' The urban property measuring 3-1/2 Marlas in Khasra No,5052 situated in Mohallah Sheikhan, Kamalia, District Lyallpur (now Faisalabad) is the bone of contention between Nizam Din, Qamar Din sons of Sultan Muhammad (herein petitioners) and Maula Bakhsh (herein respondent No,2).
During the pendency of this petition both petitioner No,1 and respondent No,2 had died and had been substituted by their legal heirs.
2. This case has a chequered history Nizam Din and Qamar Din submitted B.S. Form No, 1120 under Scheme No,VI alleging therein that they were in unauthorised possession of property measuring 3 1/2 Marlas in Khasra No,5052 and 8 Marlas in Khasra No,5049/2 situate in Mohallah Sheikhan, Kamalia (District Faisalabad) and they have raised permanent construction over it. The Deputy Settlement Commissioner by order, dated 14-4-1961 made the order of transfer of the aforenoted property in their favour. The P.T.O. Was issued in their favour on 29-7-1961. The petitioners deposited the full price and in lieu thereof obtained the P.T.D.
3. The Inspector, Settlement Department made a report to the effect that the property in dispute measuring 3-1/2 Marlas in Khasra No,5052 was in unauthorised occupation of Maula Bakhsh who had raised permanent construction over it and so he be transferred this property under para. 13 of Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, Act XXVIII of 1958 (hereinafter referred to as an Act). On the basis of this report, on 18-9-1964 the Deputy Settlement Commissioner transferred the property in dispute in favour of Maula Bakhsh. This was the starting point of dispute, leading to filing of complaint by the petitioners before the Deputy Settlement Commissioner on 29-9-1964 to the effect that the property stood already transferred to him and so the transfer in favour of Maula Bakhsh was illegal, without jurisdiction and without lawful authority.
This application was dismissed by the Additional Settlement Commissioner by means of order, dated 26-3-1965. The petitioners unsuccessfully challenged this order before the appellate Settlement authority as well as the revisional authority. Feeling dissatisfied with these decisions, the petitioners challenged these orders by filing Constitution Petition No,1343-R of 1965 which was accepted by this Court by order, dated 27-9-1972. The learned Single Judge remanded the case to the Deputy Settlement Commissioner for deciding the case afresh on merits after hearing both the parties in accordance with law. This was the first round of litigation in this Court.
4. Pursuant to this remand order, the Deputy Settlement Commissioner again dismissed the complaint of the petitioners by holding that Maula Bakhsh/refugee was in possession of the premises in dispute and had raised permanent construction over it. Undaunted by this failure, the petitioners filed revision petition which was also dismissed vide order, dated 10-11-1973. For the second time, the petitioners invoked the Constitutional jurisdiction of this Court against these orders. The petition was accepted by his Lordship Mr. Justice Zaldud-Din Paul vide order, dated 10- 12-1974 by concluding that the order of the revisional Court was not a speaking order and was, therefore, without any lawful authority. The case was remanded to the Additional Settlement Commissioner to dispose it of afresh on merits. The Additional Settlement Commissioner in pursuance of this remand order passed the impugned order again holding that Maula Bakhsh was in unauthorised occupation of premises in dispute and had raised permanent construction over it and so was entitled to its transfer under para. 13 in Schedule of the Act. Hence this Constitution petition.
5. In disputing the correctness/validity of impugned order the learned counsel for the petitioners advanced following arguments:- ' Firstly; It was contended that the respondent in written statement filed in Constitution petition bearing No,1343/R of 1965 had taken up the stand that his unauthorised possession started from July, 1959. On the basis of this fact, it was asserted that the petitioners were entitled to transfer of the house under para. 13 in Schedule in view of the mandatory requirement embodied in section 2(vi) of the Act. According to him the Additional Settlement Commissioner committed error of law by overlooking this aspect of the case.
' Secondly; Learned counsel then maintained that the Additional Settlement Commissioner had rendered the finding on the basis of documents annexed with this petition bearing Annexures Nos.
'C', 'D' and `E'. All the three documents were totally irrelevant to establish the unauthorised possession of respondent over the property in dispute. According to him the finding of the learned Additional Settlement Commissioner was built upon these irrelevant and inadmissible documents.
