' These two Constitutional Petitions will be disposed of by this judgment as they pertain to the property situated in the same building and common arguments were addressed by the counsel for the parties.
2. Parties bearing No, C.
1. 31 consisting of Nos. G/1, G/4, G/5, I/1 and 1/2 was transferred to S. M. Baqir by auction and a P. T. D.
Was issued to him on 31st July, 1962. Admittedly the disputed property consists of temporary wooden structures raised over the roof of the said building on either side of the staircase. These wooden structures were entered in the Evacuee Property Register under separate numbers as property Nos. 2/1 and 2/2. According to the record premises bearing No, 2/2 had been transferred to one Mst. Kaneez Bano by negotiation at 55% of the reserve price as on two occasions no bid was forthcoming in the auctions held earlier. But before P.T.D. Could be issued in her favour, on 14th September, 1968 S. M. Baqir moved the Additional Settlement Commissioner, Karachi that the temporary structures in question had been unauthorisedly raised by the relatives of his tenants who were in occupation of tenements in the building at the time of its transfer to him. It was pointed out that these structures were raised without having the building plans approved by the relevant authorities and in the original plan of the building these structures were not shown. After hearing the applicant and Mst. Kaneez Bano the learned Additional Settlement Commissioner by his order dated 7th November, 1968, reached a finding that these structures were purely temporary structures shown as cabins in the Evacuee Property Register with no regular amenities of life and, therefore, could not be treated as houses within the meaning of law. Accordingly he set aside the transfer of premises No, 2/2 in favour of Mst. Kaneez Bano and directed that entries in the Evacuee Property Register in respect of these structures be deleted as this property was not transferable under the Settlement Laws. Against this order Mst. Kaneez Bano filed a revision before the Settlement Commissioner, West Pakistan, Lahore which was also dismissed vide order dated 23rd April, 1970, and decision of the learned Additional Settlement Commissioner was affirmed. Kaneez Bano thereafter did not pursue the matter further and appears to have given up her claim to the transfer of the property. On 22nd March, 1972 S. M. Baqir transferred the property to respondents Nos. 5 to 8 in these petitions by registered sale-deed.
3. It is clear from the record that none of the two petitioners had filed any form for transfer of the two premises in dispute under Settlement Scheme No,
1. However, in the meantime, Settlement Scheme No, VIII was promulgated and accordingly on 30th May, 1973 both petitioners submitted applications to the Deputy Settlement Commissioner, Karachi for transfer of the two premises respectively to them. The Deputy Settlement Commissioner by the impugned order dated 24th October, 1973, however, rejected their request after observing that the two tenements in dispute stood deleted from the Evacuee Property Register under the aforesaid orders of Additional Settlement Commissioner and, therefore, the property was not available for transfer. The petitioners are aggrieved by the aforesaid order of the Deputy Settlement Commissioner and have challenged the same in these petitions as having been passed without lawful authority.
4. The sole contention raised on behalf of the petitioners was that once the property is treated and entered as evacuee property in the Evacuee Property Register, the Settlement Authorities have no jurisdiction to delete it therefrom as this power vests solely in the Custodian. It was argued that the property in dispute was assessed separately and has continued to remain in possession of the petitioners prior to the establishment of Pakistan and that they were paying rent to the Custodian all along. On the other hand, the submission on behalf of the respondents was that the temporary wooden structures lying on the roof of a building could not be separately transferred as 'houses' and that the petitioners were not competent to challenge the order passed by the Additional Settlement Commissioner and Settlement Commissioner holding that the disputed premises cannot be treated as separate property transferable under the Settlement Law.
5. It may at once be observed that the petitioners are basing their claim for transfer on the provisions of Settlement Scheme No, VIII which was prepared and enforced by the Chief Settlement Commissioner for disposal of 'available properties'. Para. (1-A) of this scheme defined the expression 'available properties' to mean, inter alia, houses, shops, building sites which have not yet been transferred to any person or which may in future become available for transfer on resumption to be made under Chapter II of this Scheme. Therefore, the only property transferable under this Scheme is the property which falls within the definition of inter alma the terms houses, shops, building sites etc. In other words, if a property which has not been transferred to any person and has remained undisposed of in the compensation pool but is not a house, shop, building site etc. As described in the aforesaid definition, it is not liable to be transferred under the Scheme. The petitioners must, therefore, first establish that the premises in dispute constitute "houses" within the meaning of Displaced Persons (Compensation and Rehabilitation) Act. According to section 2(4) of the said Act 'house' inter alia means evacuee residential premises of any value in an urban area except where it is declared by the Chief Settlement Commissioner to be consisting of more than one residential unit where such units are in possession of several persons. The position that emerges is that normally an evacuee residential premises in an urban area, notwithstanding the fact that it may be in possession of more than one person is deemed to be one house unless it is bifurcated by the orders of the competent authority to be more than one units. It is nobody's case that at the time of disposal of various tenements of this building any orders were passed treating the disputed premises as independent units for the purpose of transfer under the Settlement Law.
This was notwithstanding the fact that admittedly the building was a composite property consisting of shops and residential premises several of which were declared as separate units.
Obviously, therefore, the disputed premises were not given the status of independent units as "houses" to be separately disposed of under relevant Settlement Scheme. It follows, therefore, that they were part and parcel of the roof on which they were erected. Even otherwise there is ample authority to the effect that a temporary wooden structure cannot constitute a "house" within the meaning of section 2(4) of the Act. In Abdul Razzak v. Settlement Commissioner, Karachi (I) it was at page 76 held that the two cabins being unauthorised and not being independent units did not fall within the definition of "house" under section 2(4 of the Displaced Persons (Compensation and Rehabilitation) Act,1958,so as to be capable of transfer either to the petitioner or to the respondent.
However, in Muhammad Sharif v. Muhammad Ilyas (2) which was a case where unauthorised temporary structures were put up on the roof of the third floor of a building which was transferred to the respondents and the petitioners obtained transfer of these structures under the Settlement Law. It was held that "the mere fact that the roof was not specifically mentioned in the P. T. D. Is not a sufficient ground for holding that the roof did not go with the main premises". Clearly, therefore, the disputed premises did not constitute 'available properties' within the meaning of the Settlement Scheme No, VIII and could not be validly transferred to the petitioners.
6. I am, therefore, of the opinion that even if it is held that the Settlement Authorities lack the jurisdiction to order correction in the Evacuee Property Register, the premises nevertheless did not constitute property disposable under the relevant Settlement Scheme as "houses". The petitioner's claim is, therefore, unsustainable in law. They may, however, claim any other right in the property by way of statutory tenancy or otherwise available to them under the law.
7. In the result, with the aforesaid observations these two petitions are dismissed with no order as to costs.
(1) PLD 1974 Note 40 at p, 76
(2) 1974 SCM R 61