1. MUHAHMAD AFZAL ZULLAH, J.-Judgment, dated 5-4-1967, of the Lahore High Court has been brought under challenge in this appeal through special leave, which was granted to examine the question whether the High Court in its writ jurisdiction should have interfered with the order of a Settlement Commissioner whereby the property in dispute was transferred to the appel--lant as a shop in exercise of the power to divide the property.
2. The facts noted at the leave granting stage which are either not in dispute or stand established from record are that a composite property on Brandreth Road bearing only one survey number comprised of five commercial premises in the basement, five business units on the ground-floor, a residential portion and a Registered Factory. The appellant was in possession of one of the commercial units in the basement since January, 1961. His claim was that the part occupied by him was an independent unit having a separate electric connection, and that it had also a separate access from road.
3. Another business unit, i.e. a shop above the unit of the appellant was in possession (indirect) of Muhammad Bakhsh respondent. Several persons including the appellant and Muhammad Bakhsh respondent applied for different units of the composite property. The Deputy Settlement Commis-- sioner did not disturb the character of the residential unit and it was transferred as such to a party.
4. This unit is not in dispute now. Similarly, other com--mercial units which were transferred to other persons are not in dispute. The commercial unit above the unit in possession of the appellant which was treated as a go down appurtenant to the shop was transferred to Muhammad Bakhsh respondent. On appeal, the Additional Settlement Commissioner without disputing the fact that the appellant was using in dispute as a shop, treated it as a part of and appurtenant to the shop transferred to Muhammad Bakhsh respondent and dismissed the appellant's appeal. On a revision, the Settlement Commissioner treated the commercial unit in possession of the appellant as separate from the shop in possession of the respondent and without saying it in so many words, exercising the power of division, transfer--red both the commercial units separately, the shop to the respondent and the so-called go down which also was treated as a shop to the appellant.
5. The respondent challenged the order of the Settlement Commissioner, dated 15-11-1960, before the Chief Settlement Commissioner in second revision, but the same was ultimately dismissed on ground of lack of jurisdiction. A challenge was then made to the order of the Settlement Commissioner by the respondent before the High Court in its writ jurisdiction after more than a year and a half. A Division Bench of the High Court allowed the writ petition and set aside the order of the Settlement Commissioner on two grounds
(1) that the unit in possession of the appellant being a go down appur--tenant to the shop transferred to the respondent could not have been treated and disposed of separately to the appellant; and
(2) That the revisional jurisdiction was exercised by the Settlement Commissioner without summoning the record.
6. Leave was granted to examine the following arguments :-- "That the High Court has acted beyond its jurisdiction in interfering with the division of a property made by the Settlement Authorities in disregard of the decisions of this Court which have consistently held that it is not for the High Court to interfere with questions of division of evacuee property."
7. Subsection (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) (Act XXV III of 1958) reads as follows :- "(12) "Shop".-Shop means Evacuee business premises of any value in an urban area or of the value of ten thousand rupees or more in a rural area together with go downs or store-house, but does not include any building situated within the premises of an industrial concern, or a building or premises declared under Paragraph 16 of the Schedule to be a "Big Mansion" or hotel or such class of business premises in a rural area as may be declared by the Central Government, by Noti-- fication in the official Gazette not to be shops within the meaning of this clause Provided that where any building or premises not so declared consist of more than one business unit, and such units are in possession of several persons, then unless the Chief Settlement Commissioner, orders otherwise, the whole of such building or premises shall be deemed to be a shop.
8. Provided further that where any such building or premises consists of both residential and business units, the Chief Settlement Commissioner may order that the whole of such building or premises, or such part or parts thereof as may be specified in the order, shall be deemed to be a shop or a house."
9. The decision of the Settlement Commissioner impugned before the High Court when analysed in the context of the question raised was that the appellant was in possession of the go down on road level but underneath the shop, which was in possession of Muhammad Bakhsh respondent, while M. M. Zahid occupied the residential portion on top of the shop ; that the appellant was direct applicant while Muhammad Bakhsh respondent claimed through his son Muhammad Bashir whose allotment was irregular ; and lastly that notwithstanding the foregoing position, he (the Settlement Commissioner was "definitely of the opinion", that the portion in possession of each contesting party could be transferred separately as independent units, of course as separate business premises.
