1. MUHAMMAD HALEEM, J.- This judgment disposes of Civil Appeals Nos. 72 and 100 of 1970 and Civil Petitions for Special Leave to Appeal No. 1130 of 1975. The former is against the order dated 1-12-1966 of the Letters Patent Bench of the former High Court of West Pakistan, Lahore and the latter against the order dated 23-11-1967 of the Letters Patent Bench of the same High Court. The petition for special leave is against the order dated 29-9-1975 of a learned Single Judge of the Lahore Court dismissing Writ Petition No. 364; R of 1975 in limine.
2. The petitioners had applied for the transfer of 3 marlas of building site forming part of the bungalow transferred to the appellant in Civil Appeal No. 72 of 1970 under Scheme VI on 24-12-1966 on the allegation that they had constructed two rooms thereon and were entitled to its transfer.
3. Alter--nately it was claimed that he had submitted a form for the transfer of this building site under Settlement Scheme VIII in January, 1971 and so also under the revised Settlement Scheme VIII in October, 1973. The Additional Settlement Commissioner by order dated the 11th August, 1970 held that they had submitted the form under Settlement Scheme VI to the Chief Settlement Commissioner for the condonation of delay which request was not allowed and, therefore, the petitioners have failed to establish their locus standi as to their entitlement for its transfer. The petitioners also failed to get -the relief in revision against this order. Accordingly they assailed both these orders in the writ petition.
4. The dispute in these appeals relates to the question as to whether servants quarters, 19 or 20 in number, of property bearing No. P-157, comprised of two bungalows, situate in Ward No. 10, Railway Road, Lyallpur could be transferred to their accupants. The two bungalows are separated by water channel and surrounded by cultivated land. Formerly this property belonged to an Amarican Mission. The main bungalows were occupied by Priests and the servants quarters were rented out.
5. The American Mission sold the property before Partition to Non-Muslims who migrated to India but the appellants in Civil Appeals Nos. 100 of 1970, respondent No. I and Muhammad 1qbal, who is now represented by his legal representatives Nos. 2 to 6 in Civil Appeal No. 72 of 1970, and others who were the tenants, continued to occupy their respective quarters.
6. By Memorandum No. 3749-Reh. Dated 16-9-1958 the occupants were informed that since the quarters were attached to the evacuee bungalow, these could not be allotted to them separately.
7. They were also intimated that they could occupy the quarters till such time as they :,, ere not able to get alternate accommodation or ordered to vacate the premises by a competent authority. It was, therefore, pleaded that at the time of the commencement of the Settlement operations the appellants in C. A. No. 100/70 were misled by this Memoran--dum and they failed to file the Forms for the transfer of the respective quarters in their occupation. However, Samuel Faqir a local applied on an L. H. Form for the transfer of the quarter in his occupation. Similarly, two others, namely, Lal Din and Muhammad Iqbal jointly applied for the trans--fer of a quarter in their occupation on C. H. Form. In regard to one of the two bungalows the contestants were the appellant in Civil Appeal No. 72 of 1972 and Major Abdul Ghani whils Mehr Muhammad Sadiq had applied for the transfer of the other bungalow, which was transferred to him and there was no dispute about it. The Deputy Settlement Commissioner, by order dated C 2-1961 transferred the bungalow to the appellant in the above cited appeal in preference to Major Abdul Ghani. As to the quarters the Deputy Settlement Commissioner held that they constituted self-sufficient residential units which `accommodate a number of other persons' and as such they should be transferred separately and not as an attachment of the main bungalow. Accordingly, he held that Samuel Faqir, a local, was not entitled to the allotment of the quarter in his occupation and rejected his application. He however, held Muhammad Iqbal and Lal Din entitled to the transfer of the quarters in their occupation and ordered accordingly. The other quarters were directed to be disposed of by public auction. The appellant felt aggrieve--ed by the order and preferred an appeal against it to the Additional Settle--ment Commissioner against Muhammad Iqbal and Lal Din. The husband of appellant No. 4 and the other appellants in C. A. No. 100 of 1970 applied to the Deputy Settlement and Rehabilitation Commissioner, Lyallpur for a review of his order dated 6-2-1961 but he refused to revise the order on the basis that an appeal against that order was pending. This order is dated 23- 2-1961. Thereupon they submitted prescribed forms along with the applications for condonation of delay to the Chief Settlement Commissioner for the transfer of the quarters in their occupation. The Chief Settlement Commissioner by order dated 10-3-1961 called for the comments of the Deputy Settlement Commissioner. Instead of submitting his comments, the Assistant Settlement Commissioner, exercising powers of the Deputy Settle--ment Commissioner, by order dated 1-5- 1962, rejected the applications holding that in view of the order of his predecessor directing the disposal of the quarters by public auction and an appeal pending there from, the Forms could not be considered for the transfer of the quarters. Sessil Mahboob, a local had also applied on an L. H.
