The dispute in this case relates to property No. P. 32, Ward No. 10, Sargodha Road, Lyallpur. Its total area is about 8 kanals. According to the petitioner, the evacuee owner before migrating to India, had developed the area by constructing a pucca boundary wall about 7 feet high, had laid out four lawns with fruit trees and flowers beds, bordering the grassy plots in the middle. He had also constructed six outhouses and two garages. The main bungalow was, however, not yet constructed, but only its plinth had been laid out and raised to a height of 3 feet above the ground.
The main entrance of the bungalow had a wooden gate. There was also a hand-pump installed on the northern side of the property. The property was assessed to house tax from 1944-45 onward.
Syed Nazir Hassan petitioner is a claimant displaced person. In 1947, he was given possession of one outhouse and a garage and subsequently, on 20-5-1950, a regular allotment order was also issued in his favour by the Deputy Rehabilitation Commissioner. He claims to have constructed in 1956 two pucca rooms over a part of the plinth area of the main bungalow which was in his possession. He also built a boundary wall enclosing his own portion. He also installed a hand-pump within his enclosed portion. The remaining outhouses and garages were allotted to some other persons who are petitioners in the connected writ petitions. It is alleged by the petitioner that one Mirza Muhammad Aslam, a brother of the then City Inspector of Police, Lyallpur, took possession of the vacant portion of this property with the help of the local police and then on 18-10-1950 secured a lease deed for three years from the Department in the name of Fazal Muhammad respondent.
The said Mirza Muhammad Aslam built two small rooms and then started calendering business.
This business being unsuccessful, he soon abandoned the same and tried some other ventures unsuccessfully. Ultimately, he started parcelling out small plots to different persons who then raised their own structures and khokhas and used them as shops. Some of those persons later on also applied for transfer of their respective portions and are petitioners in the connected writ petitions. Later on said Mirza Muhammad Aslam disappeared and in his place the present respondent Fazal Muhammad appeared on the scene and filed form for the transfer of the entire property.
2. After the commencement of settlement operations the petitioner filed C. H. Form for the transfer of the portion in his possession. The other occupants of other portions also submitted their respective forms for the transfer of their respective portions. The petitioner claims that during 1960, 1961 and 1962, he repeatedly approached the office of the Deputy Settlement Commissioner to enquire about the fate of his C. H. Form but every time he was told that the file of the property had been requisitioned by the Enforcement Staff and that his C. H. Form would be dealt with as soon as the file was received back from there. It is also alleged by the petitioner that a brother of Fazal Muhammad respondent was a Police Officer attached with Enforcement Staff at the relevant time and he illegally removed the file of the case and kept the same there although the Enforce--ment Staff had no concern with the same. The petitioner then complained to the local Deputy Commissioner regarding the attitude of the office of the Deputy Settlement Commissioner. It was after the intervention of the Deputy Commissioner, Lyallpur, that the petitioner learnt that his C. H.
Form along with other forms was rejected by the Deputy Settlement Commissioner vide his ex parte order dated 16-9-1960 on the ground that the property had less than 1/8th constructed area in 1946-47, and, therefore, did not fall under the category of a house and as such, could not be disposed of under Settlement Scheme No. I. It was further held by the Deputy Settlement Commissioner that the property was to be disposed of as a plot under Settlement Scheme No. VI.
Through another ex parte order dated 5-4-1961, the Deputy Settlement Commissioner transferred the entire property as Khata in favour of Fazal Muhammad respondent as he alone had filed form under Settlement Scheme No. VI. Against these two orders of the Deputy Settlement Commissioner dated 16-9-1960 and 5-4-1961, the present petitioner filed a belated appeal before the Additional Settlement Commissioner. Alongwith the appeal the petitioner also filed an application under section 5 of the Limitation Act for the condonation of delay. The other occupants of the property also filed similar appeals. It seems, no objection regarding limitation was either raised or entertained by the Additional Settlement Commissioner as he disposed of the appeals on merits.
Mr. Muqarrab Khan, the Additional Settlement Commissioner by his order dated 19-1-1963 dismissed all seven connected appeals including that of the petitioner. The petitioner and other occupants challenged the order of the Additional Settlement Commissioner, through separate revision petitions before the Settlement Commissioner who vide his order dated 10-3-1966, dismissed the same on the ground that either appeals before the Additional Settlement Commissioner or revision petitions before him were barred by limitation. He observed that in the present case, certified copies of the orders of the Deputy Settlement Commissioner dated 16-9- 1960 and 5-4-1961, were delivered to the petitioner on 20-10-1962 and 6-10-1962, respectively, and the appeal was instituted on 8-11-1962, before the Additional Settlement Commissioner. According to the Settlement Commissioner, the appeal was barred by limitation. It was further observed by the Settlement Commissioner that the petitioner had not shown any reason as to why he did not prefer the appeal within time after getting the certified copies. Accordingly, it was held by him that the petitioner was not entitled to the condonation of delay for filing the appeal and the same was time-barred. He accordingly dismissed the revision petition on this ground alone. Feeling aggrieved with the impugned orders the petitioner has invoked the Constitutional jurisdiction of this Court through the present writ petition. The other occupants have also filed similar writ petitions. The main judgment is being delivered in the present case.
