ANWARUL HAQ, C. J.-This appeal under Clause 10 of the Let--ters Patent has arisen out of an order made by K, Justice Jamil Hussain Rizvi on the 4th June 1964 in writ Petition No. 563-R of 1961 regarding the disposal of the ground-floor," of property bearing No. 4-S-50 situate in Block No. 11, Sargodha,
2. The relevant facts are that according to the settlement authorities the building in dispute is a composite property con--sisting of two shops on the ground-floor and two Chaubaras on the first and second floors. The residential portions are not in dispute in the present proceedings. The appellant Dr. Faiz Muhammad had applied for the transfer of the entire ground---floor on Form CS on the basis of his possession as an allottee of the entire shop, claiming that in fact there was only one shop which had been divided into two portions by a wooden partition, and that the other portion bad been given by the appellant to his friend Hakeem Muhammad Rafiq as a licensee. The latter had not preferred any claim for the transfer of the commercial unit in his possession, although he is also stated to be a claimant displac--ed person.
3. The learned Deputy Settlement Commissioner, by his order dated the 1st of January 1960, held that there were in fact two shops on the ground-floor, one in the possession of Dr. Faiz Muhammad and the other in the possession of Hakeem Muhammad Rafiq. He transferred to the appellant that shop or portion which was in his possession, and directed that the other shop be disposed of by public auction as its occupant had not applied for its transfer. Aggrieved by this order Dr. Faiz Muhammad filed an appeal which was however dismissed by the learned Additional Settlement Commissioner by hi, order dated the 27th of January 1960 in so far as the appellant's claim to the second shop was concerned, but certain rooms situated vertically on top of the shop in the possession of Dr. Faiz Muhammad were given to him for being used as consulting rooms for his medical practice. The remaining portion was transferred to one Mst. Zubaida Begum from the ground to the sky.
4. This order was challenged by way of revision by the appellant Dr. Faiz Muhammad as well as by two other persona, who are not parties to the present proceedings. The learned Settlement Commissioner held, by his order dated the 25th of February 1960, that there was no justification for transferring to the appellant the rooms situated on the first-floor and that he should got only the shop which was in his possession. As regards the second shop he upheld the order directing its disposal by public auction. Against this revisional order the parties filed a second revision which was disposed of by the learned Chief Settlement Commissioner by his order dated the 29th of Novem--ber 1960. This officer inspected the spot and directed that the portions in the possession of the respective parties should be transferred to them, except the second shop on the ground- floor which should be disposed of by auction. As a result of this prolonged litigation the appellant was thus left only with the shop which was actually in his possession.
5. Before the learned Single Judge it was contended that the entire ground-floor of the property in fact constituted one shop which had been allotted as whole to the appellant, and the latter bad inducted Hakeem Muhammad Rafiq as his licensee, with the necessary consequence that the entire ground-floor must be deem--ed to be in the possession of the appellant, and thus not capable of sub-division Into two shops. The order under appeal recites that it was conceded by the learned Settlement Commissioner (Legal), who appeared for the Settlement Department, that the shop was one before partition and that the whole of it had been allotted to the appellant. However, the learned Judge held that since the Chief Settlement Commissioner was empowered in law to declare whether the shop should be divided or not, there was no illegality attaching to the order made by this officer for dividing the shop. On this view of the matter the appellant's petition was dismissed.
6. It is contended by Mr. Saeed Akhtar, the learned counsel for the appellant, that there Is documentary evidence to show that the entire ground-floor of this composite property was one shop before partition, and it was for this reason that it was allot--ted in its entirety to the appellant, who must be deemed to be in possession thereof even though he had inducted Hakeem Muhammad Rafiq as his licensee in a portion of the shop. It is submitted that the two portions are in fact separated by s wooden partition erected by the appellant himself, and accordingly the settlement authorities have erred in treating the ground-floor a' consisting of two shops. It is further submitted that in any case in the matter of composite properties the power of division, for the purpose of specifying the commercial and residential units, can be exercised only in terms of the second proviso to clause (12) of section 2 of the Displaced Persons (Compensation and Reha-- bilitation) Act, 1958 (hereinafter referred to as the Act); which permits the partitioning of the property only into two units or blocks-one to be deemed to be a house and " the other to be a shop; and that any further sub-division of these units can be carried out only in accordance with either the first proviso to clause (12) aforesaid or the proviso to clause (4) of section 2 of the Act. It is submitted that both these provisos contemplate that a house or a shop can be sub-divided only if it consists of several residential or commercial units which are in the possession of several persons, but as in this case the possession was only with the appellant, the power of sub-division could not be exercis--ed at all.
7. The relevant provision of law, namely, clause (12) of section 2 of the Act with its two provisos, may be reproduced here for facility of reference: - "(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 godowns or store--houses, 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 Man--sion' or hotel 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 Provided further that where any such building or premises consist of both residential and business units, the Chief Settlement Commissioner may 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."
8. This clause has come up for interpretation in a number of decided cases cited at the Bar by the learned counsel, namely, Jalil Ahmed v. The Settlement and Rehabilitation Commissioner, Hyderabad and another (PLD 1962 Kar. 197), Haji Muhammad Hanif v. Chief Settlement and Rehabilitation Commissioner and others (PLD 1964 Lah. 261), Muhammad Siddiq and others v.
Chief Settlement and Rehabilita--petition Commissioner, Lahore and others (PLD 1965 SC 123), Ghulam Hussain v. Chief Settlement and Rehabilitation Commissioner, Karachi and others (PLD 1966 Kar. 466), Abdul Ghani v. The Settlement Commissioner, Khairpur Division and another (PLD 1967 Kar. 292), Muhammad Ishaq v. The Chief Settlement Com--missioner and others (PLD 1967 Kar. 605), Mst. Bashir Bano v. Chief Settlement Commissioner and another (PLD 1967 Lah. 786) and Abdul Majid v. Chief Settlement Commissioner and others (PLD 1967 SC 437).
