1. NASIM HASAN SHAH, J.-This judgment will dispose of both the above appeals, as the question falling for determination in both of them is the same. The question is whether a transferee of a house under the Displaced Persons (Compensation & Rehabilitation) Act, 1958 thereinafter called an Act) is entitled to purchase the area in excess of three times the plinth area under paragraph 19 read with clause (3) of paragraph 1 of Settlement Scheme No, I framed thereunder. This question arises in the following circumstances : ' The appellants in both the appeals have respectively been transferred evacuee houses in Faisalabad. There are large tracts of open land attached with each of the said houses. The house transferred to Muhammad Bashir (appellant in Civil Appeal No, 163 of 1972), namely, Bungalow No, 145, Ward No, 10, Civil Lines, Lyallpur is in an area of 21 kanals 8 marlas and 214 sq. Ft. And he has already been transferred alongwith the bungalow three times its plinth area as also some additional area permissible under Memo. No, 301-PI-Reh/60 dated 19-1-1960 issued by the Chief Settlement Commissioner (on the subject of the disposal of the area of the gardens and grounds attached or appurtenant to the house under the second proviso of section 2 (4) of the Act) which altogether is 11 kanals 6 marlas and 63 sq. Ft. An area of 10 kanals 2 marlas 102 sq. Ft. Has been found to be excess land, which has been carved out into 15 plots and these plots have been sold through open public auction and purchased by the respondent ; while the house transferred to Mr. Khadim Mohyuddin (appellant in Civil Appeal No, 251 of 1981) is in an area covering more than 23 kanals 18 marlas, out of which he has been allowed, under the prescribed procedure,. 13 kanals 12 marlas 134 sq. Ft. With the result that 10 kanals 5 marlas 138 sq. Ft. Has been declared to be excess land for purposes of disposal through open public auction.
2. ' The claims of the appellant in both the appeals is that they are entitled to the transfer of the area declared to be excess land under Para. 19 of Settlement Scheme No. 1, which was not accepted by the Settlement Authorities and this decision has been upheld by the High Court mainly on the ground that para. 19 of Settlement Scheme No. 1, being ultra vires of the Act, cannot be successfully invoked for claiming transfer of the excess land. In rejecting the claim of the appellants in both the appeals, the High Court has relied on the judgment of the Lahore Bench of the West Pakistan High Court reported in Khan Tufail Muhammad Khan v. Abdul Hamid etc. wherein pargraph 19 of Settlement Scheme No. 1 was, inter alia found to be ultra vires of the provisions of the Act and it was held that the excess area can be transferred only through unrestricted public auction and not in any other manner.
3. ' In support of these appeals the leading argument has been addressed by Ch. Khalilur Rehman, the learned Advocate for the appellant Mr. Khadim Mohyuddin (in Civil Appeal No, 251 of 1981). Sh.
4. Masud Akhtar, learned Advocate-on-Roard for the appellant Muhammad Bashir (in Civil Appeal No, 163 of 1972), Mr. S. A, Mannan Advocate for the respondents in the said appeal and Mr. Shahzad Jehangir, Advocate for the Settlement Department, in both the appeals, have also been heard.
5. ' Ch. Khalilur Rehman, in the first instance, has submitted that Tufail Muhammad's case stands overruled by this Court vide its decision in Muhammad Matin Mirza v. Jehangir R. Rustbmji and another and hence' can no longer be relied upon. The above submission, however, is based on a misconception. In Tufail Muhammad's case three questions were considered by the High Court ; firstly, as to what was the true scope and significance of the second proviso to section 2 (4) of the Act, more particularly what was the meaning of the following words therein viz. "the area so in excess or such part thereof as the Chief Settlement Commissioner may determine" secondly, whether the instruction dated 9-1-1960 laying down the procedure for determining the area, which could form part of the house, though in excess of three times its plinth area, was valid ? And thirdly, whether paragraph 19 of Settlement Scheme No. 1 was consistent with the provisions of the Act or ultra vires thereof ?
