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Civil Petition for Special Leave to Appeal No. 642 of 1975, decided on 28th October, 1980.

(On appeal from the judgment of the High Court, Lahore dated 6‑5‑1975 in Writ Petition No. 1066/R of 1969).

Constitution of Pakistan (1962)‑‑

‑‑‑ Art. 98‑Writ jurisdiction‑‑Entire property concurrently held to be a single residential unit, no part thereof constituting an indepen dent shop‑Chief Settlement Commissioner on mukhbari application stating transferee, predecessor‑in‑interest of respondent, having un lawfully secured transfer of two shops passing order for examination of case in exercise of suo motu remedial consideration but High Court in its writ jurisdiction declaring proposed action to be without lawful authority‑Order of High Court, held, in full accord with intrinsic justice in case and Supreme Court would not in circumstances invoke its special discretionary jurisdiction‑‑Constitution of Pakistan (1.9731, Art. 185(3).

Ch. Qadir Bakhsh, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Inayat Hussain, Advocate‑on‑Record for Respondents.

Date of hearing : 28th October, 1980.

‑Dispute in this case relates to property No. P‑76, Ward No. 8, Montgomery Bazar, Lyallpur, which was trans ferred to Hussain Bakhsh, predecessor‑in‑interest of respondents Nos. 2 to 4, by the order of the Deputy Settlement Commissioner dated 5‑11‑1959. This order specifically mentions that the entire house is in possession of Hussain Bakhsh leaving only two rooms on the backside with Messrs Mehar Din and Chootu refugees who are neither allottees nor claimants and have also not filed any prescribed form for the transfer of the property. They have deposed this fact vide their statements dated 17‑10‑1959. Hussain Bakhsh was a claimant displaced person and he had applied for transfer under C. H. Form.

One Muhammad Din who occupied claim to be in possession of one of the houses filed an appeal but it was dismissed and his revision appli cation was also rejected for the reason that the entire property is a single residential unit.

Afterwards, Hussain Bakhsh succeeded in getting possession of both the aforesaid rooms and converted them, in 1963, into two shops. He rented one of these to Ghulam Muhammad, petitioner herein, and the other to one Ghulam Hussain. According to the learned Single Judge in the High Court, Ghulam Muhammad admitted in the Court, that "he occupies the shop as yet, as a tenant ". He, however, made default in payment and consequently faced ejectment proceedings. An order of eject ment was passed on him on 6th April, 1968, and appeal before the Addi tional District Judge failed on 23rd April, 1969.

In 1968, on a mukhbari application that Hussain Bakhsh had been unlawfully transferred two shops, the Deputy Settlement Commissioner submitted a report to the Chief Settlement Commissioner who, however, refused to take any proceedings vide his order, dated 26‑3‑1963. The petitioner Ghulam Muhammad made another application contain ing similar allegations to the Chief Settlement Commissioner on which an order was passed on 15‑11‑1963 for examination of the case in exercise of suo motu remedial consideration. The petitioner on coming to know of these facts moved the Chief Settlement Commissioner for the withdrawal of suo motu action but his request was refused under letter, dated 19‑9‑1969. He then challenged these proceedings in the Lahore High Court by way of petition under Article 98 of 1956 Constitution, which succeeded with the direction that the proposed suo motu action was without lawful authority.

The petitioner, seeks special leave to appeal from the judgment of the High Court, and Ch., Qadir Bakhsh, learned counsel appearing for him submits on the basis of rule laid down by this Court in "Virasat Ullah v. Bashir Ahmad and others1969 S C M R 154 that the exercise of constitutional jurisdic tion by the High Court was not justified on "mere issuance of notice by Settle ment Commissioner calling upon transferee to justify transfer".

It is true that interference under constitutional jurisdiction in such a situation is not warranted but on persual of the record we find that in its essential merits this is not a fit case for interference by this Court for the reason that it has been held as a finding of fact that the entire property is a single residential unit, and no part thereof cons tituted an independent shop, not to speak of two shops. Not only this position is clear from the report of the Assistant Settlement Commissioner, which is the part of the order of the Deputy Settlement Com missioner transferring the property in favour of Hussain Bakhsh, but both the Additional Settlement and the Settlement Commissioner also confirmed this position. Learned Additional Settlement Commissioner in his order, dated 13‑7‑1966 dismissing the appeal of Muhammad Din observed that "the property is a small double storeyed residential house,

The appellant is in possession of only one room on the ground floor which cannot be treated as independent single unit". Therefore, the Settlement Commissioner in revision examined this aspect of the case and observed as follows: ‑

"I have heard the parties through their counsel and have seen the site plan. Petitioner is stated to be in possession of two rooms in the first floor and is a Tonga Driver by profession in view of the accommodation, the possession of the petitioner certainly could no be considered to be an independent possession of an independent portion."

It was on these facts that the learned Single Judge in the High Court was pursuaded to invoke the extraordinary jurisdiction, and since the order passed by his Lordship is in full accord with intrinsic justice in the case, we would refrain from exercising the special discretionary jurisdiction, which is sought to be invoked.

The petition is, therefore, dismissed in limine.

Petition dismissed.

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