P L D 1966 Supreme Court 719 (PLP)

MUHAMMAD YAQUB ALI, J.‑The subject of this appeal by special leave of the Court is the transfer under the Displaced Persons (Compensation and Rehabilitation) Act of the bungalow No. S. E. 27‑R‑8, Egerton Road, Lahore. The bungalow has an area of 24 kanals and as many as 17 outhouses and garages are appurtenant to it. K. M. Sana, respondent No. 3, being an allottee displaced person the Settlement Authorities have transferred the bungalow to him. Abdul Hamid Khan, appellant, who is in un-authorised occupation of one of the outhouses applied for the transfer of outhouse No. 4 in his occupation and about 10 kanals of land out of the compound of the bungalow as a claimant displaced person. The Settlement Authorities rejected the appellant's claim on the ground that he was not in possession of the "house" or a part thereof against which he moved the High Court of West Pakistan at Lahore under Article 98 of the Constitution on a number of grounds which have not found favour with the learned Judges. Leave to appeal was granted to consider the question whether in view of the second proviso to the definition of a "house" in the Displaced Persons (Compensation and Rehabilitation) Act that "where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including outhouses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house"; the Settlement authorities had acted in accordance with law in transferring the entire area of 24 kanals of land to the respondent No. 3 and whether the appellant was, in accordance with the instructions of the Government of Pakistan issued by its Memorandum No. F. 3(1)/60‑SI dated the 30th July 1962, not entitled to transfer of the excess area as a person who had been in occupation of a portion of the house and not found entitled to the transfer thereof. The facts relevant for the purpose of this order are that the Deputy Settlement Commissioner by his order dated the 18th January 1960, transferred the bungalow to the respondent No. 3 and rejected the C. H. form submitted by the appellant. Dissatisfied with it the appellant preferred an appeal to the Additional Settlement Commissioner, which was dismissed on the 2nd November 1960. Finally the appellant filed a revision petition which was rejected by Malik Fateh Khan, Settlement Commissioner, on the 12th September 1961, affirming the decision of the Subordinate Settlement Authorities that the appellant being not in possession of a portion of the bungalow was not entitled to; apply for its transfer. In disposing of the revision petition the Settlement Commissioner, however, observed that as it had been alleged before him that the compound in possession of the respondent No. 3 was in excess of his entitlement the subordinate authorities should look into the matter. Taking advantage of the direction given by the Settlement Commissioner about the excess area transferred in favour of the respondent No. 3 the appellant submitted a miscellaneous petition to the Deputy Settlement Commissioner who in pursuance to it held a fresh inquiry and on the finding that the seventeen outhouses and an area of over 10 kanals of land included in the compound of the bungalow constituted, a separate property transferred the same to the appellant. The respondent No. 3 then preferred an appeal from the order of the Deputy Settlement Commissioner which was allowed by the Additional Settlement Commissioner on the ground that the entitlement of the appellant for transfer of any portion of the bungalow had already been finally rejected by the Settlement Commissioner. The matter was then brought by the appellant before the Settlement Commissioner who with the help of the revenue records found that the bungalow along with the outhouses, garages and compound measuring 24 kanals of land was one unit bearing one survey number and rejected the revision petition. He also referred to the earlier order of his predecessor in which Malik Fateh Khan held that the outhouses formed part of the main bungalow and stood transferred to the respondent No.3 The appellant then moved the High Court of West Pakistan at Lahore for quashing the aforesaid orders of the Settlement Authorities on the grounds: (i) that according to Excise and Taxation and Municipal records for the years 1946‑47 the bungalow was built upon an area of 2 kanals and the total area of land included in it was 12 kanals; the remaining area of land and the seventeen "partly constructed rooms" being a separate unit the Settlement authorities had acted without jurisdiction in transferring both the properties in favour of the respondent No. 3, (ii) that the built‑up area in possession of the respondent No. 3 being two kanals he was not entitled to the transfer of more than three times the built‑up area of the bungalow; (iii) that the respondent No. 3 was not in possession of any part of the second unit of property which belonged to a different evacuee owner and had not applied for its transfer; (iv) that the seventeen "partly constructed rooms" were not appurtenant to the property in the possession of the respondent No. 3; (v) that the finding