' GuL MUHAMMAD KHAN, J.-The appellants who are successors-in-interest of Tufail Muhammad assail through this Letters Patent Appeal the order dated 9th December, 1968, passed by a learned Single Judge of this Court in Writ Petition No, 640-R/67.
2. Briefly, the facts of this case are that Tufail Muhammad who was in possession of two rooms in Ihata No, 214/216, Toba Tek Singh, filed a form N C S for their transfer to him as a shop. Respondent No, 2 a local submitted a form LH for the transfer of the Ihata. The Deputy Settlement Commissioner rejected the N C S Form of Tufail Muhammad on 16th June, 1960 on the ground that he had applied for another shop as well. He transferred the portion in possession of the respondent No, 2 to him and ordered the disposal of the rest by way of auction. The parties filed separate appeals. The learned Additional Settlement Commissioner, vide his order dated 2nd August, 1960 rejected the appeal of Tufail Muhammad as he could not file two N C S forms for two shops. The appeal of respondent No, 2 was accepted and the entire property was transferred to him.
3. Tufail Muhammad took a revision petition before the Settlement Commissioner which was accepted on 5th July, 1962 and the case was remanded for a fresh decision, with the observation that in case the property in dispute had been used as a shop, since Partition, it will be transferred as a shop to Tufail Muhammad, otherwise, it shall go to the respondent No, 2 as a house. The case then came up before the Deputy Settlement Commissioner who held the same as a shop and transferred it to Tufail Muhammad. An appeal filed by respondent No, 2 against the above order was accepted on 28th June. 1963, with the result that two rooms in dispute were also given to him.
The revision petition of Tufail Muhammad before the Settlement Commissioner failed and was dismissed on 30th July, 1966 and hence the writ petition referred to above.
4. It is contended by the learned counsel that the learned Single Judge erred in law in holding that godowns could not be transferred as shops. It is contended by him that godowns could be transferred along with the shop even if they were appurtenant but in case they were separate they would go as shops. The learned counsel relies on Muhammad Aslam v. Settlement and Rehabilitation Commissioner. It was held in it that the godowns which were separate from the shop would be transferred as a shop.
5. No one appears to contest this appeal. We have gone through the judgment referred to above as well as the definition of the shop given in section 2, subsection (12). It says that the shop means evacuee business premises of any value in urban area - - - Undoubtedly, godowns are premises used for business. Consequently, they had to be disposed of as a shop and not as a house.
6. The N C S Form of the appellants had been rejected for the simple reason that Tufail Muhammad could not apply for two shops. This view is quite contrary to law as he could apply but could not get more than one shop. The learned Single Judge thus rightly held in para 5 of the order that the view of the Deputy Settlement Commissioner holding that Tufail Muhammad was eligible for the transfer of the shop was correct. Again, if it was a residential property converted to commercial use it was transferable as a shop under para 20 of the Settlement Scheme No, 1 and the instructions of the Chief Settlement Commissioner issued thereunder.
7. Be that as it may, the respondent is a local. The rooms which are a business unit, therefore, could not be transferred to a local, in view of the specific bar contained in paras 3 and 8 of the Schedule of the Displaced Persons (Comp. & Rehab.) Act, 1958. The impugned orders were, therefore, illegal and cannot be allowed to stand on this alone ground as well.
8. The other facts of the case as they appear from the record are that Tufail Muhammad was an occupant of another shop No, 287 along with one Javaidul Haq. He had applied for the transfer of the same and was jointly transferred vide order dated 28th December, 1959. Learned counsel refers to the order dated 22nd November, 1962 of the Deputy Settlement Commissioner to say that subsequently the shop was taken away from Tufail Muhammad as well as Javidul Haq and ordered to be disposed of. No order has been placed on record and the learned counsel relies only on certain observations.
9. We are not sure about the above fact and cannot go into this question in the absence of the record to hold categorically that Tufail Muhammad or the present applicants have not been transferred any other business unit. In this view of the matter, we direct that the two rooms in dispute shall be transferred to the appellants only. If Tufail Muhammad or his successors have not been transferred the shop No, 287 or any part of it.
10. In the circumstances, the impugned order is declared to be without lawful authority and of no legal effect. The rooms in dispute shall be transferred to the appellants subject to his observation made n para 9 above. As no one has appeared, there will be no order as to costs. PLD 1967 Lah. 357