1968 SCMR 451 (PLP)

CORNELIUS, C. J.-The petitioner obtained an order from the Central Government under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, directing disposal of the property in question to him, under two conditions, one which is relevant being that it was not transferable to any other person under the aforesaid Act. One Haji Muhammad Usman who was in possession of a part of the plot, under an allotment order, and had made constructions on it, and was moreover a claimant, applied for transfer of the plot to himself. His applica tion was rejected at the final stage by the Settlement authorities on the basis that his constructions were not a "permanent building". A Deputy Settlement Commissioner had at first expressed the opinion that the buildings should be classed as permanent. Later, an opinion was obtained from an Executive Engineer that the construction was much "below specifications" and could not be classed as "permanent". The way being thus opened for implemen tation of the Central Government's order, transfer to the petitioner H. M. Abbasi was ordered. Haji Muhammad Usman then moved a writ in the High Court, which was allowed by a learned Single Judge who directed transfer to him of the plot in accordance with Settlement Scheme No. VI to the aforesaid Act. H.M. Abbasi moved an appeal Under the Letters Patent without success. The Letters Patent Bench has given the following description of the building in question, viz. "this building consisted of nine rooms built of R. C. C. block walls with A. C. Sheets roof supported by wooden beams and wooden planks inside. The flooring of the rooms as well as in the courtyard was of cement concrete and electricity and drainage system had also been provided." The further observation has been made that "the fact that it is in occupation of Muhammad Usman and his family for many years is not in dispute." Mr. Khalid Ishaque was unable to contend that the Executive Engineer's opinion that the building was 'much below specifica tions' was sufficient basis for holding that it was not a "permanent building". The definition in Scheme VI aforesaid lays down no specifications, such as are applicable to construc tions by the Public Works Department. It speaks of buildings constructed under plans approved by a Government or local authority, of buildings not so constructed but which have been approved by competent authority, of buildings not so approved which are constructed "with building material normally used in the non-evacuee buildings in the locality and cover a certain minimum proportion of the site in question, and finally of any "construction or class of constructions which may be declared by the Chief Settlement Commissioner as a Government building". The papers do not show whether the construction in question was made on the basis of an approved plan or otherwise, or was approved by competent authority. It falls to be evaluated under the third category only, as the Settlement authorities have refused to exercise discretion in its favour. In the third category, emphasis is laid on the nature of the materials used, and whether such materials are used in non-evacuee houses in the locality. R. C. C. blocks and A. C. roofing over wooden beams and cement floors are commonly employed in the construction of all houses in Karachi. In this respect, the building in question clearly qualifies as a 'permanent' building under Scheme VI and the reasons put forward by the Settlement authorities appear equally clearly to be merely colourable. The other condition, namely that the construction should lover one-fourth of the area of the plot would also seem to be satisfied. The whole area in possession of Haji Muhammad Usman under his allotment order is 298.67 square yards, of which 164 square yards, that is much more than one-fourth is covered by his construction, which is the requirement of the definition. Thus the claim of Haji Muhammad Usman under Scheme VI was fully established. The learned Judges of the Letters Patent Bench have referred to the decision of this Court in the case of Mahmuda Tahsin v. ljaz Hussain Shah (P L D 1965 S C 618), where it was held that the requirement of one-fourth coverage by construction was ultra vire; of the Schedule to the Act. In this case, that requirement is satisfied. But the learned Judges have further interpreted the judg ment aforesaid as "striking down" all other requirements, in the different categories, of the definition of "permanent building" contained in the Schedule. With respect, that is not how that judgment is to be interpreted, but for this case, no such extended interpretation is requisite. The materials used in Haji Muhammad Usman's building, its nature and quality, the fact that it has been used as residence for many years, all suffice to place it in the class of a "permanent building" fully within the definition in the Scheme. The Division Bench has, however, rightly held that Haji Muhammad Usman is en titled to 298.67 square yards of land which is in his possession under an allotment, and no more. H. M. Abbasi seeks special leave to appeal against the decision of the Letters Patent Bench. There is no force in this petition which we hereby dismiss. Petition dismissed.