1. ' B.G. N. KAZI, J.-This appeal has been filed against the judgment dated 4-6-1971 in Writ Petition No, 432 of 1965 allowing the petition filed by respondent 2.
2. ' The facts leading to the filing of the appeal as given in the Memo; of Appeal are as under :- ' The appellant had applied as claimant displaced person for transfer of house on C. H. Form for upper floor portion of building situated on City Survey No, 1418, Sheet No, 42, Ward F, Hyderabad which was in his possession, the house being independent, separate house within the meaning of Displaced Persons (Compensation and Rehabilitation) Act, 1958. The house was transferred to him and P. T.
0. Dated 22-11-1959 was issued in his favour. In 1961 respondent 2 had filed a time-barred belated Revision Application before the Settlement and Rehabilitation Commissioner against the transfer, which was dismissed on 27-12-1961 with the following observations : "The appellant took no steps to explain. Why Deputy Settlement Commissioner's alleged order should be set aside by this Court particularly in the absence of relevant order. He may file a regular appeal in the appropriate Court for which I condone the delay. Let this proceeding be filed."
3. ' However, no appeal was filed by respondent 2, but he filed Miscellaneous Application on 22-12- 1961 before the Additional Settlement Commissioner which was barred by limitation and during the pendency of the Revision Petition respondent 2 managed to get the house declared dangerous by the Hyderabad Municipality and got it demolished. It is admitted position that respondent 2 was occupying the ground floor portion of the building on Survey No, 1418 and the appellant had been transferred the upper storey of the same building on the same Survey Number under P. T. O. Dated 22-11-1959. The Additional Settlement Commissioner by his order dated 12-5-1962 allowed the application and set aside the transfer order without applying his own independent mind as to whether it was a fit matter for condonation of delay, and it is obvious that he was influenced by the order and direction of the Settlement Commissioner contained in the observations which have been reproduced above. The appellant filed Revision Application, before the Settlement Commissioner who, while upholding the order of Additional Settlement Commissioner held that the appellant was entitled to half the portion of plot of the demolished portion of the building. The respondent 2 then filed Constitutional Petition No, 432 of 1965 against the aforesaid order of Settlement Commissioner which was accepted in the impugned judgment under which it was declared to be without lawful authority and of no legal effect. The impugned judgment has been challenged mainly on the following grounds :- "(1) That the finding of fact by the Additional Settlement Commissioner that 'the upper floor on which the rooms had been constructed was part and parcel of Bhai Bund Printing Press which was an industrial concern, was based on misreading of the evidence on record and should not have been accepted by the learned Single Judge specially in view of the fact that respondent 2 who claimed to be a transferee of the industrial concern had not produced any transfer order showing that the Printing Press included the portion of the building on Survey No, 1418.
(2) That since the upper portion of property on Survey No, 1418 had been treated as independent separate house and transferred to the appellant and P. T.
0. Dated 22-11-1959 had been issued in his favour, and further since the period of limitation for challenging the transfer had expired, the Settlement Commissioner had no jurisdiction while dismissing the Revision Application by his order dated 27-12-1961 to issue directive to respondent 2, to file appeal, or to condone the delay.
(3) That the house consisting of upper storey portion of building on Survey No, 1418 was rightly transferred to appellant and it had independent separate access etc. And was separate house within the meaning of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
(4) That the learned Additional Settlement Commissioner could not have condoned the delay made out by respondent 2.
(5) That since the house was transferred to appellant in 1959 even prior to the transfer of Bhai Bund Press, even if it is considered as part of the same building having been treated as independent house and transferred as such to appellant on 17-11-1959 it could not be considered and forming part of the Bhai Bund Press."
4. ' With regard to ground No, 1 a perusal of the record would show that respondent 2 who claimed that the upper storey of building on No, 1418 of Sheet No, 42, Ward E was part of the Bhai Bund Printing Press had at no time produced the P. T. D. Or any other document to prove his claim. On the contrary in the copy of order of allotment produced by him, it is expressly mentioned that he was being allotted Bhai Bund Printing Press installed in premises No, F/1416 and 1417, Shahi Bazar, Hyderabad. There was absolutely no mention of premises on No, E/1418 in that order. It is true that in the order dated 12-5-1961 of the Additional Settlement and Rehabilitation Commissioner on appeal filed by respondent 2 there is mention of property Nos. E-1414, 1417, 1418 and 1419, but since he was laying claim in to the upper portion of the building on E-1418 it was for him to prove by production of the P. T.