3. It is an admitted fact that Syed Nazir Hassan petitioner is a claimant displaced person and had filed C. H. Form for the transfer of the portion in his possession. It is not denied that his C. H. Form along with others was rejected by the Deputy Settlement Commissioner vide his impugned order dated 16-9-1960 without issuing any notice to him or otherwise affording any opportunity of being heard. Even the ex parte order rejecting his C. H. Form was never communicated to him. As mentioned earlier, the petitioner had been making enquiries from the office of the Deputy Settle-- ment Commissioner about the fate of the C. H. Form and every time he was told to wait till the file was received from the Enforcement Staff. It was after great efforts that he learnt that his form had already been rejected and that the entire property already stood transferred in favour of Fazal Muhammad respondent. It is in this background that we have to determine the validity of the impugned order of the Deputy Settlement Commissioner dated 16-9-1960, rejecting the C. H. Form of the petitioner and others without issuing any notice or otherwise affording any opportunity of being heard. The petitioner had filed his C. H. Form under Settlement Scheme No. I. Under paragraph No. 7 of the Scheme the Deputy Settlement Commissioner is required to scrutinize the form of the applicant. If he finds that the form is not in conformity with the rules in material respects or that it does not contain essential information, he shall return the same to the applicant with a memorandum of objections requiring the applicant to comply with the objections within fifteen days. The Deputy Settlement Commissioner may extend this period of fifteen days on sufficient cause being shown. Under paragraph No. 8 the Deputy Settlement Commissioner is to make such enquiries as may be necessary for the purpose of ascertaining the entitlement of the applicant. According to paragraph No. 10, if the applicant does not appear to be entitled to retain the property the Deputy Settlement Commissioner shall issue notice of fifteen days to the applicant stating the points requiring clarification. The notice shall state the place and the date for the appearance of the applicant and shall warn him that if he does not appear on the appointed slate, his case shall be decided ex parte. The notice shall also direct the applicant to produce all the documents in his possession or power upon which he relies in support of his case. According to paragraph No. 11 where the Deputy Settlement Commissioner is satisfied that the notice was duly received by the applicant but he has failed to appear in response to the notice, he may decide the matter ex parte. In that case, a copy of the ex parte order so passed shall be served on the applicant by hand or by registered post acknowledgment due. Where an ex parte order is made the applicant may within fifteen days of the date of the receipt of the order, make an application to the Deputy Settlement Commissioner for setting aside the order and if the Deputy Settlement Commissioner is satisfied that the notice was not duly served on the applicant or that the applicant was prevented by sufficient cause from appearing on the appointed date, he shall set aside the order. Under paragraph No. 12 of the Scheme the Deputy Settlement Commissioner may examine the applicant or his counsel or his agent with regard to all or any of the statements of fact made in the form and the substance of such examination shall be reduced to writing by the Deputy Settlement Commissioner. Where at the first hearing all the relevant points are clarified and no controversial issues remain to be decided, the Deputy Settlement Commissioner shall make an order with regard to the entitlement or otherwise of the applicant and shall supply a copy of the order to the applicant free of costs. Under paragraph No. 15 the applicant shall be given reasonable time for production of the evidence in support of his case. If hearing the case the Deputy Settlement Commissioner is satisfied that no further enquiries are necessary, he shall then pronounce his order on the date on which the evidence is closed and shall supply a copy of the order to the applicant free of charge. Thus, this Scheme contemplates a full-fledged enquiry in which the applicant is to be given an opportunity of being heard and produce his evidence, if any, in support of his claim. He is also entitled to get a copy of the order free of charge. It is thus abundantly clear that under the provisions of Scheme No. I the petitioner was entitled to receive notice from the office of the Deputy Settlement Commissioner and to prove his case by producing evidence, if necessary. In the instant case, no inquiry as required by the Scheme was held by the Deputy Settlement Commis--sioner to ascertain the entitlement of the petitioner. His C. H. Form has been rejected ex parte without complying with the requirement of the Scheme. The petitioner was never issued any notice, nor any opportunity was afforded to him to substantiate his right to claim the transfer of the property in question. Even the ex parte order was not conveyed to him.
