1984 PLP 1049 (MLD)

(4) Declare that the charge of Rs.81,000 created by the Custodian under provisions of Administration of Evacuee Property Act is payable irrespective of the fact of transfer of the property and as such adjustable from the transfer price. (5) Direct the respondent and hips department to cause transfer of the entire plot as a single unit of property, charging the pre vailing rate of 1950-51 without any penalty and adjusting the charge amount of Rs.81,003 against on the transfer price so calculated. (6) To give and grant such other relief/reliefs as may be expedient in the interest of justice and circumstances of the case. (7) Cost of this petition. The brief facts which give rise to this petition are that a plot of land bearing Survey No. 11/13 Sheet No. RY-9 measuring 1866 square feet is situated on (Mcleod Road) I.I. Chundrigar Road, Karachi. This property belonged to Hindu Evacuee Sobraj Jethanand. On 10-5-1947, an agreement of sale was drawn up at Bombay between the Hindu evacuee and Nauman Bhai and his two sons Dawood Bhai and Zainul Nauman Bhai by which the Hindu evacuee agreed to sell the aforesaid plot of land for a consideration of Rs.30,

000. The property thereafter was sold out by registered sale-deed, dated 3rd November, 1947. The vendees appointed Qamaruddin Hashwani as agent for manage ment of the said property. On 10th May, 1948 vendees executed another deed by which Qamaruddin Hashwani was authorised to build three storied building upon the land in question and the vendees promised that upon its completion the same will be given to him on lease for period of ten years at a monthly rental of Rs.400. On 3-11-1948 lease deed for a period of 10 years at rental value of Rs.500 was duly executed by the vendees in favour of Qamaruddin Hashwani but upon the expiry of this period of 10 years, the entire construction on the ground floor shall be absolute property of the lessor and the lessee will not claim any compensation from the lessor. On 15th March, 1949 Qamaruddin executed a lease-deed of building portion of 906 square yards in favour of petitioner at rental value of Rs.975 per month for a period 10 years. On 14th October, 1949 Qamaruddin applied for confirmation of the same as agent of the vendees but it was dismissed for default on 13-12-1951. On 11th August, 1952 his application was restored and on 20th September, 1952 the transaction was confirmed by the Additional Custodian. It appears that from the conduct of the agent, the petitioner suspected the bona fide of the transaction specially when the alleged vendees were never seen or heard of. The petitioner moved the Additional Custodian in his appeal that the vendees were themselves evacuees and as such the property should be declared as evacuee. The power executed in favour of Qamaruddin to supervise and manage the property has not been accepted by the Custodian upto this date. He applied for approval of his power-of-attorney as late as 1959. The petitioner's appeal was, however, dismissed and the petitioner filed a revision before the Custodian of Evacuee Properties on the grounds mentioned in the revision and praying therein that the confirmation of the transaction should be set aside. The revision application was allowed by order, dated 18th November, 1955 by which the property was declared as evacuee. The matter was taken to the High Court by Qamaruddin and the order of the Custodian was set aside. The petitioner approached the Hon'ble Supreme Court in appeal which was allowed with costs and remanded the case to the Custodian with a direction to make further enquiries and to determine the true market value of the land in question on the material date. The then Custodian re-heard the matter and instead of deciding the question mentioned above dealt with only one question and declared the property as evacuee on the ground that Qamaruddin's application for confirmation was incompetent as power-of-attorney in his favour had not been approved. This was an interim order on one point and the matter was postponed for the determination of the remaining question. Qamaruddin without waiting for the determination of the other question rushed upto the Supreme Court who set aside the order by judgment, dated 26-11-1963 and remanded the case for adjudication whether the sale was confirmed and if so to consider whether or not the authority of Qamaruddin to manage or supervise be approved. The Custodian by his order, dated 6-5-1974 set aside the order of Additional Custodian confirming the sale-deed and the power-of-attorney and the lease-deed which all required confirmation were also unproved and the revision application by the petitioner was allowed and the learned Custodian held that the property is an evacuee property. The legal heirs, of Qamaruddin Hashwani filed Constitutional Petition before the High Court of Sind at Karachi being Petition No. 1394 of 1974 which was decided on 12-10-1976. This judgment was again challenged in the Hon'ble Supreme Court which was dismissed on 19-9-1984 and it was decided that the whole property is an evacuee property. The petitioner submitted an application on duly filled in Form under Scheme No. VI for transfer of the entire' plot but the Forms could not disposed of due to the pendency of the matter before the Custodian. After aforesaid order of the Custodian three Forms were submitted by Kaleemullah, Messrs Trawelogue and legal heirs of Qamaruddin. The Forms of Kaleemullah were rejected by the Deputy Settlement Commissioner and as such Kaleemullah filed a petition which had gone upto Supreme Court and his petition for special leave to appeal was dismissed on 12-8-1975. Messrs Travelogue also filed appeal before the Hon'ble Supreme Court being No. K-16 of 1972 which was also dismissed on 29-3-1976. The Forms of legal heirs of Qamaruddin Hashwani were also rejected. The status of Mr. Kaleemullah and Messrs Travelogue as tenants of the petitioner was upheld. The respondent by his order, dated 22-1-1977 transferred Survey No. 11/13-RY-9 to the extent of area of 906 square feet which is legal in occupation of the petitioner. The petitioner being aggrieved against the aforesaid order has filed this petition on the facts and grounds mentioned in memo of petition. Mr. Maroof Ali Khan has contended that [the petitioner being in authorised possession having raised construction under an approved plot being in exclusive possession is entitled to the transfer of the entire plot site at the prevailing price of 1951. In support of his contentions the learned counsel has placed reliance on the case of the Messrs Film Exhibitors Ltd. v. Settlement and Rehabilitation Commis sioner, Karachi P L D 1965 (W.P.) Kar.

