1. HAMOODUR RAHMAN C. J.-The dispute in this case relates to two garages, which originally formed part of premises No. C/305, Kucha Fazal Elahi, Rawalpindi, but was in the Rehabilitation records numbered as C/306-A and C/306-B, as they were in possession of some locals who have been running small shops therein since 1947.
2. The petitioner, who was in occupation of the residential portion, applied for the transfer of the whole house and the same was transferred to him, as he was the only applicant, on his C. H. Form.
3. A PTO was also issued in his favour but since one Mst. Badrun Nisa, who was an applicant for the transfer of premises No. C/ 304, had also got transferred a portion of C/305-A, the matter was, on the appeal of one Waqar Ahmad, remanded to the Deputy Settlement Commissioner by the Additional Settlement Commissioner by his order dated 30-8-1961.
4. The Deputy Settlement Commissioner, on remand, came to the con--clusion that the portion C/305-A had been wrongly transferred to the said Badrun Nisa. 'therefore, he cancelled the same from her transfer and ordered it to be placed on the auction list.
5. The petitioner then filed an appeal against this order claiming that the said portion was actually a part of the house transferred to him. His appeal was allowed and the case was again remanded by the Additional Settlement Commissioner to the Deputy Settlement Commissioner by his order of the 4th January 1963.
6. The order placing portion C/305-A in the auction list was also challenged in a separate appeal by Waqar Ahmad. That was also allowed and the case was remanded to the Deputy Settlement Commissioner by a separate order passed on the 11th February, 1963.
7. The Deputy Settlement Commissioner consolidated both the matters as also the Misc. Applications filed by the occupants of the garages, pointing out that they were running shops therein since 1947 and, as such, the garages No. C/306-A and No. 306-B should be put to the auction list. The Deputy Settlement Commissioner accepted the contention of the petitioner and rejected all the other applications as also the appeal of the said Waqar Ahmad. He found that the garages were not separate units but were part and parcel of houses Nos. 305 and 306, transferred to the petitioner as one unit.
8. Waqar Ahmad again went in appeal from this order. This occupants of the garages also filed an appeal praying for the auction thereof. The learned Additional Settlement Commissioner, by his order of the 23rd October, 1963, dismissed the appear of Waqar Ahmad, but ordered that the garages being shops numbered as C/306-A & B, should be put on the auction list.
9. The petitioner and Waqar Ahmad both filed separate revision petitions against this order but the Settlement Commissioner dismissed both the petitions by his order dated 24th September, 1965. "
10. The petitioner then came to the Lahore High Court in the writ jurisdiction but his petition was dismissed in limine by a learned Single Judge and the order of dismissal was upheld in L. P. A, by a Division Bench.
11. The High Court has taken the view that since the garages were admittedly being used as shops from 1947, they could not have been transferred to the petitioner but should have been transferred according to the instructions of the Settlement Commissioner issued on the 3rd May 1960 (vide page 140, Old Manual). The shops, being in possession of locals, were rightly ordered to be put in auction.
12. The petitioner now seeks special leave to appeal arid it is contended his behalf that the High Court was wrong in taking the view that the garage should have been treated as separate units.
13. Reference bas been made it this connection to a number of documents to show that in 1946, then garages were not separately' numbered and there is no record of the Municipal Committee to show that they were being used separately and did not form integral parts of the residential portion.
14. It is, however, conceded that since 1947 these garages have been it occupation of locals who have been using them as shops. There is also at order of the Director, Excise and Taxation dated 31st October, 1968, which slows that premises No. C/306 was a shop and was separate', assessed it the name of the Evacuee.
15. Nevertheless, the learned counsel appearing in support of the petition hits referred us to subsection
(4) of section 2 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, and has urged that garages attached to or appurtenant to a residential premises in ate urban area should be treated as part of the house, even if it is in the possession of a person other than the person in possession of the residential portion.
16. This argument, however, fails to take into account the second proviso of subsection (12) of section 2, which states that where any building or premises, not declared to be a big mansion or hotel, consists of both residential and business units the Chief Settlement Commissioner may order that the whole of such building or premises, of such part or parts thereof as may be specified in the order shall be deemed to be a shop or a house.
17. Paragraph 20 of Settlement Scheme No. 1 also empowers the Chief Settlement Commissioner to determine whether a premises is a house or a shop, if the premises has been converted to some other use after the 14th August, 1947, and in exercise of the power under dais paragraph 20 of Scheme No. 1, the Chief Settlement Commissioner leas laid down instructions by his press note dated the 3rd May, 1.960 (Pages 13) to 141; Old Manual of Settlement Law & Procedure). Under Paragraph 3 of these instructions, it is provided that;---- ---As a general principle, the property will be disposed of according to the use to which it was being put on 20th December, 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in the public Interest according to its status at the time it became evacuee property."
18. Paragraph 2 of these instructions provides that :-- "In all cases where houses shop and other properties have been converted to some other use, orders with regard to the disposal of the property will be passed by the Additional Settlement Commis--sioner of the area concerned."
19. If, as conceded by" the learned counsel for the petitioner, the garages were converted into shops from 1947; then, according to the general principle laid down in the above-mentioned press note, the Additional Settlement Commissioner was fully justified in directing the garages, even though they were at one time integral parts of the same premises, to be treated as separate shops and to be transferred as such as distinct and separate units. As soon as this decision was taken to treat the premises as shops", they ceased to farm part of the house and, therefore, the petitioner, who was in occupation of the house, could not claim the transfer of the shops as well.
20. Learned counsel next contended that the order of the Additional Settlement Commissioner was of no legal effect now, as a PTD had since been issued in favour of the petitioner on the 25th August, 1972. The order of the Additional Settlement Commissioner was passed on the 23rd October, 1963. It was affirmed by the Settlement Commissioner on the 24th September, 1965, before the issuance of the P. T. D. The writ petition was dismissed In limine on the 18th May, 1966, but an L. P. A. Was filed. In the circumstances, it is difficult to appreciate how the Settlement! Department could issue the PTD in respect of the garages also in favour of the petitioner on the 25th August, 1972, when the Letters Patent Appeal was still pending in the High Court. The L P A was disposed of on the 18th November, 1974.
21. Be that as it may, the PTD was subject to the decision of the High Court. It could not invalidate the orders made before the PTD was issued. The PTD in our opinion, was issued wholly without jurisdiction, because, it was clearly not in conformity with the final orders of the Settlement Authorities. It could not, therefore, give any higher right to the petitioner.
22. In these circumstances, we see no merit in the petition which is, accordingly, dismissed.