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Civil Appeal No. 27 of 1968, decided on 9th March 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 17th July 1964, in Letters Patent Appeal No 383 of 1963 and Civil Miscellaneous No. 371 of 1964).

Sched Part 11 & S. 2(12), proviso‑Chief Settlement Commissioner empowered to split business premises into separate units and to dispose them of separately‑One individual can have only one business unit and cannot claim second unit on ground of there being no other claimant or non‑claimant in field Unit not in possession of any person legally entitled to its transfer, could validly be put to auction‑[Jalil Ahmad v. Settlement and Rehabilitation Commissioner, Hyderabad and another P L D 1962 Kar. 197 held overruled].

Jalil Ahmad v. Settlement and Rehabilitation Commissioner, Hyderabad and another P L D 1962 Kar. 197 held overruled.

Muhammad Hanif v. The Chief Settlement Commissioner P L D 1969 Lah. 261 ref.

Saeed Hassan Malik, Advocate Supreme Court instructed by Ghulam Mujtaba, Advocate‑ on‑Record for Appellant.

Sardar Hidayatullah Khan, Advocate Supreme Court, instruct ed by Iftikharuddin Ahmad, Advocate‑on‑Record for Respondent.

Date of hearing : 9th March 1970.

‑In this appeal, by special leave, the dispute pertains to a shop which before Partition, bore No. V/509, situate in Maya Katra, Namak Mandi, Rawalpindi. In the year 1948, it was allotted to Farzand Ali, a son of the appellant who is a claimant displaced person and remained in his occupation. It appears that in the year 1952, this shop was partitioned into two portions and each given a separate number, viz. 509/A and 509/B, respectively. While the former continued to be in possession of the appellant and his son, the latter, viz. No. 509/B, was occupied by Muhammad Yousuf, a local.

During the Settlement operations, the appellant filed a C. S. Form for this shop which was transferred to him in its entirety, including a chobara above it, by the Deputy Settlement Commis sioner on the 24th of December 1959. Muhammad Yousuf aforesaid contested this transfer in so far as it related to his portion of the shop, in appeal before the Additional Settlement Commis sioner and later in revision before the Settlement and Rehabilita tion Commissioner, both of which were unsuccessful. However, a second revision filed by Muhammad Yousuf before Mr. Mir Ajam Khan who held the powers of the Chief Settlement Commissioner, was successful. The learned Chief Settlement Commissioner found that the shop in question stood divided into two portions since 1952, bearing separate numbers, which were in possession of the appellant and Muhammad Yousuf, respectively. The learned Chief Settlement Commissioner further held that the shop in possession of Muhammad Yousuf could not be transferred to him as he was a local, and he ordered that the same be put to public auction.

The appellant challenged this order in writ petition in the High Court, claiming that the entire premises was one shop to which he was legally entitled. The writ petition was dismissed and so was the Letters Patent Appeal filed against that decision. The High Court refused to give relief to the appellant on the main consideration that as the shop had been competently divided by the Chief Settlement Commissioner acting within his lawful authority, in two separate units, it was not for the High Court to interfere in that matter and to hold that the shop should not have been so divided as contended by the appellant.

Leave to appeal was granted by this Court on the 26th of November 1964, to examine the contention made by the learned counsel for the appellant, that the powers of the Settlement Authority to divide the property can be exercised only to satisfy the claims of the persons who are entitled to its transfer under the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as the Act, and not for the purpose of putting any portion of it for disposal by public auction. A judgment of a learned Single Judge of the High Court, Karachi Seat, reported as Jalil Ahmad v. The Settle ment and Rehabilitation Commissioner, Hyderabad and another (P L D 1962 Kar. 197) was relied upon in support of this contention.

Under the first proviso to subsection (12) of section 2 of the Act, the Chief Settlement Commissioner has the powers to declare that in case of a business premises which consists of more than one business unit in possession of different persons, each one may be treated as a separate unit and disposed of as such. In other words, he has the powers to split up such a business premises into separate units and to dispose of them separately. In case, he does not do so, the entire premises is S to be transferred as a single shop. It is, therefore, for the Chief Settlement Commissioner, in the first instance, to see whether a business premises can be split up into separate parts for the ‑exercise of his powers of division as contemplated in the proviso cited above. Once he chooses to do so and divides the business premises, the divided units have to be treated as separate units. One individual under the Act can have only one business unit (shop) and no more. He cannot claim a second one on the ground that there is no other claimant or non‑claimant in the field to be legally entitled, for its transfer.

Mr. Saeed Hassan, the learned counsel for the appellant, has contended before us that the division of an evacuee shop for the purpose of selling a portion of it by public auction, is not germane to the policy and purposes of the Act. He argued that it is inconsistent with the policy of the rehabilitation of the displaced persons as contemplated by the Act. This argument has not impressed us. If a shop which has been divided as a separate independent shop, does not go to a claimant or a non‑claimant, there being no one eligible for it, as provided in clauses 8 and 9 of the Schedule, it has to be put to public auction as the third alternative under clause 11 of the same Schedule. The auction money raised has also to be utilized for the rehabilitation of the displaced persons, which is wholly consistent with the objectives of the law and the policy for the rehabilitation of the refugees. The argument, therefore, that the division of a shop can take place only if it becomes necessary to satisfy the claims of the claimants or non‑claimants in possession thereof, is devoid of any force. In the present case, the property stood divided from since 1952 and the two units so divided were in separate possession of the appellant and Muhammad Yousuf respondent. After division, the appellant continued to pay rent of his own portion of the shop and not of the other and initially the transfer was made to him by the Settlement authorities of his own portion, on the capitalized value of the 40 years' rent which he was paying for it.

As the portion in dispute had been competently divided and treated as a separate shop, the order of the learned Chief Settlement Commissioner putting it to public auction, was rightly made within the lawful exercise of his authority.

As regards the decision in Jalil Ahmad's case cited in the admitting order, on which reliance was placed by the appellant, it is sufficient to point out that this decision was overruled in a Letters Patent Appeal (No. 68 of 1961) by a Division Bench of the High Court, Karachi Bench. In the Letters patent judgment, another decision of a Division Bench of the High Court, Lahore, is referred to, reported as Muhammad Hanif v. The Chief Settlement Commissioner (P L D 1969 Lah. 261), in which the view of the learned Single Judge in Jalil Ahmad's case was expressly dissented from.

As this appeal fails, it is dismissed with no order as to costs.

Appeal dismissed.

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