1. MUHAMMAD YAQUB ALI, A. C. J.-The dispute in this appeal by special leave of the Court relates to transfer of evacuee house No. E/39-2848, situated in Fort Area, Hyderabad.
2. At the commencement of the Settlement operations six persons were in possession of different residential units in the house. Mst. Zainab Khatoon, respondent, and Mohammad Siddique, not a party to these proceedings were in possession of the ground floor while Mst. Kaneez Fatima, appellant, Razai Panjtan and Fidai Panjtan were in possession of separate portions of the first floor.
3. A portion was in possession of one Yaqub, but it is not clear whether it was on the ground floor or on the first floor. Mohammad Siddique filed C H form for transfer of the portion in his possession, while Mst. Zainab Khatoon in whose favour Razai Panjtan and Fidai Panjtan had surrendered their entitlement to transfer of the portion in their possession filed C H form for the transfer of the whole house. Kist. Kaneez Fatima, a claimant displaced person, did not file C H form for the transfer of the portion in her possession. Instead she applied for inclusion of her name in 'E' list under Settlement Scheme V.
4. On 19-11-1959 the Deputy Settlement Commissioner rejected the Settlement form of Yaqub and transferred to Mohammad Siddique the portion in his possession and to Mst. Zainab, the first floor and the ground floor in possession.
5. On 5-1-1960 Mst. Kaneez Fatima abandoned her application for participating in earmarking of houses and with the permission of the Additional Settlement Commissioner filed C H form for the portion of property No. E/39-2848 in her possession. It is not shown that before this date she had participated in the drawing of lots for any house in pursuance to her application under Settlement Scheme V.
6. On 1-1-1960 the Assistant Settlement Commissioner, Hyderabad, on an application made by K. B.
7. Jaffer, transferee of the adjoining house, for reassessment of the evaluation price submitted the following report to the Deputy Settlement Commissioner: "I have inspected the premises. It comprise two separate and independently residential building in one and the same compound. Both these buildings are on Sr. No. E/2848 according to the T. R. And both have been assessed by E & T.D.A. At Rs. 900 per annum."
8. One of the buildings is occupied by Mr. K. B. Jaffer comprising of two floors with 14 big rooms in all and two small rooms. One big verandah with two sets of latrine, bath-room and kitchen on the first floor. One big courtyard with two sets of latrine, bath-room and kitchen on the ground floor. The fittings and material are of expensive type rarely to be found in normal house. The entire building give good appearance though not so neat and clean due to neglect and a state of disrepair and I think it has purposely been kept neglected in order to bring down its value. The whole house still gives an impression of a palatial building.
9. Taking into consideration all factors viz. Situation, condition and material used, the accommodation and other amenities, 1 treat the G. A. Rent of Rs. 900 assessed by the E. & T. D. Only for this building i.e. For the building occupied by Mr. K. B. Jaffer and as such the E. P. Comes to Rs.
10. 900 X 40=Rs. 36,000 the applicant and an allottee of the said premises is entitled to retain the house in possession.
11. The adjacent building is comparatively on the less plenth area having less sound condition. The building is really in a dilapidated condition. Two rooms on the first floor and one room on the ground floor have already been fallen down. The accommodation of this building is as under:
(1) Mst. Zainab KhatoonG. F. R. 3, K. I, a small por-- w/o Qazi Zahirul Hasnain tion of verandah B & 1. L. 1. with courtyard which is partitioned.
(2) Razai Panjatan & F. F. R. 2 L.
1. B. K.
1. V. 1.
(3) Fadai Panjatan.
(4) Yaqub AliF. F. R.
1. B. L. L.
1. K. Small courtyard 1.
(5) Mohd. Siddique & G. F. R. 3, K.
2. B.
1. L.
1. With a
(6) S. Noor Ahmad. Portion of verandah and courtyard.
12. Taking into consideration all the factors I assess Gross Amount Rent of this building at Rs. 450.
13. There are six applicants for this building. Razai Panjatan and Fidai Panjatan have withdrawn their joint forms Nos. HDR-III-1757 & HDR--III-1762 vide their joint application on the file; while Mr, Yaqoob Ali one of the occupants has not applied as yet. One portion on G. F. Is occupied by M/s. Muhammad Siddique and S. Noor No. HDR-III-1834 of Mr. S. Noor Ahmed has been rejected as per item No. 5 of his form. Hence there remain two applicants only who are entitled as apportioned below:- "(1) Mst. Zainab KhatoonR, C-300/-- w/o Qazi Zahurul Hasnain. Rs. 450/-
(2) Muhammad Siddique. R, C- 1501- Submitted to Deputy Settlement Commissioner for approval. If approved, issue appendices accordingly.
