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Civil Appeal No. K‑52 of 1981, decided on 4th September,1985.

(On appeal from the judgment and order, dated 31‑5‑1980 of High Court of Sind passed in L.P.A. No. 184 of 1971).

‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 203) and Sched, paras. 3 & 4‑‑‑Leave to appeal granted to consider question whether High Court was right in disturbing order of Settlement Commissioner qua determination of rental of residential portion and calculation of evaluation price for purpose of determining entitlement of appellant and also as to whether it was one unit or not as their determination was solely within competence of Settlement Authorities.

‑‑S. 20(3) and Sched., paras. 3 & 4‑‑Settlement Scheme No. 1, para. 22(b)‑‑Transfer of property‑‑Earmarking Scheme‑‑Property in question comprising more than one unit‑‑Entitlement of appellant to residential portion thereof, which he occupied and for which he filed his L.H. form, not finally determined by Settlement Authorities‑‑Question as to whether such portion was separate unit and what was its evaluation price were inter‑woven with matter of entitlement of appellant were yet to be finally determined‑‑Inclusion of property in earmarking scheme, held, was not possible same being not available for disposal,

‑‑‑S. 20(3) and Sched., paras. 3 & 4‑‑Settlement Scheme No. I, para. 22(b)‑‑Transfer of property‑‑Appellant a local, filing his L.H. Form for transfer of portion of property in his possession as residence‑ Settlement Commissioner by his well‑reasoned order holding this residential portion to be a separate unit and appellant entitled to its transfer on basis of evaluation price as according to its rental per month‑‑Appellant, held, entitled to transfer of residential portion with no right over shops.

Khalid M. Ishaque, Advocate Supreme Court and Nizam Ahmad, Advocate‑on‑Record for Appellant.

Respondent No. 1: Ex parte.

Hassan A. Shaikh, Advocate Supreme Court and M.S. Ghaury, Advocate‑on‑Record for Respondent No. 2.

Date of hearing: 4th September, 1985.

‑‑On hearing the appeal, it was disposed of by order, dated 4‑9‑1985 as under:‑

"For the reasons to be recorded later, this appeal is allowed and the judgment of the Letters Patent Bench, dated 31st of May, 1980, remanding the case to the Authorised Officer is set aside while restoring the orders of the Settlement Commissioner, dated 26th of January, 1966, and the learned Single Judge of the High Court in Constitution Petition No. 120 of 1966 to the extent that residential portion of the composite property bearing No. I‑B/33 situated in Shahpur Chakar, District Sanghar, shall stand transferred to the appellant without disturbing the transfer of the godowns/shops bearing Nos. I‑B/104, 10,5 and 106 in favour of respondent Mushtaq Ahmad Khan as a result of the lot drawn in his favour in the Ear‑marking Scheme."

The reasons for the said order are these: That the appellant was in possession of the residential portion of a composite property bearing No. I‑B/33, situated in Shahpur Chakar, District Sanghar. The other portions of this property were three shops bearing Nos. I‑B/104, I‑B/105 and I‑B/106. The rental of the residential portion as charged by the Custodian was Re. 1 per month which was enhanced to Rs.7 and then to Rs.20 per month. He was a local and accordingly, in 1959 applied for its transfer on L.H. Form, but the Assistant Settlement Commissioner by order, dated 14th of October, 1959 rejected the form on the ground that as the value of the house was more than Rs.10,000 he was not entitled to its transfer. The appellant went in appeal to the Deputy Settlement Commissioner and while his appeal was pending, the residential portion was disposed of under the Ear‑marking Scheme. Respondent No. 2, who was an applicant for the transfer of the house under this Scheme succeeded in the drawing of lots on 7th of December, 1959 and an Appendix XI was issued on 8th of January, 1960 for payment of Rs.19,200 as its price. Thereafter, the three shops were advertised for auction. Respondent No. 2 thereupon by an application, dated 2nd of March, 1960 requested that the shops should also be included in the transfer order and succeeded as both the Deputy Settlement Commissioner and the Additional Settlement Commissioner held that shops and the residential portion to be one unit. These were, accordingly, included in the Provisional Transfer Order issued in favour of respondent No. 2. The appellant was not a party in these proceedings.

