' This petition by Muhammad Ibrahim and three others is under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for seeking declaration to the effect that the order of the Deputy Settlement Commissioner, Gujranwala dated 6-12-1976 is without jurisdiction, without any lawful authority, hence nullity in the eyes of law.
2. The facts are that the petitioners are successors-in-interest of Karim Bakhsh who came to Pakistan as refugee from Amritsar in 1947, occupied a vacant evacuee plot bearing No,B-XXI-13-S-7 situated in Abadi Hakam Rai Sher Singh Street, Chah Chauhanwala, Gujranwala (hereinafter described as building-site) and constructed a house over it after obtaining necessary sanction from the Municipal Committee, Gujranwala. Sanction was accorded by the Municipal Committee on 19-9-1954. He submitted a form for transfer under Settlement Scheme No,VI. The Deputy Settlement Commissioner without disposing of the said form auctioned the plot on 26-4-1967 in which Maula Bakhsh was the successful bidder. He got associated with him one Latif who deposited the price and further transferred his right in favour of Amanullah herein, respondent No,3.
3. Having come to know about the auction, Karim Bakhsh lodged an appeal before the Additional Settlement Commissioner which was accepted. The case was remanded for decision afresh. In pursuance of this order the Deputy Settlement Commissioner, Gujranwala by the impugned order dismissed the appeal of Karim Bakhsh. Hence this Constitution petition by the legal heirs of Karim Bakhsh.
4. In support of this petition, the learned counsel for the petitioners made the following submissions: ' Firstly, that admittedly Karim Bakhsh occupied the property in 1947, had raised construction over it and was, therefore, entitled to its transfer under Para 13 of Schedule to Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) (hereinafter referred to as the Act).
Strength was sought from Mst. Mahmooda Tehsin v. Ijaz Hussain Shah PLD 1965 SC 618, Abdul Malik v. Chief Settlement Commissioner PLD 1967 Lah.
520.
' Secondly; that the petitioners have submitted belated form; this was no ground for refusing the transfer of the disputed property in favour of the petitioners. Reliance was placed on Allah Baksh v.
Nizam Din and 2 others 1975 SCMR 182 and Allah Ditta v. Haji Jan Muhammad and 3 others PLD 1974 SC 113.
5. On the contrary the learned counsel for the respondents in reply raised an objection that the petitioners had neither filed form under Scheme No,VI nor they had agitated their right before the competent Settlement Department before the date of auction. They were disentitled to the relief under the Constitutional jurisdiction on account of delay and manifest inaction on their part.
Adding to it, the learned counsel pointed out that the conduct of the petitioners was tainted with fraud. He manoeured forged entry in Settlement Register regarding the circumstance of submission of form. On this ground this petition merited to be dismissed.
6. The arguments of the learned counsel for both parties have been heard at length. Fortunately the facts of the case are not in dispute. The unauthorised occupation of Karim Bakhsh from inception to this date over the plot is also not disputed; it is undenied that Karim Bakhsh had raised a permanent construction over the plot. Thus, position of the petitioners as unauthorised occupants of plot/building site is not contested. The only points for decision are:(i) whether the petitioners are not entitled to relief in Constitutional jurisdiction on account of the circumstance of inaction,(ii) whether the petitioners had not filed the form within the prescribed time and so are not entitled to its transfer.
7. Before I proceed to examine these questions, it would be appropriate to examine the relevant applicable law. The Displaced Persons (Compensation & Rehabilitation) Act, 1958, was promulgated on 26th March, 1958, "with an object to provide for the payment of compensation to certain displaced persons for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and the rehabilitation of others and for matters incidental thereto or connected therewith". A Schedule was provided in this Act to provide the manner of disposal of Urban Evacuee properties described in the Act and forming part of compensation pool. Para 13 is relevant which is 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 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; (6)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."
' In pursuance of the aforesaid para, the Chief Settlement Commissioner framed Scheme No,VI dealing with the disposal of building sites. Under Para 2 the Chief Settlement Commissioner was authorised to invite applications for the transfer of building sites from the persons who had put up permanent constructions on them in accordance with the provisions of para 13 of the Schedule to the Act. There is no dispute that the Chief Settlement Commissioner did notify the time for the purpose of submission of applications from time to time published in the official Gazette. The case of the petitioners is that they submitted application while the case of contesting respondents is that they have not submitted any application. The filing of appeal is undisputed.