8. Form for the transfer of the quarter in his occupation and that too was rejected by the same order.
9. The appellants and Sessil Mahboob filed appeals before the Additional Settlement Commis-- sioner, Lyallpur against this order. One Daulat A.I who had also filed the prescribed form before the Deputy Settlement Commissioner which was kept in abeyance till the decision of the appeal also filed an appeal before the Additional Settlement Commissioner. The other appeals were filed, one by Major Abdul Ghani and the other by Lal Din and Iqbal jointly before the same Settlement Officer.
10. These appeals were decided by a common order dated 21-8-1962. The appeals filed by the appellants in Civil Appeal No. 100 of 1970 and Sessil Mahboob were rejected `on the short ground that the appellants had not filed any form for the transfer of the property'. In regard to Daulat A.I it was held that it was only after the disposal of the quarters that his form was registered and, therefore, it could not be considered. Accor--dingly, his appeal was also dismissed. As regards the appeal No. 5/460, filed by the appellant in C. A. No. 72 of 1970, the Additional Settlement Commissioner dismissed it holding: "As mentioned above the outhouses also should go to the transferee of the Bangalow. But in the present case the number of outhouses is 'clearly much and the appellant is not likely to suffer any inconvenience on account of the rooms transferred to M/s. Iqbal Lal Din. There is a huge vacant area attached to the Bungalow and an independent passage can he very easily provided to the quarters transferred to Iqbal Lal Din. Mr. Sadiq A.I is, therefore, transferred the bungalow alongwith the out houses excluding those transferred to Muhammad Iqbal Lal Din."
11. Lastly as regards the claim of Muhammad Iqbal and Lai Din, to the two additional rooms, is their appeal, it was held that they were not entitled to it and that they should be satisfied in having got the transfer of the quarter in their favour which otherwise according to the definition of the term `house', formed part of it and should have been transferred to the transferee of the main building.
12. Lastly, the appeal of Major Abdul Ghani was dismissed and the transfer of the main building in favour of the appellant in Civil Appeal No. 72 of 1970 was confirmed. The appellants in Civil Appeal No. 100 of 1970, respondents 2 to 7 in C. A. No. 72 of 1970, Daulat A.I and Major Abdul Ghani, since deceased, filed revisions against the dismissal of their appeals, before the Settlement Commissioner, Lyallpur. The Settlement Commissioner, by order dated 25-2-1966, upheld the order of the Additional Settlement Commissioner dated 21-8-1962. The appellant in Civil Appeal No. 72 of 1970 challenged the transfer of the quarter in favour of Lal Din and the Legal Representatives of Muhammad Iqbal in Writ Petition No. 843--8 of 1966. It was dismissed in limine on 20-6-1966 and the Letters Patent Appeal against this order also failed for that too was dismissed in limine by order dated 1-12-1966.
13. Leave to appeal was granted to consider as to whether the Settlement Authorities were correct in transferring the quarter to Lal Din and Muhammad Iqbal deceased when in law it formed part of the main bungalow, according to the definition of the term `house' in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Similarly, the appellants in Civil Appeal No. 100 of 1970 assailed the orders of the Settlement Authori--ties in Writ Petition No. 527-R of 1966 which was dismissed in limine on 13-4-1966 and a Letters Patent Appeal against that order met the same fate.
