1. ANWARUL HAQ, J.--This appeal, by special leave, is directed against the dismissal of a constitution petition moved by the appellant Mohammad Yaqub in the High Court of West Pakistan at Lahore in respect of the transfer of the roofs of evacuee shops bearing Nos. 2, 3, 4 and 5, comprised in property No. B-1X-12-S-11, commonly known as Budhe Mal building, Gujranwala. The writ petition, was, in the first instance, dis--missed in limine by a learned Single Judge on the 17th of January 1963. An appeal filed under clause 10 of the Letters. Patent was later dismissed by a Division Bench on the 25th of November 1965.
2. The property in dispute is a composite property consisting of 19 shops on the ground floor and a residential portion on the first floor. By an order made on the 30th of May 1961 by the Deputy Settlement Commissioner, most of the shops on the ground floor were transferred to their occupants including respondents Nos. 3 to 6 and the residential portion on the first floor, with one bath room on the ground floor the door of which opens in the stair-case leading to the upper portion, was transferred to the appellant on the basis of his possession. Later, shops bearing Nos. 1, 6 and 7 were purchased in open auction by the appellant's wife.
3. It appears that respondents Nos. 3, 4 and 5, who were the transferees of shops bearing the same numbers, filed a joint appeal before the Additional Settlement Commissioner contending that a shop on the ground floor had been wrongly transferred to the appellant Muhammad Yaqub by being treated as a bath room, and that the roofs of their shops could not have been transferred to Muhammad Yaqub as the courtyard of his house. They alleged that there was no construction on the roofs of the shops transferred to them. Besides this joint appeal there was another appeal by one Abdul Sami, who bad been deprived of the transfer of the shop in his possession on the ground of being a local. Both these appeals were disposed of by the learned Additional Settlement Commissioner by a single order dated the 23rd of February 1962. He dismissed the appeal of Abdul Sami, but accepted the joint appeal of the three respondents although wrongly describing it as being only by the respondents, Muhammad Yasin and Muhammad Yamin. He held that the respondents had got a right to construct an upper storey on the shops that had been transferred to them, and that they also had a right to use the stair-case leading to the roofs of these shops. HG went on to state that the transferee of the upper portion (namely, the appellant before us) would have no right to the roofs of the shops bearing Nos. 2, 3, 4 and 5. He include: shop No. 2 in his order although its transferee Merajuddin (respondent No. 6 before us) had not filed any appeal.
4. Aggrieved by this appellate order, Muhammad Yaqub filed a revision petition, but the same was rejected by the learned Settlement Commissioner by his order dated the 12th of March 1962.
5. While dismissing the appellant's constitution petition, the High Court has expressed the view that the property being a composite one, consisting of residential and commercial units, the Settlement authorities had the power under the second proviso to Clause (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to specify which portions or parts shall be deemed to be a shop or a house. It has further been observed that it is in the exercise of this power that the Additional Settlement Commissioner, as a delegate of the Chief Settlement Commissioner, had held shops Nos. 2 to 5 to consist of the entire portion from the ground floor to the top including the roofs thereon.
6. Leave to appeal was granted by this Court in order to examine the question whether, in a case of horizontal division, the rights of the holder of the lower tenement as to user of the property extended beyond the line or level of division, and if so, in what circumstances and to what extent.
7. It is common ground between the parties that the relevant provision of law, applicable in this case, is contained in the second proviso to clause (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act. The main clause defines the term `shop', the first proviso gives power to the Chief Settlement Commissioner to divide a shop, and the second proviso deals with a composite building consisting of both residential and business units. It runs as under :- "Provided further that where any such building or premises consists of both residential and business units, the Chief Settle--ment Commissioner may order 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. "Where a building consists of more than two units some of which are residential and the others business units and it cannot be divided is accordance with the instructions at (2) above, and such units have independent access and can be utilised independently for residential or commercial purposes each such unit may be treated as a house or a shop as the case may be and transferred accordingly. In such cases also efforts should be made to transfer the whole building to one person if practicable."