Reliance was placed on Jalal Din v. Muhammad Rafiq PLD 1965 SC 261 and Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division Lahore and another PLD 1974 SC 193.
' Thirdly; It was lastly submitted that Maula Bakhsh had not submitted any form under Scheme No,VI. Alternatively it was suggested that Maula Bakhsh had failed to establish by cogent evidence, the receipt of form under Scheme No,VI by Settlement authorities. On the strength of these, it was represented that Maula Bakhsh was not entitled to transfer of the property in dispute under .Para. 13 as the filing of form under Scheme No,VI was a condition precedent.
6. On the contrary, learned counsel appearing on behalf of the respondents supported the impugned decision and raised following points in reply:--
(1) It was argued that the finding recorded by the Additional Settlement Commissioner was inference of fact which was arrived at after taking into the consideration the relevant material and circumstances of the case. This finding of fact was not open to interference in Constitutional jurisdiction of this Court.
(2) It was next contended that the plot in dispute was situated in Khasra No,5052 while another evacuee vacant plot measuring 8 Kanals was situated in Khasra No,5049/2. According to the learned counsel these two plots were, in fact, distinct and separate units. Throughout the case, the petitioners had not produced an inch of evidence to show that the petitioners had raised permanent construction over the property in dispute. They were, therefore, entitled to transfer of plot in Khasra No,5049/2 and had no claim whatsoever to property in dispute. It was added that the petitioners in these circumstances had no locus standi to challenge the transfer of property in dispute in favour of respondent-refugee. Reliance was placed-on Niaz Din v. S.M. Azhar and another 1968SCMR 221.
(3) It was lastly contended that as far as the construction was concerned it was admitted that the respondent had raised permanent construction over the premises in dispute and was living in it.
The petitioners had already been allotted an evacuee plot on the premises of unauthorised possession and were not entitled to relief in Constitutional jurisdiction in respect of property which was transferred to refugees,
7. I have examined the arguments by both the sides and gone through the record. Certain features of the case are not in dispute namely; the raising of permanent construction over the property in dispute by respondent; that the petitioners were local while the respondent was a refugee. It is further on record that in all the three rounds of litigation, the Settlement authorities have come to concurrent conclusion of fact that Maula Bakhsh, in fact, was in possession of premises in dispute before the target date; that it was clear from the voters list Annexure 'A' that the name of Maula Bakhsh was recorded as a voter in the premises in dispute. From the aforenoted premises, there is no escape from the conclusion that the finding rendered by the learned Additional Settlement Commissioner is eminently just and is based upon material on record. This finding is unexceptional in Constitutional jurisdiction.
8. Having noted the facts of the case, the respective stances of the parties and having agreed with the finding of fact recorded by the learned Additional Settlement Commissioner, I herein proceed to determine the legal contentions of the parties. It will be appropriate at this stage to examine the relevant applicable law and ratio laid down in case-law. On this point the Act was promulgated on 26th March, 1958 with aim 'in the words of preamble' 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. The Act was followed by Schedule which prescribed 'the manner of disposal of urban evacuee property'. Under Act para. 13 deals with the transfer of building sites. Relevant is sub-para (3) of para. 13 which reads as under:-- "In unauthorized 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."
' Under this para the Chief Settlement Commissioner framed Scheme No,VI. This para. Came into consideration in Mst. Mahmooda Tehsin v. Ijaz Hussain Shah and others PLD 1965 SC 618; it was held that the persons raising permanent building on evacuee plot in their unauthorized possession were entitled to transfer of such plot and para. 13 included the case of even encroachers. It was further held that the entitlement of transfer was to be determined in accordance with this schedule. The relevant passage from this judgment may be quoted with advantage:-- "It will be observed that schemes can be framed only for transfer of land `in accordance with the provisions of the Schedule'. The definition of `permanent building' in the scheme limiting entitlement to cases covered by the definition is not consistent with paragraph 13 in which the words `permanent building' must be presumed to be used in their ordinary sense. In accordance with para. 13 (there being no definition of permanent building in the Act) any person who has raised a permanent building in the ordinary sense of this expression on a piece of land in his unauthorized possession is entitled to its transfer. The scheme, therefore, cannot add any limitation to the definition so as to deprive a person of a right to a transfer where there is a permanent building in the ordinary sense of that expression.
