The only point urged in S.A.O. No. 254 of 1972 and S.A.O. No. 69 of 1973 is that the property in question in both the cases being residential plots and not `rented land' within the meaning of that expression in the West Pakistan Urban Rent Restriction Ordinance, 1959, the Rent Controller had no jurisdiction over the matter. As common question of law is involved, this judgment will dispose of both the appeals.
2. The facts in S.A.O. No. 254 of 1972 are that the respondents were transferred plot No. 68, Street No. 8, Harcharanpura No. 2, Lyallpur, by the Settlement Department and a permanent transfer deed was issued to them on the 11th November 1968. The respondents served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the above Act) demanding rent with effect from the 11th November 1968, at the rate of Rs. 30 per month. Sub--sequently, they filed a petition on the 26th May 1969, for ejectment of the appellant under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the above Ordinance) on the grounds of default and requirement of the premises for their personal business. It was alleged in the application that the appellant had made a temporary Kacha construction in the form of rooms over this plot and was now using the same for residential purposes. The appellant contested this application on the grounds that the auction in favour of the respondents was illegal, there was no relationship of landlord and tenant between the parties, the plot was residential and could not be used for commercial purposes and as such the provisions of the above Ordinance were not .Applicable to this property and the appellant having spent a sum of Rs. 10,000 on the Pukhta and Khas construction of the house, was an owner of the same. The allegation of receipt of notice was also denied. Issues were framed inter alia regarding the jurisdiction, relationship of landlord and tenant, service of notice under section 30 of the above Act and the descrip--petition of the property. The learned Rent Controller held that after its con-- struction, the plot was really a house or building and was within the purview of the above Ordinance. He decided all the other issues in favour of the respondents. An additional issue No. 4-A was framed regarding the allega--petition of requirement for personal use. This too was decided in favour of the respondents. As a result of those findings, the application for ejectment was allowed by order dated the 15th March 1971. The appellant filed an appeal against this order but that was dismissed by Mr. Muhammad Amir Malik, Additional District Judge, Lyallpur vide order dated the 12th July 1972. He also was of the opinion that after its construction the plot was really a residential house. He reversed the finding about personal requirement but maintained the order of ejectment on the basis of default in the payment of rent.
3. In S.A.O. No. 69 of 1973, the respondents were transferred Plot No. 260(SE6-R-260IA/8) measuring 3 marlas 19 s. Ft. Situated at Old. Dharampura, Lahore. A P. T. O. Was issued to them on the 21st December 1967, and a permanent transfer deed was issued on the 24th April 1967. Khuda Bakhsh who was in possession of one room over this. Plot was served with a notice dated the 9th September 1967, under section 30, of the above Act and the rent from 2'-12-1962 to 31-8-1967 was demanded. From him. A petition for ejectment was subsequently filed against Khuda Baksh on the ground of default. It was contested by him on the ground that he was living in a room which was constructed by him. He further alleged that no relationship of landlord and tenant existed: between the parties and the Rent Controller had no jurisdiction over the matter. The quantum of rent was also disputed. Issues were framed regard--ing jurisdiction, relationship of landlord and tenant, receipt of notice under section 30 and the bar under section 14 of the above Ordinance. The Rent Controller held that he had no jurisdiction over the matter as according to. The description of the property transferred it was a plot. Regarding the: applicability of section 30 of Act XXVIII of 1958, he held that the building sites/plots did not find any mention in that section. This order was reversed in appeal by Mr. Abdus Saeed Sabir, Additional District Judge, Lahore, on the --5th December 1972, and the case was remanded to the learned Rent Controller for trial in accordance with law. It was held that since there was a building --constructed on the property in dispute it was to be considered a building within the meaning of section 2 of the above Ordinance and consequently the Rent Controller had jurisdiction to adjudicate upon the matter.
4. Before proceeding to consider the question of law, I may state that although in S.A.O. No. 254 of 1972 it was alleged in the written statement that the construction was Pukhta and Khas, yet in the evidence it was not proved whether the constructions were permanent or not, or was the nature of construction proved in the other case. In the case from which S.A.O. No. 69 of 1973 has been filed there is divergent evidence of the parties on the-- question as to who constructed the rooms situated on that property. P. W. 2 Abdul Rehman, husband of Mst. Iqbal Begum, had stated in cross- examina--petition that he had constructed the room on the plot. On behalf of the-- appellants evidence was produced to prove that the present construction was, raised by Khuda Bakhsh.
5. The argument of the learned counsel for the appellant is two-fold. He urged that the constructions over the plot belonged to the appellants and? As such the nature of the property could be determined only with reference to --the vacant plots which were transferred to the respondents. Secondly he --argued that according to the provisions of the above Ordinance the learned' Rent Controller had jurisdiction over only rented land which is defined there as land used for purposes of trade or business. The land which is used for --residential purposes is not, therefore, within the purview of the above Ordinance.