9. In the first-mentioned case it was held by a learned Single Judge that where there is only one applicant claiming transfer of the entire property in the possession of more than one person, the whole property should be transferred to such person, as the power of the Settlement authorities to divide a property and transfer portions separately could be exercised only to adjust claims of more than one applicant. This view was however overruled by a Division Bench of the High Court in the case of Haji Muhammad Hanif mentioned above, and it was hold that in the matter of composite properties each unit could be disposed of separately even if there was only one applicant, unless the Chief Settlement Commissioner declared the whole or a part of the property as one property.
The next five cases mentioned by Mr. Saeed Akhtar, although relating to composite properties, are not directly relevant in the present context, and therefore it is not necessary to say anything about them. However, in the last case relied upon by the learned counsel their Lordships were dealing with the scope and purview of the two provisos to clause (12). They observed that- "It seems to us that in the case of premises consisting of both residential and business units the power of division under subsection (4) and the first proviso to subsection (12) will arise only after the specification under the second proviso to subsection (12) has been made. Unless and until it is known as to which portion is a house and which a shop it is difficult to appreciate how the authorities can at all consider as to whether the residential portion (house) or the business portion
(shop) is capable of further sub-division. In our opinion, the words 'shop' and 'house' occurring in the second proviso have been used to signify a 'business unit' and a 'residential unit'. They do not necessarily exclude the power given by subsection (4) of section 2 and the first proviso to subsection (12) itself. The powers given by the above-mentioned two subsections are not mutually exclusive nor are they exhausted by a single exercise of the power under either of the two subsections . . . . . . The further sub-division after the separation of the residential from the business portion even if made simultaneously will be refer--able to the powers given under subsection (4) of section 2 and the first proviso of subsection (12), for, the second proviso of the latter only says that the specifications made thereunder shall be deemed to be 'a shop or a house' and not 'shops or houses'."
10. It will be seen that in the view of their Lordships the power conferred by the second proviso to clause (12) is for the purpose of determining or specifying as to which part or parts of a composite building are to be deemed to be a shop or a house. Once that is done the further question of the sub-division of any of these residential or commercial units would be governed either by the first proviso of the same clause or the proviso to clause (4)A of this section. Now, we do not see anything in the reasoning adopted by their Lordships, or in the second proviso itself, to suggest that the specification contemplated by the proviso must be restricted only to one commercial unit and one residential unit, even though in fact a composite property may consist of several such units in their own right. It is not difficult to envisage a large composite building consisting of several self- contained residential and commercial units, each or any of which may or may not be capable of further sub-division. If the view canvassed by Mr. Saeed Akhtar is adopted then several commercial and residential units would have to be lumped together to form a house or a shop, which would then be capable of sub-division in terms of the relevant proviso. We consider that such a con-- struction would be highly artificial and would not conform to the intention of the Legislature as clearly spelt out in the second proviso. It is clear that the intention is that in the case of a composite property each self-contained and independent unit should be distinctly specified by the Chief Settlement Commissioner, or his delegate to be a house or a shop. In carrying out this process the question of the sub-division of such individual units does not arise.
11. In the case before us, there is the consistent finding recorded by all the settlement authorities, and confirmed by the learned Chief Settlement Commissioner on personal inspection of the building, that the ground-floor consists of two shops or commercial units and not one shop. No question therefore arises in this case of the sub-division of a commercial unit in terms of the first proviso of clause (12). The specification carried out by the settlement authorities is entirely within the ambit of the second proviso, and is independent of the question of possession by one or more persons.
12. On the factual side It is true that in the order of the learned Single Judge it is recited that a concession was made before him by the Departmental Representative that before parti--petition the ground-floor consisted of one shop, but this concession runs counter to the facts recited by the appellant himself in the writ petition, paragraph 1 whereof states that- "originally the shop in question comprised of a room and a verandah in front of it, but the evacuee owner Dr. Harbans Singh partitioned the verandah and the room by setting up a wooden structure in order to provide a separate compartment for his female patients, which arrangement was continued by Dr. Jagat Singh and the petitioner."
This statement leaves no doubt in our mind that even before partition the ground-floor stood divided into two separate portions which were found to be independent and distinct by the Chief Settlement Commissioner on personal inspection. Such being the case, we see no illegality in the declaration made by the learned Chief Settlement Commissioner to the effect that the ground- floor consists of two shops which had to be disposed of separately.
13. On the view that we have taken of the legal provisions as contained in the second proviso clause (12) of section 2 of she Act, it is not necessary to say much on the question of theappellant's possession over the second shop, and it would suffice to observe that there is no finding recorded as such by any settle--ment official to the effect that Hakeem Muhammad Rafiq was indeed a licensee of the appellant so as to attract the dictum of this Court in Nazar Din alias Nazar Muhammad v. Mian Ghulam Shabbir and others (PLD 1966 Lah. 716). The most favourable observations appear--ing in the orders passed by the statutory functionaries are that the appellant had handed over the surplus portion of the ground-- floor to Hakeem Muhammad Rafiq.
This would amount to an act of relinquishment and not of induction of a licensee. However, it is not necessary to pursue this matter any further, as nothing turns upon the question of possession in this case. Once it is found that the ground-floor consists of two separate and independent shops, the appellant cannot get both of them as there is a prohibition in this regard .In paragraph 8 of the Schedule to the Act.
14. For the foregoing reasons, we see no merit in this appeal which is accordingly dismissed. There will, however, be no order as to costs, as no one has appeared to contest these pro--ceedings.