0. That the aforesaid portion of the building was included in the Bhai Bund Printing Press which had been allotted and later transferred to him. The learned Single Judge in the impugned judgment did indeed mention that the Additional Settlement Commissioner himself had inspected the site and reached the conclusion that the upper floor, on which the two rooms were constructed was a part and parcel of the building. However, it has been argued that the building also consisted of permission E/1414 and 1416 which were admittedly in possession of Muhammad Rafiq and were not considered as included in the industrial concern, namely, the Bhai Bund Printing Press. It is further argued on behalf of the appellant that the upper floor of building on 1418 was treated as a house and transferred to him as an independent unit under a valid P. T. O., and therefore there could be no question of considering the same to be part and parcel of the industrial concern. The fact that in the orders of allotment of the industrial concern, which had been produced by respondent 2 himself No, F/1418 is definitely not mentioned, and further the fact that there is nothing on record of the proceedings to show that there was any transfer order in favour of respondent 2 with regard to Survey No, 1418 and in his application for transfer of the industrial concern the same was shown to be situated on Survey Nos. 1416 and 1417 only, the contention on behalf of the appellant that the finding of fact by the Additional Settlement Commissioner that upper floor of the building on Survey No, 1418 was part and parcel of Bhai Bund Printing Press was based on misreading of the evidence on record is substantiated.
5. ' The learned counsel for the appellant has contended that the division of property was legal and proper. He has relied upon the decision of the Supreme Court in Abdul Jabbar v. Settlement Commissioner Sheikhupura and others (1). In that case it had been contended that in view of section 2(12) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 any evacuee business, premises, "situated within the terms of an industrial concern or building or premises declared under para. 15 of the Schedule to be a big mansion or hotel, the shops attached or appurtenant to an industrial concern
(1) 1969 SCM R 140 ' could not be treated as shops. The contention was not accepted and it was observed by the Supreme Court as under :- "We are unable to accept this interpretation. 'Within the premises of an industrial concern' must necessarily mean within the area of the premises actually being used as an industrial concern."
6. ' There was evidence that the three rooms were from Partition being used as separate shop rooms and not for any of the purpose of the flour mill. It was held that it could not be said that the finding of the authorities that those rooms did not fall within the industrial concern, and consequent transfer to the petitioner was in any way wrong.
7. ' Reliance was also based on the decision of the Supreme Court in K. S. Muhammad Nawaz Khan v.
8. Mst. Noor Begum and another (1) in which the question as to what was included in "Industrial concern" was considered. In that case it was contended that the Letters Patent Bench of the High Court had erred in thinking that residential rooms in dispute were not situated within the premises of the industrial concern transferred to the petitioner. The Supreme Court held that there was no substance in these submissions as there was no finding on the record to the effect that rooms in dispute were occupied before Partition by the proprietor, and secondly if they were so occupied the essential question would still remain whether they were situated in the industrial concern. It was observed as under :- "From the description of the property as appearing in the order of the said authorities and reports made by Member of Board deputed by the Bench to carry out legal inspection it had become clear that the industrial concern transferred was the portion as located on the ground floor of the building and the residential rooms on first and second floor were independent of it, even though there is a common entrance in the verandah for the two units. We also find that the learned Judges of the D. B. Have rightly taken note of the instructions issued in this behalf by the Chief Settlement Commissioner to the effect that if an industrial concern is located only in one tenament of building then that portion only may be transferred as an industrial unit, and other tenements ought to be disposed of as independent units in accordance with the relevant provisions of the Act and the Scheme framed thereunder. These instructions are inconfirmity with the definition contained in section '2(4) of the Act."