6. ' This Court in Muhammad Matin's case overruled the decision of the decision of the High Court only so far as it held while considering the second question that the portion of the memorandum of the Chief Settlement Commissioner dated 9-1-1960, which laid down the manner in which some area in addition to three times the plinth area, could be transferred as a part of the house, was ultra vires by holding that this was not so and that the instructions relating to that question were also legal and valid. It agreed with the High Court with respect to the answer returned by it to the first question, namely, that if the area of the gardens etc. Exceeds three times the plinth area in such a case in the absence of any determination to the contrary by the Chief Settlement Commissioner, the entire area in excess of three times the plinth area shall not be a part of the house. This is evident from the following passage from the judgment :- "In other words the "proviso" means that from the land in excess of three times the plinth area which was not to form a part of the house, the Chief Settlement Commissioner could say that a part thereof should also be considered as a part of the house. To put it conversely whereas the basic definition of "house" excludes from its ambit that much of the area which is in excess of three times its plinth area but the "proviso", authorises the Chief Settlement Commissioner to add more area to the house by saying that do not exclude the whole of the area exceeding three times the plinth area but for instance add only a fraction of it to the house." (the word "not" between "should" and "be" in the first sentence of the passage as printed in the judgment at page 73 is-a ' mistake and the correct word being "also"-the above quotation, therefore, incorporates the correct word).1 2 ' So far as the third question decided by the High Court, namely, that para. 19 of Settlement Scheme No. 1 was ultra vires the provisions of the Act, this question was not all examined in Matin's case. We, therefore, proceed to examine it in the sequel, ' The Displaced Persons (Compensation & Rehabilitation) Act, 1958 was promulgated on the 28th March, 1958. In its original form the definition of the term "house" as given in subsection (4) of section 2 was as follows :- "S. 2(4) 'house' means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and outhouses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or outhouse is in the possession of a person other than the person or persons in possession of such (residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 15 of the First Schedule to be a big mansion or hotel ' Provided that where a building not so declared consists of more than one residential premises, and such premises are in the possession of several persons, the premises in the possession of any one of such persons shall be deemed to be a house."
7. ' Thus, under the above definition, a house, according to section 2 (4), included all the gardens, grounds, garages and outhouses attached and appurtenant to the premises irrespective of the area of the land comprising the gardens and grounds attached and appurtenant to the house and under para. 1 of the Schedule to the Act the whole of it was liable to be transferred to the person in possession of the said house at a price determined on evaluation basis. It was only on the 19th of May, 1959 when Settlement Scheme No. 1, which was prepared under section 16 (1) (b) and (c) of the Act for the transfer of houses and shops to claimants etc., who were in possession thereof, was published. According to clause (3) of para. 1 thereof gardens and grounds attached or appurtenant to evacuee residential premises were defined to mean an area not exceeding approximately three times the plinth area of the house including garages and outhouses, if any.
8. Thus, according to the above definition gardens and grounds attached or appurtenant to the residence upto the extent of three times the plinth area of the premises could be transferred with the house. So far as the area in excess thereof was concerned, its disposal was dealt with in Para. 19 of the Scheme. According thereto "where a person to whom a house is transferred desires to purchase the land and excess of the land attached or appurtenant to the house and originally included in its compound whether enclosed by a compound wall or not, such land shall be transferred to him on payment of the prevailing market value". Thus, an inconsistency arose between the provisions of section 2 (4) of the Act of 1958 and para. 19 of the Scheme No. 1. Whereas, according to subsection (4) of section 2 of the Act, a "house" meant an evacuee residential premises together with all gardens and grounds attached thereto irrespective of the extent of its area and the whole lot was liable to be transferred to the person in its possession at a price determined on evaluation basis as per the provisions of the Schedule. Under Para, 19 of Settlement Scheme No. 1 read with para. 1 (3) thereof the transferee of the house could be transferred out of the grounds etc. Attached to the house only three times the plinth area of the house, but would have the option to purchase the area in excess thereof separately at the prevailing market value.
9. On account of this inconsistency it was held by the High Court in Tufail Muhammad's case that Para. 19 of the Scheme was ultra vires the provisions of the Act as promulgated in 1958, in that neither the Act nor the Schedule visualised the existence of any excess land and provided for its transfer on the prevailing market value and, therefore, it was concluded that Paragraph 19 of Settlement Scheme No. 1 could not be deemed to be validly a part of the Scheme. Another reason given for holding Para. 19 of Settlement Scheme No. 1 to be ultra vires was that what a transferee can get is only the house, which means the premises, outhouses and three times the plinth area or such other area as the Chief Settlement Commissioner may determine. Any area in excess of that is not part of a house. Such an area is to be deemed to be a vacant evacuee building site, which, under Para. 14 of the Schedule, must be sold to the highest bidder in an unrestricted public auction.
