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Writ Petition No. 315 of 1961, decided on 20th December 1962.

-Finality of orders-Subject to provisions of Act-Order open to suo motu revision.

-House consisting of two units - One unit in possession of "Claimant " and other in possession of "Non claimant"-Each entitled to transfer of unit in his possession "Claimant" cannot claim preferential right over "Non-claimant" and have whole house transferred to himself.

--S. 4 first proviso-Deputy Settlement Commis sioner may declare that a house consists of several units, but a house consisting of several units may not be declared to be one house.

-High Court exercising writ jurisdiction cannot go into sufficiency or insuffi ciency of evidence - Constitution of Pakistan (1962), Art. 158.

Akhtar Mahmood for Petitioner.

S. M. Raza for Respondent 1.

Idris Qureshi for Respondents 2 & 3.

Dates of hearing : 7th and 10th December 1962.

The petitioner prays that the order passed by the Additional Settlement Commissioner Mr. 1. .H. Zuberi on 25th April 1960 and the order passed by the Settlement and Rehabilitation Commissioner Mr. Hassan A. Shaikh on 24th May 1960, be quashed. The petitioner has further prayed for the issue of a writ of mandamus directing the respondents 2 and 3 not to pass any order in respect of the bungalow in dispute. The facts as disclosed in the petition are these :-

The bungalow known as Tirath House situated on Clayton Road, Karachi consists of two floors. The ground floor is in occupation of the respondent No. 1 since 1956 while the first floor is in occupation of the petitioner since 1953. The petitioner being a claimant displaced person and being in possession of the first floor as allottee applied in C. H. form on 13th July 1959, for the transfer of the portion in her possession. This was transferred to her on 21st September 1959. Subsequent to this transfer the definition of house' was amended by Ordinance No. XLIII of 1959 which came into force on 28th September 1959, so as to entitle the petitioner to apply for the transfer of the whole house. She accordingly made an application to the Deputy Settlement Commissioner an 28th October 1959 to modify his previous order and transfer the whole house to her. The Deputy Settlement Commissioner rejected her application on the same date. The petitioner preferred an appeal before the Additional Settlement Commissioner who remanded the case to the Deputy Settlement Commissioner for review of his previous order. The Deputy Settlement Commissioner on 31st October 1959, transferred the whole bungalow as one unit in favour of the petitioner.

2. The petitioner on lot February 1960, served a notice on respondent No. 1 for payment of rent. The respondent No. 1, after receipt of this notice, made an application on 3rd February 1960, to the Additional Settlement Commissioner stating therein that he had filed a N. C. H. form on 4th November 1959, but it was not traceable. The application was supported by an affidavit. He also filed a duplicate N. C. H. form on the same date. The Additional Settlement Commissioner sent the duplicate N. C. H. form filed by the respondent No. 1 for disposal to the Deputy Settlement Commissioner who rejected the same on 15th February 1960, on the ground that the whole house had been transferred to the petitioner. The respondent No. 1 filed an appeal before the Additional Settlement Commissioner who allowed the appeal by his order dated the 24th April 1960, and set aside the order of the Deputy Settlement Commissioner dated the 31st October 1959, transferring the whole house to the peti tioner. The Additional Settlement Commissioner on inspection further held that the house was divisible into two units. In the result the Additional Settlement Commissioner ordered the Deputy Settlement Commissioner to dispose of the N. C. H. form filed by the respondent No. 2 and transfer the portion in his occupation if he was so entitled.

3. The petitioner filed a Revision before the Settlement Commissioner who by his order dated the 24th May 1950, dismissed the Revision and upheld the order of the Additional Settlement Commissioner. It is pertinent to note at this stage that one of the points urged before the Settlement Commissioner was that the petitioner had borrowed money towards payment of the price of the house transferred to her. In this connection he passed the following order :-

"This amount, therefore, should be returned in cash immedia tely provided of course she is not contesting this order. If she is contesting this order, that question will depend upon the order of the Chief Settlement Commissioner."

