P L D 1968 Karachi 355 (PLP)

3. A brief reference may now be made to the various orders passed in this case, in consequence of which the transfer in favour of Usman was refused and was granted to M. H. Abbasi. M. H. Abbasi was not in possession of any part of the disputed Plot No. 53 and he came into the picture in this way: He had been allotted an incomplete building on the adjacent plot bearing No. 52 which he completed at his own expense and in which tie had set up a printing press and was publishing a newspaper "Comment". As has been already stated Muhammad Usman had applied for the transfer of this plot on 30th November 1959. Before his application was disposed of M. H. Abbasi also appeared to have approached the authorities for the grant to him of this plot also because the accommodation in his possession was not sufficient. A note thereupon was put by an officer Mr. Minai on 7‑4‑60 and the plot was inspected by Deputy Settlement Commissioner Mr. Majid Faruqui. His report which has been referred to by the learned single Judge may be reproduced:‑

"As ordered by your honour I have inspected the building site bearing No. R. B. 11/53. This building site is in occupation of several persons. Of these persons one Haji Muhammad Usman is in occupation of 300 sq. yards. He has constructed 9 rooms fitted with electricity having necessary service sets. The construction, of the walls is of the R. C. C. blocks and the roofing is of A. C. sheets with wooden beams and wooden planks inside. The covered area under permanent construction is 164 sq. yards. In all the total area in occupation of Haji Muhammad Usman is 300 sq. yards. According to the extract from C. D. C. the total area of the plot in question i3 419 sq. yards and the permanent construction raised by Hail Muhammad Usman is 164 sq. yards which is more than 1/4th of the whole plot. Other persons have put up hutments. Haji Muhammad Usman and others have presented their separate applications for the transfer of plot in question." The matter was then considered by Mr. Rauf Chowdhry who made a note on the 18th June 1960, to which he quoted his earlier report in which he had said that there was no good ground why he (M. H. Abbasi) should he considered entitled to the transfer of the adjacent Plot No.

53. In the note of 18‑6‑60 he proposed that if the Chief Settlement Commissioner approves the applicant may be advised either to bid at the time of auction or to offer an advance of 150 % of the average auction price. This proposal appears to have been accepted by the Chief Settlement Commis sioner as Abbasi, Editor of "Comment", had agreed to pay the proposed price. This would appear from the note of Mr. Chowdhry dated 8th September 1960. In this note, however, it was added that if the occupant Haji Muhammad Usman had permanent construction en more than 1/'4th of the total area the matter will have to be referred again to the Chief Settlement Commissioner. The Executive Engineer was then directed in this note to personally verify and comment on the nature and extent of the alleged permanent construction of Muhammad Usman. Such an inspection was made by the Executive Engineer Muhammad Sarwar on 27‑9‑

60. The relevant portion of his report may be reproduced: "The walls are very thin without proper foundations and cannot bear the load of the permanent roof. Height of rooms is very low, about 8 feet. The plinth is also depressed. Roofing in main rooms consists of under‑sized wooden planking covered over with cement concrete on top. The construction is much below specifications and cannot be classed as permanent one. Flooring in rooms as well as in open courtyard is of cement concrete. Electric and. drainage system have also been installed by Haji Muhammad Usman." It seems that it was then decided to transfer the plot to Abbasi as would appear from the letter dated 13th October 1960, by the same Deputy Settlement Commissioner Mr. Majid Faruqui. In this it was stated that the plot in dispute, i.e. R. 8. 11/53, had been reserved for transfer to him at an average auction price plus 50% and that he should send his acceptance within a week. It may be noted that the P. form of Muhammad Usman had still not been rejected because the matter came up later before the Deputy Settlement Commissioner Mr. Majid Faruqui who passed an order dated 6‑12‑60, by which he rejected the application of Muhammad Usman and the other four persons who had put up hutments on the portion of the plot not in possession of Usman and further ordered that upon Abbasi's acceptance of the proposed terms the plot had been transferred to him vide Appendix dated 16th November 1960. The reason why the construction of Muhammad Usman was rejected by the Deputy Settlement Commissioner may be stated in his own words:‑

"No doubt Haji Usman has raised some construction on this plot but from the report dated 27‑9‑60 of the Executive Engineer of this Department it is clear that the construction raised by Haji Usman is much below the specification and cannot be classed as permanent construction. In the light of the above report of the Executive Engineer the construction raised by Haji Usman does not come under the category of permanent con struction and as such it is ‑not maintainable under the Settle ment Scheme No. VI. Haji Usman appealed to the Settlement Commissioner and this appeal was decided by Mr. Rauf Chowdhry, who dismissed the appeal upon the ground that even an allottee is not entitled to transfer of an evacuee building site unless he has got a permanent building on it. The revision of Usman before the Chief Settlement Commissioner was also rejected on the same ground. It was observed that according to para. 13 of the Schedule unless the petitioner had constructed permanent building he was not entitled to the transfer of the site. It may be stated that as Abbasi was not in possession of any part of the plot in question the sanction of the Central Government had to be obtained and this was granted on two conditions, viz., (1) the property in question is not transferable to any other person under the provisions of the Schedule to the Displaced Persons (Compen sation and Rehabilitation) Act, 1958 and (2) that the market value for the property determined is recovered before the transfer is effected. Muhammad Usman then filed the writ petition which was allowed by the learned single Judge.