Settlement Scheme No. I has been framed by the Chief Settlement Commissioner under section 19(1) (b) and (c) of the Displaced Persons (Compensation and Rehabilitation) Act, and has been duly approved by the Central Government. This Scheme, therefore, has acquired statutory Status and its contravention will render the impugned order as having been passed without lawful authority. In these circumstances, it ca safely be held that the C. H. Form of the petitioner has not been disposed of in accordance with the provisions of the Scheme and consequently the impugned order of the Deputy Settlement Commissioner dated 16-9-1960, is, therefore, void and liable to be ignored. Reliance in this behalf can safely be placed upon the decision of the Supreme Court in Muhammad Ashraf's case (1973SCMR403
4. Mr. Ijaz Hussain Batalvi, learned counsel for the contesting: respondent, has frankly conceded that no notice or opportunity of being heard was given to the petitioner by the Deputy Settlement Commissioner but that fact itself will not render the impugned order of the Deputy Settlement Commissioner as void. His argument is that since the petitioner has been duly heard by the Additional Settlement Commissioner and the Settlement Commissioner in appeal and revision respectively, the defect, if any, in the order of the Deputy Settlement Commissioner stands cured. I am afraid, this argument is not applicable to the facts of the present case. If the requirement of notice or opportunity of being heard is based upon the principle of natural justice, perhaps this argument would have some force. In the instant case, however, the Deputy Settlement Commissioner by not issuing any notice or affording any opportunity of being heard to the petitioner and not conveying the ex parte order to him, has clearly violated the provisions of Settlement Scheme No. 1. It is, therefore not only the violation of the principle of audi alteram partem, but clear defiance of the statutory provisions of the Scheme. In such a situation, the fact that the petitioner was subsequently heard by the higher Settlement authorities in appeals or revision, will not remove the infirmity suffered by the order of the Deputy Settlement Commissioner.
Reliance can be placed upon the following observation of their Lordships of the Supreme Court in Atta Muhammad Qureshi's case (PLD1971SC61 "The argument that the appellant had an opportunity of being heard by the Settlement Commissioner, which is a sufficient redress for his grievance may be well founded when the grievance is made to rest on the principle of natural justice, viz. audi alteram partem (no body is to be condemned unheard). But when an absolute requirement of the statute has been defined, the order passed is a nullity."
Thus, in view of the principle enunciated by the highest Court of the realm,, the first impugned order of the Deputy Settlement Commissioner dated 16-9-1960 will clearly be void. The basic order dated 16-9-1960 passed by the Deputy Settlement Commissioner being void, the subsequent orders passed by the Deputy Settlement Commissioner the Additional Settlement Commissioner and the Settlement Commissioner, upholding the earlier order of the Deputy Settlement Commissioner, will have no value in the eye of law. The following observation of the Supreme Court in Muhammad Aslam Zia's case (PLD 1958 SC (Pak.) 104), is fully applicable to the present case :----- "And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
5. The learned counsel for the respondent has further argued that the present case is covered by Scheme No. VI and not Scheme No. I, as the property in dispute has been rightly held as a `building site' by the Settlement authorities. According to him since no one except his client had filed B. S. Form under Scheme No. VI, the property in question was rightly transferred in favour of Fazal Muhammad respondent and the same could not be transferred in favour of the petitioner or anyone else against his C. H. Form. It is an admitted fact that the main bungalow was not yet constructed by the evacuee owner when he migrated to India in 1947. Only the plinth of the bungalow had been laid out and raised: to a height of 3 feet above the ground. According to the petitioner in 1947, the evacuee had left behind six outhouses and two garages. The petitioner is the allottee of two of them. Subsequently, he claims to have constructed two more rooms in 1956. Thus, the exact factual position in 1947, was that there was no main bungalow in existence except the raised plinth, but there were six outhouses and two garages in existence. The word "house" has been defined under section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as "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 . . . . . " Thus, according to the definition of "house" an out--house or a garage will be a part of the house provided it is attached to or appurtenant to the house. In the instant case, the main bungalow or house being non- existent the question is whether still these outhouses, if any, and garages can be treated as part of such non-existent bungalow or can they be treated as independent residential premises or units. 