9. ' The learned counsel for the appellant has also referred to the decision of Supreme Court in Civil Petition No, K/252/75 (Mst. Zahira and others v. Abdul Hakim Patel), Civil Petition No, 9/75 (Abdul Hakim Patel v. Mst. Zahira and 5 others), on appeal from the judgment of the High Court of Sind & Baluchistan in L. P. A. No, 1 of 1969. In one of the cases it was contended that since the area adjoining was used for extracting of earth therefrom for the purposes of making bricks and the whole area was being utilised for the purpose of the kiln, the same should have been treated as an industrial concern. It was held that the mere fact that earth was being extracted for the purpose of manufacturing the bricks was not sufficient to convert the land into an industrial concern.
10. In view of the authorities cited and the further fact that it is admitted position that the respondent 2 was residing in the upper storey portion of F/14I8 long before the allotment of the Bhai Bund Printing Press to the respondent 2, the transfer of the upper portion which had independent access, as a house, could not be considered to be illegal or against the rules.
(1) 1972 SCMR 413 ' With regard to grounds Nos. 2 to 5 above there is no dispute about the fact that the upper portion of Survey No, 148 was transferred as a house in favour of the appellant and P. T. O. Was issued in his favour on 22nd November, 1959. The Revision Application filed before the said Rehabilitation Commissioner against the transfer was therefore undoubtedly belated and time barred which is also clear from the very observations of the learned Settlement and Rehabilitation Commissioner which have been quoted above. The order directing the filing of regular appeal in appropriate Court for which delay was condoned was to say the least illegal and without jurisdiction. It is also apparent from the perusal of the order of the Additional Settlement Commissioner dated 12-5-1962 that actually no appeal was filed and that the Miscellaneous Application filed on 22-12-1961 was treated as appeal. It is further clear that no application for condonation of delay was filed before the learned Additional Settlement Commissioner for moving the belated Miscellaneous Application. From the aforesaid order it is also clear that the learned Additional Settlement Commissioner did not apply his own mind to the matter with regard to condonation of delay and purported to rely on the order dated 21-12-1961 of the Settlement Commissioner already referred to above.
11. ' The learned counsel for the appellant has argued that even application for condonation of delay had not been filed and therefore there are no grounds which could be considered in order to come to the conclusion that the delay had been even impliedly condoned. He has relied upon the decision in Muhammad Ilyas Qureshi v. Muhammad Sarfraz Khan, Settlement Commissioner and others (1), where the order passed by the Additional Settlement Commissioner had become final with the dismissal of the Revision Petition, and no second Review Petition lay on the orders of the Settlement Commissioner, it was held that it was not a fit case for exercise of such a jurisdiction 3 1/2 years later, specially when no explanation for delay was forthcoming. The learned counsel for the appellant has also referred to decision in Attaullah Malik v. The Custodian of Evacuee Property, West Pakistan and 6 others (2), in which inter alia the matter with regard to time-barred application for confirmation of transfer unaccompanied by application for condonation of delay was considered, and it was held that the Custodian cannot be supposed to have impliedly condoned delay by his having confirmed transfer at revision stage.
12. ' In Ahsan Ali and others v. District Judge and others (3), Civil Appeal No, K/27/66 on appeal from judgment and order of the High Court of West Pakistan, Karachi Bench, in, it was held that in view of section 29(2) of the Limitation Act, 1908 provisions of section 3 applied where any special or local law prescribes for any suit, appeal or application the period of limitation different from the one prescribed therefor by the First Schedule. The Displaced Persons (Compensation and Rehabilitation) Act, 1958 is a special law and, therefore, whether the plea of limitation was raised or not it was the duty of the Settlement Court to notice the point of limitation. It was further held that mere dismissal of appeal on merits is not sufficient to lead to the inference that the delay must have been condoned and that there must be something in the order or judgment to show that the Court concerned was conscious of the fact that the proceedings was out of time and had applied its mind to the question of limitation before dealing with proceedings on merits.