14. (Sd.)
15. Inspected on Assistant Settlement & Rehabilita- Ist January 1960. Tion Commissioner, Hyderabad."
16. On this, the Deputy Settlement Commissioner on 9-1-1960 passed the following order: "Approved to the extent of assessme nt only. The parties shall, however, be free to appeal against matter pertaining to entitlement and apportionment, etc., if necessary."
17. The C H form filed by the appellant was rejected by the Assistant Settlement Commissioner on the same day with the observation that vide order of the Assistant Settlement Com--missioner dated 9-1-1960 the portion applied for already stood transferred to Mst. Zainab Khatoon. An appeal filed by Mst. Kaneez Fatima against the order of the Assistant Settlement Commissioner was dismissed by the Deputy Settlement Com--missioner on 13-4-1960. She then filed a revision petition which too was rejected by the Additional Settlement Commissioner on 15-6-1960. A further revision petition was dismissed by the Chief Settlement Commissioner on 29-8-1961. However, on a review application filed by the appellant, the Chief Settlement Commissioner on 8-11-1961 passed the following order:- "I have consulted the record. It is a fact that the portion of the respondent was transferred to her on 19-11-1959 and the portion in possession of the petitioner was subsequently transferred to the respondent on 30-2-1960. The petitioner filed her settlement form on 11-1-1960, i.e. Before the transfer of the property in her possession to the respondent. Both the parties are claimants. I, therefore, allow the review and order that the property should be transferred on the basis of possession, The parties be informed."
18. Aggrieved by the order of the Chief Settlement Commissioner passed on review Mst. Zainab Khatoon filed a writ petition in the High Court which was dismissed by a learned Single Judge on 10th January 1963, with the observations that he was satisfied that under the P.T.O. Issued on 19th November 1959, the entire first floor was not transferred to the petitioner and that the order passed by the Chief Settlement Commissioner "was most equitable and fair and substantial justice seemed to have been done between the parties."
19. Mst. Zainab Khatoon then filed an appeal to this Court being C. A. No. K-49 of 1963 which was allowed as the Chief Settlement Commissioner who had passed the order dated 8-11-1961 as a delegatee was not invested with the power to review his own order. A direction was given that the Settlement authorities will ignore the order unless it is set aside by due process of law.
20. Mst. Kaneez Fatima, accordingly, filed Writ Petition No. 7 of 1965 in the High Court challenging the legality of the transfer orders in favour of Mst. Zainab Khatoon which have been mentioned above.
21. The petition was dismissed by another learned Judge of the High Court on 18-3-1969. A Letters Patent Appeal preferred by Mst. Kaneez Fatima was dismissed by a Division Bench in limine on 18th August 1969.
22. Leave to appeal was granted to Mst. Kaneez Fatima by the following order "The admitted position is that Mst. Zainab Khatoon was not in possession of any portion of the first floor of the building, but the Appendix and the P.T.O. Issued in her favour apparently relate also to the portion of the first floor said to be in her possession. As, however, Mst. Zainab Khatoon was not in possession of any portion of the first floor, there arises a legitimate question as to what exact portion of the disputed building was transferred to her by the Appendix and the P.T.O. This question requires construction of these and other relevant documents and merits consideration. The second question as to whether the petitioner is entitled to claim transfer of the portion of the first floor in her possession will depend upon the answer to the first question. Leave to appeal is accordingly granted to consider these questions."
23. The facts as they appear on the record leave no doubt that the portion of the first floor in the possession of Mst. Kaneez Fatima was not transferred to Mst. Zainab Khatoon. The words "in possession" qualify both the first floor and the ground floor. Mst. Zainab Khatoon was not in possession of any portion of the first floor, but as seen Razai Panjtan and Fidai Panjtan who were in possession of two rooms of the first floor had surrendered their entitlement in favour of Mst. Zainab Khatoon. She was, therefore, transferred these two rooms with other amenities and not the portion in possession of Mst. Kaneez Fatima. Thus the portion m possession of Mst. Kaneea Fatima was still available for transfer to her when she filed C.H. Form for it on 5-1-1960. It was after the filing of the C H form by Mst. Kaneez Fatima that her portion was included in the Appendix and P.T.O. Issued to Mst. Zainab Khatoon by an administrative order passed by the Assistant Settlement Commissioner.
24. For this he had no legal authority. Mst. Kaneez Fatima was neither given notice of these proceedings nor was her C H form kept in view when the order dated 9-1-1960 was passed.
