1. ' NASIM HASAN SHAH, J.-This order will dispose of Civil Appeals Nos, K-22/70, K-36/70 and K-37/70 as they are directed against a judgment passed by a Division Bench of the High Court of West Pakistan, Karachi Bench whereby three Letters Patent Appeals (L. P. As. Nos. 148, 149 and 201 of 1965) were disposed of together by a consolidated judgment.
2. ' The dispute in these three appeals, centers round the transfer of two building sites (plots)bearing Nos. P. R. 1/20/3 and P. R. 1/20/4 (hereinafter referred to as Plots Nos. 3 and 4 respectively) situate on Marston Road, Karachi. S. M. Yousuf and Khalil-ur-Rahman, appellants (in Civil Appeals Nos. K-36 and K-37 of 1970) claimed transfer, as allottees of both these plots under Settlement Scheme No, VI on the footing that they had raised permanent structures on it. Plot No, 3, it may be mentioned, measures approximately 1,200 Square Yards, while Plot No, 4 measures approximately 1,000 Square Yards, whereas S. M. Yousuf and Khalil-ur-Rahman were the sole applicants for the transfer of Plot No, 4, there were two other applicants besides them for the transfer of Plot No, 3, namely Maula Dad Khan (respondent No, 3 in Civil Appeal No, K-36 of 1970) and another person Mirza Ghulam Muhammad Shah. The Settlement authorities, in their orders relating to the transfer of these plots, discussed the said matters together. It will, however, be more conducive to clarify if the history relating to the transfer of the said two plots is treated separately.
3. ' So far as Plot No, 3 is concerned, it may be stated, that according to the Deputy Settlement Commissioner the construction raised by Messrs Yousuf and Khalil thereon consisted of several rooms, verandahs and garages with necessary service sets. Two plans regarding the detail of the constructions were produced. According to the first plan, the area covered by the constructions was 222 Square Yards while the plan produced subsequently showed that the covered area was 313 Square Yards. The Deputy Settlement Commissioner, however, found on inspection of the spot that the covered area was not more than 220 Square Yards as indicated in the first plan. He, therefore, observed that as the constructed area was less than 1/4th of the whole plot the said applicants were not entitled to the transfer of it. He further observed that according to the rules relating to the division of plots the plots could be divided into two equal portions of 600 Square Yards. If so divided they would be entitled to the sub-divided portion as the built-up area of 222 Square Yards would be more than 1/4th of the sub-divided plot of 600 Square Yards. The said sub- divided plot of 600 Square Yards could, therefore, be transferred to M/s. Yousuf and Khalil. As for the price, they would be charged the prevailing market value in 1960 with a penalty of 50% as the plot transferred to them was not held by them by virtue of any allotment order.
4. ' So far as Maula Dad Khan and Mirza Ghulam Ahmad Shah were concerned the Deputy Settlement Commissioner held that the area covered by the construction raised by Maula Dad Khan according to the certificate of the Architect was 176 Square Yards while that of Mirza Ghulam Ahmad Shah was only about 18 Square Yards. On inspection, the Deputy Settlement Commissioner found that the construction raised by Maula Dad Khan was even less than that given in the certificate of the Architect. Consequently, the said two applicants were not eligible for transfer even after sub-division of the plot. Hence their applications for transfer were rejected and this sub- divided part of the plot was included in the Auction List.
5. ' Both M/s. Yousuf and Khalil as well as Maula Dad Khan filed separate appeals before the Additional Settlement Commissioner. Mirza Ghulam Ahmad Shah did not, however, pursue the matter any further.
6. ' The Additional Settlement Commissioner by his order dated 30th January, 1961 rejected the appeal of M/s. Yousuf and Khalil. However, Maula Dad's claim for transfer of the other sub-divided plot measuring 600 Square Yards was viewed more favourably. He held that Maula Dad Khan had constructed a Charcoal godown on a covered area of 175 Square Yards, and although the construction did not qualify as a permanent construction and could not be transferred on prevailing market price under clause (3) of para. 13 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, he was entitled to its transfer on average auction price. Accordingly instead of disposing it of through auction he held that it may be transferred to Maula Dad Khan on average auction price.
7. ' Both the parties filed revision petitions against this order. M/s. Yousuf and Khalil in their revision claimed the transfer of Plot No, 3 as a whole, while Maula Dad Khan in his revision challenged the transfer of the sub-divided plot on payment of auction price plus 50% penalty.
8. ' The learned Settlement Commissioner vide his order dated 28th August 1961 disallowed the revision of M/s. Yousuf and Khalil so far as their claim to the other half of Plot No, 3 was concerned.