4. We have heard Messrs Naimuddin and Wasim Rizvi for the Department and Mr. Khalid Ishaq for M. H. Abbasi, and Mr. Akram for the respondent Muhammad Usman in the two appeals. Two contentions have been put forward on behalf of the appellants in these two appeals : Firstly, that the learned single Judge in exercise of jurisdiction under Article 98 had no power to direct transfer of the plot to Muhammad Usman. Secondly, the plot having been transferred to Abbasi by the order of the Central Government under section 10 it would be saved by virtue of the provisions of the Ordinance III of 1963 even if it was originally defective. With regard to the first point it was contended that the question whether a construction is a permanent building or not, is one of facts and if upon the material on record a finding has been reached by the Settlement authorities that it was not and this finding was found by the learned single Judge to be not in accordance with the law defining permanent building, the learned single Judge should not have substituted, his own finding but should have sent the case back 'to the Settle ment authorities for re‑examining the matter with reference to the principles which may have been laid down which determined the character of such a building. Mr. Khalid Ishaque contended that the Supreme Court even in the case of Mahmuda Tahsin (PLD 1965SC618), wherein it was held that the Scheme VI could not add any limitation to the term `permanent building' as used in para. 13 of the schedule, had merely set aside the order of the Settlement authorities and had directed a fresh determination of the right of the appellant to the transfer of the plot. It would be useful to refer to this judgment in some detail because it was not there when the learned Single Judge passed the impugned order which was on 22‑1‑

64. In that case the appellant before the Supreme Court Mst. Mahmuda Tahsin had constructed a garage and a room upon an evacuee plot adjacent to her house and had applied for the transfer of the plot under para. 13 of the Schedule read with the Settlement Scheme VI. Their Lordships after referring to the relevant provisions of para. 13 of the Schedule and Scheme VI held that the definition of permanent building in the Scheme limiting entitlement to cafes covered by the definition was not consistent with para. 13, in which the words 'permanent building' must be presumed to be used in the ordinary sense. It was further observed that there being no definition of 'permanent building' in the Act, a person who had used a permanent building it the ordinary sense of this expres sion on a piece of land was entitled to its transfer in accordance with para.

13. Now, in the present case it is the first clause of Pare. 13 which is applicable. It may be reproduced:‑‑ "An evacuee building site which had been allotted to a claimant on which a permanent building had been constructed by him shall be transferred to him on payment of the market value prevalent at the time of allotment and may, if the claimant so desires, be adjusted against his claim." Muhammad Usman is an allottee as well as a claimant. The definition of 'permanent building' was attempted by the Settle ment Scheme No. VI which had been framed for the dismissal of building sites. This may be reproduced: "(3)'permanent building' means‑

(a) a building constructed under a plan approved by the Public Works Department of the Central Government or Government of West Pakistan, Municipal Corporation or Com mittee, Cantonment Board, Improvement Trust or any other local body authorised by government in this behalf; or (b) a building constructed without such an approved plan, but subsequently approved by a competent authority ;, or (c) a building for which plan : has riot been approved by a competent authority, but which has been constructed with building material normally used in the non‑evacuee buildings in the locality where it is situated and covers at least one‑fourth 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) any other construction or class of constructions which may be declared by the Chief Settlement Commissioner as a permanent building." It is these limitations which had been put upon the term 'permanent building' in the definition given by the scheme which was struck down by the Supreme Court for the reasons given in the said judgment. Now, in the present ease, it may be noticed that in the first report of the Deputy Settlement Commissioner Mr. Majid Faruqui it was found that the permanent construction was raised by Haji Usman on 164 sq. yards which was more than 1/4th of the whole plot. But another report was obtained from the Execu tive Engineer in connection with the claim of M. H. Abbasi and Muhammad Usman and in this after describing the nature of the construction, it was not stated that it was not a permanent con struction. But what was stated was that the construction was much below specifications and cannot be classed as a permanent one. The Executive Engineer was, therefore, clearly referring to the definition of the permanent building in the Scheme. Factually this building consisted of nine rooms built of R. C. C. block walls with A. C. sheets roof supported by wooden beams and wooden planks inside. The flooring of the rooms as well as in the courtyard was of cement concrete and electricity and drainage system had also been provided. There is no doubt that bate, the Settlement Commissioner and the Chief Settlement Commis sioner in their orders said that Haji Usman had not built a permanent building but their assessment in our opinion must necessarily have been upon the definition of the term as given in the Scheme. The limitations put in that definition by the Scheme are no longer valid. The question, therefore, is whether this was a permanent building in the ordinary sense. But it is said that what is a permanent building in the ordinary sense must now be once more examined by the Settlement authorities in view of the judgment of the Supreme Court and that we should not attempt it ourselves. We are unable to agree. Such a course would certainly be desirable if a question of fact had to be ascertained or fresh evidence had to be taken. This, however, is not the case here. The nature and extent of the construction and the material with which it is built and the fact that it is in occupation of Muhammad Usman and his family for many years is not in dispute. Does it then require any additional ascertainment of fact for the purpose of holding whether this is a permanent building in the ordinary sense of the word and once the conditions imposed in the definition of permanent building in the Scheme are disregarded the determination of the question whether the building is or is not a permanent building must be in the ordinary sense. In that sense the building in question must be held to be a permanent building. We do not see what useful purpose would be served by remanding this case to the Settlement authorities for a fresh expression of opinion upon the material, all of which are already on the record and nothing can be added to or subtracted from it. The question whether a construction is of a permanent character has beer; considered by the various High Courts in the pre‑partitioned India with reference to section 60 of the Easements Act which provides that a licence cannot be revoked if the licensee acting upon the licence has executed a work of a permanent character, and incurred expenses in the execution. It was held that the two‑fold aspects of the matter has to be taken into account in this connection. Firstly, the nature of the material used in the construction of the work might be examined. If strong and durable material was used in its construction, a presumption, naturally would arise that there was an intention to put up a permanent structure. Secondly, the actual mention of the party putting up the construction is to be ascertained. It was observed that a kutcha mud house may be accepted as a work of permanent nature if the person erecting it had an intention to make it as permanent as the nature of the construction allowed. Upon these tests also we have no doubt that the building in question must be regarded as a permanent building.

