1979 PLP 765 (CLC)

MUHAMMAD ZAHOORUL HAQ, J.-The dispute in this case relates to a portion of a barrack built on Municipal Plot No. AM-280 measuring about 1080 sq. yds. The said plot originally belonged to Karachi Estate Board, and was sold by auction for 99 years on 23-12-1942, in favour of one Keshabdas. The present barrack was in existence at that time. This whole barrack had been used since 1932 and continued to be so used even after the partition by the Animal Husbandry Department of the Government of Sind for the purpose of its Laboratory. This barrack was treated as evacuee property by the Custodian Department and the Director of Animal Husbandry, Sind was shown in occupation of the building in the Evacuee Property Register and the rent was shown to be Rs. 150, per month, which was paid by the said Department to the Custodian of Evacuee Property for some time.

2. In 195.5, or thereabout one Dr. Imtiaz, the husband of the present appellant Mrs. Raquib Imtiaz was posted as the Officer Incharge of Animal Husbandry Laboratory, Karachi. The said Doctor Imtiaz in his capacity as an Officer Incharge sought permission from the Director of Animal Husbandry, Sind, Karachi to put up in the laboratory building after having a partition wall in 2 rooms. In support of his application he said that the work will not suffer and his services will be available for 24 hours. He also offered to pay rent for the portion occupied by him and also offered to bear expenses of the partition wall by his letter dated 7-3-1955. The Director of Animal Husbandry Laboratory, Karachi replied on 30-3-1955 that in view of the paucity of accommodation in Karachi, he was prepared to allow the occupation of a portion of the laboratory building for residential purposes. This letter was addressed to Officer Incharge, Animal Husbandry Laboratory, Karachi. in his official capacity. It was made clear that no permanent claim will be had and Officer Incharge can be asked to vacate the building whenever necessary. .In pursuance of the said permission the said Dr. lmtiaz converted one room of the said laboratory for his residence by snaking a partition wall, the necessary facilities as well as a courtyard. The said Dr. Imtiaz continued occupying the same for his residence till 1966 when he was transferred and thereafter his family vi,. the present appellant has remained in occupation of the same. It may be mentioned here that there are 4 big rooms in the said barrack out of which 3 rooms have always been in use for the laboratory and only one room with verandas were converted into a residence. After the transfer of Dr. Imtiaz from Karachi, he was directed on 15-8-1966 by the Director of West Pakistan Veterinary Research Institute, Lahore as under: "The residential quarter being occupied by you in the capacity of Officer Incharge Animal Husbandry, Karachi may now be vacated immediately and handed over to Mr. Ishtiaq Ahmed Qureshi, recently appointed as Officer incharge of Laboratory, if you like you may shift to the residence of Mr. Ishfaq Ahmed at the Livestock Farm. Malir." In reply thereto on 29th August, 1966, Dr. Raquih Imtiaz as Assistant Disease Investigating Officer, Karachi promised to vacate tile residential portion as soon as he was transferred to his parent Department (Hyderabad) or he moved to his new headquarter at Peshawar. Again on 5th September, 1966 the said Dr. Raquib agreed to comply with the order of handing over of the residential accommodation as soon as his wife is in a position to move from the bed. He repeated the same promise again on 14-10-1966.

3. On 21st October, 1976, the present appellant who is a local, filed her L. H. form for transfer of the whole barrack in her favour by the Settlement Department under Scheme No. VIII. Her explanation for not having filed any application earlier before the Settlement Authorities is that she being a local could not apply for a property which is worth more than Rs. 10,000, Her L. H. Form was rejected by the Deputy Settlement Commissioner, Karachi on 6-5-1967, who held that the appellant's husband had merely permissive possession and therefore, he could not be treated in possession of the said barrack and hence the appellate could similarly not be treated as being in possession. The Deputy Settlement Commissioner also held, after inspection, that the whole barrack was one unit. Since no one else had made any application for the transfer, therefore, the Deputy Settlement Commissioner ordered that the whole building should be put to auction. On appeal by the appellant, the Add]. Settlement Commissioner heard the matter. The Animal Husbandry Department Government of Sind, a ]so moved an application before Additional Settlement Commissioner for being impleaded as an intervenor and it was allowed to do so. The Additional Settlement Commissioner also inspected the property and heard the parties, he held that the intervener Department had a locus standi to oppose the transfer of the barrack in favour of the appellant. He further held that Dr. Raquib Imtiaz and consequently the appellant were in possession of the portion in their occupation of the barrack in question since 20th December, 1958 and since the portion in their possession was self-contained unit, it was therefore, divisible. He therefore, ordered on 17-10-1967, that the portion in occupa tion of the appellant be transferred to her and the remaining portion be put to auction.