9. However, he allowed it to the extent that they should be charged price at the rate of price prevailing in the year of allotment, namely, 1951 (instead of 1960 plus penalty of 50%) as they held an allotment order dated 20th August, 1951.
10. ' The order of the Additional Settlement Commissioner with respect to the transfer of the other half of the plot in favour of Maula Dad Khan was set aside and that part of the plot was again put to auction on the ground that Maula Dad Khan had no permanent building extending to 1/4th area on any of these plots, so as to entitle him to transfer except by auction or on payment of average auction price plus 50%. But he had refused to pay the average auction price plus 50%.
11. ' The second revision petition filed before the Chief Settlement Commissioner by both the parties also failed and the review petition filed by Maula Dad Khan also proved unsuccessful. Both the parties, therefore, invoked the jurisdiction of the High Court of West Pakistan under Article 98 of the Constitution of 1962. The writ petition filed by Maula Dad Khan was numbered as Writ Petition 641 of 1962 while that filed by M/s. Yousuf and Khalil bore the number Writ Petition 771 of 1962.
12. ' Maula Dad Khan in his writ petition claimed that he had constructed a permanent building on the plot and the same should.Have been transferred on the prevailing market value and not on average auction price. While Yousuf and Khalil claimed. The entire Plot No, 3 as also Plot No, 4 claiming that they had made construction of a permanent character on both the plots which construction covered more than 1/4th of the total area of either plot and as such they were entitled to the transfer of both the plots under Settlement Scheme No, Vi.
13. ' M. Jamil Asghar, J. Disposed of both the writ petitions by two separate orders passed on 3rd September, 1965. The writ petition filed by Maula Dad Khan was accepted to the extent that he was treated to be in unauthorised possession of the plot so that para. 13 (3) of the Schedule to the Act was attracted to his case and the plot measuring 600 Square Yards, other than plot transferred to M/s. Yousuf and Khalil was transferred in his favour on payment of prevailing market value plus 50% of such value. The writ petition of M/s. Yousuf and Khalil (W. P. 771/62), so far as transfer of Plot No, 3 as a whole is concerned failed and the orders of the Settlement authorities transferring only half of Plot No, 3 measuring 600 Square Yards in their favour was maintained. However, their petition succeeded so far as the transfer of Plot No, 4 is concerned. This, therefore, appears to be a proper stage for recounting briefly the history relating to the transfer of Plot No, 4.
14. ' The Plot No, 4, as already has been mentioned, measures about 1000 Square Yards. This was in the possession of M/s. Yousuf and Khalil and they had applied for its transfer along with Plot No, 3 on the ground of having raised constructions thereon. The Deputy Settlement Commissioner in his order dated 20th October, 1960 held that the construction raised by them was of a purely temporary nature where a Saw Machine was merely installed and wood-stall business was being run. Hence they were not entitled to the transfer of the plot and it was ordered that it may be included in the Auction List. On appeal, before the Additional Settlement Commissioner, it was again held that the construction raised by the appellants could not be considered to be a permanent construction as the construction raised was merely a tin shed of a purely temporary nature wherein wood-stall business was being run and a Saw Machine installed. The appeal was accordingly rejected by the Additional Settlement Commissioner vide his order dated 30th October, 1961. A revision was filed against the said rejection. During the revisional proceedings, M/s. Yousuf and Khalil made an offer in writing to pay the average auction price for Plot No, 4 in terms of Notification No, 10593-PI-Reh/60 dated 24th June, 1960 appearing on pages 153 to 155 of the Settlement Manual (Old Edition). The Settlement Commissioner, however, did not accept the offer on the ground that under the Scheme there was no provision for such a compromise. He therefore, maintained the order of the Additional Settlement Commissioner. The second revision preferred by M/s. Yousuf and Khalil against the said order was ultimately dismissed by Mian Ghulam Shabbir, Settlement Commissioner exercising the powers of the Chief Settlement Commissioner on 25th April, 1962. In the meanwhile, however, Plot No, 4 was put to public auction on 9th February, 1962 and it was purchased by Sh. Abdul Hafeez (appellant in Civil Appeal No, K-22 of 1970-now dead and represented by his legal representatives). Sh. Abdul Hafeez was also issued a P. T.
0. On 18th June, 1963. In the writ petition (W. P. No, 771/62) filed by M/s. Yousuf and Khalil wherein not only half of Plot No, 3 transferred to Maula Dad Khan was claimed but also Plot No, 4 purchased in auction by Sh. Abdul Hafeez was claimed and he was also accordingly impleaded as a respondent (No, 6) in the aforesaid writ petition.
