' IFTIKHAR MUHAMMAD CHAUDHRY, ACTG. C.J.--- This petition for leave to appeal has been filed against the judgment dated 31st May, 2001 passed by Lahore High Court, Lahore whereby writ petition filed by petitioners has been dismissed.
2. This case has got chequered history, spread over about five decades, however, before this Court it is being put up for 2nd time. Earlier, predecessor-in-interest of respondents Mst. Fatima Begum approached this Court in Civil Appeal No,57 of 1966 against the judgment/order of the former High Court of West Pakistan, Lahore dated 16th May, 1961, in L.P.A. No,112 of 1961. The Appeal was accepted and case was remanded vide judgment, dated 19th June, 1972, reported in Mst. Fatima Begum v.
The Chief Settlement and Rehabilitation Commissioner, Lahore and 3 others 1972 SCM R 302. The facts noted in this report being undisputed are reproduced hereinbelow:-- "The property in dispute is House No,176, New Anarkali, Lahore, which is 2-1/2 storeyed premises owned by one Lala Balkishan and comprises on business unit on the ground floor, one big shop, office rooms, two godowns, a store house and a residential unit above it, comprising inter-floor and the first floor of the said building. On the 15th September, 1947, the appellant's step-son obtained possession of two godowns and courtyard on the ground floor and the entire residential unit on the upper floor, by allotment order of the same date. On the 25th February, 1948, the business unit on the ground floor, excluding the possession of the appellant's son, was allotted and taken possession by a partnership firm known as "United Publisher". On the 14th April, 1950, the appellant obtained possession of portion of building previously in possession of her son by order of the Assistant Rehabilitation Commissioner, Lahore, allotting that portion to her. The United Publishers was a partnership firm formed at Lahore on the 9th March, 1942, entered into by eight publishing concerns of Lahore. Respondent No,3 is a partner in the publishing concern of Sh. Ghulam Ali & Sons, Publishers and Book-Sellers, Kashmiri Bazar, Lahore and respondent No,4 is the Proprietor of S. Mumtaz Ali & Sons, Darul Ashaat, Railway Road, Lahore. The partnership firm of United Publishers sold itself in its entirety as a going concern along with all the business, good-will, assets to a Limited Company known as Publishers United Ltd. Respondents Nos.3 and 4 are the Directors of the said Company.
' The appellant applied for the transfer of the entire property and respondent No,3 also applied for its transfer as a partner of the firm of United Publishers. Respondent No,4 also at the stage of the revisional proceedings, applied for the transfer of the property in dispute. On the 30th November, 1959, in an ex parte proceedings, the Deputy Settlement Commissioner, treated the property as a shop and transferred it to respondent No,3. The appellant challenged this order before the Additional Settlement Commissioner. The learned Officer, by order, dated the 3rd March, 1960, transferred the Choubara to the appellant and referred the matter of the transfer of the shop to the Deputy Settlement Commissioner. In this connection, he observed as under:-- "She is the allottee of the residential portion, which has to be separated from the business unit and, therefore, is entitled to its transfer only. I, therefore, accept her appeal in so much that the residential portion should be transferred to her, whereas the shop part of the property will remain with the respondent, if he is otherwise entitled to its transfer."
' It has been brought to my notice that the respondent is a local and has fraudulently submitted Form CS and then changed his form as a non-claimant. The learned Deputy Settlement Commissioner should go into this aspect and decide the case of the transfer of the shop purely on merits. The proceedings were ex parte and the respondent did not put in appearance in the spite of service of notice to him."
' Both the parties challenged this order in two revisions before the Settlement Commissioner. The revision petitions were heard by the Settlement Commissioner and judgment was reserved. On the 16th June, 1960, respondent No,4 intervened as Chairman of the Publishers United Limited and claimed the transfer of the property to him. By order dated the 16th June, 1960, the Settlement Commissioner upheld the order of the Additional Settlement Commissioner on the ground that the appellant has only applied for the transfer of the residential portion and remanded the case of respondents Nos.3 and 4 to the Deputy Settlement Commissioner for decision. In this connection, the learned Officer observed as under:-- "I have heard counsel for the parties. They have also filed written arguments which have been placed on record.
' From the record it appears that Mst. Ghulam Fatima submitted C.H. Form for the transfer of residential portion to her. I have seen the form where in the petitioner has herself mentioned that the commercial portion of the building is in the possession of United Publishers, Book-Sellers. Since she is not in possession of the commercial portion of the building which was not even allotted to her, she has no right to claim its transfer. The lower Court was, therefore, right in dismissing her appeal for the transfer of this part of building."