5. With regard to the contention that in the case of Mahmuda Tahsin, the Supreme Court had merely set aside the order of the Settlement authorities and had directed a fresh deter mination and that this course should be adopted in the present case as wall, it may be pointed out that it is abundantly clear from the facts of that case that after their Lordships had reached the determination with regard to the permanent character of the building there were several other questions which had to be examined, such as how much of the land was to be transferred to the appellant. No such fact has to be ascertained in the present case because upon the ratio of the judgment the respondent Muhammad Usman would be entitled to the transfer of only 298.67 sq. yards of land of which he was in possession and which had been allotted to him. The true test was laid down by the Supreme Court in the case of Azmat Ali v. Chief Settlement arid Rehabilitation Commissioner (P L D 1964 S C 260 ). It was held that where it is felt that questions have been left undecided by such tribunal or authority or a question has to be decided after taking of fresh evidence, it is more appropriate to return the case to the authority or tribunal concerned for a decision in accordance with law after quashing the order complained‑against. As. we have observed in the present case as far as the claim of Muhammad Usman is concerned no such question for further ascertainment arises.

6. That brings us to the second question whether the transfer in favour of M. H. Abbasi is validated by section 2 of the Ordinance III of 1963. It has already been noted that the 9 transfer in this case was ordered by the Central Government under section 10 of the Act by the order signed by the Deputy Secretary dated 28th April 1961. Section 2 of Ordinance III of 1963, upon which reliance was placed, reads‑

"(2) Validation of certain transfers.‑Any property transferred by the Chief Settlement Commissioner with the approval of the Central Government from th$ compensation pool constituted under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) to any person or class of persons by any general or special order, on or after the 8th August 1959 but before the commencement of this Ordinance, in the pur ported exercise of the powers under the said Act, shall notwith standing anything, contained in that Act in any rule or order made thereunder, be deemed to have been validly transferred as if the Chief Settlement Commissioner had, at all material times, powers under the said Act to so transfer such property; and the validity of any such transfer shall not be questioned in any manner whatsoever." We are unable to agree that this validating provision can be of any assistance to the appellant. The order of transfer by the Central Government was itself conditional and one of the condition was that the property is question is not transferable to any other person under the provisions of the Schedule to the Displaced Persons Act. Therefore, if it is found that the property was transferable to Usman, as it has been, no question of validation of the transfer in favour of M. H. Abbasi arises. This question had also been raised before the learned single Judge and he repelled it saying that "since I have come to the conclusion that the property in dispute was transferable to the petitioner and should have been transferred to him it is quite clear that the Chief Settlement Commissioner disregarded the condition imposed by the Central Government and has transferred the property in dispute in violation of the conditions laid down by the Central Government." This position, if we may say so, is unassailable.

7. No other point was raised: In view of our conclusion we dismiss both the appeals so that the directions given by the learned single Judge for the transfer to Usman shall be enforced with this variation only that in view of the judgment of the Supreme Court in Mahmuda Tahsin's case Muhammad Usman shall be entitled to the transfer only of the portion in his posses sion and which was allotted to him, measuring 298.67 sq. yards. In the circumstances, however, we make no order as to costs. A. H. Appeal dismissed.