355. On the other hand Mr. Abdul Majeed learned counsel for the department, has contended that the petitioner is only entitled to the built up area which is in his possession and is not entitled the entire area of the plot. It is pertinent to produce the definition of the permanent building given in the Scheme No. VI which reads as under:- "(3) 'Permanent building' means-- (a) ............................................................... (b) ............................................................... (c) a building for which plan has not been approved by a competent authority, but which has been constructed with building material normally used in the non-evacuee building in the locality where it is situated and covers at least one-forth of the area of the relevant building site or seventy-five per cent of the maximum area allowed for construction under the rules framed by the local body concerned; (d) ............................................................... Provided that a Deputy Settlement Commissioner may, after adding an area not exceeding thrice the area comprised in a permanent construction and transferring it to the occupant according to prescribed terms, dispose of the rest through unrestricted public auction; I find great force in the contention 'raised by the learned counsel for the petitioner. Under this proviso, it is clear that a Deputy Settle ment Commissioner may after adding an area not exceeding thrice the area comprised in a permanent construction and transferring it to the occupant according to the prescribed terms, dispose of the rest through unrestricted public auction. In view of what is said in para. 3 and the' proviso, it is quite clear to me that the impugned order of the respondent is in violation of it and, therefore, illegal. The learned counsel for the department has contended that the petitioner is only entitled to 906 square yards and his case cannot come within the purview of para. 3 of the Scheme No. VI. The admitted position on the record is that permanent construction were raised by the petitioner on an area of 906 square yards. He had raised construction thereon by incurring huge amount of Rs. 81,

000. The case of the petitioner is that the respondent has the power under Scheme No. VI to give the open area to the extent of three times the area on which constructions has been raised. The open area is usually given for facilitating for the use of construction. In view of what is contained in proviso to para. 3 reproduced above, it is quite clear that the respondent has to allot the entire plot to the petitioner. Under these circumstances the respondent has committed illegality in allotting only 906 square yards instead of alloting the entire of the plot to the petitioner. The up-shot of the above discussion is that constitution petition is accepted and the order, dated 7-1-1977 allotting the plot to the extent of 906 square yards instead of the entire area of the plot without lawful authority and of no legal consequence and I hereby declare that the petitioner is entitled to the entire plot in pursuance o provision to para. 3 of the said Scheme. I, therefore, direct the respondent to allot the remaining plot to the petitioner if still available. In the circumstances of the case the parties will bear their own costs. M. A . K. Petition accepted.