10. The learned Judges in the High Court when considering the question regarding the jurisdiction of the Settlement Authorities to transfer a go down with the shop or separately quoted and considered the purview of subsec--tion (12) of section 2 of the Act, which defines shop. It is clear from the impugned judgment that unfortunately second proviso to subsection (12) was not taken note of. In a case like the present one when the premises are of composite character containing residential and business units, it was com--petent for the Chief Settlement Commissioner or his delegatee to order that the whole of such building or premises, or such part or parts thereof as ma be specified in the order, shall be deemed to be a shop or a house. There is nothing in this proviso to debar the Settlement Authorities from declaring a multiple units shop to be either one shop or as consisting of more than on shop. In this case as the analysis of facts show, the Settlement Commissioner had formed the opinion that the portions in possession of the contesting parties were separate and independent units, therefore, they could be transfer--red to them separately. It was done under the exercise of powers conferred by second proviso to subsection (12) of section 2.
11. This aspect having not been taken into account, with respect, it is pointed out, the learned Judge treating both the units of the business premises as one shop, held that I should have been transferred to only one party, namely, Muhammad Bakhsh respondent.
12. In our view, the business premises in the composite property having bee divided by the Settlement Commissioner into two shops in exercise of the power of division, no valid exception could be taken to the order of transfer passed in favour of the appellant. The reliance of the learned Judge in the light of the above clarified position on Abdul Hamid Khan v. Settlement an Rehabilitation Commissioner (PLD 1966SC719) was accordingly not justified. Instead, the case was fully covered by the rule laid down by this Court in Abdul Majid v. Chief Settlement Commissioner and others (PLD 1966SC719), wherein second proviso to sub--section (12) of section 2 was interpreted and discussed in detail. In this vie of the matter, the division of the property having been made in exercise o lawful authority, the interference by the High Court in its writ jurisdiction cannot be maintained and the impugned judgment is liable to be set aside.
13. The High Court while allowing the respondent's writ petition took note of the assertion made from his side that the Settlement Commissioner had allowed the appellant's revision without summoning the records. Unfortunately with respect it is pointed out that the learned Judges themselves made the remarks in this behalf without examining the original record of the Settlement revision. The respondent's assertion was denied by the appellant in his written reply submitted in the High Court. The report submitted by the Department was not conclusive, therefore, no finding could be recorded against the normal presumption that the revisional authority must have passed order after examining the records. Indeed the learned Judges did not advert to the circumstance that there is intrinsic evidence in the order impugned before them that the records were before the Settlement Commissioner.
14. Before parting with this judgment, it needs to be noted that the learned counsel for the contesting respondent raised an objection that the Settlement commissioner.
15. Commissioner who had been impleaded in the High Court as a respondent was not impleaded in this Court as a party. Therefore, according to him this appeal could not be heard and disposed of.
16. After hearing both the learned counsel on this point, we came to the conclusion that the objection was based on a mere technicality. The Settle--ment Department in their written reply to the writ petition, had supported the order of the Settlement Commissioner impugned in the High Court.
17. After careful consideration of all the questions involved. We have come to the conclusion that the judgment of the High Court is not sustainable and that being so, the Settlement Authorities in the circumstances of this case would in no way be adversely affected.
18. Learned counsel for the respondent also tried to argue that the appellant could not be transferred the unit in his, possession as a shop because his father had been transferred some other business premises. This contention, it seems, did not find favour even with the High Court and the Settlement Authorities having dealt with the same rendered findings of fact against the respondent. That being so, we have not considered it necessary to go into this question at this stage.
19. In the result, we allow this appeal. The writ issued by the High Court is recalled with the result that the order of the Settlement Commissioner, dated 15-11-1960 is restored. There shall be no order as to costs.