7. It seems clear from the reading of Para 13 of the Schedule read with Scheme VI that the persons who were in authorised occupation of building site and had raised construction, were given right to purchase it with an object to settle them permanently and integrate them in the socio-economic life of the State. This point came up for consideration before the Supreme Court in Mst. Mahmooda Tehsir v. S. Ijaz Hussain Shah etc. PLD 1965 SC 618. After dealing with the contentions of the parties, it was laid down that the unauthorised occupants were clothed with legal right to purchase the building site in their possession over which they have raised permanent construction. It will be instructive to quote the relevant passage from this judgment. It reads as under: "While on the one hand the irrelevancy of the definition in the scheme helps the appellant inasmuch as she is relieved of the necessity of proving that her case falls within one of the categories mentioned in the definition, it goes against her inasmuch as her right to transfer of the vacant land is concerned. In accordance with the definition if she had built on 1/4th of the plot she could be entitled to the transfer of the whole plot. However, this does not appear to be the right granted by paragraph 13 of the Schedule. That paragraph provides for the transfer only of the plot which is in possession and on which there is a building. Now this may not necessarily mean that only the precise area on which a construction exists is to be transferred. It will have to be decided on the circumstances of each case as to whether there is a permanent construction on a plot although the construction does not cover the whole plot. Some ground may have been left open as a lawn in a house or as a courtyard or for a path or for some similar object in which case the open space should also go alongwith that part of the plot on which a construction actually exists, because it could be urged that the building is on the whole plot and not merely on the portion actually covered by the construction. When a person builds a house on a plot he does not cover every inch of the plot with construction. But apart from such consideration it should be clear that under paragraph 13 a person cannot be entitled to anything more than the plot on which the construction has been raised. Of course the Settlement authorities may with the approval of the Government have power to transfer an area apart from the scheme, but that is not the point with which we are concerned. We are only considering the scope of a scheme which is framed for giving effect to para. 13 ' From the preceding discussion it follows that the refusal of the Settlement authorities to transfer the land to the appellant on the ground that it was not within the purview of Scheme No,VI is unjustified. The appellant is entitled to a transfer of the land in her possession which she has built upon. The order of the Settlement authorities is therefore set aside and there will be a determination afresh now of the right of the appellant to the transfer. The right will be confined to the area in her possession subject of course of this that any necessary rights for a passage or other easement which are essential to the enjoyment of the property which is to be transferred to the appellant will also be granted to her by the Settlement authorities."
' This view was followed by the Division Bench of this Court in Abdul Malik and others v. Chief Settlement Commissioner, Lahore etc. PLD 1967 Lah.
520. Again the same view was reiterated in Major Abdul Qadir Khan v. Abdul Hamid and others 1976 SCMR 415.
8. Applying this principle to the admitted facts and circumstances of the case I have no difficulty in reaching the conclusion that Karim Bakhsh on account of his unauthorised occupation and raising of permanent construction over the plot was equipped with a vested legal right to its transfer in accordance with para. 13 of Schedule to the Act.
9. Now I take up the next question. The contention of respondents in brief is that neither the petitioners submitted form under Scheme No,VI nor they agitated their right before the competent Settlement Authority till the date of auction. This contention has two parts. The first one regarding the non-filing of form does not appeal to the reason. As noted above that the petitioners had been in occupation of the property in dispute since 1947: had raised permanent construction over the plot after getting the sanction from the Municipal Committee twice. To such a vigilant person this lapse cannot be attributed. The contention to this extent is thus untenable and is accordingly repelled. As regards the second part of the arguments it is sufficient to say that the petitioners were entitled to transfer under para. No,13. The filing of form under Scheme No,VI is meant to facilitate the determination of right of unauthorised occupation within a time prescribed by the Chief Settlement. Commissioner. The Scheme is facilitative in nature and does not extinguish the right of unauthorised occupation. This question was considered in Ch. Altaf Hussain etc. v. The Chief Settlement Commissioner etc. PLD 1965 SC 68. It was laid down:- ' The contention that this form was submitted out of time is grounded on paragraph 2, Chapter II of Settlement Scheme No,1 prepared by the Chief Settlement Commissioner under directions of the Central Government by virtue of powers conferred by section 16(1)(b) and (c) of the Act. This paragraph 2 of Chapter II prescribes that the Chief Settlement Commissioner 'shall from time to time by notification in the official Gazette, invite applications for the transfer of property under this Scheme from such persons as may be specified in the notification'. The argument was advanced in the High Court and has been repeated before us that only two notifications were issued by the Chief Settlement Commissioner under this provision, which are printed at pages 305 and, 73 of the Manual. By the first notification, dated the 19th of May, 1959, the last date fixed for applications under paragraph 2 of Settlement Scheme No,1 was the 15th day of July, 1959. Subsequent to these two notifications it appears that Press-notes and Memoranda were being issued from time to time by the Chief Settlement Commissioner granting further extensions for such applications but it is true that at the time when Mr. Bashir Ahmad accepted the second form of Mr. Altaf Hussain, no such extension Memorandum or Press-note existed. Subsequent to that date, however, Press-notes or Memoranda were issued from time to time and applications of this character admitted by the relevant authorities. Contention therefore raised on behalf of the Settlement Department as well as on behalf of Mr. Shabbir Hussain that the only legal mode of extension possible, of the time limit for such applications, being by a notification in the Gazette, all subsequent extensions of time allowed under orders of the Chief Settlement Commissioner were invalid appears to be contrary to the practice that has undoubtedly prevailed in this respect in the Department. If such a contention is acceded to, all these subsequent Press-notes or Memoranda, would have to be treated as without legal sanction. The true view, however, of the provisions of paragraph 2 of Settlement Scheme No,1 seems to be that this is a mere enabling provision which empowers the Chief Settlement Commissioner to invite applications for the transfer of property under the Scheme, from relevant persons, from time to time. The paragraph does not in terms authorize him to lay down a limiting date for the purpose and construing this paragraph strictly, it would not be right to import any such limiting factor into the situation.
