' This order will dispose of two connected writ petitions Nos,477- R/1982 and 478-R/1982, which are filed to challenge same order.
2. Dispute out of which these writ petitions have arisen relates to a property bearing No,B.XVIII-2S- 62 situated at College Road, Gujranwala. Out of this property residential portion was transferred to Abdul Karim whereas two shops were transferred to Hashmat All non-claimant displaced person and Muhammad Din a claimant displaced person by the Deputy Settlement Commissioner vide order dated 16-11-1961. This order was upheld in appeal by the learned Additional Settlement Commissioner vide order dated 24-2-1962. However revision petition filed by Abdul Karim respondent No,2 was accepted by the learned Settlement Commissioner vide order dated 15-12- 1962 and it was held that the property being indivisible, it should be allotted in its entirety to Abdul Karim respondent No,2. This order was challenged by Hashmat All and heirs of Muhammad Din (who are petitioners in both the writ petitions). The learned Division Bench of this Court allowed the appeals and made the following observation:-- "After hearing the learned counsel for both sides, we are of the view that both these appeals have to be accepted on the short ground that from the material available on the record it is quite clear that the learned Settlement Commissioner has acted either arbitrarily and capriciously, or he has been misled by inspecting some property other than the property in dispute."
' Consequently the case was remanded vide order dated 7-3-1969 to the learned Settlement Commissioner for decision of the revision petition afresh. The learned Settlement Commissioner in post remand proceedings vide order dated 20-5-1970 again accepted the revision petition and held that the house is indivisible and therefore it should be allotted in its entirety to Abdul Karim who is respondent No,2. This order was again set aside in writ petition by this Court with the following observations:-- "It is evident that the Settlement Commissioner has not been able to carry out the direction made by the High Court and he has not acted judiciously in determining the question referred to him."
' Resultantly the case was again remanded to the learned Settlement Commissioner for decision afresh. This order is dated 18-12-1975. C.P.S.L.As. Nos, 193 and 205 of 1976 filed against the above order were dismissed by their Lordships of the Supreme Court of Pakistan vide order dated 17-4- 1982. Resultantly the learned Settlement Commissioner took up the revision petition again and again decided that the house is indivisible and therefore it should be allotted in its entirety to respondent No,2. This order was passed on 13-9-1982 and the same has been challenged by the petitioners in the present writ petitions.
3. Ch. Khurshid Ahmad Senior Advocate, learned counsel for the petitioners has raised the following contentions:--
(1) That the learned Settlement Commissioner sitting in revision had no jurisdiction to set aside the findings of fact recorded by the lower forum on the basis of departmental reports and spot inspections;
(2) that the order passed by the learned Settlement Commissioner is without any lawful basis and justification inasmuch as according to the learned counsel the very situation of the two shops in dispute clearly demonstrates that they are independent units and they had correctly been held to be divisible and further that they are being occupied by the petitioners since 1947 who are refugees;
(3) that the order passed by the two Courts below being quite fair and just, learned Settlement Commissioner should not have interfered therewith. Reliance in this behalf has been placed by the learned counsel on the case Abdul Hameed v. Settlement Commissioner (LPA No,58/1969), decided on 9-6-1991;
(4) that the order passed by the learned Settlement Commissioner is based upon the same reasoning and material on the basis whereof order passed by him previously has been set aside by this Court, hence the impugned order is without jurisdiction.
4. Elaborating his arguments, the learned counsel has relied upon a copy of a plan which is Annexure 'A' at page 20 of the writ petition He has demonstrated that the two shops are quite independent units, have independent access and that there are solid walls in between the residential portion of the house which has been transferred to respondent No,2 and the shops in question. He has also referred to Annexure 'B' which is a report of the U.D.C. Dated 16-8-1961 to contend that as per spot inspection it was categorically observed that the shops are quite independent units and they have been in occupation of different persons. In the report, however, it is stated that the roof of the shop is in possession of Abdul Karim respondent No,2 and stair-case to approach the said roof is also in the courtyard of the house of the respondent No,2 and there is no approach to the roof from the outside. Learned counsel has also referred to the affidavits of respect tables of the areas Nos,1 to 11/3 sworn in after the decision impugned in this writ petition which state that the premises are divisible and have contended that these documents clearly prove that the shops are independent units and they were rightly divided by the lower forum and that the learned Settlement Commissioner has illegally interfered with this finding recorded by the Courts below. He has also referred to photographs Annexures J, J.1 and J.2 and has contended that even a bare look on these photographs clearly shows that exterior and interior of these two shops is quite independent of the house in question. Learned counsel for the petitioner has further argued that this Court has the jurisdiction to strike down an order passed by the learned Settlement Commissioner which is without jurisdiction as the same is based upon no material on the record and further in exercise of the revisional jurisdiction, a fair and just order passed by the two forums could not have been set aside. Learned counsel relies upon case of Mangat All v. Chief Settlement and Rehabilitation Commissioner, West Pakistan and another, PLD 1969 Lahore 204.