15. ' The learned Judge, while dealing with the transfer of Plot No, 4, observed as follows :- "With regard to Plot No, 1/20/4, the following observations have been made by the Settlement and Rehabilitation Commissioner in his order dated the 28th of August, 1961, the copy of which is Annexure 'F' : ' In order to avert that auction of 1/20/4 the applicants, S. M. Yousuf and H. Khalilur Kehman, had now made a written offer to pay average auction price for that plot which they consider essential for their subsistence on the adjoining Plot No, 1/20/3. Unfortunately there is no provision under the Scheme for such a compromise in the matter of determining transfer price of a plot even though the plot is essential for any particular purpose."
16. ' In this connection the learned counsel brought to my notice Memorandum No, 10593-PL-Reh/60, dated the 24th of June, 1960. The relevant instructions on the subject in this Memorandum are as follows :- ' As regards vacant building sites, the following detailed procedure may be adopted :- (1)
(ii) If any person submits an application for deletion of a particular building site from the list and gives an undertaking in such application that he is prepared to pay the average auction price plus fifty per cent. Of such price, he may be treated to be eligible for the transfer of the site by negotiation. The site may then be deleted from the auction list.
17. ' These instructions were still in force when the order of the Settlement Commissioner was passed and, therefore, Plot No, P. R. 1/20/4 could have been transferred to the petitioners on payment of average auction price plus 50%, if the petitioners were non-allottees. I, accordingly, set aside the orders of the Settlement authorities ordering the auction of Plot No, P. R. 1/20/4 and direct that it be given to the petitioners according to the formula mentioned in the above instructions. If the petitioners can prove to the satisfaction of the Settlement authorities that they are allottees of this plot, then they need not pay the extra charge of 50% of the average auction price assessed by the Settlement authorities."
18. ' Consequently, three appeals (L. P. As) were filed to challenge the orders passed in the two writ petitions disposed of by M. Jamil Asghar, J. Letters Patent Appeal No, 148 of 1965 by M/s. Yousuf and Khalil against the order accepting Maula Dad Khan's Writ Petition No, 641 of 1962 and transferring half of Plot No, 3 to him, Letters Patent Appeal No, 149 of 1965 against the rejection of their own writ petition (W. P. 771/62) rejecting their claim for the transfer of the whole of Plot No, 3 to them, and Letters Patent Appeal No, 201 of 1965 by Sh. Abdul Hafeez, auction-purchaser of Plot No, 4, against the setting aside of the auction of Plot No, 4 and its transfer to M/s. Yousuf and Khalil. All the three Letters Patent Appeals have been disposed of in the well-considered judgment of a Division Bench of the erstwhile High Court of West Pakistan (consisting of A. R. Sheikh and A. S. Faruqi, JJ.) on 6th April, 1967.
19. ' So far as Letters Patent Appeals Nos. 148 and 149 of 1965 are concerned, which raised the same issue, namely, whether the other half of Plot No, 3 should also have been transferred to M/s. Yousuf and Khalil and no part of it could be given to Maula Dad Khan ; it was held that Plot No, 3 had rightly been divided into two parts and the part of the sub-divided plot wherein the said appellant had raised the construction having been transferred to them they had no locus standi to the transfer of the other half of the plot. Letters Patent Appeals Nos. 148 and 149 of 1965 were accordingly dismissed. So far as Letters Patent Appeal No, 201 of 1965, filed by Sh. Abdul Hafeez pertaining to Plot No, 4 is concerned. It was observed that the offer made by M/s. Yousuf and Khalil before the Settlement Commissioner in terms of the Notification No, 10593-PI-Reh/60 dated 24th June, 1960 was not adverted to at all either by the Settlement Commissioner or by the Chief Settlement Commissioner from the proper perspective. In so far as they had made an offer for transfer of the plot on average auction price of which plot they claimed they were the allottees it was the duty of the tribunal to express its decision to that aspect of the case. The Settlement Commissioner did not take any notice of the offer on the ground that it was not covered by the Scheme and failed to refer to the instructions which covered the point. The matter was raised also in the grounds of revision before the Chief Setttement Commissioner. This matter was not at all adverted to in his order. The matter was, therefore, agitated in the writ petition before the learned single Judge and the contention was accepted. The learned Judges of the Division Bench went on to obsefve that the instructions relied upon by M/s. Yousuf and Khalil had been issued by the Chief Settlement Commissioner with the approval of the Central Government and were to be considered as having been issued under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it stood at the material time. Consequently, if M/s. Yousuf and Khalil are in occupation of the premises they would be entitled to its transfer if they had made the offer before the property had been disposed of through auction and a final decision made in respect of their entitlement by the Settlement authorities. These authorities did not act discreetly in putting the plot to auction before the final disposal of the revision, petition, pending before the Chief Settlement Commissioner. However, the learned Judges considered that the plea of the auction-purchaser, Sh.