' The learned Officer further observed that:-- "As regards the petition of Niaz Ahmad, I am of the view that the question of transfer of the commercial portion of this building has not fully gone into. As mentioned above, one Syed Hamid Ali has also a claim for this portion of the building. The lower Court, was therefore, right in directing the Deputy Settlement Commissioner concerned to go carefully into the question of transfer of commercial part of the building and decide this on merits. At least there is also another claimant whose entitlement to this part of the building has not been gone into."
' The matter was then taken to the Chief Settlement Commissioner in revision by the appellant. The second revision petition was dismissed by order, dated the 14th December, 1960.
' The appellant challenged these orders in Writ Petition No,2000/R of 1961 and a learned Single Judge of the former High Court of West Pakistan, Lahore dismissed it in limine on the 3rd March, 1961. The appellant remained unsuccessful in Letter Patent Appeal No,112 of 1961, which was also dismissed in limine on the 16th May, 1961. The appellant applied for a certificate in Civil Miscellaneous No,678/S of 1961 under Article 158(1)(a) of the Constitution of 1956 and the petition was dismissed on the 20th April, 1964."
3. Leave to appeal was granted to the predecessor-in-interest of the petitioners against the above judgment to consider the question whether in a case where premises consisting of a residential portion or a shop were situated in a predominantly commercial area, the whole was to be treated as shop and the appellants would in accordance with the definition of "shop" which would in such case include the residential portion, be entitled to the whole of the premises being the allottee of the residential portion". The appeal, however, was accepted and case was remanded to the Chief Settlement Commissioner with directions to go into the question and decide whether the property in dispute should be treated as a shop or it should be divided into two portions. While doing so, the learned Officer will take into consideration the definition of "shop" as defined in section 2(2) of the Evacuee Property and Displaced Persons (Compensation and Rehabilitation) Act, 1958 and instructions issued in this behalf by the Chief Settlement Commissioner". It was further observed that "the entitlement of the respondents Nos.3 and 4 is not free from defect. It is for consideration as to whether they are entitled to the transfer of a portion in possession of United Publishers Ltd. On the ground that they are its Directors or partners". In compliance of above order, the Additional Commissioner (Revenue Lahore Division, with the powers of Chief Settlement Commissioner, Lahore Division, vide order, dated 14th March, 1979 determined that the shop and residential area of the property, in dispute, would be treated as a shop. Relevant para. Reads as under thus:-- "(21) I have given my very careful consideration to the contentions raised by the parties and the material on the record. The first question to be decided in this case is the nature of the property irrespective of the fact that the property is located in predominantly commercial area of Anarkali. I, therefore, treat the whole of the property comprising a business unit on the ground floor and Chaubara above it as a shop. My inspection has revealed that it is fairly an old building and the business unit and the residential unit are itnermingled. The property cannot be conveniently divided. The whole of it, therefore, would be treated as a shop. The general policies in such-like cases as well as the instructions issued by Chief Settlement Commissioner have been to the effect that in case of a business unit on the ground floor and the Chaubara above it should ordinarily be treated as one unit. This is not mandatory requirement but the matter has been left in the discretion of the Chief Settlement Commissioner keeping in view all the facts and circumstances of this case, and the property as observed through spot inspection, I have come to the conclusion that it is neither desirable nor proper to divide it. Since the same cannot be done conveniently.
(22) I have had the advantage of going through the decision of the Supreme Court in Civil Appeal No,5 of 1965 decided on 3rd May, 1965. In this case the Lordship of the Supreme Court have held as under:-- "Paragraph 2(2) of the memorandum dated 22-10-1959 printed at page 68 of the manual of Settlement Laws and Procedure (Old Edition) clearly permits a building consisting of a business unit with a residential unit above it, if situated in a predominantly commercial area, to be treated as a shop and the whole building to be transferred a shop. This is in consonance with the definition of shop in the Act itself."
' The Supreme Court was further pleased to hold that the learned counsel drew their Lordships' attention to page 92 of the Manual of the Settlement (Old Edition) which contains no instructions to the contrary to those of para.2(2)(c) appearing at page 68 all that it provides is that normally not more than one shop and once residential unit above it, comprising self-contained independent unit is to be transferred to one person. The Honourable Supreme Court has been pleased to hold that the instructions are not mandatory but leave the matter in the discretion of the Chief Settlement Commissioner. I find that it a fit case to exercise my discretion to treat and declare the business unit and the residential unit above it which is a self-contained independent unit to be a shop in its entirety."
