BARKAT ALI vs SETTLEMENT AND REHABILITATION COMMISSIONER, MULTAN and 8 others

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the dismissal by the High Court of appellant's Constitutional (Writ) Petition in an urban settlement case; whereby his claim for transfer of a part of the building in dispute which was in his possession on ground-floor, was finally rejected. Leave to appeal was granted on the facts and grounds noted as under:-- "The dispute in this case relates to the transfer of an evacuee double storeyed house consisting of five rooms situated in Tulamba Town, Tehsil Khanewal, District Multan. The first floor consisting of two rooms is in the occupation of Noor Muhammad (respondent herein), who is a claimant. The rest of the building consisting of three rooms and a courtyard on the ground-floor is in the occupation of Barkat Ali (petitioner herein) who is a non-claimant. Both had applied for the transfer of the house under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, but these applications for transfer were dealt with rather haphazardly. We find from the record placed before us that in the first instance an order was passed by a Deputy Settlement Commissioner on 10-12-1959, whereby the entire house was transferred to Barkat All (petitioner herein) on his N.C.H. Form. However, on the record there also exists another order, passed on 5-5- 1960 by Mr. Naeemuddin, Assistant Settlement Commissioner, according to which Barkat Ali, petitioner herein, was to get the lower portion of the house in his occupation, while Noor Muhammad, the claimant (respondent herein), was found eligible to the transfer of the upper portion of the house "in his authorised possession". However, there is yet another order passed by the Deputy Settlement Commissioner (Mr. K.S.S. Tirmizi) on 20-7-1960 which is mutually self- contradictory. In this order it is said:-- "The house is not divisible. I uphold the order of Mr. Moinuddin Ali Khan, Assistant Settlement Commissioner, dated 5-5-1960. The entire house is, therefore, transferred in favour of Noor Muhammad son of Ahmad. Khan. Form submitted by Barkat Ali is hereby rejected. (Underlining is ours).

2. "A perusal of the order of the Assistant Settlement Commissioner dated 5-5-1960, which ostensibly has been upheld, however, was to the effect that the house ' be divided and both the occupants transferred the portions in their occupation. However, if, as the present order states that the house is "not divisible and the entire house is transferred to Noor Muhammad the claimant", the two orders are inconsistent and the latter order dated 20-7-1960 does not uphold the order of the Assistant Settlement Commissioner dated 5-5-1960 as it, purports to say. Furthermore, the earlier order dated 5-5-1960 which has been placed on the record has been passed by Mr. Naimuddin, Assistant Settlement Commissioner and not by Mr. Moinuddin Ali Khan, Assistant Settlement Commissioner, as mentioned in the order of the Deputy Settlement Commissioner dated 20-7- 1960.

3. ' Be that as it may, the petitioner challenged the order of the Deputy Settlement Commissioner dated 20-7-1960 by filing an appeal before the Additional Settlement Commissioner, Multan, which was dismissed. He then approached the learned Settlement Commissioner by a revision which, too, failed. He then tiled a writ petition before the High Court of West Pakistan, Lahore but the same was dismissed by the learned Chief Justice on 6-6-1969. An L.P.A. Preferred against this order too was dismissed. Hence this petition for leave to appeal in this Court.

4. ' The main point urged by the learned counsel for the petitioner is that the Deputy Settlement Commissioner's order dated 20-7-1960 was passed in review of the earlier order of another. Deputy Settlement Commissioner dated 10-12-1959. This argument was met by the learned Chief Justice by observing that the order dated 10-12-1959 was an ex parte order which did not preclude the Deputy Settlement Commissioner from passing a fresh order on 20-7-1960.

5. ' This reasoning is correct so far as it goes but we find that in the order dated 20-7-1960 the learned Deputy Settlement Commissioner observes that he is upholding the order of the Assistant Settlement Commissioner dated 5-5-1960, but the said order does not, in effect, appear to have actually been upheld by the order of the Deputy Settlement Commissioner dated 20-7-1960."

6. ' Learned counsel for the appellant relied on the point noted in the leave grant order.

7. ' We called upon the learned counsel for the respondent to reconcile the two orders 5-5-1960 and 20-7-1960 but he failed to do so. His argument throughout remained that there seems to be some clerical error regarding the order dated 20-7-1960.

8. ' Prima fade, learned counsel for the respondents may be right. But it cannot be held with absolute certainty that the said order suffers only from a technical or clerical error. A possibility that the Deputy Settlement Commissioner having mainly noticed the physical practical division of the property in a horizontal manner which has been put into use by the parties for a long time, wanted to uphold the same by ordering transfer of both the portions possession-wise. But on account of some mistake (how it happened cannot be imagined) he did not put this thinking into enough words. If this line of interpretation of the order dated 20-7-1960 is adopted this appeal would straightaway succeed but if the contrary line of interpretation advanced by the learned counsel for the respondents is adopted, the appeal may have to be dismissed or the case may have to be remanded.

9. ' Be that as it may, there is a third course which can safely be adopted in this case. The Deputy Settlement Commissioner while passing the order dated 20-7-1960 impugned before the High Court did notice physical division of the property. It was also apparent from the order of the Assistant Settlement Commissioner dated 5-5-1960 which was admittedly before him and is mentioned in his own order. After having become conscious of this physical aspect of division in reality (and that too for a long time) of the house into two parts, it is an absolute reversal and contradiction of this reality when he observed that "house is not divisible". Apart from the fact that word not might not have been used, the fact remains that there is absolutely nothing in the order to show that in view of the admitted physical division of the house between the parties how did he come to the conclusion that it was indivisible. Thus this observation or finding was without application of judicial mind. The power under section 2(4) (proviso) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to decide whether or not the house is divisible is through the judicial exercise of mind. The impugned order shows that this was not at all done when giving the finding that the house is not divisible and thus the Deputy Settlement Commissioner failed to exercise a power vested in him and his order was without lawful authority. On this ground alone the writ petition filed by the appellant should have been allowed by the High Court.

10. At this stage of the settlement operations which have almost concluded, it has been held in a number of cases that instead of further prolonging the litigation the Courts exercising Constitutional jurisdiction may grant or withhold relief full or partial in exercise of discretion and/or in aid of justice.

11. ' In this case in the light of the foregoing discussion the order of the Assistant Settlement Commissioner which as held above was not set aside in a lawful manner by the Deputy Settlement Commissioner, treating the property as indivisible while in fact it was divisible. There was no other legal hurdle in transferring both the divided parts to the respective applicants by transfer in accordance with their possession. We, while accepting this appeal and setting aside the impugned judgment, order accordingly. The further action for sharing of price by the two transferees and the issuance of transfer documents shall be taken by the concerned functionaries. There shall be no order as to costs.