20. Abdul Hafeez, that the learned Single Judge was not justified in himself ordering the transfer of the plot to M/s. Yousuf and Khalil but that he should have remanded the case to the Settlement authorities to determine this question in view of the dictum of this Court in Syed Azmat Ali v. The Chief Settlement & Rehabilitation Commissioner and another (1) had force. The learned Judges, therefore, modified the order of the learned single Judge in Writ Petition No, 771 of 1962 to the extent that "because it is a case of failure to exercise the jurisdiction on the part of the Settlement authorities to consider the application of the respondents, S. M. Yousuf and Khalil-ur-Rehman, with regard to Plot No, 4 under the policy letter No, 10593-PI-Reh/60 dated the 24th of June, 1960, which was in force at the relevant time, the matter should be considered by the Chief Settlement Commissioner in view of the observations made above and in accordance with law". Thus, the appeal of Sh. Abdul Hafeez (L. P. A. 201/65 was accepted to the above extent and the case remanded to the Chief Settlement Commissioner for decision afresh.
21. ' Dissatisfied with the above-noted order of the Division Bench dated 6th April, 1967 the three appeals noted on the outset of the judgment (C. As. K-22/70, K-36/70 & K-37/70) have been filed before us.
(1) PLD 1964 SC 260 ' Mr. Muhammad Ali Saeed, learned counsel for Sh. Abdul Hafeez appellant in Civil Appeal No, K-22 of 1970 has challenged the order of the High Court on the plea that the reliance on policy letter No, 10593-PI-Reh/O dated the 24th of June, 1960, was not justified as the said notification was ultra vires the Act. In this connection he relied upon paras. 13 and 14 of the Schedule to the Act. These provisions read as follows :- "13. An evacuee building site which has been-
(1) allotted to a claimant on which a permanent building has been constructed by him, shall be transferred to him on payment of the market value prevalent at the time of allotment and may, if the claimant so desires, .Be adjusted against his claim ;
(2) allotted to a non-claimant displaced person or local on which a permanent building has been constructed by him shall be transferred to him on payment of the market price prevailing at the time of allotment ;
(3) in unauthorised possession of any person and that person has constructed a permanent building on it, then that site shall be transferred to that person on payment of the prevailing market value plus fifty per cent. Of such market value : Provided that no such additional price shall be charged if that building site forms part of an area on which displaced persons have raised a number of permanent houses, dwellings or shops so as to form a cluster or colony.
14. All vacant evacuee building sites not falling under paragraph 13 shall be sold to the highest bidder in an unrestricted public auction."
22. The contention is that in view of the above provisions of the statute the transfer of any building site by negotiation as provided for in the instructions of 24th June, 1960, being contrary to the provisions of paras. 13 and 14 of the Schedule was ultra vires. We do not find any force in this submission. It is to be noted that the instructions of the 24th of June, 1960, have been issued with the approval of the Central Government. Section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it stood at the relevant time, read as follows :- "Subject to the provision of this Act and the rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool- (a)on evaluation basis, or by sale by means of auction or otherwise, in accordance with the provisions of the Schedule ; or (b)in such other manner as may be approved by the Central Government.
23. ' The question, therefore, is whether the Chief Settlement Commissioner is not empowered to transfer any property out of the compensation pool in any manner inconsistent with the provisions of the Schedule. This Court has had opportunity of considering this question in at least two reported decisions, namely, Major J. H. Naqvi v. The Director, Enforcement, Directorate West Pakistan
(1) and Chief Settlement Commissioner aud another v,
(1) PLD 1966 SC 611 ' Jamaluddin and others (1). In the last mentioned case it was held that the suggestion that clause
(b) of section 10 of the Displaced Persons Act is subject to the provisions of the Act and the rules made thereunder is not valid. The limitation mentioned to the opening part of the section relates to the powers of the Chief Settlement Commissioner and not to those of the Central Government. The opening words did not have the effect of negativing the power of the Central Government to approve of a different mode of transfer but merely meant that the transfer/in such mode too, will be in accordance with and subject to such other provisions of the Act and the rules made thereunder as may be applicable. This judgment, in fact, approved the view expressed in J. H.