10. ' As for the change brought about by Ordinance LIII of 1959 it was observed that the Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Ordinance, 1959 (Ordinance LIII of 1959) was promulgated on 28-9-1959 with retrospective effect as it was given effect from the same date on which the original Act was promulgated. Herein, two new provisos were substituted for the existing proviso ; the second whereof is relevant for or purpose and is in the following terms :- "Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including outhouses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house."
11. ' This proviso is not happily worded but true purport has been explained by this Court in Matin's case as mentioned above and simply means that unless the Chief Settlement Commissioner orders otherwise the whole of the area of the gardens and grounds attached to the house on excess of three times the plinth area of the house included outhouses, garages shall not be treated as a part of the house. So that subject to any order to the contrary by the Chief Settlement Commissioner the whole of the excess area shall not be treated as a part of the house. But the point emphasized by the High Court in Tufail Muhammad's case was that Paragraph 19 of the Scheme which was ultra vires of the unlamented Act and had not been validated after its amendment and, therefore, continued to remain non-existent. Hence, Para. 19 was of no avail even after the amendment of the Act in 1959.
12. ' The contention raised by Ch. Khalilur Rehman was that section 2 (4) of the Act was merely the definition clause therein and it did not concern itself with the question of transfer of the house. This question was dealt with under section 16 of the Act. This section empowered the Central Government to prepare Schemes inter alia for transfer of immovable property on evaluation basis or otherwise. Settlement Scheme No. 1 was one such Scheme and Para. 19 thereof dealt with the situation under consideration. In view of the terms of the second proviso to section 2(4) out of the gardens etc. Attached to the house only three times the plinth area would be transferable as part of the house. The remaining would be the excess land. This can be transferred under Para. 19 of Settlement Scheme No. 1 at the prevailing market value. Hence the provisions of Para. 19 can now be given effect to.
13. ' As for the first reason given for holding that Para. 19 of Settlement Scheme No, I was ultra vires of the Act and had ceased to remain as a part of the Scheme and since it had not been validated after the amendment of the Act by Ordinance LIII of 1959 it could not be availed of even later on, learned counsel submitted that even under the unamended Act of 1958, Para. 19 of the Settlement Scheme No. 1 could not be regarded as ultra vires because even if it was assumed that according to the definition of "house" as given therein the entire open area attached to the house in the forms of gardens and grounds was to go with the house leaving no surplus land available for purchase under Para. 19, the result would only be that Para. 19 would merely be a redundant provision and not a provision that was ultra vires of the. Act.
14. ' So far as the second reasons given for holding the said para. To be ultra vires namely, that the excess land was an evacuee building site liable to be disposed of through auction under Para. 14 of the Schedule, is concerned, Ch. Khalilur Rehman pointed out that the expression 'building site' has not been defined in the Act or under the Schedule thereto. However, the definition of the expression "building site" has been given in the Settlement Scheme No, VI to mean "any evacuee plot of land acquired under section 3 of the Act, which was vacant or free from any permanent construction at the time it became evacuee property and is not within a well-define compound of a permanent building" (the underlining* is ours). Thus, according to the learned counsel, an evacuee plot of land which is within a well-defined compound of a permanent building will not be a building site and, therefore, not available for auction under Para. 14 of the Schedule because it is only a vacant building site other than such plots which are available for sale in an unrestricted public auction.
15. Although this argument is not of much avail to the client of Ch. Khalilur Rehman since the grounds etc. Appurtenant to the house transferred to him have not been found to be within the well-defined compound of a permanent building ; but this does appear to be the case so far as the house transferred to Muhammad Bashir (appellant in Civil Appeal No, 163 of 1972) is concerned in whose matter this argument may be of some avail.
16. ' We have given or earnest consideration to all aspects of the problem and feel that the conclusion of the High Court that the appellants herein cannot avail of the provisions of Para. 19 of Settlement Scheme No, I, can be upheld, even though we may not entirely agree with the reasons which appealed to the learned Judge in the High Court, who decided Tufail Muhammad's case, whose judgment was relied upon by the learned Judges in their judgments, which are impugned herein.
