MAJOR Syed WALAYAT SHAH vs MUZAFFAR KHAN AND 2 OTHERS

1. SALAHUDDIN AHMED, J. --This appeal is by special leave and it concerns the transfer of an evacuee house No, P. 1024, Asghar Mall, Rawalpindi City.

2. The appellant, who is a claimant displaced person, was allotted a half portion. of this house in 1948 and the two respondents occupied the other portion thereof. Both parties applied for transfer of the house, the appellant filed a C. H. Form and the respondents filed N. C. H. Form.

3. The Deputy Settlement Commissioner by his order dated the 21st of October 1959. held that the house was indivisible and he accordingly to neared the entire house to the appellant and rejected the application of the respondents.

4. The respondents hereupon approached the Deputy Settlement Commissioner r a review of his previous order, and the successor Deputy Settlement Commissioner, without having obtained the prior permission of the Additional Settlement Commissioner as it was t n necessary, by his order dated the 13th of August 1960, in referred with the order of his predecessor dated the 21st of October 1959, and divided the house on the basis of the possession of the two parties.

5. The appellant ap Commissioner by h dismissed the appeal Deputy Settlement C without taking any aforesaid Deputy Set to review the order The appellant Settlement Comma sealed but the learned Additional Settlement s order dated the 16th of February 1961, and maintained the impugned order of the commissioner dated the 13th August 1960, notice of the appellant's objection that the lament Commissioner had no jurisdiction of his predecessor. went up in revision before the learned owner and the same was allowed. The impugned order of the successor Deputy Settlement Commissioner dated the 13th of August 1960, was set aside and the entire bungalow was transferred to the appellant.

6. This time the respondents felt aggrieved and they applied to the Chief Settlement Commissioner in second revision but their application was dismissed, on the ground that no second revision lay under section 7 of Ordinance No XHI of 1962 unless the record had been already summoned under the old law before its amendment on 13-1-1962 by Ordinance No II of 1962.

7. The respondents then filed a writ petition in the High Court of West Pakistan. This was accepted by a Division Bench of the High Court on the 3rd June 1965, and the case was remanded to the Additional Settlement Commissioner for a fresh decision on certain points in the appeal filed before him by the appellant.

8. The learned Judges of the High Court had, inter alia, held that the Additional Settlement Commissioner had failed to consider the objection of the appellant with regard to the jurisdiction of the said successor Deputy Settlement Commissioner reviewing the order of his predecessor. The dispute relating to the status of the respondents as "displaced persons" had also, in the opinion of the High Court, not been correctly examined by the Settlement Commissioner. This too, needed fresh determination. The High Court also required a decision on the question whether the respondents, even if they are held to be locals, are entitled to a portion of the house, if the same be found to be capable of division and the divided part be valued at less than Rs, 10,000.

9. Leave was granted in this case to consider whether the High Court had rightly interfered in this case with findings of the Settlement Authorities on questions of fact in its writ jurisdiction.

10. On behalf of the appellant it has been contended before us that in the absence of any appeal or revision from the original order of the Deputy Settlement Commissioner dated the 21st October 1959, the order became final and it could not have been re-opened or reviewed by the successor Deputy Settlement Commissioner, particularly when he had not obtained the prior permission of the Additional Settlement Commissioner to review the order. It has been further contended that the order of the Additional Settlement Commissioner dated the 15th of February 1961, maintaining the order of the Deputy Settlement Commissioner dated the 13th August 1960, is also equally illegal.

11. These contentions have found favour with the learned Judges of the High Court, and these appear to be the main ground upon which the case has been remanded to the Additional Settlement Commissioner.

12. So far as the first ground is concerned, it is a question of law relating to the jurisdiction of the successor Deputy Settlement Commissioner to review his order. If he had exercised a jurisdiction, he did not possess the High Court was quite competent to quash it and all successive orders based upon it. On this ground atone the writ petition was bound to succeed.