I would consider this order at a later stage.

4. The petitioner filed a further Revision before the Chief Settlement Commissioner. It is alleged that this petition has not been disposed of so far.

5. The learned Advocate for the petitioner raised several points before me namely :-

(1) that there being no appeal from the order dated the 31st of October 1959, transferring the whole bungalow to the petitioner within the prescribed period of 15 days the same became final under section 2 2 of Act XXVII I of 1958 (herein after called the Act);

(2) that the scheme of the Settlement Act is that once pro perty is transferred to a claimant the same is not available for transfer to another person ;

(3) that the appeal before the Additional Settlement Com missioner by the respondent No. 1 against the order of the Deputy Settlement Commissioner dated the 15th February 1960, was beyond time;

(4) that the power to declare the bungalow as one or more houses under section 2 (4) of the Act having been delegated to the Deputy Settlement Commissioner by the Chief Settlement Commissioner the Deputy Settlement Commissioner exercised that power in favour of the petitioner on 31-10-1959, and treated the bungalow as one unit. The same could not be set aside by the Additional Settlement Commissioner ;

(5) that the bungalow being not divisible it should have been transferred to the petitioner only ;

(6) that the N. C. H. form by the claimant was treated to have been filed within time without proper evidence ; and

(7) that the N. C. H. form by the respondent No. 1 was not properly filed. I propose to consider these points in order.

6. The admitted position is that the respondent No. 1 did not file any appeal against the order dated the 31st October 1959, transferring the house in dispute to the petitioner. In order to appreciate the contention of the learned Advocate for the peti tioner that the order of 31 st October 1959, became final it would be useful to reproduce section 22 of the Act. It runs as under :--

"Save as otherwise expressly provided in this Act every order made by any officer appointed under this Act shall be final and shall not be questioned in any Court."

It is clear from the above that the finality attached to the order passed on 31-10-1959, in favour of the petitioner was subject to l, the provisions of the Act. The said order was open to suo moto Revision. It would appear from the order of the Additional Settlement Commissioner dated 25th April 1960, reproduced below that the learned Additional Settlement Commissioner had suo moto set aside the order of the 31st October 1959. The relevant portion of the order runs as under :-

"In Settlement cases the property is one and the claimants have been filing their applications at different dates and they are considered at different times. Therefore, I think that in order to have a final decision and effective one it is within the rights of the Appellate Court to re-open the matter and if con sidered proper set aside the order either in appeal or revision suo moto for the transfer of the whole property to one person, because if the Court comes to the conclusion that the appellant is entitled for the ground floor or the first floor which has been transferred to another person, the order in appeal cannot be effectual unless the previous order is set aside for transferring the whole property. I, therefore, in this particular case hold that the order passed for the transfer of the whole building to the respondent vide order 31-10-1959, was illegal and ultra vines.."

There is, therefore, in view of the above finding no force in the contention that the order of 31^st October 1959, was a final order. In appeal, moreover, it would appear from the ground of Revision before the Settlement Commissioner, that the petitioner did not challenge that the Additional Settlement Commissioner had illegally reviewed the order passed on 31^st October 1959, in favour of the petitioner. It also appear from the order of the Settlement Commissioner of 24th May 1960, that this point was not urged before him.

