P L D 1966 (W (PLP)

INAMULLAH KHAN, C. J.‑

This is a petition under Article 98 of the Constitution. The facts briefly stated are these. The petitioner's father Muhammad Usman, who was a local, was allotted the first floor of a building situated at Mirpurkhas on the 14th of January 1949. This floor consists of six rooms with necessary amenities. The petitioner's father converted it into a hotel and constructed six rooms on the second floor after permission from the Custodian.

2. The first floor was put to public auction and was purchased by Nawab Hasan on 19‑5‑1960 for a sum of Rs. 70,000.00. In the meantime, just two days before the auction in favour of Nawab Hasan, the petitioner (as his father was dead) made an application on 17‑5‑1960 for transfer of the first and the second floors on the basis of the instructions issued by the Chief Settlement Commissioner on 3‑5‑1960 to the effect that a house, shop or a small industrial concern converted into a hotel or a restaurant may be transferred to the person in possession of such hotel or restaurant on payment of market value plus an additional amount up to fifty per cent. of such value. The petitioner filed an appeal against the auction in favour of Nawab Hasan to the Additional Settlement Commissioner who, relying upon the instructions of the Chief Settlement Commissioner dated, the 3rd of May 1960, transferred the hotel to the petitioner and cancelled the auction in favour of Nawab Hasan. While the appeal was pending before the Additional Settlement Commissioner, it appears that the auction in favour of Nawab Hasan was set aside departmentally on the ground that the auction was not properly publicised. The property was, therefore, put to second auction and the highest bid was that of Manzur Ali Khan for Rs. 90,000.00. The learned Additional Settlement Commissioner, by his order dated the 15th of August 1960 allowed the appeal of the petitioner and ordered that the first floor (hotel premises) be transferred to him. Nawab Hasan filed a revision before the Settlement Commissioner to which Manzur Ali Khan and the petitioner Saleh Muhammad were also parties. The Settlement Commissioner by his order dated the 31st of August 1961, set aside the order of the Additional Settlement Commissioner mainly on the ground that according to the instructions of the Chief Settlement Commissioner the transfer of a property converted to another use to the person in possession of such property was a discretionary one. He ordered that the property should be put to auction afresh.

3. Mr. S. M. Raza, the learned Advocate for the petitioner, contended that the property having been determined to be a hotel should have been disposed of in favour of the petitioner under the instructions appearing at pages 139 and 140 of the Settlement Manual (1960 Edition). The relevant portion of the instructions reads as under:‑-- "

3. As a general principle, the property will be disposed of according to the use to which it was being put on 20th December 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in the Public interest according to its status at the time it becomes evacuee property. The following broad principles have, however, been laid down by the Chief Settlement Commissioner for the guidance of the Additional Settlement Commis sioner (iii) A house, a shop or a small industrial concern, converted into a hotel or a restaurant, may be transferred to the person in possession of such hotel or restaurant on payment of the prevailing market value plus an additional amount up to 50 y. of such value." It is clear from the above that it is discretionary with the Settle ment Authorities to transfer a house or a shop which has been converted into a hotel or restaurant to the person in possession. The instruction is not a mandatory one. It is only directory and discretionary. Another provision of the instructions, to which a reference in this connection may be made, paragraph 4 at page 141 of the same book. It runs as under :‑ "Persons to whom any fresh rights have accrued as a result of this announcement and who are in possession of properties which have not yet been disposed of may submit applications on plain paper to the Deputy Settlement Commissioner of the area concerned, if not already done. Such applications should be accompanied by the prescribed form, if any, relating to the transfer of the property according to its use on 20th December 1958 and should reach the Deputy Settlement Commissioner concerned by 21st May 1960 at the latest. Cases already decided will not be re‑opened if the properties have been disposed of in accordance with the orders for the time being in force. It would appear from the above that where a property had already been disposed of the case will not be re‑opened so as to give effect to the instruction reproduced above. The question is whether it can be said that the property was disposed of. The property was admittedly put to auction and purchased by Nawab Hussain on 19‑5‑1960. Admittedly the petitioner made an application on 17‑5‑1960. The petitioner having not taken any step to have the auction stayed, the property was disposed of before any action could be taken on the application of the petitioner. It has not been contended before us that the property was not disposed of in accordance with the orders in force at the time, namely on 19‑5‑1960.

4. At any rate, the Chief Settlement Commissioner at best could be deemed to have acted under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (hereinafter called the Act), which empowers the Chief Settlement Commissioner to dispose of any property out of the compensation pool in such other manner as may be approved of by the Central Government. This provision of law, by Ordinance II of 1962, does not exist. The pending proceedings have also not been saved. We, therefore, cannot now order, even if we were of the view that the instruction was mandatory, that the property in question be transferred to the petitioner.

5. The learned Advocate‑General, whom we had given notice to appear in this case, and Mr. Mahmoodi for the respondent, contended that the property could not be transferred to any one except in accordance with the provisions of the Schedule to the Act. It is not necessary for us to go into this question in view of what we have observed above that it was discretionary under the instructions issued by the Chief Settlement Commissioner to transfer converted property to the person in possession thereof. The mere fact that the Settlement Authorities did not transfer the property under, the instructions of the Chief Settlement Commissioner, the same being discretionary, would not amount to an illegality to attract the provisions of Article 98 of the Constitution.

6. The next point that Mr. Raza took before us was that the construction put up by the petitioner's father after permission from the Custodian could not be disposed of as evacuee property. There is not much force in this contention. The' petitioner's interest is fully safeguarded by paragraph 17 of the Schedule to the Act. It runs as under :‑ "Any investment made by a local or displaced person in any evacuee property acquired under section 3 shall, to the extent such investment is accepted by the Chief Settlement Commissioner, be deemed to be a charge created by a Custodian within the meaning of clause (d) of subsection (3) of section 10." 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 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 oil the property as it exists.

7. No other point was urged before us. The petition is dismissed with no order as to costs. Petition dismissed.