The appellant's appeal was dismissed on 26th of August, 1960. Against this order, he went in revision to the Additional Settlement Commissioner, who remanded the case to the Deputy Settlement Commissioner for resolving the question as to the enhancement of rent from Rs.7 to Rs.20. The Deputy Settlement Commissioner on remand held the rent to be rightly enhanced to Rs.20 and, accordingly, rejected the appeal by order, dated 15th of February, 1961. The appellant thereupon filed a revision before the Additional Settlement Commissioner who by his order, dated 31st of May, 1961, held as under:

"The Deputy Settlement Commissioner has increased the rent of the house from Rs.7 p.m. to Rs.20 p.m. I approved increase of the rent made by the Deputy Settlement Commissioner. Even in that case the evaluation price of the house will come to Rs.9,600. Mr. Ghulam Rasul being the allottee of this house is, therefore, entitled for its transfer. I, therefore, transfer the house in question to Mr. Ghulam Rasul against his 'L.H.' Form, under the Compensation Act, on the prevailing market value as its evaluation price is less than Rs.10,000. The earmarking proceedings in respect of this house are cancelled. A copy of the order may be sent to the parties."

Respondent No. 2 filed a Writ Petition No. 396 of 1961 without impleading the appellant and succeeded as the impugned order was quashed on the ground that it was passed without hearing him. The case was remanded for hearing to the Additional Settlement Commissioner, and on remand the following order was passed on 4th of August, 1962 on the basis of a Miscellaneous Application No. 445 of 1962:

"I have heard both Mr. Ghulam Rasul and Mushtaq Ahmed Khan who have appeared in person. Mr. Ghulam Rasul, the occupant of the house has given in writing that he does not want to press his case as both the parties have arrived at a compromise. The house will, therefore, stand transferred to Mr. Mushtaq Ahmed Khan, the successful lottery winner."

Respondent No. 2 thereupon served a notice on the appellant on or about the 26th of July, 1963, demanding rent of the residential portion as being its transferee, and it was only then that the appellant learnt about the passing of the order, dated 4th of August, 1962. Thereupon by application, dated 17th of August, 1963, he applied for a review of that order which was set aside by the Additional Settlement Commissioner on 14th of March, 1964, and the revision was again posted for hearing. However, by order, dated 25th of January, 1965, the Additional Settlement Commissioner dismissed the revision application holding as under:

"It is observed that building in question consists of residential house on the upper floors and three godowns on the ground floor. The Custodian Department had assessed the residential portion and each godown separately and had assigned separate survey numbers to each. But the Deputy Settlement Commissioner has treated the entire building as one single unit on 3‑8‑1960 which has been approved by the Additional Settlement Commissioner, too. As such the entire building was included in earmarking list. Moreover, in view of the enhanced rent of Rs.20 per month the evaluation of the house by adding the necessary percentage would come to much more than Rs.10,000 and accordingly the transfer of the house to the petitioner Mr. Ghulam Rasul was also not regular. Since the entire building has been treated as one unit by the D.S.C. on 8‑3‑1960 which was also approved by the Additional Settlement Commissioner this Court is not competent to reopen the question of divisibility of the building at stage to make the petitioner entitled for its transfer.

I, therefore, hold that the entire building has rightly been transferred to the opponent through earmarking."

The appellant next filed a revision before the Settlement Commissioner, Karachi under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and succeeded as it was held; firstly, that the rent payable to the Custodian namely that of Re.l was the amount to be taken for evaluating the price of the residential portion as para. 22(b) of the Settlement Scheme No. 1 was not applicable to the properties situated in Shahpur Chakar; and, secondly, that as the residential portion and the shops were separately assessed and surveyed by the Custodian Department they were not regarded as one unit as even after the inclusion of the residential portion in the Earmarking Scheme the shops were advertised for auction and respondent No. 2 had only applied for ‑the transfer of the residential portion under the Scheme. AS a result of these findings, the order of the Additional Settlement Commissioner way set aside and the residential portion of the composite property was transferred to the appellant And as for respondent No. 2, it was held that as h‑a was the successful drawer of the lot he should be transferred some other property. Respondent No. 2 challenged this order in Writ Petition No. 120 of 1966, but did not succeed as it was dismissed. The appellant then filed a Letters Patent Appeal No. 184 of 1971 and succeeded, as it was held that the conclusion that the property was not one unit was inchoate, and that further it was not obvious from the record as to who has enhanced the rent to Rs.20 and how was the evaluation price calculated. For the determination of these questions, the case was remanded to the Authorised Officer by judgment, dated 31st of May, 1980.

Leave was granted to consider the question whether the Letters Patent Bench was right in disturbing the order of the Settlement Commissioner qua the determination of the rental of the residential portion and the calculation of the evaluation price for the purpose of determining the entitlement of the appellant and so also as to whether it was one unit or not as their determination was solely within the competence of the Settlement Authorities.