25. It is significant, however, that the Deputy Settlement Commissioner specifically confirmed the order of the Assistant Settlement Commissioner to the extent of apportionment of evaluation price and made it clear that the parties shall be free to appeal against matters pertaining to entitlement and apportionment, etc., if necessary. The order passed by the Assistant Settlement Commissioner on the same date rejecting the C H form of Mst. Kaneez Fatima on the basis of the order of the Deputy Settlement Commissioner was, therefore, illegal and liable to be set aside. The same is true of the subsequent orders passed by the higher Settlement authorities on appeal and revision.
26. The order passed by the Chief Settlement Commissioner on review though set aside as without legal authority by this Court was in the words of the learned Judge of the High Court who had dealt with the first writ petition filed by Mst. Zainab Khatoon "equitable, just and fair" and "substantial justice seemed to have been done between the parties". It should be remembered that both Mst.
27. Zainab Khatoon and Mst. Kaneez Fatima were claimant displaced persons and were in possession of portions of the house since 1949 and 1950, respectively. It was therefore against the letter and spirit of the Settlement laws that to benefit one of them the other should after twelve years be uprooted along with her children and thrown on the street.
28. In opposition to the appeal Mr. Shaikh Hyder, learned counsel for Mst. Zainab Khatoon, contended firstly that Mst. Kaneez Fatima having participated in the earmarking of houses under 'E' list was irrevocably precluded from claiming transfer of the portion of the house in her possession under Settlement Scheme No. I and secondly that the divisibility of the house determined by the Settlement authorities was not open to review in writ jurisdiction.
29. In support of the first plea, Mr. Shaikh Hyder relied on the decision of this Court in Syed Azizur Rahman v. Mst. Habib Bano (1970SCMR 129). It was held in that case :- "The declaration attached to form 'E' appears to us to be in the nature of a condition precedent to participation in the earmarking scheme. This also appears to us to be a reasonable condition, for a person ought not normally to be allowed to participate in two different schemes. The Scheme No. V was really provided for those claimants displaced persons who were not in a position to get a house transferred to them under the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958. Thus, even if they had filed a 'C.H.' form for a house, but they were not certain that they would be held to be entitled to the transfer thereof, they could, if so desired, abandon their claim under the Schedule and participate in the earmarking scheme. In the circumstances, we see no reason to depart from the law laid down by this Court in more than one case. There are no valid grounds for distinguishing those cases from the present. The ratio of these decisions appears to be that the choice has to be made at the time of making the application in Form `E' and the choice so made is irrevocable. In our view, the filing of the `E' form did amount to the withdrawal of the 'C H" form, if any had already been filed."
30. The two cases are clearly distinguishable. In the first case Mst. Habib Bano, respondent, bad after filing C H form applied for participation in earmarking of houses under 'E' list. As only those persons could apply under this Scheme who had no applied for transfer of the houses in their possession, it was plain that the C H form filed by Mst. Habib Bano was abandoned when she applied for transfer of a house included in list `E'. The position here is just the reverse. By filing the C H form on 5-1-1960 Mst. Kaneez Fatima had abandoned her application form for transfer of a house included in 'E' list by drawing of lots.
31. Mr. Shaikh Hyder cited two other orders passed by the Court reported in Asghar Hussain v. Dr. A. H.
32. Hamid Musa (1968 SCMR 475) and Sh. Rashid Ahmad v. Settlement Commissioner, Lahore (1970 SCMR 278), which do not advance his reasoning any further.
33. As to the divisibility of the house, we find that it already stood divided between Mst. Zainab Khatoon and Mohammad Siddique. The unity of the `house' having been broken there was no justification for the Settlement authorities to hold that the portion in possession of Mst. Kaniz Fatima was not divisible from the rest of the first floor. The plan placed before us by Mr. Shaikh Hyder shows that it is a complete residential unit. It includes a room, a courtyard, kitchen, bath and a lavatory. The first floor is served by a common staircase and a verandah. As the parties have lived in this house by now for many years, it was an arbitrary and caprious exercise of discretion vested by section 2(4) of the Displaced Persons (Compensation and Rehabili--tation) Act, 1958, in the Settlement authorities to hold that it did not constitute a separate residential unit.
34. We, accordingly, allow the appeal, set aside the order passed by the Settlement authorities in the case and direct that the portion in possession of the heirs of Mst. Kaneez Fatima, who has since died, be transferred to her. It will necessitate fresh apportionment of evaluation price between the parties which will not cause any difficulty. Parties shall bear their own costs of these proceedings.