1. NASIM HASAN SHAH, J.--This order will dispose of three civil appeals viz. Civil Appeal No. K-32 of 1975 and Civil Appeals Nos. K-112 and K-113 of 1976 as all of them are directed against a consolidated judgment passed on 14-11-1974 by the High Court of Sind and Baluchistan disposing of three writ petitions, namely, Nos. 183 of 1968 and 534 and 622 of 1970.
2. The above-mentioned three petitions were a sequal to a dispute relating to the transfer of a residential evacuee property situated on Plot No. 555, Garden East, Chamman Street, Karachi. The property consisted of the main to-storeyed building and an annexe. The building was occupied by several persons including Mr. Zafar Niazi, since decease, and represented by his legal heirs (who are the appellants in Civil Appeals Nos. K-112 and K-113 of 1976 and respondents in Civil Appeal No. K-32 of 1975). Qazi Syed Shujaatullah and Hakim Syed Muhammad Rishad Wasti (respondents Nos.
3. 1 and 2 in Civil Appeal No. K-32 of 1975) and certain others in severalty.
4. On the commencement of the settlement operations Qazi Shujaatullah and Hakim Muhammad Rishad Wasti, as also Zafar Niazi filed their respective forms for transfer of the above property. Zafar Niazi's form was for transfer of the entire property (on the basis of being an allottee in prior occupation of the major portion of the building and treating the occupation of Qazi Shujaatullah and Hakim Muhammad Rishad Wasti as licensees under him and therefore, not entitled to transfer of any portion of the building); while Qazi Shujaatullah and Hakim Muhammad Rishad Wasti applied for transfer of the portions in their respective possession.
5. In the course of the first round of the proceedings before the Settlement authorities, the matter ultimately came in revision before the Settlement Commissioner, who by his order, dated 29-8- 1960 agreeing with the Additional Settlement Commissioner, held that the main building consisted of four independent premises of which one unit, comprising of portion marked as 'G-1 and G-2', was transferred to Qazi Shujaatullah; the other unit designated as No. 1/2 was transferred to Zafar Niazi.
6. The annexe with a residential room on the top of it, which was also treated as an independent unit, was transferred to Hakim Muhammad Rishad Wasti. The garages in the annexe were also treated as separate unit and transferred to Zafar Niazi. The occupants of the remaining portion of the property, namely, G-4 and '1/1' (the portion in dispute in Civil Appeal No. K-32 of 1975 filed by Badrul Hassan Wasti and another) were given option to apply for its transfer. However, they did not apply for its transfer and, on the application of Badrul Hassan Wasti and Masoodul Hassan Wasti, the same was transferred to them by the Settlement authorities on negotiation basis.
7. Mr. Zafar Niazi, feeling aggrieved, filed Writ Petition No. 138 of 1961 against the aforesaid order of the Settlement Commissioner in the High Court of West Pakistan at Karachi. This, however, was dismissed in limine on 13-4-1961 against which order he moved Letters Patent Appeal No. 38 of 1961.
8. During the pendency of the said letters patent appeal Zafar Niazi applied for impleading the petitioners herein as a party to the appeal because of the transfer of the portion in dispute in their favour in the meantime. His application was refused by the learned Judges of the Letters Patent Bench on 30-10-1961. The matter was not pursued further. The letters patent appeal filed by Zafar Niazi, however, ultimately succeeded and the operative part reads as follows:- "Accordingly, the appeal is allowed. As a result, a writ will be issued to the respondent directing the Deputy Settlement Commissioner concerned to reconsider the whole case in the light of the above observation and dispose of the bungalow in dispute in accordance with the law. It will be open to him to consider the question whether, in the circumstances, of this case, it would be at all feasible to divide the bungalow in dispute. In the special circumstances of the present case, the parties are left to bear their own costs."
9. Pursuant to the above order of remand, the matter came up before the Deputy Settlement Commissioner, who, vide his order, dated 29-12-1964, again held the building to be divisible and maintained the order of transfer on the same lines as was directed earlier by the Settlement Commissioner in his order, dated 29-8-1960 including the transfer of the portion in dispute to Badrul Hassan wasti and Masoodul Hassan Wasti.
10. Dissatisfied, Zafar Niazi again appealed and the Additional Settlement Commissioner, vide his order, dated 22-6-1965, transferred the entire first floor to him and directed the remainder portion which included the portion transferred to Badrul Hassan Wasti and Masoodul Hassan Wasti for disposal in a public auction and the transfer of the portion in dispute in their favour was cancelled.
11. This was done on the view that the order of the Settlement Commissioner, dated 29-8-1960, which had culminated in the transfer of the portion in dispute in favour of Badrul Hassan Wasti and Masoodul Hassan Wasti had been quashed in toto by the High Court in the letters patent appeal, transfer of the portion in dispute, being a sequal to that order could not be allowed to stand.
