' By this petition filed under Article 9 of the Provisiona Constitutional Order, 1981 the petitioners seek to challenge the orde dated 22-2-1981 passed by the Settlement Commissioner transferrin: the plot in question to respondents 1 and 2 and consequently settin: aside its auction in favour of the petitioners' late father as illegal.
2. The case has a chequered history as it had a full round of litigation right from the Deputy Settlement Commissioner to the Supreme Court.
3. The dispute, however, relates to the transfer of a building sit bearing No,P.R. 1/20/4 situate at Marston Road, Karachi. Respondent Nos.1 and 2 as allottees of the said plot claimed its transfer to the under Settlement Scheme No,VI on the plea that they had raised permanent construction on it.
The Deputy Settlement Commissioner in his order dated 20-10-1960 held that the construction raised by the said respondents was of a purely temporary nature where a Saw Mil only was installed and wood-stall business was being carried on. He, therefore, held, that they were not entitled to the transfer of the said plot and it was ordered that it may be included in the auction list.
0 appeal before the Additional Settlement Commissioner it was again held that the construction raised by the said respondents could not be considered to be a permanent construction as the construction raised was merely a tin-shed of a purely temporary nature. The appeal was accordingly rejected by the Additional Settlement Commissioner by his order dated 30-10-1961. A revision was filed against the said order. During the hearing of the Revision Application the said respondent made an offer in writing to pay the average auction price for the said plot in terms of Notification No,10593-PI-Reh/60, dated 24-6-1960. The Settlement Commissioner, however, did not accept the offer on the ground that in the scheme there was no such provision. He, therefore upheld the order of the Additional Settlement Commissioner. The second revision filed by the respondents against the said order was als dismissed on 25-4-1962. In the meantime the plot was put to auction o 9-2-1962 and was purchased by Shaikh Abdul Hafeez, now dead an represented by the present petitioners. He was also issued a P.T.O on 18-6-1963.
4. Against the said order dated 25-4-1962 passed by the Settlement Commissioner, in exercise of his powers as Chief Settlement Commissioner the said respondents filed a Writ Petition (W.P.
No,771/62) wherein inter alia, the order for auctioning the plot in favour of the father of the present petitioners was challenged. The learned Single Judge allowing the petition, set aside the order for auctioning the plot an directed that it be transferred to respondents Nos.1 and 2 according to farmula mentioned in Memorandum dated 24-6-1960.
5. As a result of the above order passed in the writ petition letters Patent Appeal (L.P.A No,201/65) was filed by Shaikh Abdul Hafeez against setting aside the auction of the plot and its transfer to e said respondents.
6. The Division Bench modified the order of the learned Single due in so far as it related to ordering the transfer of the plot to respondents Nos.1 and 2 and remanded the case to the Chief Settlement commissioner with the following observation:-- "We would, therefore, modify 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 of exercise of 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."
7. Dissatisfied with the abovequoted order dated 6-4-1967, the predecessor-in-interest of the present petitioners as well as respondents Nos.1 and 2 filed their respective appeals in the Supreme Court. The Honourable Supreme Court maintained the order passed in the L.P.A No,201/1965 with the following observations:-- "Thus, the view taken in the High Court in the present case that as the instruction 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 if Messrs 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 unexceptionable and is hereby upheld. The Appeal No,22-K of 1970, therefore, fails and is dismissed hereby leaving the parties to bear their own costs."
8. Pursuant to the above order dated 8-1-1980, the matter was -heard by the Settlement Commissioner, Sind as an officer authorised under section 2(2) of the Repealing Act, 1975, on remand who passed s order dated 22-2-1981 in the following terms:- "In the instant case, the entitlement of the opponents to the transfer of the plot, or otherwise, on the basis of their possession is to be determined first. The opponent's claim to the transfer of the plot on the basis of the instructions contained in the Notification dated 24-6-1960 cannot be accpeted on the short ground that the same had already been withdrawn and were not operative the time they made the offer. However, their plea with regard to the requirement of construction in the light of the abovequoted authority is sound. The Supreme Court has since ruled that the requirement of 1/4th construction was not necessary to the transfer of a plot to its occupations. Accordingly on this authority, I order that the plot in suit should be transferred to the opponents as per standing instructions. As a consequence thereof, the auction of the plot in favour of Sh Abdul Hafeez is set aside. The Deputy Settlement Commissioner, Karachi, should process the case regarding refund of the amount paid towards the auction."