24. Naqvi's case, above-mentioned, as also in the case of a Full Bench of the Lahore High Court reported as M. M. Rashid v. Chief Settlement & Rehabilitation Commissioner (2). In Naqvi's case, after reproducing section 10 it was observed as follows :- "The limitation mentioned in the opening words of section 10, Displaced Persons Act relates to the powers of the Chief Settlement Commissioner and not to those of the Central Government. They do not have the effect of negativing the power of the Central Government to approve of a different mode of transfer but merely mean that the transfer in such mode too will be in accordance with and subject to such of the other provisions of the act and rules made thereunder as may be applicable.
25. Thus, the view taken in the High Court in the present case that as the instructions conveyed through Notification No, 10593-PI-Reh/60 dated 24th June, 1960 have been issued by the Chief Settlement Commissioner with the approval of the Central Government and they are to be considered to have been issued under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, as it stood at the material time, and that I M/s. Yousuf and Khalil are, as a matter of fact, in occupation of the premises they are entitled to its transfer if they had made the offer to purchase the property before it was finally put to auction, is unexception able and is hereby upheld. The Appeal No, 22-K of 1970, therefore, fail sand is dismissed hereby leaving the parties to bear their own costs.
26. ' Coming now to Appeals Nos. K-36 and K-37 of 1970 which relate to the transfer of the half of the Plot No, 3 to Maula Dad Khan and refusal of the Settlement authorities to transfer the said half to the appellant M/s. Yousuf and Khalil, the main submission is that under Settlement' Scheme No, VI M/s. Yousuf and Khalil were entitled to the transfer of whole of plot measuring 1,200 Square Yards as their permanent construction over it was 313 Square Yards and it being more than 1/4th of the entire plot it should not have been divided nor any portion thereof given to Maula Dad Khan but it should have been transferred as a whole in favour of the appellants M/s. Yousuf and Khalil. In this connection reliance was placed on the case of Mst. Mahmooda Tehsin v,. S. Ijaz Hussain Shah (3).
27. Reference was also made to sub-clause (c) of clause 3, para. 1 of Settlement Scheme No, VI, which reads as follows :- "permanent building" means-
(a) .....................................
(1) 1968 SCMR 697 (2) PLD 1963 Lah. 227
(3) PLD 1965 SC 618 (b)
(c) Building for which plan has not been approved by a competent authority, but which has been constructed with building material normally used in the non-evacuee buildings in the locality where it is situated and covers at least one-fourth of the area of the relevant building site or seventy-five per cent of the maximum area allowed for construction under the rules framed by the local body concerned."
28. ' The reliance on the above authority as also on the provision quoted above does not strengthen the case of the appellants.
29. It is first to be noted that the Settlement authorities have held as a question of fact that the area on which the permanent construction of the appellants stands is only 220 Square Yards and not 313 Square Yards ; in fact the last-mentioned claim has been expressly negatived. Consequently, the construction raised on the plot by the appellants did not cover I/4th of the full plot. According to the bye-laws of the local Body the plot was divisible into two parts of 6 Square Yards each and there is nothing in the Act or the Schemes forbidding the division of the plot in accordance with the principles governing the by-laws of a Local Body. In fact, the instructions expressly permit this.
30. Consequently, the division of the plot into two parts was not only strictly in accordance with law but was also in fact the most appropriate course to be followed. Inasmuch as the two parties, who were in possession of the practically equal portions or parts of the plot have, thus, been accommodated. In addition, the appellants have been able to obtain transfer of the entire sub- divided plot of 600 Square Yards, on the prevailing marked value at the time of its allotment (1951) as the area over which they had raised constructions was more than 1/4th of the sub-divided plot.
31. ' As for the reliance on the case of Mst. Mahmooda Tehsin this Court in that case allowed transfer to an occupant of a. Vacant site who had encroached upon it and had raised a pacca building on it but the right was confined to the area in his possession subject of course to any necessary rights for a passage or other easement which were essential to the enjoyment of the property which was to be transferred to him. Thus, the case of Mst. Mahmooda Teshin, is of-no help to the appellant.
32. ' The result is that no ground exists for interfering with the order of the High Court passed in the Letters Patent Appeal of the appellants whereby their transfer was confined to the sub-divided plot measuring 600 Square Yards and allowing the transfer of the remaining part of the sub-divided plot in favour of Maula Dad Khan. These appeals accordingly must fail.
33. ' The overall result is that all the three appeals (Civil Appeals Nos. K-22/70, K-36/70 and K-37/70) are dismissed hereby leaving the parties to bear their own costs.