17. ' We observe that the words gardens and grounds attached or appurtenant to an evacuee residential premises occurring in the main part of the definition of the word "house" in section 2 (4) of the unamended Act, as promulgated on 26-3-1958, were not defined in the Act or in the Schedule and, therefore, the entire grounds and gardens attached or appurtenant to an evacuee residential house were to be treated as part and parcel of the house ; accordingly, the whole lot was liable to transfer, if the house was in possession of a claimant, at a price determined on evaluation basis. It was for the first time on 19th May, 1959 that in Settlement Scheme No. 1 framed under section 16 (1) (b) & (c) of the said Act that the extent of the gardens and grounds was sought to be limited to approximately three times the plinth area of the house including garages and outhouses, if any by clause (3) of Para. 1 of the Settlement Scheme No. 1 ; with the result that under it a claimant in possession of a house could get the house along with approximately three times the plinth area of the house including garages and outhouses, if any, out of the gardens and grounds attached or appurtenant to it at a price determined on evaluation basis, while the land in excess thereof could only be obtained as per para. 19 of the said Scheme on payment of the prevailing market value. Apart from the question whether this limitation in the extent of the gardens etc. Which could go to the transferee of a house at a price determined on evaluation basis and the rest could now only be obtained on the prevailing market value, made this provision ultra vires, especially when this concession was available only to claimants, whereas both. Non-claimants and locals could get the houses in their possession only on payment of the prevailing market value is not of any particular importance, but the point, which is of importance to us, is that both under the unamended Act, as also under the provisions of Settlement Scheme No. 1, the entire gardens etc. Which were attached or appurtenant to an evacuee residential premises were regarded as forming part of the house. The only difference was that under the unamended Act, the claimant could get the whole of gardens etc. Even if they exceeded three times the plinth area of the house a little cheaper, while after the promulgation of Settlement Scheme No. 1, he had to pay more, for getting the area of the gardens etc. Which was in excess of three times the plinth area.
18. Nonetheless, the entire property in both the situations was treated as a house, the difference existed simply in connection with the price to be paid for it. However, a fundamental change occurred after the amendment in the definition of the "house" by the incorporation of the second proviso to section 2 (4) of the Act. Now, a house within the meaning of the Act would only be an evacuee residential premises alongwith three times its plinth area out of the gardens etc. Attached or appurtenant to it plus any further area out of the excess land determined by the Chief Settlement Commissioner to be also a pal t of the house. The remaining land would be an area which was no longer a part and parcel of the house and, therefore, could not be transferred in connection with the transfer of a house. This is evident from the fact that paras. 1, 2, 3 and 4 of the Schedule deal with transfer of a house, naturally as defined in section 2 (4) of the Act. The area exceeding three times the plinth area of the evacuee residential premises, in view of the second proviso added to it by Ordinance LIII of 1959, no longer being part of the "house", cannot be transferred as such. Nor can any provision of the Scheme relating to the transfer of houses and shops be availed of in this connection. It therefore follows that Para. 19 of Settlement Scheme No. 1 definitely became repugnant to the provisions of the Act, after the amendment made in the definition of "house". Firstly, because after the incorporation of the second proviso to section 2 (4) any additional area, out of the excess land, beyond the area measuring three times the plinth area, could only be given by the Chief Settlement Commissioner and could not be obtained at the option of the transferee of the house, as provided for in Para. 19; secondly, and more importantly the excess land no longer formed part of the house, which could be disposed of according to the provisions relating to the transfer of houses. Hence Para. 19 of Settlement Scheme No, I. Which was framed for implementation of the provisions of the Act and Schedule relating to transfer of "house" and "shops", was no longer available in connection with the transfer of such "excess land", which had ceased to partake the character of a part of a house. It is true that, as pointed out by Ch. Khalilur Rehman, the land, which fell within the well-defined compound of a permanent building, could not be considered as a building site. Consequently, Para. 14 of the Schedule was not attracted for transfer of such land. Thus, there was no provision in the Act or the Schedule or any Scheme, dealing specifically with the transfer of such land. Hence the matter could be dealt with under the general instructions issued by the Chief Settlement Commissioner. The first instruction on this question was issued on 19-1-1960 vide memo. No, 301-PI/Reh./60 dated 19-1-1960 obviously in consultation with the approval of the Central Govt. Clauses (1), (2) & (3) of Para. 2 thereof detail the procedure to be adopted for calculating the plinth area, three times of which was to go alongwith the house and the additional area, which the Chief Settlement Commissioner had decided that might also form part of the house, out of the excess area, while clauses (4), (5) and (6) thereof dealt with the disposal of the excess land. According to clauses (4) and (5) a further area, equal to three times the plinth area already transferred to the transferee as a part of the house could be transferred to him at the prevailing market value. However, the area in excess of the limit above prescribed was not to be transferred to him but was to be disposed of as a vacant building site.