9. Being aggrieved by this order the petitioners have now preferred this Constitutional Petition.
10. Mr.Mushtaq Ahmad Memon, learned counsel for respondents Nos.1 and 2 raised a preliminary objection as to the maintainability of this petition. He argued that the petitioners have no locus standi to file this petition. According to him, a party who has no right to transfer the plot cannot question the transfer made in favour of another even if it is illegal. He placed his reliance on three Supreme Court's judgments reported as Munshi Muhammad Ibrahim and another v. Settlement Commissioner, Karachi and 4 others 1974 SCMR 299; Ahmad Jamal v. Nazir Ahmad Khan and others 1975 SC MR 24 and Mir Zaman Khan v. Muhammad Ashraf Lodhi and 2 others 1976 SCMR
318. These judgments, no doubt, lay down the principle that a person who is not entitled t the transfer of the premises has no locus standi to object to transfer thereof to another person. But here the circumstances are somewhat different. Admittedly the petitioners are the successors-in- interest of the auction purchaser who paid the auction price of Rupees three lacs which is still lying with the Settlement Authorities for the last two decades, Provisional Transfer Order has been issued in his favour and he has been contesting the matter in the Settlement Department, High Court as well as Supreme Court. The impugned order has also been passed on the Revision Application filed by the petitioners, (L/Rs of the Auction purchaser). In these circumstances, it cannot be said that the petitioners are not the aggrieved persons and have no locus standi. The High Court and the Supreme Court and now the Settlement Commissioner in the order impugned in this petition have, no doubt, set aside the auction in favour of the father of the petitioners but not on independent considerations. It appears to have been set aside in view of the prima facie entitlement of respondents Nos.1 and 2. The petitioners' right in the plot, therefore, depends on the entitlement of respondents Nos.1 and 2. If respondents Nos.1 and 2 succeed in establishing their entitlement according to law, the petitioners' right will vanish altogether. Thus, till such time that the entitlement of respondents Nos.1 and 2 is established in accordance with law, the petitioners have a right to, at least, remain in the field. The preliminary objection is, therefore, rejected.
11. Now as to the merits of the case, the learned counsel for the petitioners contended that in view of para. 13 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, there being the permanent construction on the plot as held by all the Settlement authorities right from Deputy Settlement Commissioner to the Chief Settlement Commissioner, the plot, as building site, could not be transferred to respondents Nos.1 and 2. He further contended that as there was no permanent construction on the plot, it was rightly disposed by auction under para. 14 of the said Schedule.
12. Learned counsel for the respondents, in reply to the above contention, submitted that the respondents' case comes within the perview of clause 3(c) of Settlement Scheme No,VI which relates to the disposal of building sites. The clause reads as under:- "(3) "permanent building" means-- (a).....................................................
(b)..................................................... ; or
(c) a building for which plan has not been approved by a competent authority, but which has been construction with building material normally used in the non-evacuee buildings in the locality where it is situated.
' Accordingly, it was submitted by him that the building has been constructed with building material normally used in the non-evacuee buildings in the locality where the plot is situated and so that impugned order is unassailable.
13. The learned Settlement Commissioner, who is now the authorized officer to hear the matter, after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act in 1975, on re- hearing the case found the requirement of construction to be in favour of the respondents, as the Supreme Court has since ruled in 1976 SCMR 208 that the requirement of the one-fourth construction was not necessary to the transfer of a plot to its occupants. It appears that the learned Settlement Commissioner showed his concern only to the requirement of one-fourth construction only and not the nature of construction itself, as defined in clause 3(c) of the Scheme, referred to above. The learned Settlement Commissioner has, thus, not expressed any opinion on that requirement of law. The learned counsel for the respondents was also not able to show me any material on record that the existing construction on the said building site has been constructed with building material normally used in the non-evacuee buildings in the locality where it is situated, so as to fulfil the requirement of permanent building.
14. In view of the above,' I declare the impugned order of respondent No,3 as passed without lawful authority and set aside the same and remand the case to respondent No,3 (the Settlement Commissioner Sind, Karachi) to examine the entitlement of respondents Nos.l and 2 on the Basis of the nature and character of structure according to law, as contemplated by the previsions of clause 3(c) of Scheme VI for the transfer of building sites. There shall, however, be no order as to costs.