7. The contention that once property is transferred to a claimant it is not available for transfer to another person has not much force. On the other hand, the intention of those who have framed the Act as expressed through the various amendments and notifications issued from time to time is that the transfer once made in favour of some one would be final subject to the claim of others. I would illustrate my point. In the first instance, only those persons could apply under the Settlement Scheme No. 1 who were in possession of a house and held an allotment order. Thereafter even those who did not hold a valid allotment order but were in undisputed possession of the house from a certain date could apply for transfer. Then again a person could apply also for that portion of a house which was not in his possession. The date for filing N. C. H. form was extended from time to time. It is important to note that in none of the notifications extending the time for filing the N. C. H. form it was stated that the applicant would be entitled to the transfer of a house only in case it had not already been transferred. In the absence of any clear direction in this respect it is not possible to read any prohibition against persons who had filed N. C. H. form within the extended time. It would appear that the policy underlying the Settlement Scheme is to rehabilitate as many displaced persons as possible. If that had not been the policy the question of extending the time for filing N. C. H. form cannot be explained. Where a house, consisting of two units, has been transferred to a claimant displaced person it would in my opinion be subject to the N. C. H. form that may have been filed by one who is in possession of the other unit of the house. If the house can be divided into two units the transfer made in favour of a claimant displaced person would be re-opened. On the other hand, if it is not divisible, the transfer in place of the claimant displaced person will stand. Under the Settlement Scheme all displaced persons have a right to be rehabilitated with only this difference that a claimant displaced person will have preference as against a non-claimant displaced person in case of a house which cannot be divided into two portions. Where a house is divisible the claimant displaced person has no advantage as against a non-claimant displaced,, person. Where the law has given a right to a non-claimant displac-1 ed person for transfer of a house in his possession he cannot be deprived of that right by the mere fact that the house in his possession has been transferred to some one unless there is some thing in the Act to indicate that he would have no right of claim where the house had already been transferred. It seems to me that the only advantage that the Legislature has given to a claimant displaced person is that if he is in occupation of a house along with a non-claimant displaced person he will have a pre ferential right to the transfer of the house which cannot be divided into two portions. The Legislature did not intend to transfer two units of a house to a claimant displaced person. Under the Scheme a house when divided into several unit, each unit is to be considered a house for the purposes of the scheme. I would, in these circumstances, hold that the transfer of the house in favour of the petitioner was subject to the claim of the respondent No. 1.

8. The contention that the appeal before the Additional Settlement Commissioner against the order of the Deputy Settle ment Commissioner dated the 15th February 1960, was beyond time and has no force. I have seen the record produced by the learned Advocate for the respondents 2 and 3. It would appear that the appeal was filed before the Additional Settlement Commissioner on the 1st March 1960, and, therefore, it would be within time.

9. There is not much force in the contention that the Deputy Settlement Commissioner having exercised the power delegated by the Chief Settlement Commissioner under section 2 (4) and thereby treating the bungalow as one unit, the Additional Settlement Commissioner could not hold otherwise. The order of the Deputy Settlement Commissioner dated 31st October 1959, runs as under :-

Under review orders are passed that applicant of C. H. 70/XXIII may be issued fresh appendix . X for the whole house, as the house is being considered as one unit."

Under the first proviso to section 4 of the Act the Chief Settle ment Commissioner or the Deputy Settlement Commissioner as his delegatee has been given the power to declare a house to be consisting of several units. Under the proviso itself the house, unless so declared, would be deemed to be a house. The proviso reads as under :-

"provided that where any building or premises not so declared consists of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house."

The above proviso does not confer any power on the Deputy Settlement Commissioner to declare a house consisting of several units to be one house. The power conferred on him is to declare a house as consisting of several units and therefore it cannot be said that he has exercised the power delegated to him.

10. The contention that the bungalow was not divisible and therefore it should have been transferred to the petitioner alone who was a claimant displaced person is not of much sub stance. The question whether a house consists of several units is a question of fact which depends upon the facts of each case. The finding of the learned Additional Settlement Commissioner that the house consists of two units cannot be gone into by this Court in the exercise of its extraordinary jurisdiction.