4. The Department of Animal Husbandry of the Government of West Pakistan filed a revision before the Settlement Commissioner. On 21-5-1968, the said revision was allowed, and the order of the Deputy Settlement Commissioner was restored and thus the whole building was ordered to be put to auction. The Settlement Commissioner held that the possession of the appellant and her husband was a .mere permissive occupation and therefore it was not a possession as envisaged in section 2 of the Settlement Act. The Settlement Commissioner also held that since the Provincial Government was in occupation of the barrack; therefore, para. 3 of sub-clause (9) of the instructions dated 3-5-1960 as contained on page 139 of the old Settlement Manual should have been followed and the property would be disposed of according to status on 14th August, 1947.

5. Being aggrieved against the said order, the appellant filed Writ Petition No. 276 of 1968 in the High Court of West Pakistan, Karachi Bench, but the same was dismissed in limine on 12th June, 1968 by a learned Single Judge of the High Court.

6. The petitioner has therefore, filed this Letters Patent Appeal. Mr. Abdul Majeed Khan, the learned counsel for the petitioner has contended as under (1) That the possession of the husband of the appellant was under an allotment issued by a competent authority and it is covered by the definition of possession under the Displaced Persons Act, context he has placed reliance upon 1975 S C M R 327, which says that allotments of houses made by Government Departments, having evacuee houses placed at their disposal, shall be deemed to be all6tments made by the competent authority. But in the present case before us it is not the allotment of a house placed at the disposal of a Government Department but a mere permission to use temporarily a part of the Government laboratory for residential purposes of the Officer Incharge of the Laboratory. He has also relied upon the instructions of the Central Government dated 7th March, 1960, that in case the possession of the husband is in pursuance of an order passed on or before 20th December, 1958 by a competent authority, his wife will also be deemed to be in possession if living with him. (ii) He also contended that the property should have been disposed of according to its changed status and in this context he relies upon the instructions issued on 3-5-1960 by the Chief Settlement Commissioner (page 139 of old Settlement Manual) which in para. 3 says that as a general rule the property will be disposed of according to the use to which it was being put on 20-12-1958 and not according to the use in 1947. (iii) He has further contended that the property was divisible as held by the Additional Settlement Commissioner and therefore the portion in possession of the appellant should have been transferred to her. He has relied upon P L D 1968 Kar. 659 where it was observed that the property is not necessarily to be disposed of according to the use it was put to in 1947. This ruling would however be of no use as it merely permits the Settlement Authorities to make the division, but they are obliged to do the same in every case. Moreover this judgment does not relate to the occupation of a part of the office or laboratory of a Department of the Provincial Government and this would not be very relevant in the decision of this case. (iv) Lastly he contended that the revision before the Commissioner was not competent as the Department was not an aggrieved party: In this respect he has relied upon 1971 S C M R 711, which has held that a mere desire to bid at the auction does not entitle a person to challenge a transfer.

