P L D 1967 Lahore 1058 (PLP)

Zaki‑ud‑Din Pal for Respondent No.

2. Major Ishaq Muhammad Khan S. C. (Legal) for Respondents Nos. 3 and

4. Dates of hearing: 29th and 30th September 1966. The petitioner is a claimant displaced person. He participated in the earmarking operations under Settlement Scheme No. V and a lot was drawn in his favour for bungalow No. 66, Civil Lines, Sargodha, which belonged to Raja Sir Maharaj Singh. The area of the bungalow along with the land appurtenant thereto is 44 Kanals and 10 Marlas. A Provisional Transfer Order was issued in favour of the petitioner for the whole bungalow. Subsequently on the 20th of August 1960 the petitioner was informed by a metro of the Deputy Settlement Commissioner (Annexure D) that he was entitled to the transfer of the bungalow along with the land measuring 17 Kanals and 17 Marlas. He was also told that he could purchase the same quantity of land i.e., 17 Kanals and 17 Marlas on prevailing market price. The balance of 8 Kanals and 6 Marlas of land was to be disposed of by auction. The petitioner accepted this offer. Subsequently on the 12th of September 1960, two plots of land measuring 4 Kanals and 3 Marlas each were sold by auction and were purchased by respondents Nos. 1 and 2, respectively. The land of the respondents was demarcated in the presence of the petitioner on the 3rd of April 1961 and the petitioner also signed that document. The petitioner did not object to the sale of that land at that time or subsequently. By another letter dated the 14th of November 1960, the petitioner was informed that he was entitled to land measuring 25 Kanals and 2 Marlas, and he was told that he could purchase 8 Kanals and 2 Marlas on the prevailing market price. This was in pursuance of the details prepared by the Deputy Settlement Commissioner in November 1961 (Annexure R/II). The petitioner made some application which is not on the record, for the re‑demarcation. Learned counsel for the petitioner frankly conceded that in this application also there was no objection taken in respect of the auction in favour of respondents Nos. 1 and

2. The Settlement Inspector proceeded to make the calculations of the petitioner's entitlement on the spot. The report submitted by him is Annexure C. On these calculations 23 Kanals and 6 Marlas of land was in excess out of which 8 Kanals and 6 Marlas had already been disposed of by auction. The Settlement Inspector in his report stated that the petitioner was willing to purchase this excess land on prevailing market price. The Deputy Settlement Commissioner did not agree with this proposal. The petitioner then filed the writ petition in which he claimed that he being the. transferee of the whole bungalow the transfer in favour of respondents Nos. 1 and 2 by auction was without any lawful basis.

2. The Settlement Authorities were directed to submit a report. In the report it was stated that the petitioner could be transferred along with the house only an area of 16 Kanals 10 Marlas and 157 square feet and he could purchase an area of 5 Kanals, 8 Marlas and 33 square feet on the prevailing market price. Ch. Muhammad Hussain, learned counsel for the petitioner made a statement in the Court on the 25th of October 1965 that in view of the report submitted by the Department he might be permitted to withdraw the petition with permission to file a fresh one if the Settlement Authorities failed to honour the undertaking given by them in the report. The petition was accordingly allowed to be withdrawn.

3. On the 11th of November 1965, the petitioner made an application alleging that the counsel was not authorised to make the statement and that he made the statement under some misunderstanding because the petitioner was not beneficiary by that report and in fact his position was adversely affected. On this application, I recalled my earlier order and proceeded to hear the writ petition in limine. The writ petition was admitted) to a full hearing.

4. The case of the petitioner is that the auction of the two plots in favour of respondents Nos. 1 and 2 was illegal because he was the transferee of the bungalow and the entire land. The auction in favour of respondents was held in September 1960. The petitioner had the knowledge of auction. The land transferred to respondents was demarcated in the presence of the petitioner. He also signed the document of demarcation. He did not object to the auction in favour of the respondents at that time or at any subsequent stage. He did not challenge the transfer in favour of respondents by way of an appeal before the Additional Settlement Commissioner or through a revision petition before the Settlement Commissioner or a second revision petition before the Chief Settlement Commissioner. In fact he did not agitate against the auction at all and had been representing only in respect of the plinth area of the bungalow and his entitlement on that basis. It was only in 1962 that he moved the writ petition. The petitioner having already acquiesced in favour of the auction made in favour of the respondents and moreover, having failed to challenge it in appeal or revision has no right to challenge it in writ petition. Moreover, he challenged the order after the lapse of two years and the petition merits to be dismissed on the ground of laches. Mr. Minto frankly conceded that the petitioner had no case against respondents Nos. 1 and 2 and was estopped to challenge the transfer in their favour for the reason that he himself signed the document of demarcation without raising any objection. The petition against respondents Nos. 1 and 2 merits to be dismissed.