14. Leave was granted to consider whether the Settlement Authorities were correct in holding that the Forms submitted by the appellants after the due date were non-existent vis-a-vis the entitlement of appellants Nos. 1-7 to the quarters forming part of the bungalow transferred to the appellant in Civil Appeal No. 72 of 1970 and of appellants Nos. 8 and 9 to the quarters contiguous to the building transferred to Mehr Muhammad Sadiq respondent No. 2 herein.
15. Mr. A. K. Brohi on behalf of the appellant in Civil Appeal No. 72 of 1970 contended that the quarters formed part of the main building and in accordance with the definition of the word house in section 2(4) of the Act the quarter should have been transferred to the appellant alongwith the main bungalow.
16. It was further contended that in the context of this definition the possession of Lal Din and Muhammad lqbal was not recognised as such to make them eligible for the transfer of the quarter.
17. He invited our attention to the orders of the Additional Settlement Commissioner and the Settlement Commissioner dated 21-8-1962 and 25-2-1962 wherein in spite of having held that the quarters formed part of the building yet on a compassionate view held it to be an independent unit and maintained the transfer in their favour. He also contended that there was no independent access to the room and the Settlement Commissioner had gone out of his way to hold "Similarly the existence of a large vacant area attached to the bungalow can very well be utilized for providing an independent passage to the quarter transferred to Lal Din and Muhammad Iqbal deceased."
18. That such provision was open to exception as the quarters were attached to the main building and no separate access could have been provided to give to the quarter the colour of an independent residential unit. The learned counsel in support of his contention relied on Mst. Fazalun Nisa v. Chief Settlement Commissioner (PLD 1967 Kar. 402), Abdul Hameed Khan v. Settlement ant Rehabilita-- petition Commissioner (P T. D 1966 SC 719), Shaukat A.I Khan and others v. Settlement Commissioner, Karachi and 5 others (P L. D 1966 SC 719), Fazalun Nisa Begum v. The Chief Set Cement Commis--sioner (1972 SCMR 126) and Abdul Hakeem v. Government of Pakistan through Ministry of Rehabilitation etc. (1973 SCMR 240). Lastly the learned Counsel contended that the learned Judges of the High Court misconceived the context of the orders of the Settlement Authorities while upholding them without determining as to he--their Lal Din and Muhammad Iqbal deceased had a legal right to the transfer of the quarter.
19. The crux of the matter is that the Deputy Settlement and Rehabilitation Commissioner, Lyallpur held the quarters which were 19 or 20 in number, to be separate from the main bungalow on site inspection. In this context it would be necessary to reproduce what he has observed in the order "This bungalow has got some quarters on its back which are not less than 19 or 20, in number.
20. Although the servant quarters, garages or other such buildings are considered as integral part of the main bungalow, but this property can be considered an exception to that because the servant quarters are not only one, two or four to accom--modate some servants of the person residing in the bungalow, but this is a self-sufficient type of huge building divided into different residential quarters which can accommodate a number of other persons, if otherwise found entitled to the same. I feel that this huge building in the form of servant quarters numbering about 19 or 20 should not go alongwith main building which has been transferred to Mr. Sadiq A.I and should be disposed independently. I have inspected the site and I feel convinced that they should be disposed of separately, each quarter is separate unit."
21. The factors which influenced the Deputy Settlement Commissioner to treat the quarters as separate from the main building were that it was a self-suffi--cient type of huge building, comprised of as many as 19 or 20 independent residential units, each covering an area of 3 to 5 marlas and being occupied by persons other than the servants. Since the quarters were rented out even before Partition the object seems to have been to provide income to the American Mission and that the subsequent non-Muslim owners also bene--fited from it. The appellant has admitted in his statement which was recorded by the Assistant Settlement Commissioner on 9-9-1960 that his father resided in one of the quarters since 1955 until his death in 1960 and that quarter was now being occupied by Zarina Begum and Jan Muhammad. Similarly the other occupants of the quarters were in directed as tenants. The conclusion, therefore, of the Deputy Settlement Commissioner that it should be disposed of separately explicitly gives to it the status of a house and not an outhouse attached or appurtenant to the main bungalow. In upholding the transfer of the quarter in favour of Lal Din and Muhammad Iqbal deceased the Additional Settlement Commissioner, Lyallpur and the Settlement Commissioner, Lyallpur have upheld the conclusion of the Deputy Settlement Commissioner and maintained the order of the Deputy Settlement Commissioner. The recital in the orders of the higher Settlement Authorities that according to the definition of the term `house' the servant quarters formed part of the house and should have been transferred alongwith it to the appellant but having regard to the number of such quarters the appellant would not suffer any inconvenience if one quarter was transferred to Lal Din and Muhammad Iqbal, can only be construed to mean that they had impliedly held the quarters to be independent of the main bungalow as other--wise there was no legal justification for making an exception and transferring one of the quarters to Lal Din and deceased Muhammad lqbal, having regard to the definition of the word house in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
22. The learned Single Judge while dismissing the petition has held:- "The portion in occupation of the respondent was considered as separate and independent unit by the Deputy Settlement Commissioner and as such it becomes a house under the definition of house as given in section 2(4) of the Displaced Persons (Compensation and Rehabilita--petition)
