Find a Lawyer

Civil Petition No. 855 of 1975, decided on 10th March, 1981.

(On appeal from the judgment and order, dated 4‑6‑1975 of the Lahore High Court in Letter Patent Appeal No. 1047 of 1966) .

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 2(4) & 2(5)‑‑Evacuee property‑‑Divisibility/mode of division‑‑Findings of Settlement authorities about a claimant being local or about divisibility/ mode of division‑‑High Court not to substitute its own opinion‑‑High Court can interfere in these matters only if it finds that statutory authorities had acted arbitrarily or capriciously or had violated a clear provision of law‑‑Additional Settlement Commissioner not recording a conscious order while modifying order about mode of division of property passed by two Deputy Settlement Commissioners‑‑ High Court, held, was justified in restoring earlier order which .was eminently just and proper‑‑Leave to appeal refused.

Fateh Muhammad v. Mumtaz Ahmad 1976 S C M R 71; Allah Bakhsh v. Chief Settlement Commissioner 1976 S C M R 275; Chiragh Din v. Janat Bibi 1976 S C M R'399 and Faizul Haque Khan v. Abdul Hamid 1976 S C M R 429 ref.

Rana Abdur Rahim Khan; Advocate and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

Abid Nawaz, Advocate‑on‑Record (absent) for Respondents.

‑‑The dispute in this case concerns a residential house situate in Ram Nagar, Lahore. It was in possession of four persons, namely, the petitioner, Ghulam Mohyuddin, his brother Muhammad Anwar (respondent No. 2), Muhammad Akbar Qureshi respondent No. 1 and one Abdul Majid. By his order, dated the 10th of January, 1960, the Deputy Settlement Commissioner transferred the house according to the possession of the four occupants, observing that they had agreed to this basis of division, and he directed that a written agreement should be placed on the file. However, no such written agreement was recorded, and instead and the petitioner filed an appeal, which was accepted by the Additional Settlement Commissioner by his order dated the 24th of May, 1960, and the case was remanded to the Deputy Settlement Commissioner for a fresh decision.

Acting in remand, the successor Deputy Settlement Commissioner endorsed the arrangement previously ordered by his predecessor on the 10th of January, 1960. He observed that the plan of the house showed that it was divisible, and could accommodate more than one family. He directed that the agreement as mentioned by the Deputy Settlement Commissioner in the previous order should now be executed. The second order of the Deputy Settlement Commissioner is, dated the 15th of September, 1961.

It appears that the other three occupants once again accepted this arrangement, but the petitioner was not satisfied, and filed an appeal against it. His appeal was accepted by the Additional Settlement Commissioner by his order, dated the 28th of October, 1962. He held that respondent Muhammad Akbar Qureshi was a local and not entitled to have the house divided for his benefit so as to reduce the value of his portion to below Rs.10,000. He separated the portion of Abdul Majid, and directed that the remaining accommodation be jointly transferred to the present petitioner and his brother Muhammad Anwar.

Respondent Muhammad Akbar Qureshi, challenged this order by filing a revision petition, which was, however, dismissed by the learned Settlement Commissioner by his order, dated the 24th of November, 1962.

The respondent then filed a writ petition in the High Court, which was dismissed by a learned Judge by his order, dated the 17th of June, 1966. However, this order was reversed by a Division Bench in the Letters Patent Appeal filed by respondent Muhammad Akbar Qureshi, and the orders made by the Additional Settlement Commissioner and the Settlement Commissioner to the extent of eliminating the respondent were declared to be without lawful authority.

In seeking leave to appeal against this order, it is submitted on behalf of the petitioner that the respondent Muhammad Akbar Qureshi having been rightly held to be a local, he was not entitled to ask for the division of the property for his benefit, so as to reduce its price below Rs.10,000; and that the High Court could not substitute its own opinion as to the divisibility of the house and the mode of division, so as to carve out a separate portion for respondent Muhammad Akbar Qureshi, in spite of the fact that the Additional Settlement Commissioner and the Settlement Commissioner had found that the house should be jointly transferred to the petitioner and his brother Muhammad Anwar, to the exclusion of Muhammad Akbar Qureshi. In support of this submission, the learned counsel has referred us to the judgments reported as Fateh Muhammad v. Mumtaz Ahmad 1976 S C M R 71, Allah Bakhsh v. Chief Settlement Commissioner 1976 S C M R 275, Chiragh Din v. Janat Bibi 1976 S C M R 399 and Faizul Haque Khan v. Abdul Hamid 1976 S C M R 429.

There can be little doubt that the High Court could not interfere with the finding recorded by the Settlement authorities that respondent Muhammad Akbar Qureshi was a local, as the finding was based on a detailed examination of the available evidence. In fact, the Division Bench has not interfered with the same, and has dealt with the matter on the basis that Muhammad Akbar Qureshi was a local. It is also true that it is not for the High Court to substitute its own opinion as to the divisibility of a house or as to the mode of division to be adopted, and the High Court can interfere in these matters only if it finds that the statutory authorities concerned have acted arbitrarily or capriciously in dealing with these questions, or have violated a clear provision of the law.

Now, in the present case, the judgment of the learned Judges of the Division Bench proceeds on the basis that although no written agreement by all the four occupants of the house was placed on the record, yet it stands out as a fact that only one of the four, namely, the present petitioner, was agitating all the time against the orders made by the Deputy Settlement Commissioner on two separate occasions. It is significant that the portions of the house occupied by respondent Muhammad Akbar Qureshi and the petitioner's brother Muhammad Anwar were really interlinked with each other, and only Muhammad Anwar could have a grievance on the ground that he had not been given other self‑contained unit, but he was satisfied on both the occasions with the. arrangement ordered by the Deputy Settlement Commissioner. A perusal of the plan of the house also shows that the portions occupied by the present petitioner and by Abdul Majid were separate and distinct from the portions jointly occupied by respondent Muhammad Akbar Qureshi and the petitioner's brother Muhammad Anwar. In these circumstances, the failure of Muhammad Anwar to agitate against the arrangement ordered by the Deputy Settlement Commissioner had a direct bearing on the question of the availability of a part of the accommodation for transfer to respondent Muhammad Akbar Qureshi.

All the authorities, who have dealt with this house on the settlement side have, indeed, found the house to be divisible, and the only question was as to the mode of division. Although the Deputy Settlement Commissioner, on two occasions, came to the conclusion that the house could easily be divided into four portions according to the possession of the four applicants, it was the Additional Settlement Commissioner, who ordered that the portion occupied by respondent Muhammad Akbar Qureshi be amalgamated with the portion occupied by the two brothers Mohiyuddin and Muhammad Anwar, and then the entire portion so created be jointly transferred to the two brothers. The learned Additional Settlement Commissioner did not record any conscious order to the effect that the portion occupied by respondent Muhammad Akbar Qureshi could not be separated, as had been directed by the Deputy Settlement Commissioner. If the portion occupied by respondent Muhammad Akbar Qureshi could be treated as a separate unit, then it, is conceded that its evaluation price would be below Rs.10,000 and it could easily be transferred to a local.

Keeping all these factors in view, we find that the learned Judges of the division Bench have proceeded correctly in directing that the arrangement envisaged by the Deputy Settlement Commissioner on both the occasions he dealt with the case be accepted, as out of four occupants only the present petitioner was dissatisfied. The house, was obviously divisible and it was being divided by all the officers, who had dealt with the case. In the circumstances the division ordered by the Deputy Settlement Commissioner was eminently just and proper, and the High Court was right in restoring the same.

On this view of the matter, this petition fails, and is hereby dismissed.

M. I. Petition dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.