the intention of the Legislature remained unchanged. The word "unit" has thus in our opinion been used in the amended proviso in its ordinary or popular sense of an integrated portion of a building structurally capable of being used as a self‑contained portion.

Applying this test to the building in question, it is clear that each room in premises No. W/432 is capable of being used as an independent business unit and therefore, it cannot be said that the Additional Settlement Commissioner had in so holding acted either unreasonably or arbitrarily or whimsically in the exercise of his jurisdiction to determine whether the premises should be treated as a single business unit or shop or as so many units. We can see no valid reason for taking any exception to the mode of division adopted by the Settlement Commissioner. 1n our view, therefore, the appeal of Sh. Muhammad Hassan (Civil Appeal No. 11 of 1967) must fail and it is accordingly dismissed.

In the appeal filed by Abdul Majid Khan (Civil Appeal No. 75 of 1966), the only further point that hag been raised is that the Additional Settlement Commissioner should have treated the rooms in premises No, W/432 as godowns or store‑rooms attached to or appurtenant to shop No. W/431 which was in the possession of this appellant and transferred them as a "shop" to him. This contention is sought to be supported by a reference to the Municipal Assessment Register of 1945 wherein the whole building has been shown as numbered Wl431 and W/432 and described as "shop/RH on rent". From this the learned counsel appearing in support of this appeal argues that there was only one shop No. W/431 and all the rooms behind in W/432 were necessarily godowns attached to this shop. There is nothing on the record, however, to show as to how the rooms at the back were used by the evacuee owners themselves or by their tenants or as to how many tenants there were in this building. In the absence of any such evidence the building which structurally appears to be easily capable of being used either as an arcade consisting of as many shops as there are rooms therein or as a block of office rooms or as a sera or as shops or independent godown cannot be held to be a shop with so many attach godowns. It is difficult to accept that any single shop‑keeper in a city like Rawalpindi would have in pre‑Independence days needed so many godowns. So far as the post‑Independence period is concerned the evidence is clearly to the contrary. On the admission of the appellants themselves some of these back rooms were being used as a serai to put up beparis coming to do business with Sh. Muhammad Hassan whose shop was situated in the adjoining premises. This contention is, therefore, without any substance and clearly untenable. This appeal is, therefore, also dismissed.

In the result both these appeals are dismissed but there will be no order as to costs.

As already indicated earlier the question of choice or option is still undecided and it is still open to the appellant. Sh. Muhammad Hassan to urge it at the hearing on remand before the Deputy Settlement Commissioner. We express no opinion on this question.

Since we have allowed the main question in dispute in this case to be argued and decided the same the review petition has now become infructuous and will be dismissed as such.

K. B. A. Appeal dismissed.

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