23. Act, 1958. The petitioner cannot extend his claim for more than one house."
24. The Letters Patent Bench upheld the judgment holding: "In any event since the Settlement Authorities have found that the rooms are not a part of the house which has been transferred to the appel--lants and since that view has been rightly armed by the learned Single Judge, we see no ground for the acceptance of this appeal by reaching a contrary opinion."
25. The learned Single Judge as well as the L P. A. Bench have unanimously upheld this conclusion of the Deputy Settlement Commissioner.
26. Accordingly, in the face of the treatment of the quarters as being inde--pendent of the main building it is futile to argue that the quarters should have been transferred to the appellant alongwith the main bungalow having regard to the definition of the term `house'. The cases relied on by the learned counsel are distinguishable on facts as in each of them the out--houses were attached to or appurtenant to the main bungalow and, therefore, in law they had to be transferred alongwith the main building which is not the case here. On this view of the matter since Lal Din and Muhammad Iqbal were in possession of the quarter in their own independent right it would not be correct to urge as contended that they had no legal entitlement but the Settlement Authorities took a compassionate view and allowed them to retain the quarter.
27. The learned counsel next placed reliance on Mst. Hameeda Khanam v. Soofi Nazar Muhammad (PLD 1966 Lah. 139) and the judgment of this case on appeal reported as Hameeda Khanam v. Soofi Fazal Muhammad and another (PLD 1966 SC 101) to urge that the Deputy Settlement Commissioner was not competent to carve out a residential unit out of the servants quarters and transfer it to Lal Din and Muhammad Iqbal deceased. Again it is not a case where tire Deputy Settlement Commissioner had carved out portions out of one residential unit, and then declared it to be a house. In the instant case the quarters were treated as separate from the main bungalow and each was held to be a residential unit. Accordingly, the analogy sought to be pressed into service is not available. On appeal this Court held in that case that in law even if the portions of the house are occupied by two claimants still it had to go as a single unit. This statement of law does not advance the case of the appellant on the particular facts of the present case.
28. Lastly, the learned counsel took objection to the provision in the order of the Settlement Commissioner that there was a large vacant area attached to the bungalow which can be utilised for providing an independent passage to the quarter transferred to Lal Din and Muhammad Iqbal deceased. Such provision cannot be regarded as illegal, for, it is permissible under law to provide for an access to the transferred unit if it had no independent access. No provision was cited to show that the Settlement Commissioner was not competent to make such provision and instances are not wanting when a provision of staircase to make a unit useable or a provision of a separate access was made by the Settlement Authorities.
29. For the foregoing reasons the orders of the Settlement Authorities transferring the quarters to the respondents are unexceptionable and these were rightly upheld by the learned Single Judge and the Letters Patent Bench. Accordingly Civil Appeal No. 72 of 1970 has no substance and is liable to be dismissed.