' While on the one hand the irrelevancy of the defination 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."
10. The para. 13 came again into consideration in Niaz Din v. S.M. Azhar and another 1968 SCMR 221.
Dealing with the question of entitlement of an unauthorized occupant under para. 13 in the Scheme it was held:-- "Under paragraph 13(3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act XXVIII 1958 an evacuee building site which has been in unauthorized possession of any person and that person has constructed a permanent building on it shall be transferred to that person on payment of the prevailing market value plus fifty per cent of such market value: The person entitled to transfer under the Settlement Scheme No,VI, must, therefore, be in possession of the site and the transfer in his favour will be confined to what he actually possesses. The policy of law is obvious. As trespassers such persons were liable to be objected from evacuee property, but since they had constructed permanent buildings they were, in the interest of rehabilitation, made eligible to purchase the sites of those buildings at the prevailing market price plus fifty per cent. Of such market value by way of penalty. The person in unauthorized possession of a building site being a wrongdoer could not, therefore, be treated at par with a claimant, a non-claimant or a local who though in possession of a part of a house or a shop may be transferred the whole of the house or shop as an indivisible property under the Displaced Persons (Compensation and Rehabilitation) Act. In dealing with a similar question in the case of Mst. Mahmooda Tehsin v. S. Ijaz Hussain Shah and others PLD 1965 SC 618 this Court observed:-- ' Paragraph 13 was not intended to entitle a person to a transfer of land which is not in his possession. There are two conditions necessary for transfer, one is unathoritized possession and the other a permanent construction over it. It is not like the transfer of a house in which case even if a person is in possession of a part he may be entitled to a transfer of the whole. This is the case of the trespasser who is confined to his possession and who in fact pays fifty per tent of the market value as a penalty."
11. The ratio deducible from the aforenoted authoritative enunciation by the Supreme Court is that the person who is in unauthorized occupation of vacant evacuee plot before the target date and raises a permanent construction over it is entitled to its transfer alongwith any small area left for a lawn or a courtyard or for a path. Applying these principles to' the facts and circumstances of the case noted above it is manifestly clear that the premises in dispute is situated in a different Khasra number; that the petitioners had not led an iota of evidence to the effect that the . Disputed plot was being used as a courtyard. Even this contention on the face of it appears to be thoroughly illogical and irrational that the land measuring 3-1/2 Mamas can be treated as a courtyard to a plot of 8-1/2 Marlas. I have, therefore, no difficulty in agreeing with the contention of respondent that the disputed premises was, in fact, a separate and distinct plot over which the petitioners had no right and as such they were not entitled to its transfer. I am, therefore, of the considered view that the order of transfer in favour of the petitioners, if any, was without legal sanction and was, therefore, nullity in the eye of law, as against the rights of respondent Maula Bakhsh. The petitioners have, therefore, no locus standi in view of the rule laid down in Niaz Din's case ibid to challenge the transfer of disputed property in favour of Maula Bakhsh.
12. There is yet another aspect of the case that the petitioners are locals, have been transferred plot measuring 8-1/2 Marlas on the premises of unauthorised occupation. The respondent had been given only 3-1/2 Marlas. Admittedly he has raised the construction over it, and had been living therein. The object of para. No,13 of Schedule to Act has been to settle the unauthorized occupants/encroachers who have raised construction over the plots in order to integrate them in socio-economic life of the country. Even the encroachers were given right to transfer the area on which they have raised construction and not beyond that; this principle was subject to the conditions laid down in Mst. Mahmooda Tehsin's case ibid by the Supreme Court. The claims built on avariciousness are foreign to the philosophy behind para. No,13. Judged from this angle I am not inclined to exercise my discretionary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in favour of the petitioners. It is intended to foster the justice between the parties and not to help unjust and material claims
13. The result of whatever has been stated above is that this petition is found to be without any merit and is accordingly dismissed, leaving the parties to bear their own costs.