1t is conceded by the learned counsel for the petitioner that if the main bungalow had been in existence, then the petitioner could not claim the transfer of any outhouse or garage in his favour, as the same would be deemed as part of the main bungalow or house. However, the position at present is entirely different. There are in existence only outhouses an garages but no bungalow. No doubt, the original evacuee owner intended to use the same as outhouses or garages for his m .In residential bungalow, he however, did not construct that bungalow before his departure to India in 1947. The question which therefore, arises for consideration is whether the outhouse and garage in possession of the petitioner still can be said to be attached to or appurtenant to the bungalow which does not exist. The expression "attached to or appurtenant to" pre-supposes the existence of a main house or bungalow. In the absence of such a house, mere outhouses and garages cannot be said to be attached to or appurtenant to a non-existent house or existing raised plinth over which such a house may be constructed in future. Further, the expression "such premises" immediately after the words "appurtenant to" are referable to the house or residential premises mentioned earlier in clause (4) of section 2 of the Act. In the absence of the main house or residential premises mentioned in the beginning of this clause, mere garage or an outhouse cannot be said as attached to or appurtenant to such non-existent house. Thus, if the area which was initially to be .Covered by the main bungalow is still an open space, outhouses and garages in existence cannot be considered as "attached to" "or appurtenant -to" such an open space. On the other hand, such outhouses and garages can safely be treated as independent residential premises or units by the Settlement authorities The petitioner claims to be in possession .Of his portion since 1947 and is using the same for residential purposes. In this background, and outhouse and a garage in possession of the petitioner since 1947, will not be attached to or appurtenant to the open space which at one time was meant for constructing the main bungalow ..And, therefore, cannot be treated as part of it. In fact, in the absence of the main house or bungalow such outhouse or garage can no longer be termed as an outhouse or a garage as mentioned in section 2, clause (4) of the Act. On the other hand, such outhouses or garages can safely be treated as independent houses or residential units by the Settlement Authorities Under Settlement Scheme No. I.
6. Settlement Scheme No. VI deals with the disposal of building sites. The Deputy Settlement Commissioner vide his impugned order dated 16-9-1960, treated the entire property as building site or a plot on the ground that in 1946-47 the constructed area was less than 1/8 of the -total area. According to the learned counsel for the petitioner this finding is factually incorrect and is based upon the report of the Settlement Inspector who made the same without any notice to the petitioner. According to him, the constructed area was mere than 1/8th. There is not sufficient material available on the record to come to any positive conclusion on this aspect of the case. In such a situation, it is not for this Court in exercise of its extraordinary Constitutional jurisdiction to go into such a question of fact. It appears that the Deputy Settlement Commis--sioner has relied upon the provisions of Settlement Scheme No. VI where the expression "building site" has been defined and this condition of 1/8th has been laid down. Without expressing any opinion about the construct--ed area, we can consider the validity of this provision of the Settlement Scheme imposing condition of construction of 1/8th. The expression `building site' has been defined under Scheme No. VI, Chapter I, as under :---- "1(2) `Building site' means 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 on which the permanent construction, if any, put up by the evacuee owner does not exceed in area 1/8th of the site---------------------------------.--- The disposal of building sites is contained in paragraph 13 of the Schedule attached with the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned counsel for the respondent has not been able to point out any provision of the Act or the Schedule in support of this condition of construction of 1/8th. The question therefore, which arises for determination is whether in the absence of such a condition in the main Act or the Schedule, the Chief Settlement Commissioner while framing a Scheme can impose such a condition and whether that condition is, consistent with the provisions of the Act or not. It is an admitted fact that the Act and the Schedule are competely silent about any such condition. If the Legislature intended to impose such a condition, it could express its intention in clear words by making such a condition as part of statute or the Schedule. In the absence of such a provision the intention of the Legislature appears to be quite clear that it did not want to impose such a condition. The Chief Settlement Commissioner has framed Scheme No. VI under section 16(1)(b) and (c) of the Act. This section starts with "subject to the provisions of this Act and the rules made there--under . . . . ." This clearly means that the Scheme to be framed by the Chief Settlement Commissioner must be subject to the provisions of the Act and the rules made thereunder. In other words, the Scheme cannot be contrary to or repugnant to the provisions of the Statute. As observed earlier, the expression "building site" as given in the Schedule does not contain any condition regarding construction of 1/8th of the site. It is only under Scheme No. VI that the Chief Settlement Commissioner had imposed this condition. In the absence of any provision regarding such a condition in the Act or the Schedule, this condition will not be consistent with paragraph 13 of the Schedule. The Chief Settlement Commissioner while framing this Scheme under the Act could not add any limitation to the definition of `building site' so as to deprive a person of a right to get transfer of such a building site under the Schedule. It is not denied that if this condition of construction of 1/8th had not been there in Scheme No. VI, perhaps the property in question could not be treated or declared as a "building site". After considering the various provisions of the Statute and the Scheme I am clearly of the view that clause (1), paragraph 1(2) of Chapter I of Scheme No. VI imposing condition of the construction of 1/8th is clearly repugnant to the Act and the Schedule. The Chief Settlement Commissioner, therefore, while adding this condition had clearly gone beyond the Statute. This conclusion gets support from the decision of the Supreme Court in Mehmooda Tahsin's case (PLD1965SC618).
