P L D 1967 Lahore 520 (PLP)

MUHAMMAD FAZLE GHANI, J.‑This is a L. P. A. against the order of a learned Single Judge dated the 4th of August 1964. The appellants and 175 other persons made an application under Article 98 of the Constitution of the Islamic Republic of Pakistan in a representative capacity within the meaning of Order I, rule 8, C. P. C. The appellants' case is that sometimes after independence they occupied evacuee lane] which now forms part of Gulberg Scheme No. 3 and had built hutments for themselves in that land as they were not able to procure any allotment for residential accommodation in their favour. The area under their residential hutments, which they had raised on evacuee land in Gulberg Scheme No. 3, was acquired by the Improvement Trust of Lahore, but the authorities, however, provided them the present site, now known as Basti Jamia Ashrafia, where they have built houses for themselves after laying out proper streets, etc. It is claimed that a part of the land has been reserved for graveyards for Muslims and Charistians and a mosque and a church have also been constructed in this abadi.

2. At the advent of settlement operations when Settlement Scheme No. VI under Displaced Persons (Compensation and Rehabilitation) Act of 1958, was enforced the appellants claim to have submitted their respective forms for the transfer of the site under their superstructures but it is alleged that the Settlement Authorities did not take notice of their applications and disregarding the rights of the appellants, who bad raised construc tion on evacuee site, the Settlement Authorities prepared a scheme under which they divided the area in dispute into various plots for bungalows and disposed of in favour of different persons. When the appellants were threatened with the ejectment and demolition of their constructed area they approached this Court under Article 98 of the Constitution.

3. The respondent No. 1, Chief Settlement Commissioner filed his written statement in this Court and controverted the allegations of the appellants. It was denied that the appellants had shifted from the area under Gulberg Scheme No. 3 to the present site under any assurance from the Rehabilitation Authorities. It was further asserted that the appellants had built only katcha pacca buts on the evacuee plots without permission from any competent Rehabilitation Authorities and, therefore, were not entitled to the transfer of the land under their katcha built houses. The filing of their respective petitions for the transfer of the building site under their superstructures by the scheduled date, 30th November 1959, was also denied. The Chief Settlement Commissioner also submitted in his written statement that the appellants had not exhausted their legal remedies available to them under the Settlement Laws, therefore, they were not eligible to seek the extraordinary relief under Article 98 of the Constitution. The last mentioned plea found favour with the learned Single Judge and as a result thereof the writ petition of the appellants was dismissed.

4. In this appeal it was contended that the appellant were in possession of the disputed site upon which they had raised permanent construction and had applied for the transfer of the same under Scheme No. VI of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. They had submitted their forms for its transfer to the Settlement Authority concerned but their forms were illegally ignored and no action was taken upon them. When they read in newspaper an advertisement in the daily Nawa‑i‑Waqt on the 1st of May 1962 that the plots in dispute were going to be auctioned, they immediately approached the Secretary, Urban Area with as application that they were occupants of the site which was proposed to be auctioned and had submitted their forms for the transfer of the building site in their possession, and as such, the building site under their super structure should not be disposed of in any other manner. The Secretary, Urban returned the application for presentation to the Settlement Commissioner, Lahore Division and the Settlement Commissioner passed it on to the Additional Settlement Commissioner with the direction that he should hold an enquiry and decide the objections on merits. No order was passed by the Additional Settlement Commissioner according to the directions issued by the Settlement Commissioner but it seems that he endorsed this application to the Deputy Settlement Commissioner, Centre V, Lahore, who passed the following order: "The petitioner is not entitled for the transfer and unauthorized person and have not also applied. "The appellants have produced a large number of receipts in this Court which were issued in their favour by the Petition Branch of the Office of the Deputy Settlement Commissioner, Lahore. They have also placed on the record Annexures I and II which are extracts from the register of applications of open plots showing that various applications were received in the office of the Deputy Settlement Commissioner and were properly entered according to the receipt numbers shown against each name. There is another application addressed to the Deputy Settlement Commissioner that they wanted to inspect the record of the office of the Deputy Settlement Commissioner about their applications but the record was not made available for their inspection as the same was not traceable in the office. It was, therefore, urged that in these circumstances it was not possible to get redress at the hands of the local Settlement Authorities, and, therefore, the appellants had approached this Court under Article 98 of the Constitution.