6. The first question therefore is whether the property transferred to the respondents included the constructions thereon or not. For this purpose, reference has to be made to the relevant provisions of paragraphs 13 and 14 of the above Act, which read as follows : --- "13. An evacuee building site which has been---
(1) allotted to a claimant on which a permanent building has been con--structed 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 transfer--red 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.
Explanation.-A site on which no permanent building exists shall be, deemed to be a vacant evacuee building site, and in the case of a dispute whether or not a particular site is vacant evacuee building site,.. The decision of the Chief Settlement Commissioner or any other officer' authorised by the Central Government in this behalf shall be final."
Under paragraph No. 13, building sites are required to be transferred to claimants and non- claimant allottees or persons in authorised possession who have constructed permanent building over it. Under paragraph No. 14, all vacant evacuee building sites not falling under paragraph 13 shall be sold to the highest bidder in an unrestricted public auction. There is an explana--petition added to paragraph No. 14 in which the expression `vacant building site' has been interpreted.
According to this explanation, vacant building site is one on which no permanent building exists. It is, therefore, clear that a site on which a building, which is not a permanent building, is constructed and exists, will still be deemed to be a vacant site. A building site, therefore, does not mean a building site which is absolutely without construction. It is for this reason that it has been further provided in this explanation that "in the case of a dispute whether or not a particular site is a vacant evacuee building site, the decision of the Chief Settlement Commissioner or any other officer authorised by the Central Government in this behalf is final". There was no possibility of dispute arising in a case where the building site is free of any construction whatsoever. Such dispute can only arise where the question is whether the building constructed thereon is permanent and as such transferable under paragraph No. 13 or it is a building of some other character. If a property is therefore transferred by auction under paragraph 14, I have no doubt that it would be transferred inclusive of the building on it, provided the building is not permanent.
7. The question whether a building is permanent or not or whether the property is a vacant building site or not is a question within the exclusive jurisdiction either of the Chief Settlement Commissioner or any other officer authorised by the Central Government in this behalf. In view of this the Rent Controller cannot have any jurisdiction to resolve any dispute if it is subsequently raised by any party including the occupant thereof, regarding the nature of the site or the constructions thereon.
If the building site has been auctioned under paragraph No. M and a dispute is raised before the Settlement Authorities, naturally the order of the Chief Settlement Commissioner or any other officer authorised by the Central Government shall be final. If, however, no dispute is raised there and the constructions were already in existence on the plot, it would be presumed that the constructions were of a character which would make the site a vacant building site and would be deemed to have been transferred to the transferee.
8. The terms "building site" and "permanent building" have been ,defined in Settlement Scheme No. VI. "Building site" is defined there as meaning----- "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-defined compound of a permanent building and shall include---
(a) a site of which the permanent construction, if any, put up by the evacuee owner does not exceed in area 1/8th of the site;
(b) any site on which a building after it became evacuee property was completely demolished by floods, fire, incendiaries or any natural calamity, whether or not any construction has subsequently been raised on it."
"Permanent building" means a building constructed under a plan :approved by the Public Works Department of the Central Government or Government of West Pakistan, Municipal Corporation or Committee etc. If the building has been constructed without such approval, it would be a permanent building. If it was 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 it would still be a permanent building. It is open to the Chief Settlement Commissioner to declare any other construction or class of constructions as a permanent building.
9. The definition of "permanent building" therefore, excludes from its ambit the buildings of which plan has not been approved either before or after the construction by a local body and where it does not cover at least -1/4th of the area of the building site or seventy-five per cent. Of the maximum area allowed for construction under the rules framed by the local body con--cerned. If this definition is applied to the explanation to paragraph No. 14, it will be clear that even the permanent buildings which are outside the preview of the term "permanent building" in Settlement Scheme No. VI would also pass on to the transferees. At this stage reference may be made to Mahmooda Tahsin v. Ijaz Hussain Shah (PLD1965SC618where it was held that the defini--petition of "permanent building" in Settlement Scheme No. VI, cannot add any limitation to paragraph 13 so as to deprive a person of his right in that paragraph. It was, therefore, held that a person who has raised permanent construction over a plot would be entitled to the area on which those con-- structions actually exist, subject to this that any necessary right for a passage or other easement which are essential to the enjoyment of the property which is to be transferred to such occupant will also be granted to him by the Settlement Authorities. It was further held that except for the area actually under construction and the area necessary for enjoyment for a passage or other easement no other portion of a particular plot can be transferred to the occupant. This view was adopted in Fazal-ul-Haq v. Said Muhammad (1968 SCMR 113), Niaz Din v. S. M. Akbar (1968 SCMR 221and Mohsan Khan v. Chief Settlement Com--missioner (1969 SCMR 306).
10. These authorities are, however, not applicable to the present facts. They are applicable to cases falling under paragraph No. 13 where it is stated that a person who has constructed building, whether allottee or non-allottee, in authorised possession or unauthorised possession, is entitled to the transfer of the plot, on which he has raised constructions. There is no scope left in paragraph 13 for limiting this provision in any other manner.
