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Civil Petition No. 797 of 1977, decided on 9th March 1980.

(On appeal from the judgment dated 22-6:1976 of the Lahore High Court in W. P. No. 424/R/72).

Constitution of Pakistan (1973)---

Arts. 185(3) & 199 read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII 'of 1958), Sched., Part I-Question of divisibility of house--Normally a question of fact not amenable to interference in writ proceedings-Statutory authority can however be directed to re-examine matter and re-decide same after taking into account all pertinent factors if such factors not taken into considera tion-Settlement authorities ordering transfer of whole house in favour of respondent without dealing with question as Sto which of two contestants was in prior possession, remand of case, held, proper in circumstances but open to Settlement authorities to decide case wholly uninfluenced by observations made by High Curt.

Aftab Ahmad Ch., Advocate Supreme Court and S. Wajid Hussain, Advocate-on-Record for Petitioners.

Rao Dastgir Ahmad, Advocate Supreme Court and Abid Nawaz, Advocate-on-Record for Respondent No. 1.

Date of hearing: 9th March 1980,

This case relates to the transfer of a house situated in Chowk Beriwala, Gujranwala. The two contestants Meraj Din, petitioner, and Muhammad Siddiq, respondent No. 1 herein, are claimant displaced persons. There have been three rounds of litigation with respect to the transfer of this house but it is unnecessary to refer all the details of this litigation except to mention that in the third round of litigation the case was remanded to the Deputy Settlement Commissioner for decision of the case on merits on the footing that both of them had submitted C. H. forms in time. The Deputy Settlement Commissioner, therefore, took up the case and after inspecting the house observed that it was very big and commodious house consisting of three storeys, with two gates opening into two different lanes, having two courtyards and could very feasibly be bifurcated into two independent and self-contained portions. He also noted that the intention of the Settlement Scheme was to accommodate as many displaced persons as possible as the property in dispute is palatial one containing all amenities of life therefore two families could be peacefully accommodated therein. He, therefore, divided the house and while doing so also issued some consequential directions so as to make the two portions to become completely two independent and self-contained units. This order of the Deputy Settlement Commissioner was challenged by the respondent by way of an appeal before the Additional Settlement Commissioner who, after visiting the spot, came to the conclusion that the house could not be "safely" divided into two independent and self-contained units and that it was, in fact, indivisible and therefore could not be divided in the manner ordered by the Deputy Settlement Commissioner. He, therefore, set aside his order and. directed the transfer of the whole, house in favour of the respondent. The petitioner challenged this order by means of a revision petition which was also dismissed. The petitioner thereupon filed a writ petition in the High Court and it was submitted before the learned Judge hearing it that it was a perversity to say that the house was indivisible when the petitioner and the respondent had been living in it for nearly three decades. The order of the Deputy Settlement Commissioner dividing the house was illegally set aside on appeal by the learned Additional Settlement Commissioner without proper application of mind to the facts and circumstances of the case and without realizing that by this order he was displacing a settled claimant displaced person from a house in his possession where he had got refuge on migration. It was also submitted that neither the Additional Settlement Commissioner nor the learned Settlement Commissioner had addressed their minds to the question as to which of them was in prior possession so that even if the house was indivisible the question of prior possession needed examination because according to the petitioner he had entered into possession of the house before March 1950, whereas the respondent came into possession in 1951 as his own C. H. form.

As regards the first contention, the learned Judge in the High Court observed:

"The learned Settlement Commissioner held that the learned Additional Settlement Commissioner was right in his order. Neither of the officer applied their mind to the farts of the case that the house was three-storey, commodious and palatial in the words of the learned Deputy Settlement Commissioner, that both the contestants have been living in this very house for, by now, 29 years, both were claimant displaced persons. Of course, they did not advert to the principle that in the matter of settlement of displaced persons, the dominant consideration is to accommodate as many people as possible. This is the law declared by the highest Court in the land."

As regards the other contention, it was observed :-

"In any case, even if the two learned officers were right that the house was indivisible, then, they had to determine as to who amongst the contestants was entitled to transfer. The question had to be determined in accordance with para. 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which lays down that a person in prior possession shall have the right to transfer. Neither of the Officers adjudicated upon this question. In fact, they did not even tabulate facts in this behalf ..They appear to be totally oblivious of this aspect of the case. Therefore, it is obvious that the orders of the two learned officers are without lawful authority and of no legal effect."

Accordingly, the case was remanded back to the Additional Settlement Commissioner to re-hear the appeal of the respondent against the order of the Deputy Settlement Commissioner by which the latter had transferred the house to both the displaced persons by dividing the same between them. This petition for leave to appeal has been filed by the respondent to challenge the above order.

Mr. Aftab Ahmad, learned counsel for the petitioner has mainly argued that the question whether the house is divisible or not is question of fact and the Additional Settlement Commissioner as well as the Settlement Commissioner had after inspection of the spot come to the conclusion that the house was indivisible. This being a finding of fact it could not be interfered with in writ jurisdiction. It was further submitted that the observations made by the High Court which have been reproduced above show that the High Court itself settled the question of divisibility of the house and the Settlement authorities will, therefore, not be in a position to apply their independent mind to this aspect of the case on remand. He, therefore, pressed for setting aside the order of the High Court.

We regret that we cannot agree. No doubt, the question of divisibility of a house is normally a question of fact but if all the relevant factors are not taken into consideration, the statutory authority can be directed to re-examine the matter and re-decide the case after taking into account all the pertinent factors. Moreover, the remand of the case was necessary because the question which of the two contestants was in prior possession had not been dealt with by the Settlement Authorities who had without considering it consciously ordered the transfer of the whole house in favour of the respondent. Hence this order was not a proper exercise of their discretion. We would, therefore, uphold the order of remand passed by the High Court but observe that the Settlement authorities will decide the matter wholly uninfluenced by the observations made by the High Court and make their own decision on the questions falling for determination.

This petition, therefore, fails and is dismissed hereby.

Petition dismissed.

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