5. Learned counsel then contended that the petitioner was at any rate entitled to the transfer of the entire remaining area. The entitlement of the petitioner can be determined under proviso to clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which reads: "Provided further 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 out‑houses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated w as part of the house." According to the petitioner, the Chief Settlement Commissioner had delegated the power given to him in this behalf to all the Deputy Settlement Commissioners by a notification dated the 14th of October 1959, and the Deputy Commissioner informed the petitioner that he had been transferred Bungalow No. 66 which meant the bungalow with the entire land measuring 44 Kanals and 10 Marlas. He also relied' on the Provisional Transfer Order issued in favour of the petitioner by the Deputy Settlement Commissioner where in the Schedule it was stated that the petitioner had been transferred the entire bungalow. On these facts, it was contended that the Deputy Settlement Commissioner determined within the meaning of the proviso that the area in excess of throe times the plinth area was also to be a part of the house. Under the purview of the section, the gardens or grounds attached or appurtenant to a house, form part of the house. The proviso deals with those cases where the gardens and grounds attached or appurtenant to the house exceed three times the plinth area. A transferee is entitled, out of the grounds and gardens, to an area which is to be at least three times the plinth area. There is no dispute about this. The question relates only to an area which is in excess of three times the plinth area and its decision depends on the interpretation of the words of the proviso, viz., "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." Comma between the words "in excess" and "or such part thereof" is intriguing. In putting the comma could not be the intention of the Legislature that the words "or such part thereof as the Chief Settlement Commissioner may determine" are to be read detached from the words preceding them, viz., "the area so in excess." These words otherwise will become meaningless. If, because of the comma, these words are detached from the words "the area so in excess", the proviso will read: "Provided further 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 out‑houses and garages, if any, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house." It is obvious that the proviso if it is so worded makes no sense whatsoever. That being so, these words, notwithstanding, the comma are referable to the words "the area so in excess." The commas after the words "so in excess" and then after the words "may determine" have been erroneously placed and according to the sense and construction of the language used, it is clear to me that the proviso has to be read without the commas. The meaning of the proviso is that if the area of the gardens etc., exceeds three times the plinth area, the Chief Settlement, Commissioner may on his determination order that a portion of the excess shall not be a part of the house. In that case the entire area of the gardens and grounds except the area so determine by the Chief Settlement Commissioner shall be a part of the house. If, however, the Chief Settlement Commissioner does not pass any such order, then the entire area which is excess of three times the plinth area shall not be a part of the house. In this view of the matter, what stood transferred to the petitioner by the Provisional Transfer Order was only the house including out‑houses and garages plus three times the plinth area. The area in excess of that was not a part of the house and was, therefore, not transferred to him.