Now coming to the merits of the case, the Letters Patent Bench was in grave doubt as to whether the composite property was treated as one unit or more than one. In this connection it would be of advantage to refer to the observations of the Letters Patent Bench:

"I am, therefore, of the view that the question of the building consisting of one unit or more is of primary importance. In the absence of any specific order of the Deputy Settlement Commissioner as referred to by the Settlement Commissioner or even a reference to it in any of the previous orders of the various settlement authorities I would have assumed that no such order exists but in view of the fact that only the house with survey number I‑B/33, was included in the earmarking list it gives me an impression that the building was divided into units as asserted by the learned counsel for the respondent. Since the question is important in as much as the other question for the determination of the entitlement of respondent No. 2, to get the property transferred to him on his L.H. Form depends on the question of the evaluation price of the building treating it as one unit or more than one unit, I will leave it open to be determined by the Settlement Authority concerned as to whether any such order under the delegated authority of the Chief Settlement Commissioner was passed by the Deputy Settlement Commissioner."

But as will appear from the order of the District Judge‑cum‑Settlement Commissioner, Karachi, dated 26‑1‑1966, he has fully gone into this question and has given cogent reasons for holding that the composite property comprised of more than one unit. There was no further evidence to be considered, and, therefore, the remand of the case for the determination of this question was an exercise in futility as to all intents and purposes it would be nothing more than to review the earlier order which again was not permissible. But the more basic question for consideration was whether the property was available for being included in the earmarking scheme while the entitlement of the appellant to the residential portion was not finally determined by the Settlement Authorities.

In this connection we will refer to two dates, i.e., 14th October, 1959 and 26th August, 1960. The first related to the rejection of the appellant's form and the second to the dismissal of his appeal. The residential portion was disposed of under the Earmarking Scheme on 7th of December, 1959, in favour of respondent No. 2 while the shops were included in the Provincial Transfer Order by order, dated 2nd of March, 1960. Both these dates intervened between the rejection of the form and the dismissal of the appeal. The counsel for the respondent was at pains to convince us that the composite property was included in the Earmarking Scheme before the filing of the appeal, but he was unable to show that this was factually so. In this connection he invited our attention to a document relating to the proceedings of disposal of houses by drawing of lots wherein the residential portions and the shops were shown as one unit under the Scheme. But this document hardly answers the question as there is nothing to show in it that the disputed property was disposed of under this Scheme before the appeal was filed. Again although there is a reference in the judgment of the learned Single Judge to the lots having been drawn by the Chief Settlement Commissioner himself on the 7th of December, 1959, and this fact was also highlighted by the learned counsel for the respondent No. 2, yet this does not seem to be so as the proceedings are silent so far as the participation of the Chief Settlement Commissioner was concerned. The effort was to impress on us that as the property was treated as one unit, the appellant was not entitled to its transfer as because of its price. The fact, however, remains that the appellant had applied for the transfer of the residential portion which was not transferred to him because of its evaluation price and he was litigating for the establishment of his entitlement when in the meantime the property was disposed of.

Now according to the Schedule to the Displaced Persons (Compensation & Rehabilitation) Act, 1958, which deals with the manner of disposal of urban evacuee properties, the entitlement of the local had to be finally determined in accordance with para. 3 if he was in possession of the residential portion, and it was thereafter that it could be disposed of under the Earmarking Scheme under para. 4 if he was not found entitled to it. It needs hardly to be emphasised that the questions as to whether it was separate or not and as to what was its evaluation price, were questions which were inter‑woven with the matter of his entitlement and had necessarily to be taken into consideration while finally determining it. None of the Settlement Officers nor the High Court attended to this aspect of the case which was pivotal for decision. Therefore, it is difficult to support the inclusion of the residential portion and the shops in the Earmarking Scheme as it was not available for disposal at that time as that exercise was not over.

On this view of the matter, the Letters Patent Bench was in error to remand the case to the Settlement Commissioner who has, by a well‑reasoned order, held the residential portion to be a separate unit and the appellant entitled to its transfer on the basis of the evaluation price as according to its rental per month. As the appellant is only entitled to the transfer of the residential portion and had no claim over the shops, we do not see any justification to disturb the transfer of the shops which were available for transfer although not under the Earmarking Scheme as it is now too late in the day to reopen the question of transfer of shops in the interest of justice.

The short order is the result of our holding so.

M. Y. H. Appeal allowed.

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