11. It was very strenuously contended by the learned Advocate for the petitioner that the Settlement Commissioner admitted the time barred N. C. H. form of the respondent No. 1 without any evidence or at any rate the evidence was not sufficient. In this connection the learned Advocate for the petitioner cited a number of cases in support of his contention that this Court can upset the order of the Settlement Commis sioner where he has misread the evidence or there was no evidence. In this connection in order to appreciate the contention of the learned Advocate for the petitioner it would be useful to reproduce the order passed by the learned Settlement Commissioner dated the 2nd February 1960, on the application of the respondent No. 1 stating that he had filed his N. C. H. form through Mr. M. A. Shah, Accounts Officer in his Department and that he was surprised to receive a notice from the petitioner to pay rent to her. The order runs as under :-

" In view of the statement of the applicant who holds the status of Director, Civil Supply and the affidavit of his Accounts Officer which is enclosed a fresh N. C. H. form application may be admitted."

It was open to the learned Settlement Commissioner to accept the statement of respondent No. 1 which was supported by an affidavit of Mr. Shah. This Court cannot go into the question of sufficiency or insufficiency of evidence. It was within their jurisdiction of the Settlement Commissioner to pass the order that he has passed. This Court cannot, in the exercise of its writ jurisdiction, say that the evidence was not sufficient. It would) no doubt have been better if the Settlement Commissioner had further investigated the matter before passing the above order. On the other, hand, if he believed the statement of the respon dent No. 1 he cannot be said to have acted without jurisdiction or illegally. I cannot hold that the N. C. H. form of the respondent No. 1 was illegally admitted.

12. Lastly it was contended by the learned Advocate for the petitioner that the N. C. H. form alleged to have been filed by the respondent No. 1 on the 4th November 1959, was not properly filed. His contention was based on the fact that under the Settlement Scheme the Deputy Settlement Commissioner was required to enter the receipt of his application in a certain register known as Register CSC-2 and issue a receipt to the applicant. It was contended that there is no entry in register CSC-2 and that the applicant had failed to produce a receipt by the Deputy Settlement Commissioner. It would appear from the affidavit of Mr. Shah that he had given the N. C. H. form of respondent No. 1 to a clerk who gave a katcha receipt and promised to send the formal receipt later on. The entry in the register CSC-2 is one that has to be made by the Deputy Settle ment Commissioner and is not the responsibility of the person who files the N. C. H. form. Where a formal receipt has also not been given to the applicant who files N. C. H. form it would not be a proof of the fact that no N. C. H. form was filed. It would no doubt be a circumstance against the applicant but where he states that no such receipt was issued to him and it is believed by the authority concerned this Court has no jurisdiction to go into the matter. Moreover, the entry in the register and the issue of a receipt are questions for the Settlement Commissioner to have gone into before admitting the N. C. H. form filed on the 2nd February 1960, by the applicant. This Court cannot go into these questions.

13. Mr. Idrees Qureshi, the learned Advocate for respon dents 2 and 3 and Mr. S. M. Raza for the respondent No. 1 raised twofold contentions. They contended in the first place that the order dated the 31st October 1959, transferring the whole house to the petitioner was without jurisdiction. It was contended in the next place that the petitioner has come with unclean hands and therefore the petition should be dismissed.

14. In order to appreciate the first contention of the learned advocates for the respondents it would be necessary to state a few facts. The petitioner applied for the transfer of the first floor of the house in question on the 13th July 1959. The P. T. O. in respect of the first floor of the house was issued to her on the 21st September 1959. On the 28th October 1959, the petitioner wrote to the Deputy Settlement Commissioner that in view of the amended definition of house she should be transferred the whole of the bungalow. On the same day the Deputy Settlement Commissioner rejected the application on the ground that the case could not be re-opened. It is alleged by the petitioner that an appeal was filed before the Settlement Commissioner who remanded the case to the Deputy Settlement Commissioner for review. The Deputy Settlement Commissioner on 31st October 1959, passed the order in favour of the petitioner transferring the whole house to her. It is noteworthy that the machinery of the Settlement Department moved with remarkable speed in favour of the petitioner. The petitioner had applied for transfer of the house on the 13th July 1959 , and the same was transferred on the 21st September 1959. It took almost about three months for the order of the P. T. O. in her favour while the appeal was dis posed of in two days time and the Deputy Settlement Commis sioner passed the order on the same day the appeal was disposed of by the Additional Settlement Commissioner. It is the case of the respondents that there was no such appeal before the Additional Settlement Commissioner. There is no reason not to accept the report of the Settlement Commissioner that no record, of the alleged appeal filed by the petitioner exists in the Department. The mere allegation of the petitioner that the record relating to the appeal has been removed by some one cannot be accepted. This point has been dealt with by the Additional Settlement Commissioner in his appellate order. The contention of the learned Advocates for the Settlement Commissioner and the Chief Settlement Commissioner further finds support from the order of the Deputy Settlement Commissioner himself. The order reads as under:-