19. ' The instructions contained in the said memo. Of 9-1-1960 were, thereafter, modified by the instructions issued by the Chief Settlement Commissioner on 11-3-1961 incorporating the revised policy about disposal of building sites, which to the extent relevant stated :- "In the instructions issued by the Chief Settlement Commissioner on 9th January, 1960, regarding disposal of the area of the ground and gardens attached or appurtenant to a house, it was inter alia laid down that the person to whom the house was transferred, would be entitled to purchase the area in excess of three times the plinth area subject to certain conditions. A number of representations have been received by the Chief Settlement Commissioner that this concession gives undue advantage to the transferee of the house to the detriment of the interests of claimants who have not been able to obtain any property so far. The Chief Settlement Commissioner has accordingly decided to withdraw the concession with effect from the date of issue of this press note. Only an area equal to three times the plinth area of the house will be allowed to be transferred to the transferee of the house in accordance with the prescribed procedure. Marginal adjustments will, however, be allowed up to 500 sq. Yds, on payment of the price of the excess area allowed for such adjustments. In-case, however, the transferee of a house has made full payment for the area in excess transferred to him over and above three times the plinth area before the issue of this press note, the transfer of the area in excess in his favour will be allowed to stand."
20. ' Thus, under the revised instructions, the appellants herein could only get an area equal to three times the plinth area of the house transferred to them in accordance with the prescribed procedure. Since we have found that the matter of transfer of such excess land could be dealt with by the Instructions issued by the Chief Settlement Commissioner no fault can, accordingly, be found with the orders of the Settlement Authorities, whose decision has been strictly in accordance with them.
21. ' Faced with this situation Ch. Khalilur Rehman attempted to argue that the above instructions stood modified by some further instructions issued by the Chief Settlement Commissioner vide Memo. No, 276. Pot/68 dated 20-7-1968. These instructions read as follows :- "It has been noticed that the instructions contained in para. 3 (i) of this Office Circular Memo. No, 301-Pol/Reh./60 dated 9-1-60 (at pages 515-517 of the Manual of Settlement Law and Procedure), do not correspond with the instructions contained in para. 2 (2) and 2 (3) of the above-quoted memo. It has been decided that the instructions may be followed independently of the illustrations in so far as the question of determining the areas of gardens and ground attached or appurtenant to the house is concerned. Simultaneously, the last items under para. 3 (i) of the instructions may be read as "the area attached or appurtenant to the house excluding the first 4 items, referred to above is 50, 150 sq. Yards". These are only guiding principles and the Deputy Settlement Commissioners should exercise their discretion for the disposal of individual cases on merits."
22. ' However, a careful perusal of the above instructions reveals that they deal only with the question of determining the area which has to go as a part of the house and does not deal with clauses (4),
(5) & (6) of Para. 2 thereof relating to the disposal of the excess land. It was these provisions that were further revised by the Instructions issued on 11-3-1961 and have not been modified or in any way interfered with by the Instructions issued on 20-7-1968, referred to by the learned counsel.
23. The overall conclusion, therefore, is that, as the area transferred to the appellants is in accordance with the provisions of section 2 (4) of the Act,l read with the instructions issued by the Chief Settlement Commissioner on 9-1-1960 and 11-3-1961, which instructions are perfectly valid and legal and further that Para. 19 of Settlement Scheme No. 1 read with clause (3) of Part 1 thereof is repugnant to the provisions of the Act, as explained above, no ground for interference has been made out.
24. ' Both these appeals must fail and are, accordingly, hereby dismissed leaving the parties to bear their own costs. PLD 1967 Lah. 1058 PLD 1980 SC 64