5. Sh. Maqbool Ahmad, learned counsel for the respondent No,2 has controverted the arguments addressed by the learned counsel for the petitioner and has contended that the question of divisibility having been determined by a Court of exclusive jurisdiction, cannot be interfered with in exercise of writ jurisdiction of this Court and further that as the order passed by the learned Settlement Commissioner is based upon facts and has been passed with jurisdiction, therefore, the Constitutional petitions are liable to be dismissed. In support of his arguments, learned counsel for the respondent has produced a copy of the construction plan of the house in question as well as a copy of entry No,492 of file No,592 dated 25-7-1932 which are marked C/1 and C/2 are placed on record and has relied upon the case of Muhammad Yusuf v. The Chief Settlement and Rehabilitation. Commissioner, Pakistan, Lahore and others PLD 1968 SC 101.
6. I have considered the arguments addressed by both the learned counsel for the parties and have also perused the record as well as additional documents placed on record by the parties. I find that the two shops in dispute have separate access as they abut on the road side. It is also established that the shops are being used independently since long and are being occupied by the petitioner. The residential portion originally allotted to respondent No,2 is quite an independent unit. Documents referred to by the learned counsel for the petitioner fortify the correctness of the orders passed by the learned Deputy Settlement Commissioner dated 16-11-1961 and the learned Additional Settlement Commissioner dated 24-2-1962 holding that the premises in question are divisible. Other material on the record of the case including the report of spot inspection by the settlement officials establishes that the premises are divisible. Order passed by the learned Settlement Commissioner respondent No,1 which has been impugned in this writ petition is based upon the same reasoning whereupon earlier orders had been based and had been set aside in the earlier round of litigation by this Court. There is absolutely no fresh material on the record nor any such material has been taken into consideration by the learned Settlement Commissioner for coming to the conclusion that the premises in question are not divisible. Copy of the sanctioned plan and the entry produced by the learned counsel for the respondent only shows that the shops are part of the main house but divisibility or otherwise of a composite building has to be adjudged from the attending circumstances which do exist in this case and prove that the shops are divisible portion of the house.
7. Even otherwise, the petitioners who are refugees and out of whom Hashmat All is a non-claimant displaced person and Muhammad Din a claimant displaced person have been accommodated by the Deputy Settlement Commissioner as well as by the learned Additional Settlement Commissioner whose orders have been set aside by the learned Settlement Commissioner.
Consequently I am satisfied that the orders passed by the said learned Settlement Authorities advance the purpose of legislation regarding the rehabilitation of refugees and therefore "the statutory and primary beneficiaries" could not have been deprived of the property in question by the learned Settlement Commissioner merely on the basis of conjectures and surmises. The order passed by the learned Settlement Commissioner, therefore is against the proper rehabilitation of refugees which was the main object of the legislation on the subject. The impugned order is also arbitrary and capricious and therefore is liable to be interfered with in exercise of the writ jurisdiction of this Court as held in Mangat All v. Chief Settlement and Rehabilitation Commissioner, West Pakistan and another (PLD 1969 Lahore 204). Principle laid down in the judgment reported as PLD 1968 SC 101, distinguishable on facts which is stand as a bar to exercise of writ jurisdiction by this Court in the case in hand. Present case is identical to the case of Mangat Ali referred to above wherein judgment reported as PLD 1968 SC. 101 has also been considered within lawful limits. Writ jurisdiction can be exercised even in civil cases as well. See Muhammad Zahoor and another v. Lal Muhammad and 2 others (1988 SCMR 322). Orders passed by the learned Deputy Settlement Commissioner and the learned Additional Settlement Commissioner therefore could not have been, set aside by the learned Settlement Commissioner in exercise of its revisional jurisdiction as the same are quite fair, just and in consonance with recognized cannons of justice. Refer case of Allah Bakhsh and another v. Muhammad Ishaq and another PLD 1984 SC 47 and Abdul Hameed v.
S.C. (LPA-58 of 1969), decided on 9-6-1991.
8. Resultantly these writ petitions are accepted. The impugned order passed by the learned Settlement Commissioner is declared to be illegal without lawful authority and the same is set aside and hence orders dated 16-11-1961 and 24-2-1962 passed by Deputy Settlement Commissioner and Additional Settlement Commissioner are restored. No order as to costs.