7. Mr. Noorul Hassan, learned counsel appearing for Animal Husbandry Department has contended that the permission had been given to occupy one room of the laboratory to the Officer In charge of the Animal Husbandry Laboratory in Karachi, in his official capacity and not the husband of the appellant in his personal capacity, and in that respect he had drawn our attention to the letter of the Director of Animal Husbandry dated 20-3-1965 which is addressed to the Officer Incharge . Animal Husbandry, Karachi and not to the husband of the appellant personally. He farther says that the permission was granted in view of the representation dated 7-3-1955 that the work of the laboratory will not suffer and the services of the Officer Incharge will be available for 24 hours. Even this request dated.7-3-1955 by the husband of the appellant had been made in his official capacity and not in his personal capacity. The possession, therefore was merely permissible and temporary till such time that the said Officer Incharge continued working in that capacity. Even the husband of the appellant has till 14th of October, 1966 behaved as having mere permissible occupation as a licensee. Mr. Norul Hassan relied upon P L D 1965 Kar. 52, where persons occupying portion of premises as mere licensees of allottees were not considered as persons in possession. He also relied on P L D 1965 Lah. 445, where it was held that mere stay in premises at request of allottees does no: amount to possession. Mr. Noorul Hassan has also stated that the Settlement Commissioner rightly relied upon para. 3 sub-para. (9) of the instructions dated 3-5-1960 which clearly says that if the property has been in the use of Central or Provincial Government and is required by theta then such property should be disposed of according to its status on 14th August, 1947, and therefore, this is an exception to the general rule provided in the substantive portion at the beginning of the same para. which says that as a general rule, the property will be disposed of according to the use to which it was being put on 20th December, 1958.

8. Mr. Noorul Hassan further contended that the Department being in possession of 3/4th of the property and having used the same a laboratory since 1932, and having paid rent to the Custodian for the same, it was very much an affected party and had right to resist the transfer of the premises or the portion of the same to the appellant who had no right in law for such transfer. .

9. Mr. Abdul Sattar, the learned counsel for Rehabilitation Department has supported the submissions of Mr. Noorul Hassan.

10. Looking at the circumstances of this case and the correspondence between Dr. Raquib Imtiaz and the Animal Husbandry Department exchanged between 7th March, 1955 and 14th of October, 1966, we have no doubt in our mind that appellant's husband had been merely authorised to occupy a minor portion of the Animal Husbandry Laboratory, for the purpose of residence of the Incharge of the Animal Husbandry and not in his personal capacity and there was no intention on the part of the Department of Animal Husbandry to divest itself of the possession of that portion. Mere payment of rent by Dr. Raquib Imtiaz for that portion would not deprive the Department of its claim of having the possession of the whole barrack, This was an internal arrangement and did not confer upon Dr. Raquib Imtiaz any rights particularly when he had sought the permission on 7-3-1955 in his capacity as Officer Incharge of the Animal Husbandry Laboratory and the said permission had also been granted to the Officer Incharge of the Laboratory on 20-3-1955.

11. We are strengthened in our mind, from the fact that this laboratory, had been in existence in the same premises since 1932 and had continued to be in existence as such even to 1947, and was being used as such till the) dispute arose. It was, therefore in occupation of a Department of the Provincial Government and its disposal had therefore to be in accordance with the status of the property as it existed at the time of Partition in 1947, and not according to the changed status in December, 1958. Therefore,1 the correct instructions to follow in this case would be as the one given in sub-para. 9 of para. 3 of the instructions dated 3-5-1960 (page 139 of the Old Settlement Manual). Viewed in this light, the possession of the husband of the appellant would not be regarded as a possession under section 2 of the Act, and hence her husband and consequently the appellant would have nod, right to seek its transfer under Scheme VIII on the basis of their alleged' occupation.

12. The question of divisibility would therefore, be of no consequence in the matter as we are-of the view that the disposal of the property is to be according to its use in 1947 when the appellant husband had nothing to do with the same and the whole barrack was used by Animal Husbandry Laboratory and was in possession of tile Department of a Provincial Government.

13. We are also of the view that the Animal Husbandry Department being in possession of the entire barrack or at least 3/4th portion of the barrack was substantially interested in the mode of transfer of this property and it could bring into revision before the Settlement Commissioner, the transfer of a portion of the barrack to the appellant as ordered by the Additional Settlement Commissioner. In any case, the Settlement Commissioner was empowered in law to revise the order of Additional Settlement Commissioner even suo motu and hence the order or the Settle ment Commissioner was therefore in order and valid.

14. We are, of the view that the learned Judge of the High Court has taken a correct view of law when he has dismissed the petition of the appellant on the ground that the occupation of the part of the disputed premises by her husband could not be regarded as a possession under section 2 of the Act. In this view of the matter, the Letters Patent Appeal is dismissed with no order as to costs. M.A.K. Petition dismissed.