"Under review orders are passed that applicant of CH.70/ XXIII may be issued fresh appendix X for the whole house as the house is being considered as one unit."

It would appear from the above order that if the same had been passed on remand from the Additional Settlement Commissioner there would have been some reference to it. It seems that the learned Deputy Settlement Commissioner reviewed his order on the ground that the house was one unit. This order has been passed on just a slip of paper. I do not see any reason not to accept the contention of the Department that no appeal was filed before the Additional Settlement Commissioner resulting in the order authorising the Deputy Settlement Commissioner to review his previous order. The Deputy Settlement Commissioner in the absence of any order from the Additional Settlement Commissioner to review his previous order either of the 21st September 1959, transferring only the first floor to the petitioner or that of 28th October 1959, refusing to re-open the case acted without jurisdiction in transferring the whole house on 31^st October 1959, to the petitioner. In this view of the matter there was no valid order transferring the whole house to the petitioner. The respondent No. 1 in this view of the matter, it was con tended, was entitled to the transfer of the ground floor in his possession.

15. In support of the contention that the petitioner came with unclean hands to this Court reliance was placed upon the order of the Settlement Commissioner dated the 24th May 1960. It would be useful to reproduce a para. from that order :-

"There is one more point. Mst. Sikander Begum has paid an amount of about Rs. 17,000 in cash towards the price of the building by taking a loan from some banks against the pledge of her ornaments. Now that, she is not to get the whole building she is entitled to a refund in cash of the amount she has so paid. This amount therefore should be returned in cash, immediately provided of course she is not contesting this order. If she is contesting this order that question will depend upon the order of the Chief Settlement Commissioner."

I may mention here that admittedly the amount was not Rs. 17,000 but it was Rs. 55,078-7-0 It is admitted by Mr. Akhtar Mahmood, the learned Advocate for the petitioner, that she applied to the Settlement Commissioner for the payment in cash. It is further admitted by Mr. Akhtar Mahmood that his client has received this amount in cash. It would therefore appear that the petitioner accepted the order of the Settlement Commissioner by receiving the above amount. She did not disclose this fact in the petition. The petitioner in' para. 4 of the petition stated as under :-

"The petitioner made the entire payment of the evaluation price by adjustment from her compensation book as well as by cash payment and since there was neither an application for transfer from respondent No. 1 nor was there any appeal filed against the transfer order in favour of the petitioner, the order of the transfer became final and as a result of this the petitioner incurred heavy expenses in repairs, renovation and white washing etc. of this bungalow."

It was the duty of the petitioner to have disclosed to the Court that though she had paid the cash she had been paid back the same by the Settlement Authorities. There appeays to be an attempt on the part of the petitioner to impress upon the Court that the petitioner had been unfairly dealt with.

16. After considering the conduct of the petitioner and the circumstances of the present case I do not think that this is a fit case for the exercise of the extraordinary power under the writ jurisdiction. The petitioner admittedly was entitled before the amendment of the definition of "house" only that portion which was in her possession and she had appred for the transfer of that portion only. The respondent is a displaced person who has also a right to be rehabilitated. The law gave him a right to get the transfer of the house in his possession provided he filed the N. C. H. form within the prescribed time.

17. For the reasons given above, I would dismiss the peti tion but would make no order as to costs.

K. a. A./A. H.

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