7. Another argument advanced on behalf of the contesting respondent is that the property having been held a "building site" and the petitioner having filed his C. H. Form under Scheme No. I and not submitting any form under Settlement Scheme No. VI, his C. H. Form was rightly rejected and the respondent alone having filed BS form, was rightly transferred the plot in question. I find no substance in this argument. Both under Settlement Scheme No. I as well as Settlement Scheme No. VI, the property can be transferred in favour of an applicant provided he applies for the same.
Under the Schedule, it is provided that houses, shops and building sites etc. Can be transferred only on the desire of the applicant. Such desire is to be expressed by filing a particular type of form according to the nature of the property and the status of the applicant. Unless such a desire is expressed by the applicant, the Department cannot automatically on its own transfer a particular property in his favour. Once a form is filed by an applicant for the transfer of a particular property, the condition of expressing his desire is fulfilled. Thus in the instant case, the petitioner had expressed his desire for the transfer of the portion in his occupation by filing his C. H. Form. If for any reason the Settlement authorities had come to the conclusion that the property in question could not be disposed of under Settlement Scheme No. I against C. H. Form but being a building site was to be disposed of against B. S. Form under Scheme No. VI, the question which will then arise is whether C. H. Form already filed by the petitioner could be considered for the transfer of the plot. In other words, the question is whether C. H. Form filed by the petitioner could be converted into B. S. Form. As observed earlier, the requirement of the law is that the applicant should express his desire to get the property. In the instant case, this condition is fulfilled when the petitioner filed his C. H.
Form for the transfer of the portion in his occupation. Once he had expressed his desire by filing some form for the transfer of the property, then it was statutory obligation. Of the Settlement Authorities to consider his case on merits. It is well settled now that there is no legal bar for a Settlement Authority to convert a C. H. Form into B. S. Form. Mr. Batalvi, the learned counsel for the contesting respondent, has frankly conceded and rightly so, that the C. H. Form of the petitioner could be converted and considered as B. S. Form by the Settlement Authorities. His contention, however, is that the petitioner did not avail this chance as he did not ask for such a conversion before the relevant Settlement Authority. I, however, find that the Deputy Settlement Commissioner never gave any such opportunity to the petitioner and disposed of the case in his absence. The Additional Settlement Commissioner and the Settlement Commissioner proceeded entirely on erroneous premises and did not apply their minds to this aspect of the case. After taking into consideration the relevant provisions of law and the facts of the case, I am clearly of the view that even if the property in dispute was to be treated as a "building site", the C. H. Form filed by the petitioner could legally be considered as B. S. Form for the transfer of that plot. The failure on the part of the Settlement authorities to consider this aspect of the case has resulted in miscarriage of justice. According to the application filed by Fazal Muhammad respondent and the report dated 9- 11-1963, submitted by the Settlement Inspector, the property in question namely, P. 32, is occupied by more than 30 persons some of whom are claimants and others non-claimants. Some of them are using it for residential purposes, while others as commercial snits. The main object of the Settlement law is to settle the largest number of displaced persons. If the Settlement authorities had approached this case from a right angle, perhaps several displaced families could be settled on the property in dispute. It is vehemently argued by the petitioner that the Settlement authorities have shown a special favour to the contesting respondent by transferring the entire property in his favour, while already he has got properties transferred in his favour elsewhere both in urban and rural areas. Since I am remanding the case, I need not express any opinion in this behalf.
8. As mentioned earlier, the Settlement Commissioner had dismissed some of the revision petitions of the persons, who are petitioners in the connected writ petitions, on the ground that they were barred by limitation. It is well settled now that no period of limitation is prescribed by the Statute or the rules for filing such revision petitions. The Press-note issued by the Chief Settlement Commissioner prescribing period of limitation for revision petitions had already been declared as without lawful authority by the Supreme Court of Pakistan.
9. For the foregoing reasons, the impugned orders passed by the various Settlement authorities are clearly without lawful authority and of no legal effect and I declare the same as such. The writ petition is allowed with costs.
The case is remanded to the Deputy Settlement Commissioner, Lyallpur, for fresh decision in accordance with law after giving notice to the parties concerned.