Mst. SHAHZADA BEGUM vs AHMAD KAMAL and 18 others

1. MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against a judgment of the Lahore High Court; whereby the respondents' Constitutional (Writ) Petition arising out of an urban settlement matter was allowed and the case was remanded to the Settlement Authority for examination of the question: whether the house in dispute is not divisible. Leave to appeal was granted to consider: "whether on the question of divisibility of a house the High Court could interfere in its Constitutional (Writ) jurisdiction."

2. ' The Settlement Authorities as well as the High Court were of the view that the house stood practically divided into independent units. Accordingly, the High Court relying on some of the decided cases including Aziz-ur-Rehman v. Mst. Habib Bano PLD 1972 Supreme Court 52 held that the officer concerned whose order was challenged before the High Court had not acted in accordance with law. The reason given by the High Court is as follows:-- "It was essential that attention should have been squarely adverted to this aspect of the case, and judicious application of mind was necessary for determining the rights of the settlement of claimant displaced persons. If the house consisted of two sub-units as held by the Deputy Settlement Commissioner then there was no question or justification for amalgamating the same into one unit without very cogent and strong reasons to be fully and expressly expounded."

3. In this case the order impugned before the High Court indeed did not show application of mind to the question as to whether the house was or was not divisible on account of its physical characteristics, instead on account of other considerations like preferential rights of the parties, vis-a-vis, each other it was I treated as indivisible.

4. Proviso to section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act through the passage of time stands interpreted by the Superior Courts in such a manner that failure to apply independent mind to the question of divisibility has been treated as failure to exercise power vested in the officer. This properly is in line with the spirit of the legislation and its main and important objects one of them being to accommodate and adjust as many displaced persons as possible. If this principle underlying the Proviso to section 2(4) would have been kept in mind by the concerned Settlement Authority the results would have been different. Thus it is a case in the above context of failure or refusal to exercise power under section 2(4) and thus the order impugned before the High Court was rendered without lawful authority. The High Court rightly in exercise of its Writ jurisdiction declared it so. Hence there is no justification for interference. This appeal fails and is dismissed. There shall be no order as to costs.