5. According to the written statements submitted on behalf of the Chief Settlement Commissioner it is admitted that the appellants had made their respective applications for the transfer of the plots but it does not appear that any judicial order was passed on these applications or that the appellants were heard at any time on these applications. The written statement further shows that the department ignored the applications of the appellants for one main reason that the appellants had constructed unauthorised katcha huts. In order to appreciate the legal position about the transfer of evacuee building sites it will be useful to reproduce the relevant provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, applicable to the present case. The admitted position of the parties is that the appellants are unauthorised occupants of the evacuee building site and, therefore, the provisions of clause III‑Building Sites, Paragraph 13, sub‑para. (3) of the Act will be attracted to the present case. This paragraph and para. 14 of the Schedule are as follows:‑

13. An evacuee building site which has been‑ (1) (2) (3) in unauthorised possession of any person and that person has constructed a permanent building on it, then that site shall be transferred to that person on payment of the prevailing market value plus fifty per cent. of such market value: Provided that no such additional price shall be charged if that building site forms part of an area on which displaced persons have raised a number of permanent houses, dwellings or shops so as to form a cluster or colony.

14. All vacant evacuee building cites not falling under paragraph 14 shall be sold to the highest bidder in an unrestricted public auction.

6. The fact whether the appellants shifted from the area now forming part of Gulberg Scheme No. 3, of their own accord or on the asking of the Settlement or Improvement Trust Authorities is not material for the disposal of this case. In the written statement filed by the department it is admitted that the appellants had built up karcha and pacca buts on the evacuee plots and since these constructions were made by the appellants without the permission of the competent authority they were not entitled to the transfer of the land under Scheme No. VI. It is also admitted that the appellants have filed their forms for the transfer of these plots but these were filed after the 30th of November 1959, the date which was fixed by the Settlement Commissioner for the receipt of such applications. The Settlement Authorities for these two reasons refused to take any action on the applications of the appellants and they have consistently repeated their stand about the rejection of the appellants' claim in their written statement. But from a perusal of the relevant provisions of the Schedule which has been reproduced above it would appear that the considerations which prevailed with the Settlement Authorities for the rejection of the appellants' claim were wholly unwarranted and not sustainable under the law. Paragraph III. 13 (3) which is applicable in this case is to the effect that the Settlement Authorities are obliged to transfer to an unauthorised occupant an evacuee building site upon which a permanent building has been constructed by him, on prevailing market value, etc. There are no such restrictions that the construction must have been done with the permission of any competent authority and the Schedule makes even unauthorised persons eligible for the transfer of evacuee building site upon which they have raised a permanent construction. So far as the second objection of the Settlement Authorities is concerned that the appellants' claim was ignored because they had submitted belated forms. The question has been decided by the judgment of their Lordships of the Supreme Court in Altaf Hussain v. The Chief Settlement Commissioner, Pakistan, Lahore, etc. (P L D 1965 S C 68) and this mere technicality should not have been a hinderance in the way of the appellants some of whom are shelterless refugees and all of them are almost destitute who have strained their resources in the constructions of these katcha pacca houses on the evacuee site.

7. Mr. Aamer Raza, the learned counsel for Major Iqbal Ahmad Khan, informed this Court that his client had purchased plot No. 20 in the auction and had paid its full price as early as 5th of May 1962 and it was not possible for him to meet the objection of the appellants as they are all 175 and had joined in one application. His objection was that he did not know who were the persons who were contesting the transfer of the plot in favour of respondent Major Iqbal Ahmad Khan. The other learned counsel for the respondents also joined Mr. Aamer Raza in this submission as their cases are also identical. It was, therefore, argued that the petition was bad for misjoinder of parties and causes of action, and the appellants should have brought separate action with regard to each case so that the respondents were in a position to controvert the plea raised on behalf of the appellants on the factual plane. In support of this contention, reliance was placed on Halsbury's Laws of England Third Edition, Volume 11, page 83, para. 155 and American Jurisprudence, Volume 35, para. 333, page