' As far as the entitlement of the petitioners being legal heirs of one of the Directors of United Publishers Ltd. And Mst. Fatima Begum, the predecessor-in-interest of respondents for the transfer of the shop and Choubara (residential area) constructed on it, is concerned, the Additional Settlement Commissioner, with the powers of Chief Settlement Commissioner, after having taken into consideration the number of documents opined that it is a fact that if a Firm United Publishers Ltd. Sold itself to a Limited Company, they had abundant the allotment and possession of the shop/premises and thereafter had no dominion over this property or any concern left with it. On the basis of such findings, it was further held that "therefore, I am clearly of the view that Syed Hamid Ali or Sh. Niaz Ahmed are wholly ineligible to transfer the property in dispute which is not in their possession or in possession of Company i,e, United Publishers Ltd. Since before target date.
They have no case even as to called partners of the Company United Publishers Ltd. Or the defunct partnership Firm United Publisher Ltd.
4. The Additional Settlement Commissioner with the powers of Chief Settlement Commissioner also dealt with the case of the predecessor-in-interest of respondents Mst. Fatima Begum and held as under:-- ' ... She is a claimant displaced person and an allottee in possession of the property. She is also in possession of two rooms on the ground floor. Keeping in view the constructional structure of the property, the condition of the building, the status of its occupants, the nature and extent of their possession and the instructions on the subject, I have already declared the property in question to be a part of the property in question to be a shop in its entirety. Mst. Fatima Begum being in possession of a part of the property is thus, under the schedule to the Act, clearly entitled to the transfer of the whole of it. There is no other contestant entitled to its transfer or having preferential claim over her. I would, therefore, treat Mst. Fatima Begum's C.H. Form as C.S. Which is a matter of technicality."
' The petitioners challenged the order of the Additional Commissioner with the power of Chief Settlement Commissioner before the High Court by instituting writ petition but without any success as the same has been dismissed by means of impugned judgment, dated 31st May, 2001. As such instant petition for leave to appeal has been filed.
5. Learned counsel appearing for petitioners contended that the shop and "Choubara" (residential area) are divisible, therefore, the shop, allotment of which was made by the Custodian in favor of the predecessor-in-interest of the petitioners, prior to allotment of residential area in favor of Mst.
Fatima Begum, may have adjusted/accommodated to them, in view of the judgments in the cases of Muhammad Iqbal Khan v. Chief Settlement Commissioner PLD 1965 SC 404; Abdul Majid Khan v.
Chief Settlement Commissioner PLD 1968 SC 154 and Shah Jehan Begum v. Shabbir Fatima PLD 1991 SC 614.
' It is noteworthy that after remand of the case by this Court, physical inspection was carried out by the Additional Settlement Commissioner with the powers of Chief Settlement Commissioner, on the basis of which he concluded that it is not divisible property. A thorough examination of the judgment dated 14h March, 1979 passed by Chief Settlement Commissioner abundantly makes it clear that the property in dispute i,e, the shop and residential area, are not divisible. As far as factual aspect of the case is concerned, it cannot be gone into by this Court in its Constitutional jurisdiction, therefore, petitioners cannot be accommodated in the premises, notwithstanding the fact that on legal plane, they also have no case as admittedly Syed Hamid Ali, their predecessor- in-interest was one of the Directors of the United Publishers Firm, who had sold itself to the United Publishers Ltd. An independent entity under the law. As such merely being an old partnership Firm, who sometime had obtained an allotment letter from the custodian to occupy a shop, could not confer a right upon him/them, as it has been held in detail by the Additional Settlement Commissioner. Relevant extracts there from have been reproduced herein above and learned counsel for petitioners utterly failed to persuade us to dislodge the findings of the Additional Commissioner in this behalf. Thus, the arguments so raised by him in this behalf are accordingly repelled being without substance.
6. It is next contended by the learned counsel for petitioners that the Additional Chief Settlement Commissioner had no authority to decide the case as it was remanded to the Chief Settlement Commissioner.
' This argument has no force in view of notification dated 20th October, 1977, whereby the Additional Commissioner (Revenue) was notified as "Chief Settlement Commissioner for Lahore Division for the purpose of disposal of proceedings under the provisions of section 2(2) the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Since after remand of the case, during its pendency, evacuee laws were repealed and for the purpose of disposal of pending cases, the Government of Punjab issued notifications from time to time, including the one under which the Commissioner (Revenue) was appointed as the Chief Settlement Commissioner, therefore, it by dint of law, if some change had occurred and the powers of the Chief Settlement Commissioner are being exercised by a delegate officer it would be ignorable accordingly.
7. No other point was argued by the learned counsel for petitioners.
' Thus, for the foregoing reasons, we see no force in this petition as such same is dismissed and leave declined.