of the Settlement Commissioner based on the comparison of musavis that both the properties were included in the bungalow was incorrect; and (vi) that as the respondent No. 3 had not moved against the order of the Settlement Commissioner dated the 12th September 1961, for the disposal of excess area hg was not entitled to its transfer. The learned Judges of the High Court did not find any fault with the finding of the Settlement Commissioner that the bungalow along with outhouses, garages and the area of 24 kanals of land formed one unit. This ruled out most of the grounds urged in support of the writ petition. About the instructions of the Central Government contained in Memorandum No. F. 3(1)/60‑SI dated the 30th July 1962 and the Press Note of the Chief Settlement and Rehabilitation Commissioner dated the 22nd October 1962, it was said that as the appellant was not in possession of any portion of the house, neither were of any avail to the appellant. The learned Judges also pointed out that the matter for the transfer of the "quarters" having been finally decided by the earlier order of the Settlement and Rehabilitation Commissioner the Deputy Settlement Commissioner had no power to go behind that order and transfer the quarters to the appellant and "in law the quarters had to go with the bungalow because a house includes the outhouses." In support of the appeal it was reiterated before us that the seventeen quarters and about ten kanals of land included in the compound of the main bungalow constituted a separate property. In the alternative it was claimed that under the aforesaid instructions of the Central Government the appellant was entitled to the transfer of the "excess area". The first ground was concluded by the finding of the Settlement Commissioner arrived at with the help of the revenue records that the outhouses and portion of the compound claimed by the appellant formed part of the main bungalow as one unit. The appellant did not question that order and allowed it to become final with the result that the Deputy Settlement Commissioner was thereafter precluded from entering upon a fresh inquiry and transferring a portion thereof to the appellant as a separate property. The instructions of the Central Government and the Press Note of the Chief Settlement and Rehabilitation Commissioner relied upon by the appellant are to the following effect: "Government of Pakistan Memorandum No. F. 3(1)/60‑SI, dated the 30th July 1962: If a house has been in the occupation of more than one person and some of them have not been found entitled to the transfer of the house or any portion; they may be permitted to buy the area in excess if any attached or appurtenant of the house over and above three times the plinth area transferred to the person found entitled. The area in excess should be demarcated into plots according to the Schemes of the Local Improvement Trust or Municipality if any and not more than one plot transferred to one person, the price to be charged in the case of such person will be the prevailing market value at the time when the house was allotted to the person concerned. " "Press Note dated the 22nd October 1962, issued by the Chief Settlement and Rehabilitation Commissioner, "In cases where none of the occupants of the houses is entitled to the transfer of the plots out of the excess area or they do not desire to buy the plots, the plots will be disposed of by unrestricted public auction." The application of the instructions and the Press note were on their face conditioned by the "house" being in occupation of more than one person. In construing the definition of a "house" in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act this Court has held that a person in possession of an outhouse or a garage cannot for the purpose of the transfer of the house or a portion thereof be considered to be in its occupation for the reason that the outhouses and garages are appurtenances to a house, but a house cannot be an appurtenance to an outhouse or a garage. Mst. Fazalunnisa Begum v. The Chief Settlement Commissioner Civil Petition for Special Leave to Appeal No. K‑34 of 1966 decided on the 24th March 1966. In this view the Settlement authorities and the High Court had B rightly rejected the appellant's claim for transfer of the outhouses and a portion of the compound of the bungalow on the ground that he was not in occupation of the bungalow. It may be added that the transfer of "excess area" in favour of the respondent No. 3 was also not open to correction by the High Court, because the matter lay in the discretion of the Settlement authorities and no illegality had been committed in the exercise of that discretion. Lastly as the entitlement of the appellant had been rejected by the Settlement Commissioner by order dated the 12th September 1961, he no longer had the locus standi to object to the transfer of the "excess area" in favour of the respondent No.

3. For the foregoing reasons we find no merit in this appeal and hereby dismiss it leaving in the circumstances of the case the parties to bear their own costs. A. H. Appeal dismissed.