' In this connection, however, reliance was placed on section 11 of the Act by Mr. Shabbir Hussain and on section 23 of the Act by Mr. M. Anwar on behalf of the Department. Section 23 of the Act merely confers certain powers enjoyed by a Civil Court under the Code of Civil Procedure, on officers appointed under the Act for the purpose of making an inquiry or hearing an appeal under the Act. These provisions appear to have no relation to the question that calls for determination in respect of limitation for claim forms. The language of section 1.1 of the Act too does not appear to afford any assistance to the argument advanced by Mr. Shabbir Hussain that this provision arms the Chief Settlement Commissioner with power to lay down a point of limitation for such forms. In terms, section 11 is confined to the power os the Chief Settlement Commissioner to invite applications for the payment of compensation under the Act, from such claimants as may be specified in a notification from tine; to time. But an application claiming compensation is to be distinguished from a claim form requesting for transfer of a particular property in lieu of the assessed compensation for a verified claim. None of the provisions referred to, therefore, can be invoked to import a limitation of time for such claim forms though for reasons of convenience a Chief Settlement Commissioner may call for applications by a certain date. This would not, however, imply that a claim form accepted after such a date would necessarily be illegal. On this score, therefore, the second claim form of Mr. Altaf Hussain could not be declared as invalid as the learned' Letters Patent Bench of the High Court seems to have done. To do so, would amount to making a fetish of a technicality. At the relevant point of time no order extending the period of so- called limitation existed but subsequently the door was repeatedly opened for letting in such forms.
10. The rule laid in Ch. Altaf Hussain etc. Ibid, was followed in Abdul Malik and others v. Chief Settlement Commissioner Lahore others PLD 1967 Lah. 520, Ch. Sadiq Ali v. Settlement Commissioner, Lyallpur and 6 others 1977 SCMR 440, Major Abdul Qadir Khan v. Abdul Hamid and others 1976 SCMR 415 and Abdul Qadir v. Sh. Muhammad Idrees 1975 SCMR 182.
11. The ratio emerging from the aforenoted authorities is that the requirement of filing the form under Scheme No,VI issued under Para 13 to Schedule was of facilitative nature and was not a condition precedent for determination of rights of persons who were entitled to transfer. Applying it to the facts of this case it is quite clear that when Karim Bakhsh had a knowledge of the auction he rushed to file an appeal before the competent Settlement Authorities and stated to the effect that neither his form has been dealt with nor his rights were determined and that this plot was not capable of auction in view of clear statutory embargo embodied in Para 13 read with Para 9 of the Scheme. There was no warrant for coming to conclusion that the form submitted by Karim Bakhsh was a forged document and so he was not entitled to this transfer.
In the light of preceding analysis, I have no difficulty in reaching the conclusion that the order passed by the Deputy Settlement Commissioner is violative of mandatory provisions embodied in para. 13 and so has been read with para. 9 of Schedule passed without any lawful authority. It is declared as such and is hereby quashed. The petitioners are held entitled to the transfer of building site in dispute under para. 13 read with Scheme No,VI. The petition is accordingly accepted with requested relief. The case is remitted to the notified officer who shall transfer the property in dispute in accordance with law. He shall issue necessary transfer documents in favour of the petitioners. In consonance with para. 13 of Schedule read with Scheme No,VI there shall be no order as to cost.