P L D 1992 Supreme Court 80 (PLP)

NASIM HASAN SHAH, J.‑‑‑The facts, which form the background, are that property No S‑90‑R, Urdu Bazar, Lahore, was burnt and reduced to open land in the disturbances attending the partition of the country. The appellant Abdur Rashid as well as Haji Fazalur Rehman, predecessor‑in ‑interest of respondents Nos. 2 to 12, inter alia, entered into possession of certain portions of the above open land and constructed shops on separate portions of this property. Subsequently, the sites of the shops constructed by the appellant (Abdul Rashid) as well as Haji Fazalur Rehman were transferred to them as building sites under Scheme No. VI vide order of the Deputy Settlement Commissioner dated 30‑5‑1962. However, in the transfer documents issued to Haji Fazalur Rehman he was shown to be the transferee also of some construction lying over the shop of the appellant Abdur Rashid. The latter, namely Abdur Rashid (appellant herein) applied for amendment of these documents of transfer issued to Haji Fazalur Rehman wherein he was shown as the transferee of some construction even over his shop. This prayer for amendment was accepted vide a detailed order passed on 17‑5‑1973 by another Deputy Settlement Commissioner. But on a revision petition moved by Haji Fazalur Rehman against the said order dated 17‑5‑1973, an Additional Settlement Commissioner with powers of the Settlement Commissioner set it aside. The appellant, therefore, filed a writ petition in the High Court challenging the last‑mentioned order passed by the Additional Settlement Commissioner exercising powers of the Settlement Commissioner but the same was dismissed mainly on the ground that as the matter was within the exclusive jurisdiction of the Additional Settlement Commissioner with powers of the Settlement Commissioner his order could not be held to have been passed without lawful authority and, therefore, was not liable to interference in writ jurisdiction. Hence this appeal, by leave of this Court. Mr Iqbal Ahmad Khan, learned counsel for the appellant, has argued that both Abdur Rashid and Haji Fazalur Rehman had been transferred their respective shops under Scheme No. VI. This scheme deals with transfer of building sites and provides that the permanent construction raised on a building site or open land may be transferred to its occupant if he is in possession of it. He submits that it was, therefore, not permissible in law for the Additional Settlement Commissioner to transfer a building constructed not over an open land but on an already built up shop. Mr. MA. Qureshi, Advocate‑on‑Record, learned counsel for the respondents, has submitted in reply that there was some agreement between Haji Fazal‑ur‑Rehman and Abdul Rashid whereby the former had been allowed to raise construction over the shops of the appellant and another person (Tufail Muhammad) and that he had, therefore, been rightly transferred these constructed portions which were built over their shops. Mr Iqbal Ahmad Khan, learned counsel for the appellant, however, has asserted that at least no building has, in fact, been constructed over the shop by Abdul Rashid appellant and in this connection also drew our attention to certain averments made by the parties during the litigation which took place between them before the Civil Court. Be that as it may, it is clear that under the law Haji Fazalur Rehman could not be transferred any property which was constructed over the shop built by Abdur Rashid appellant. Settlement Scheme No.VI is the scheme framed to give effect to the provisions of para. 13 of the Schedule to the Dispalced Persons (Compensation and Rehabilitation) Act. According to para.13 an evacuee building site on which a permanent building has been constructed by a claimant/non‑claimant or any other person, shall be transferred the said building site on payment of the prevailing market value plus 50 per cent. of such market value if the person in possession of the same is not its allottee but has come into its possession unauthorisedly (as was the case of the parties herein). The transfer of any property under this scheme can be made in favour of the party who has constructed the permanent building on the said open building site; but where a construction is raised on an already constructed building the transfer of such a building is not covered by Scheme No VI or para. 13 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act. The result is that this appeal is accepted. The order of the Additional Settlement Commissioner exercising powers of the Settlement Commissioner and that of the High Court upholding the same are hereby set aside and the earlier order passed by the Deputy Settlement Commissioner dated 17‑5‑1973 being the order passed in accordance with law, is restored. In the circumstances, the parties are left to bear their own costs. A.A./A‑904/S Appeal accepted.