Ch. ABDUL AZIZ vs SETTLEMENT COMMISSIONER, LAHORE and others
This matter arises from a petition for leave to appeal against the judgment of the High Court, which dismissed the petitioner's constitutional challenge against the decision of the Settlement authorities dividing a bungalow into two units based on the respective independent possession of the parties since 1949. The core legal question concerns whether the discretionary decision of the Settlement authorities to divide the bungalow, allegedly in contravention of administrative instructions contained in a memorandum dated 22-10-1959, could be questioned in the constitutional jurisdiction of the High Court. The Supreme Court held that the Settlement authorities possessed the discretionary power to divide the bungalow under the said instructions, and the exercise of such discretionary power is not open to challenge in writ jurisdiction. Consequently, leave to appeal was refused, laying down the principle that discretionary administrative decisions regarding the division of properties by settlement authorities cannot be interfered with under constitutional jurisdiction.
- Can the question of divisibility of a property by settlement authorities be raised in the constitutional jurisdiction of the High Court?
- Whether the exercise of discretionary power by settlement authorities to divide a bungalow is open to judicial review in writ jurisdiction?
- Does the administrative instruction directing bungalows to be transferred as complete units bar the settlement authorities from dividing them in obvious cases?
ORDER
1. ' M.S.H. QURAISHI, J.-- The dispute concernes the question of divisibility of a bungalow, the Settlement authorities having divided it into two units according to the respective possession of the parties who had been living independently in their respective portions since 1949. The petitioner, who had challenged the division, failed before the High Court in its writ jurisdiction and now seeks leave to appeal.
2. Learned counsel for the petitioner concedes that on general principles the question of divisibility could not be raised in the constitutional jurisdiction but urges that the decision to divide the bungalow was illegal being in contravention of instruction contained in memorandum dated 22- 10-1959 (pages 68 and 69 of the old Settlement Manual), para. 2(2)(b) of which directs that: "Bungalow should as far as possible, be transferred as complete units except in very obvious cases where they can be divided . Into more than one independent and complete bungalow."
2. Even by the above instruction, the Settlement authorities still had the power to divide a bungalow.
3. The exercise of such power being discretionary could not be questioned before the High Court.
4. Leave to appeal is, therefore, refused.