30. Having held in his order dated 6-2-1961 that the quarters were indepen--dent residential units and were separate from the main bungalow, the Deputy Settlement Commissioner allowed the transfer of one quarter to Lal Din and Muhammad Iqbal and as to the others he held that since the occupants had not applied for their transfer these should be disposed of by public auction. The appellants in Civil Appeal No. 100 of 1970 thereafter submitted prescribed forms alongwith the applications for the condonation of delay to the Chief Settlement Commissioner which were sent for comments to the Deputy Settlement Commissioner by order dated 10-3-1961 on which the Deputy Settlement Commissioner ordered for the putting up of the record. The Assistant Settlement Commissioner, exercising powers of the Deputy Settlement Commissioner, without submitting the comments, called for by the Chief Settlement Commissioner, rejected the applications in view of the pendency of the appeals against the order dated 6-2-1961. On appeal the Additional Settlement Commissioner erroneously held that the appellants had not filed forms for the transfer of the quarters in their possession. While holding so he lost sight of the fact that the appellants had appealed against the order dated 1-3-62 of the Assistant Settlement Commissioner reject--ing the forms which could not have gone unnoticed. How then could it be held that no Forms were filed by the appellants. The Additional Settlement Com--missioner, therefore, should have applied his mind to the illegal rejection of the Forms when the quarters in their possession were still available for disposal. Again if the forms bad been filed beyond the prescribed date there was no time limit fixed by the Statute for their submission and, therefore, even if they were belatedly filed, these were still entitled to be considered. The Settlement Commissioner also on the same ground that they had not filed the Forms dismissed their revision. Consequently, in spite of the fact that the quarters were available for disposal the entitlements of the appellant were not consider--ed. Both the Settlement Authorities in appeal and revision misread the record and we had ourselves traced out the prescribed forms from the original record at the time of the hearing of the appeal.
31. According to the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, the mode of disposal by auction could have been resorted to only if it was held that the appellants were not eligible for the pp transfer of the quarters. In Mst. Abeda and another v. Haji Muhammad Boota and others (L D 1976 SC 41) it was held that before the disposal of the N. C. H. Form the property could not have been disposed of by earmarking. On the same legal plain the Settlement Authorities were clearly in error in not considering the forms.
32. The same learned Single Judge who had dismissed the petition of the appellant in Civil Appeal No. 72 of 1970 erroneously held that the quarters were attached to and appurtenant to the house which is diametrically opposite to his finding in the order dismissing the Writ Petition of Sadiq A.I against the transfer of one of the quarters to Lai Din and Muhammad Iqbal deceased. The learned Single Judge also erred in holding that the prescribed forms were not submitted though in fact they had been submitted and the Assistant Settlement Commissioner had rejected them and against that order appeals were filed before the Additional Settlement Commissioner. The Letters Patent Bench while dismissing the appeal in limine erroneously held that the finding that the quarters were attached to and apartment to the main bungalow being one of fact, could not be interfered with in Writ jurisdiction. Obviously this conclusion is not based upon the reading of the record as the Deputy Settlement Commissioner had explicitly treated the quarters as independent from the bungalow which conclusion was impliedly upheld in appeal and revision. The proper course for the Settlement Authori--ties should have been to remand the case to the Deputy Settlement Commis- -sioner to determine the entitlement of the appellants on the basis of the Forms submitted by them.
33. For the foregoing reasons I am inclined to hold that the orders of the Additional Settlement Commissioner and the Settlement Commissioner rejecting the appeals of the appellants were illegal. The learned Single Judge and the Letters Patent Bench erred in upholding their orders which are liable to be set aside.
34. The claim of the petitioners is in regard to the building site forming part of the main bungalow transferred to the appellant in Civil Appeal No. 72 of 1970. The appellant had entered Caveat and it was pointed out by his, counsel that the petitioners had executed a rent note in 1963 and paid rent up to 1967. Therefore, they cannot be said to be in possession of the building site in their own right but as tenants and thus they were not eligible for the transfer of the building site. Moreover, the excess area has been transferred to the appellant at the rate of Rs. 500 per marla and the price had been paid during the pendency of the proceedings. There can, therefore, be no claim to the building site for this reason as well as the excess land already stands transferred to the appellant.
35. Accordingly, the building site is not 6 available for transfer even under Scheme VIII. The petitioners have, there--fore, failed to make out a case for the grant of special leave to appeal which is liable to be dismissed.
36. MUHAMMAD YAQUB ALI, C. J.-I agree.
37. QAISER KHAN, J.-I agree.