12. Four revisions were filed against the order of the Additional Settlement Commissioner, which were heard together and disposed of by the Settlement Commissioner on 15-8-1967. The learned Settlement Commissioner held the entire building to be indivisible and found its division among different occupants improper. Since Zafar Niazi was the allottee of the property and in occupation of its major portion, he was entitled to its transfer to the exclusion of all others. As regards Badarul Hassan Wasti and another, the learned Settlement Commissioner took the view that the order of the High Court in letters patent appeal, dated 26-3-1964 set aside all the orders passed by the Settlement authorities. He went on to observe that since the matter was sub judice before the High Court "it was not proper for the Settlement authorities" to transfer any portion of it to these persons.
13. The learned Settlement Commissioner, on that view of the matter, heard the transfer of the aforesaid portion to be illegal.
14. Against the above determination of the learned Settlement Commissioner the three writ petitions mentioned in the outset of this order, were filed in the High Court by each of the three parties.
15. A learned Judge of the Sind and Baluchistan High Court, in a detailed and comprehensive order passed on 14-11-1974, found that the property clearly consisted of several units and, in view of the provisions of subsection (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, such a property, consisting of several units, could not be transferred merely to one of the occupants and that the respondents Qazi Shujaatullah and Hakim Muhammad Rishad Watt were entitled to the transfer of the units in their possession, as they were undisputed occupants of the portion in their possession. The case was remanded to the Settlement Commissioner, Karachi, to determine the question of divisibility of the property into indep9ndent units in accordance with the principles laid down in the case of Abdul Majeed v. Chief Settlement Commissioner PLD 1968 SC 164. On such determination of the units, the Settlement Commissioner was further directed to determine as to which of such units were in occupation of Qazi Shujaatullah, Hakim Muhammad Rishad Wasti and the legal heirs of Zafar Niazi and to transfer the unit which was in their occupation to them, as each one of these parties was under the law entitled to the unit which was in its occupation. As regards any unit which was left undisposed of, the Settlement authorities were ordered to dispose it of in accordance with the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
16. As for Writ Petition No. 183 of 1968, which was filed by M/s. Badrul Hassan Wasti and Masoodul Hassan Wasti, the learned Judge in the High Court held the transfer of the tenements Nos. G-(4) 1/1 in their favour to be illegal, as the said portions could not have been disposed of by "negotiations" in their favour. Accordingly, the writ petition filed by them was dismissed.
17. Feeling aggrieved by the order of the High Court, Badrul Hassan Wasti and Masoodul Hassan Wasti challenged the order of the High Court in this Court by filing a petition for leave to appeal (C. P. No. K-44 of 1975) and this Court granted leave to appeal to them by its order, dated 13-8-1975 (the said appeal is Civil Appeal No. K-32 of 1975 before us).
18. Encouraged by the success of Badrul Hassan Wasti and Masoodul Hassan Wasti, the heirs of Zafar Niazi also filed petitions for leave to appeal in this Court. (The petition directed against the order of transfer in favour of Qazi Shujaatullah being Civil Petition No. K-96 of 1976 and that against Hakim Muhammad Rishad Wasti being Civil Petition No. K-97 of 1976). Leave to appeal was granted to them by this Court on 9-1-1976 on the ground that leave had already been granted to Badrul Hassan Wasti and another against the same judgment of the High Court (the appeal directed against Qazi Shujaatullah being Civil Appeal No. K-112 of 1976, while that against Hakim Muhammad Rishad Wasti being Civil Appeal No. K-113 of 1976). All the three appeals have been put up for hearing together.
19. It is evident from the above recital of the facts that leave to appeal against Qazi Shujaatullah and Hakim Muhammad Rishad Wasti has been granted because leave to appeal was earlier granted to Badrul Hassan Wasti and Masoodul Hassan Wasti. However, we note that the learned Judge in the High Court was entirely right in holding that a property consisting of several units could not be transferred to only one of the occupants and further that the portion transferred to Bardul Hassan Wasti and Masoodul Hassan Wasti could riot he transferred to them by the Settlement authorities on the basis of "negotiation" as no such power existed under the Displaced Persons (Compensation and it Rehabilitation) Act, 1958. The transfer in their favour was, therefore, manifestly illegal and not possible under the law. We, therefore, consider) that leave to appeal could not be granted to them.
20. We would, accordingly, recall our order, dated 13-8-1975 granting leave to Badrul Hassan Wasti and Masoodul Hassan Wasti as well as the order dated 16-9-1976 granting leave to the heirs of Zafar Niazi in the petitions filed by them against Qazi Shujjatullah and Hakim Muhammad Rishad Wasti.
21. The orders granting leave to all the appellants in all the three appeals having been rescinded, the result will be that all the above-1 mentioned three appeals shall stand dismissed, leaving the parties to bear their own costs.