1. MUHAMMAD YAQUB ALI, J.--This appeal relating to the transfer of house No. SW. IV.
68. S. 12, Shamnagar, Lahore, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as the Act has a chequered history.
2. The major portion of the house was in the possession of Ch. Fazal Karim, respondent No. 1, a local, while the garage situated in the house and the gallary over it were in the possession of Khushi Muhammad son of Muhammad Din, appellant.
3. In the 1st instance the Deputy Settlement Commissioner transferred to Khushi Muhammad and the respondent No. 1, the portions in their respective possession, but this order was suo motu revised by It.-Col. J. D. Malik, Additional Settlement Commissioner, and he cancelled the transfer order issued in favour of respondent No. 1. Being aggrieved by the order the respondent No. 1, filed a revision petition before the Settlement and Rehabilitation Commissioner who dismissed it wherefrom he filed a second revision petition before the Chief Settlement and Rehabilitation Commissioner.
4. The petition was accepted by Malik Fateh Khan, Chief Settlement Commissioner, on the 5th May 1961, and it was directed that the entire house be transferred to the respondent No. 1.
5. Earlier Muhammad Din father of Khushi Muhammad and one Muhammad Ahmad had filed an appeal from the order of the Deputy Settlement Commissioner to the Additional Settlement Commissioner who on examining the merits of the case set aside the order of transfer dated the 23rd September 1960, and remanded the case for fresh decision in the presence of the parties.
6. In all these proceedings undertaken so far the parties had not impleaded each other as respondents to the appeal and revision before the different Settlement authorities. However, on being apprised of the order passed by Malik Fateh Khan, Chief Settlement and Rehabilitation Commissioner, dated the 5th May 1961, the appellant and Muhammad Ahmad filed writ Petition No. 409-R of 1961 in the High Court which was accepted by J. H. Rizvi, J. Who quashed the order and directed the Settlement authorities to hear their case once again with notice to the parties and to consider their entitlement for transfer of the house. In pursuance of this order, the Chief Settlement and Rehabilitation Commissioner heard the case on the 2nd May 1962, and in the absence of respondent No. 1 cancelled the allotment in this favour and directed that the house be transferred to the appellant and one Muhammad Ahmad who had filed a joint appeal before the Additional Settlement Com--missioner. Aggrieved by this order the respondent No. 1, filed Writ Petition No. 1206 in the High Court which was dismissed by J. H. Rizvi, J. On 4th July 1962, on the ground that the res-- pondent No. 1 being a local could not get preference over a refugee non-claimant. On a Letters Patent appeal a Division Bench came to a contrary conclusion and set aside the order of the learned Single Judge as in their view the Chief Settlement Commissioner had not acted according to the directions of the High Court and had considered the claim of the respon--dent No. 1 alone. In the opinion of the learned Judges there was nothing in the order of the Chief Settlement Commissioner to indicate that he had considered the claim of Muhammad Din, appellant. It was also not clear to them as to why Muhammad Din, was given the whole of the house. On these findings the case was on the 10th January 1566, remanded to the Chief Settlement Commissioner for expeditious disposal in accordance with the orders passed by J. H. Rizvi, J. On 29th January 1962.
7. Leave to appeal was granted to Muhammad Din to con--sider whether the delay in the filing of the Letters Patent appeal was rightly condoned by the Division Bench and whether transfer of a portion of the house to a local had received proper attention in the High Court, Adverting first to the question of limitation we find that after the learned Single Judge had dismissed the Writ Petition No. 1206, the appellant moved a review application which was dismissed on 10th January 1963. He then filed petition for special leave to appeal in this Court on 11-4-1963 as by then the jurisdiction of the High Court to hear Letters Patent appeals had been abolished. Pending the disposal of the petition an order maintaining status quo was passed on 9-5-1963. Thereafter the jurisdiction of the High Court to hear Letters Patent appeals from the judgment, decree and order of a Single Judge was restored on 4-4-1963 by the Appellate Jurisdiction (High Courts and Supreme Court) Repeal Act IV of 1963. The petition for leave to appeal was, in accordance with the Ordinance, sent to the High Court for disposal as a Letters Patent appeal. On these finds the Letters Patent Bench was correct in holding that the respondent No. 1 had not been guilty of any laches and condoning the delay.
8. On merits the learned Judges accepted the contention that the Chief Settlement Commissioner had acted illegally in rejecting the claim of the respondent No: 1 merely on the ground that he was a local. In law there was no bar under the Displaced Persons (Compensation and Rehabilitation)
9. Act and the Schedule thereof to the transfer of a portion of a house to a local. If it constitutes an independent residential unit. Moreover, in Writ Petition No. 409 the same learned Judge had directed the Chief Settlement Commissioner to hear the case once again with notice to the parties and consider their relative claims for transfer of the house. However the Chief Settlement Commissioner had ruled out only the case of the respondent No. 1 and con--sequent upon it transferred the entire house to the appellant.
10. Mr. Ghulam Mujadid Mirza has not been able to support the order of the Chief Settlement Commissioner rejecting the claim of the respondent No. 1 merely on the ground that he was a local.
11. Under the first proviso to section 2 (4) of the Act which defines `House' where any building or premises not declared as a big mansion or a hotel consist of more than one residential unit, and such units are in the possession of several persons, then unless the Chief Settlement Commissioner orders otherwise the whole of said building or premises shall be deemed to be a house. This power was delegated by the Chief Settle--ment Commissioner to the subordinate Settlement authorities by a Notification under section 31 (2) of the Act. In pursuance to the proviso the Deputy Settlement Commissioner divided the house and gave the major portion to the respondent No. 1 and the garage and the gallery above it to Khushi Muhammad son of the appellant. The Chief Settlement Commissioner in the first instance gave the entire house to the respondent No. 1 and on remand by the High Court reversed the order and gave the entire house to the appellant. None of these Settlement authorities had applied there mind to the question whether the house in the occupation of the-parties consisted of more than one residential unit or not. If the answer was in the affirmative, it was a case of transfer of two independent residential units and there was no question of comparing the respective entitlement of the parties. However, if the Settlement authorities determine that the house consists of only one residential unit, then the local must yield to the superior rights of the displaced person. But as this question was not considered by the Chief Settlement Commissioner in its proper contests and the order passed by him on 2nd May 1962, did not conform to the order of remand dated the 29th January 1962, passed by the learned Judge in Writ Petition No. 409, the Letters Patent Bench took the right step in remanding the case for fresh disposal.
12. Both the grounds raised in support of the appeal thus fail and we dismiss it leaving the parties to bear their own costs.