6. The petitioner, however, relied on the instructions of the Chief Settlement Commissioner at pages 104‑105 of the old Settlement Manual issued on the 9th of January 1960. They were under second proviso to sub‑clause (4) of section 2 and paragraph 19 of Settlement Scheme No. I. In these instructions it was provided as to how the plinth area was to be determined. 1t was also provided that uncovered passages, corridors, pucca open terraces and pucca cemented or bricked court‑yards would be allowed in addition to three times the plinth area. The remaining area was to be treated in excess but the person to whom the house was transferred was entitled to purchase the area in excess subject to the condition that such area to be sold to him was not to exceed the area of the gardens and grounds etc., to be transferred to him as a part of the house. He was also entitled to an additional area of 500 sq. yards for marginal adjustments. According to these instructions, the transferee could not purchase the entire area in excess of three times the plinth area on the prevailing market price. He could purchase only if the area so in excess was more than the area of the grounds etc., to be transferred to him or to be sold by public auction. Under the second proviso to clause (4) of section 2, an area in excess of three times of the plinth of the house out‑houses and garages etc., is not a part of the house. By virtue of the instructions of the Chief Settlement Commissioner certain other areas besides those, for example, uncovered passages, corridors, pucca open terraces and pucca cemented or bricked court‑yards are also to be the part of the house. The question arises whether the Chief Settlement Commissioner was competent to have passed a general order in this behalf in the exercise of the power which he had by virtue of second proviso to clause (4) of section 2 of the Act. The Chief Settlement Commissioner also directed that the transferee was entitled to purchase on the prevailing market price a certain area in excess of the plinth area and uncovered passages etc. He further directed that the rest of the area is to be disposed of only by public auction. The question arises whether the Chief Settlement Commissioner was competent in the exercise of his powers under the proviso to clause (4) of section 2 to give such general instructions. It is only when the gardens and grounds attached or appurtenant to a house exceed three times the plinth area, the area so in excess is not to be treated as a part of the house or such part thereof as the Chief Settlement Commis sioner, may determine. The Chief Settlement Commissioner therefore, has to apply his mind to the facts of each case. He is to decide in respect of each house whether a part in excess of three times the plinth area should not be treated as a part of the house. This proviso does not contemplate of the exercise of powers of the Chief Settlement Commissioner in respect of all the houses where the grounds or gardens exceed three times the plinth area. He has, however, passed such an order. This is not the exercise of the discretion given to him but is in the nature of a Legislation. If the Legislature had intended that the Chief Settlement Commissioner should pass a general order, the Legislature would have expressed its intention explicitly and in unequivocal terms. By relying on Attorney‑General v. Emerson ((1889) 24 Q B D 50), it is stated in Maxwell on Interpretation of Statutes (Eleventh Edition) at page 120 that "in cases where a statute confers a discretionary power, an exercise of it in the fetters of self-imposed rules of practice, purporting to bind in all cases, would not be within the Act" and by relying on R. v. Merloneth ((1844) 6 Q B D 163) and R. v. Glamorganshlre ((1850) 19 L J M C 172), further said. "Thus, where an Act gave the Court of quarter sessions power, if it thought fit, to give costs in every poor law appeal, it would be bound to exercise a fair and honest discretion in each case and would not be entitled to govern itself by a general resolution, or rule of practice, to give nominal costs in all cases, for this would be in effect to repeal the provision of the Act." Based on Macbeth v. Ashley ((1874) L R 2 Sc. App. 352), it was stated: "Where a similar Act, after fixing the hours within which intoxicating liquors might be sold, authorised the licensing justices to alter the hours in any particular locality, within the District, requiring other hours, it was held that they had no right to alter the time in every case by virtue of a general resolution to which they had come. And though their resolution was limited to a portion of the locality, yet as this portion comprised every licensed house of the whole district, the limitation was regarded as a mere attempt to evade the Act. The statute required them to decide, in the honest and bona fide exercise of their judgment, what particular localities required hours for opening and closing other than those specified by the Act, and they were bound to satisfy themselves as to the special circumstances of the particular locality, which, by taking them out of the general rule laid down by Parliament, required that an exception should be made. The statute laid down a general rule, and permitted an exception, but here the exception had swallowed up the rule and that which might fairly have been an exercise of discretion became no exercise of the kind of discretion meant by the Act." The instructions dated the 9th of January 1960 by the Chief Settlement Commissioner to be followed by the Deputy Settlement Commissioners etc., being of general nature application, have not been made in the exercise of his discretion in each case as he was required to do, are ultra vires the proviso and cannot be the basis for transferring any area in excess of three times the plinth area.

7. The next question to be examined is whether the area in excess of three times the plinth area or in excess of the area which the Chief Settlement Commissioner may determine can be transferred to the transferee of the house on prevailing market price. Paragraph 19 of Settlement Scheme No. I, provides as:‑ "