9. The second proviso to Clause (12) of section 2 of the Act, read with the instructions issued by the Chief Settlement Com--missioner in this behalf, leaves no doubt that In the case of a composite building, the Chief Settlement Commissioner, or his delegate has the power to specify as to which part or parts of the building shall be deemed to be a shop and a house. The instructions appear to indicate that vertical division from the ground to the sky would be preferable, but there is no bar in the way of a horizontal division so that different floors of the building could be deemed to be a shop or a house and transferred as such to different persons. What is important and necessary in such cases is that the competent authority must clearly specify the parts of the building which are to be separately treated as residential or business units. This has been the interpretation consistently placed on this provision of law by this Court in the cases reported as Muhammad Siddiq v. Chief Settlement and Rehabilitation Commissioner (PLD 1965 SC 123), Abdul Majid v. Chief Settlement Commissioner (PLD 1967 SC 437) and Abdul Majid Khan v. Chief Settlement and Rehabilitation Commissioner (PLD 1968 SC 154).
10. It follows that, just as in the case of a vertical division, the transferee of one portion will have no connection with, or rights in, the other portions carved out of a composite building, so in the case of a horizontal division the transferee of one floor or a portion thereof shall not have any connection with the other floors into which the building has been divided in the exercise of powers conferred by the second proviso afore--said. In other words, the rights of the holder of the lower tenement as to user of the property would not extend beyond the line or level of division specified by the competent authority. Converse would be the case with the transferee of a higher tenement. In each case, however, the rule would apply accord--ing to the division or demarcation specified by the Settlement authorities. In the matter of easements the transferees would be governed by the ordinary law.
11. Coming now to the facts of the instant case, it is clear that the transferees of the shops situated on the ground floor would have no rights beyond the line of division between the two floors of the building, with the result that their rights would extend from the ground to the ceiling of the shops, but not to the roofs of the shops as those roofs would constitute t first floor of the building.
12. It is, however, submitted by Mr. Zainul Abidin, the learned counsel appearing for the respondents, that in this case the Deputy Settlement Commissioner did not specify that the resi--dential portion transferred to the appellant necessarily included the roofs of the shops of the respondents as its integral part and that in any case the Additional Settlement Commissioner, and the Settlement Commissioner acting in revision have made it absolutely clear that they did not regard the roofs in dispute as being part of the residential portion on the first floor. The learned counsel submits that this being the finding recorded by the Settlement authorities, the rights acquired by the respondents as transferees of the shops would extend from the ground to the sky.
13. A perusal of the order made by the Deputy Settlement Commissioner on the 30th of May 1961 does not support Mr. Zainul Abidin. While dealing with the residential portion of the property, this officer not only included the entire first floor therein but also one bath room on the ground floor, the door of which opens in the stair-case leading to the upper portion. He also made it clear that he was transferring to the appellant the entire portion in his possession. The learned counsel for the respondents conceded that the roofs in dispute had all along been used and occupied by the appellant and not by the respondents, who were confined to the ground floor.
14. The learned Additional Settlement Commissioner, acting in appeal, interfered with the order of the Deputy Settlement Commissioner without recording a clear finding that the roofs of the shops of the respondents were not a part and parcel of the residential portion transferred to the appellant.
15. He merely stated that the case of the respondents appeared to be genuine, and that they had got the right to construct the upper storey on the shops that had been transferred to them, and to use the stair-case leading to the roofs on their shops. These observations proceeded in ignorance of the correct position in law, namely, that rights accruing to the transferees would follow the precise division or specification carried out by the Settlement authorities. Without first holding that the roofs were not a part of the residential portion on the first floor, the Additional Settlement Commissioner was not competent to confer any rights therein on the transferees of the shops on the ground floor. To this extent, therefore, the appellate order was erroneous in law. The Settlement Commissioner fell into the same error.
16. Not only the order made by the Deputy Settlement Com--missioner on the 30th of May 1961, but also the report submitted by the Settlement Department to the High Court, clearly showed that :- "The property in dispute consists of 19 shops on the ground and a residential portion on the ground floor and first floor.
17. The petitioner is in possession of the residential portion of the property in dispute. The residential portion falls on 19 shops and the whole property is called 'Budha Mal Market'."
18. From this description of the property, and the mode of division adopted by the Deputy Settlement Commissioner, no doubt is left in our mind that the roofs are clearly an integral part of the residential portion comprised in this property. The appellate and revisional authorities, therefore, acted arbitrarily and capriciously in taking away these roofs from the transferee of the first floor. It has been repeatedly emphasized by this Court that the power of division conferred on the Settlement: authorities is to be exercised judiciously and not arbitrarily.
19. On this view of the matter, we would accept this appeal and set aside the appellate and the revisional orders made by the Additional Settlement Commissioner and the Settlement Commis-- sioner respectively and restore that of the Deputy Settlement Commissioner dated the 30th of May 1961. We would, however, leave the parties to bear their own costs.