11. This cannot, however, be said about paragraph No. 14 of the Schedule. In this paragraph it has been left open to the Chief Settlement Commissioner or the Officer duly empowered by the Central Government to decide disputes, inter alia on the question whether there was a permanent building on the site or not so as to exclude it from the operation of this paragraph Scheme No. VI has been enforced under section 16 of the above Act by the Chief Settlement Commissioner with the permission of the Central Government. The approval of the two authorities i.e. the Central Government and the Chief Settlement Commissioner to the definition of permanent building being there, this definition will at least be intra vires in respect of a case covered by paragraph No. 14. The expression, `vacant building site' will, therefore, include the building which is otherwise permanent, provided it is not covered by the definition of `permanent building' in Scheme No. VI.
Although there appears to be no direct authority on this point but cases under section 10 of the above Act may be cited with advantage. Section 10(2)(b) authorises the Central Government to depart from the provision of the Act and its Schedule in regard to modes laid down therein for transfer of the property in the Compensation Pool, and to provide for a different mode of transfer.
Sometimes Schemes and instructions which had the approval or sanction of the Central Govern-- ment were held to be intra vires on the basis of the above power conferred upon the Government.
Thus in Muhammad Swalih v. Chief Settlement Commissioner, Lahore (PLD 1972 SC 326para. 20 of Settlement Scheme No. I, and a press note issued thereunder was justified on this ground. Sale of properties by negotiation was held justified for the same reason. M. M. Rashid v. Chief Settlement and Rehabilitation Commissioner (PLD 1963 Lah. 227), Muhammad Akbar v. Govern--ment of Pakistan (PLD 1966 Pesh. 132), Major J. H. Naqvi v. Director, Enforcement Directo--rate (PLD1966SC512), Gulam Fatima v. Settlement Commissioner (PLD1968SC147) (press note dated 7-4- 60 justified), Chief Settlement Commissioner v. Jamaluddin (1968SCMR697), Abdul Qayyum v.
Chief Settlement Commissioner (PLD1968SC362) and Majid A.I Naqvi v. Additional District Judge & Ex Officio Settlement and Rehabilitation Commissioner (1970SCMR375This analogy can apply to determine the validity of the definition of a: permanent building vis-a-vis paragraph No. 14.
12. The further argument of the learned counsel for the appellants that the construction belonged to the appellants is devoid of any force. The building site was inter alia acquired under section 4 of the above Act free from all encumberances. Moreover, an unauthorised construction would be in the nature of accretion to and would form part of the evacuee property or the property acquired on behalf of the Central Government as held in Shamima Khatoon v. Settlement and Rehabilitation Commissioner (PLD 1967 Kar. 315and the remedy of the appellants was to get a charge created for the amount invested by them. It was held in that case that :- "The ordinary law of the Land is that if a tenant or an occupant of a. Tenement adds some further construction in a building it would become an accretion to the building enjoyable by the owner of the property. It is in the nature op accretion to the property. Recently, this point was considered by a Division Bench of this Court in Writ Petition No. 820/1962, decided on 27th August 1965, to which I was also a party. In that case, it was urged by the petitioner that the construction raised by him was an evacuee property and could not be transferred under the Settlement Scheme. This contention was repelled by the Division Bench. My Lord the Chief Justice while dealing with this aspect of the case observed as under :- `In view of the above provision the amount that the petitioner may have invested in putting up the construction on the first floor of the building would be a charge on the property to the extent that such investment is accepted by the Chief Settlement Commissioner, and no more. Any addition to the evacuee property would form part of the same and it will be open to the Department to dispose of the property as it exists.'
It may be stated that the decision in the Division Bench case was reversed in appeal by their Lordships of the Supreme Court in Muhammad Swalih v. Chief Settlement Commissioner, Lahore on another ground but the point under Reference No. 2 was not overruled or dissented from.
13. In Ghulam Hussain v. Muhammad Hayat (PLD 1971 SC 573) the dispute was about a plot which was transferred to the appellant. The Rent Controller held that there was a relationship if landlord and tenant between the parties. He consequently passed an order of fixation of tenative rent under section 13(6) of the above Ordinance. This rent was reduced by the High Court in a second appeal.
The order of the High Court was reversed by the Supreme Court and the order of the Rent Controller was restored. It is apparent from the judgment that this property was being used for residential purposes. Their Lordships referred to section 30 of the above Act also while dealing with this case and held that "a person in possession of an evacuee property shall be deemed to be a tenant of the transferee on the same terms and conditions as payment of rent or otherwise .On which he held it immediately before the transfer." This obviously vas held in view of the residential character of the property. Although the points raised in these appeals were not raised before their Lordships but this case clearly goes to show that cases of residential plots having buildings on them are governed by section 30 of the Act and section 13 of the Ordinance.
14. In view of the finding that the property in dispute must be taken to have been transferred along with the construction thereon, although it may be a building site under the above Act, it cannot be doubted that it falls within the definition of "house" or "residential building" under the above Ordinance.
15. The upshot of the above discussion is that it was rightly held that the Rent Controller had jurisdiction.., over the matter. The appeals are without force and are, therefore, dismissed.
There will be no order as to costs.