19. Disposal of surplus land.‑(1) Where a person to whom a house is transferred, desires to purchase the land in excess of the land attached or appurtenant to the house and originally included in its compound whether enclosed by a compound wall or not, such land shall be transferred to him on payment of the prevailing market value. (2) Where the person to whom the house is transferred does not desire to purchase the remaining part of the land it shall be demarcated and disposed of as one or more building sites under paragraph 14 of the Schedule to the Act; Provided that the Deputy Settlement Commissioner shall at the time of demarcation hear the transferee of the house and any other interested person. (3) The area demarcated under the preceding sub‑paragraph shall be entered in a Register to be maintained for this purpose." The transferee under this provision can ask the authorities to transfer the excess area to him on payment of the prevailing market price. It is only when he does not desire to purchase the excess area that it can be transferred as one or more building sites under paragraph 14 of the Schedule to the Act. Settlement Scheme No. I was made on the 19th of May 1959. It was made under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Under the original Act, prior to its amendment by the Displaced Persons (Compensation and Rehabilitation) (Second Amendment) Act of 1959, the house was defined as:‑ " `house' means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, garages and out houses, if any, attached to or appurtenant to such premises notwithstanding that any such garden, ground, garage or out house is in the possession of a person other than the person or persons in possession of such residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 15 of the First Schedule to be a big mansion or hotel: Provided that where a building not so declared consist of more than one residential premises and such premises are in the possession of several persons, the premises in the possession of any one of such persons shall be deemed to be a house." By virtue of the definition clause, the house meant the residential premises along with all the gardens, grounds, garages and out‑houses attached or appurtenant to such premises. If, therefore, a premises had even 44 Kanals attached to it, it was a house under the Act (before it was amended). Paragraph 19 of Settlement Scheme No. I provided that a transferee could purchase land in excess of the land attached or appurtenant to a house on the prevailing market price. As already mentioned, the entire land formed part of the house and the transferee of the premises became also the transferee of the land. There was left nothing out of the premises to be sold or auctioned. Paragraph 19 of the Scheme at the time it was made, was not applicable to any situation falling under the Act. It, therefore, was clearly ultra vires the provisions of the Act. It was only by the Displaced Persons (Compensation Rehabilitation) (Second Amendment) Ordinance, 1959, that second proviso to clause 14) of section 2 was added. It was by virtue of this amendment that the area in excess of three times the plinth area was not to be treated as a part of the house. Paragraph 19 of the Scheme, however, could fit in with the amended definition of the house, but at the time Settlement Scheme I was made by the Central Government under, section 16(1)(b) of the Act, such a paragraph could not be provided in the Scheme because a Scheme could be made under sub‑clause (b) of clause (1) of section 16 only "for the transfer of immovable property on evaluation basis or otherwise to claimants, non‑claimants or locals in accordance with the provisions of the First Schedule." The Act or the Schedule did not provide for the transfer of the area in excess of a house; to any person on the prevailing market price. Paragraph 19 of Settlement Scheme 1, therefore, could not validly be a part of any Scheme made under section 16 of the Act. Under the amended definition of the house, an area in excess of three times, the plinth area was not to be treated as a part of the house. The area so in excess had, therefore, to be disposed of as vacant building site. Paragraph 19 provides for such a disposal. This was ultra vires the provisions of the Act and the Schedule when it was made. It means it did not exist in the eye of law. By a subsequent amendment of the definition of the house, the existence of such a paragraph could not be validated unless there was a validating clause in the amending ordinance which was not there. Paragraph 19, therefore, does not exist in the eye of law.

8. Paragraph 19 is ultra vires for another reason also. According to this paragraph, the excess area is to be transferred to the transferee of the house on prevailing market price. The house can be transferred to a person in possession or it can be transferred to a claimant under paragraph 14 of the Schedule, under Settlement Scheme No. V or it can be disposed of by auction. What the transferees under these provisions can get is only the house and the house means the premises, out‑houses and three times the plinth area or such other area as the Chief Settlement Commissioner may determine. Any area in excess of that is not a part of the house. Such an area by virtue of Explanation to paragraph 14 of the Schedule is to be deemed to be a vacant evacuee building site. Paragraph 14 with the Explanation reads as:‑ "All vacant sites not falling under paragraph 13 shall be sold to the highest bidder in an unrestricted public auction. Explanation.‑A site on which no permanent building exists shall be deemed to be a vacant site and in the case of a dispute whether or not a particular site is a vacant site, the decision of the Settlement Commissioner or any other officer authorised by the Central Government in this behalf shall be final." Since on such an area no permanent building exists, it is under the Schedule a vacant building site and has to be sold to the highest bidder in unrestricted public auction. Scheme can be made under section 16 for the transfer of the immovable property in accordance with the provisions of the Schedule. The vacant building sites under paragraph 14 can be transferred only by a sale to the highest bidder in an unrestricted public auction. Paragraph 19 of Settlement Scheme No. I, however, provides that it should be transferred on prevailing market price to the transferee of the house. This paragraph is not in accordance with the provisions oft he Schedule and, therefore, is ultra vires the provisions of section 16 of the Act.

9. The result is that if an area is in excess of three times the plinth area or is in excess of the area which the Chief Settle ment Commissioner has held to be a part of the house, it can be transferred by no other means except by way of a sale by an unrestricted public auction. In this view of the matter, the petitioner has no valid claim for the transfer of the area beyond what is transferred to him. The writ petition has no merit. It is accordingly dismissed. There shall be no order as to costs. A. H. Petition dismissed.