13. Now coming to the next contention raised on behalf of the appellant, namely, that the Settlement Commissioner having already found that both the respondents were born in territory now forming part of Pakistan and were, as such, not "displaced persons", it was a finding of fact based upon evidence and the learned Judges of the High Court had exceeded their jurisdiction in setting aside this finding and ordering a remand on this point.

14. We do not wish to go into details on this question lest anything we say might prejudice one party or the other at the hearing of the appeal before the Additional Settlement Commissioner. Suffice it to say that the criterion adopted by the Settlement Commissioner in determining the question whether the respondents were "displaced persons" is not supported by law. As to who is or who is not a "displaced person" within the meaning of section 2(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) has since been fully discussed in a number of judgments of the High Court of West Pakistan, Lahore. We need mention here three of them.

15. In the case of Mahboob Elahi v. Chief Settlement Commissioner, Pakistan , a Division Bench of the Court held inter alia that having regard to the purpose of the Act : "(b) A person who, though an original resident of a place which on Partition of British India fell to the1 share of Pakistan, was residing at the time of that Partition at a place which fell to the share of India and had no immediate desire of leaving the place but had not made it his permanent abode would be a 'displaced person' for the purposes of the Act.

(c) A person who ordinarily did business at two places and on Partition of British India one such place fell to the share of Pakistan and the other to that of India, such a person would be a 'displaced person' for the purposes of the Act if at the time when Partition of British India took place in August 1947 he had to leave the place where he was at that time doing business and he would have continued to do business if he had had not to leave it because it fell to the share of India."

16. In the case of Mrs. Keays Byrne v. The Settlement Commissioner, Rawalpindi , another Division Bench of the same Court observed that before a person can come under the first part of the definition of the term "displaced person" it must be shown that the permanent or quasi-permanent place of his residence was in any area now forming part of or occupied by India. Both these cases came up for consideration on a reference by a learned Single Judge of the Court in the case of Syed Haider Shah v. Mukhtar Hussain Shah and others , before a Full Bench of the High Court. The reference required interpretation of the term "displaced person" used in section 2, clause (3) of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). The Full Bench held that in keeping with the dictionary meaning of the word "residence" and also the object and intent of the Legislature under the Act a person in order to qualify himself as a 'displaced person' must have had a permanent residence or such continuous habitation in that part of British India which now forms India with no immediate intention of leaving the same but for the reasons given in the definition of the term displaced person. The Court proceeded to observe that in the case of persons who have their permanent residences in that part of British India which now forms part of Pakistan, it would be a question of fact to be decided in the circumstances and light of each case whether the residence of these persons in that part of British India which now forms part of India was of such a character and nature that they would not have abandoned the same but for the civil disturbances or the fear of such disturbances in that area. The Court also held that there was no contradistinction in the interpretation put by the learned Judges in the two cases, namely, Mahboob Elahi and others and that of Mrs. Keays Byrne. It is pertinent to mention here that this Court refused Petition (No, 77 of 1963) for special leave to appeal from the order in the case of Mrs. Keays Byrne and thereby approved the opinion of the learned Judges of the High Court in regard to the ingredients that are necessary to establish whether a person is or is not a displaced person within the meaning of the aforesaid Act. In our opinion, the aforesaid Full Bench case has clearly explained the meaning of the words "displaced person" as contained in section 2, clause (3) of the said Act.

17. Neither the definition of "displaced person" as given in the said Act nor the aforesaid judgments of the High Court of West Pakistan support the view that mere birth of a person within a place now included in Pakistan is the sole test for determining whether a person is a "displaced person". Even the finding of fact was, therefore, based upon irrelevant considerations and was rightly set aside by the High Court.

18. We, accordingly, think that no reasonable ground has been made out to induce us to interfere with the impugned order of the High Court.

19. The appeal is accordingly, dismissed but having regard to the facts and circumstances of the case we make no order as to costs.

20. PLD 1963 Lah. 214 PLD 1963 Lah. 88 PLD 1963 Lah. 548 2 3 1 2 3