(1) 1975 SCM R 213 (2) PLD 1964 SC 236
(3) PLD 1969 SC 167 The cancellation of the transfer in favour of the appellant by the order of the Additional Settlement Commissioner dated 12-5-1962, therefore, cannot be considered to be legal or proper. It may hereby observed that the further reason given by the learned Additional Settlement and Rehabilitation Commissioner in the aforeasid order that the portion in occupation of the appellant had been completely demolished by the Municipality as it was in dangerous condition, could not be considered as a proper ground for C cancelling the transfer in favour of the appellant even though the building stood demolished. The transfer had been made while the premises were in possession of the appellant and were being used. It may further be observed that with regard to divisibility of the property the learned Additional Settle ment and Rehabilitation Commissioner in his aforesaid order had held the transfer document issued to Muhammad Rafiq to hold good, and for the reasons already given the case of the appellant could not have been considered differently.
13. ' In the Revision Application filed by the appellant against the aforesaid order of cancellation of transfer by the Additional Settlement Commissioner, the Settlement Commissioner observed as under :- "The applicant has a separate stair-case not from the courtyard of the premises but from a side in the street leading to the portion and first floor in his possession. The roof of the rooms in which the Bhai Bund Press is located was used by him either as a passgge to his portion or its courtyard. But the portion on the first floor which was in his possession as well.As the ground floor of the portion which was in possession of the opponent was demolished by the orders of the Hyderabad Municipality because it was in dilapidated condition and dangerous to life. Thereafter, the appellant is said to have constructed huts on the roof which was formerly raised by him as passage or courtyard and started living there with his family. The Additional Settlement Commissioner cancelled the transfer in his favour on the ground that the portion in his possession had been demolished and was no more in existence."
14. ' The learned Settlement Commissioner further observed that since the portion of the first floor in possession of the applicant had been demolished it could not be considered transferred to any body. He further observed as under :- "The transfer to the opponent was also not in accordance with law. The easement right of the appellant over the roof whether as a passage or courtyard also ceased to exist because the portion in his possession had been demolished. The roof over which he has now constructed huts and is living also cannot be transferred to him as I do not find any such provision in the Displaced Persons (Compensation and Rehabilitation) Act (hereafter called the Act). The learned Additional Settlement Commissioner was therefore justified in having cancelled the transfer of the demolished portion in favour of the applicant."
15. With due deference the result at which the learned Settlement Commissioner arrived does not appear to be supported even by the reasoning given by him. He, however, considered that the case of the applicant (appellant herein) was a hard one and the transfer of the entire building to respondent I was considered by him to be neither justified nor legal. He, therefore, modified the order of the Additional Settlement Commissioner to the extent that except half of the portion of the plot over which the demolished building stood was ordered to be transferred to the opponent (respondent 2) be considered in possession of half of the portion of the plot.
16. ' It has been argued on behalf of the respondent No, 2 that the order of the learned Settlement and Rehabilitation Commissioner is illegal and, therefore, was rightly declared to be without lawful authority and of no effect by the learned Single Judge in the impugned judgment. However, for the reasons given, the transfer in favour of the appellant which had taken effect could not have been cancelled and in the circumstances stated the order of the learned Settlement Commissioner could be said to be just and fair and purporting to do substantial justice between the parties, although legally the same does not appear to be sound. We are, therefore, of the opinion that the afforesaid order should not have been interfered with in exercise of discretionary jurisdiction under Article 98 of the 1962 Constitution corresponding to Article 199 of the 1973 Constitution. It is also to be considered whether the provision in the Constitution does or does not empower this Court to interfere with the decision of a Court or Tribunal merely because the same is wrong.
17. In the decision of the Lahore High Court in Dewan Ali and 7 others v. Barkat Ali and 10 others (1), it was observed that if impugned order is found t be just and fair and purporting to do substantial justice between the parties it should not be interfered with in exercise of discretionary jurisdiction.
18. Again in another decision of the same High Court in K. M. Ahsan Ali v. Attaullah Malik and another (2), it was observed that the provision contained in Article 19 of the Constitution does not empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction merely because the same is wrong as in that case it would make the High Court's jurisdiction as that of the Appellate Court which is not the intention of the Legislature. We are in respectful agreement with the aforesaid interpretation and, for the reason given above, we accept the appeal and set aside the order of the learned Single Judge and declare that the appellant is entitled to rights conferred upon him under the P. T.
0. Dated 17-11-1959 and interference with the order of the Settlement Commissioner dated 22-5- 1965 is not called for.
(1) PLD 1976 Lab. 147 (2) PLD 1976 Lab. 158