81. We, therefore, think it necessary to reproduce in this judgment the law quoted by the learned counsel Para. 155 of the Halsbury's Laws of England is to the following effect: "Two persons cannot join in a single application for an order of mandamus to enforce separate claims. There must be separate application for separate orders, and that although the several applicants are successors in the office in respect of which the claims arise. Ex parte Scott and Morgan (1840), 8 Dowl. 328." In support of this proposition only one authority is cited by the learned author but the facts of that case in which this broad proposition of the law has been laid down are not known, therefore, we do not feel that the provisions of this para of Halsbury's Law of England should be applied to this case. On the other hand the provisions of para. 333 of the American Jurisprudence seems to be more akin to the facts and circumstances of this case. This para. reads as under:‑ "Persons having a common and joint interest in the subject matter in controversy may be joined as relators in mandamus, and in a number of cases, it has been held, apart from any express statutory authority, that several relators may properly join in an application for the writ, even though they have no strictly joint interest in the right sought to be enforced, where the right of each relator is the same as that of all the others Mr. Aamer Raza relied on the later part of this paragraph which is as follows:‑ "Generally, however, persons having similar but wholly separate and distinct interests in the subject‑matter of the controversy are not entitled to join as relators in mandamus . The objection is that each one of the 175 appellants are entitled to ask for the transfer of the evacuee building site upon which he had raised a permanent construction in his own right and, therefore, he could not join hands with others who also may have a similar claim to a separate site under their own construction. In this context it was also submitted that the respondents 2 to 10 have obtained the transfer of separate plots from the Settlement Authorities in their own right and there was no community of interest amongst them and the above general principles laid down in American Jurisprudence as well as the provisions of paragraph 155 of Halsbury's Laws of England should be applied to their case and the appellants' case should be thrown out for multifarious ness. We have already explained that the broad Principles of Law laid down by the above paragraph of Halsbury's Laws of England will not be applied in this case and similarly we are of the opinion that the contention of learned counsel about the general provisions relating to the procedure of mandamus incorporated in the later part of paragraph 333 of the American Jurisprudence also should not be relied. All the appellants have a common and joint interest in the subject‑matter in controversy. They made a joint application before the Settlements Authorities requesting them not to dispose of this property without disposing their applications in accordance with the provisions of the Schedule and the Schemes made thereunder. The Deputy Settlement Commissioner by one single order denied all of them a right in the property which, each of them had claimed in his own individual right. The whole building site is evacuee property and it cannot be said that in these circumstances they have no joint interest in the strict sense which they seek to be enforced by this petition. At any rate there is a community of interest in so far as they ask for the disposal of the property according to the provisions of the Settlement Law and it cannot be denied that each one of them has one common grievance and that is that his application for the transfer of the plot has not been legally disposed of. There is no express statutory provision under Article 98 of the Constitution of Islamic Republic of Pakistan, to enable us to enforce this technical rule of procedure in all its strictness and in the absence of a statutory bar we do not think that this technical objection should be allowed to impede the course of justice.

8. Coming next to the objection that the appellants had not availed of the statutory remedy provided to them by law. We regret that we are unable to agree with the findings of our learned brother. The circumstances of this case are such that there was no occasion for the appellants to avail of the statutory remedy available to them by way of appeal and revision under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Chief Settlement Commissioner has prescribed rules and procedure for the hearing and disposal of applications under Scheme No. VI of the Act. Chapter II of this Scheme deals with the submission and disposal of the applications and paragraph 5 of the same chapter provides the procedure to be adopted by the Deputy Settlement Commissioner for scrutinizing the applications and even making spot inspections. After the formalities under paragraph 5 had been observed by a Deputy Settlement Commissioner he .had to communicate orders to the applicant whether a claimant, non‑claimant or local. In cases where the Deputy Settlement Commissioner thought fit he could hold a judicial enquiry as required under paragraph 7 of Chapter II of Scheme No. VI and for such enquiries the provisions of Settlement Scheme No. I have been made applicable mutatis mutandis. All these rules of practice and procedure were thrown overboard in this case and the individual applications of the appellants for the transfer of building site under their superstructures have remained un-disposed so far.

9. When the Press note appeared in the daily Nawa‑i‑Waqt of the 1st of May 1962 the appellants made a joint application to the Settlement Authorities which was ultimately passed on to the Deputy Settlement Commissioner who filed the same in an arbitrary manner by saying that the appellants were in unauthorised occupation of the building site and as such they were not eligible. This order of the Deputy Settlement Commissioner does not seem to have been passed in the presence of the appellants. It also does not appear from the record that the appellants were heard by the Deputy Settlement Commissioner before he passed his above‑mentioned order. This order, there fore, is no‑ order in the eye of law and the question of filing any appeal or revision against it does not arise.

10. So far as the transfer of plots in favour of various respondents is concerned it could be said at the outset that it was not possible for the appellants to understand from the auction proceedings how their respective plots were being affected. The plots were marked according to some scheme of their own by the Settlement Authorities and it does not carry the name of the occupants of the plots, therefore, none of the appellants was in a position to file any appeal against the auction purchaser. In case ‑of sale of the plot by negotiations the affected persons who were in occupation of the plots were not made a party to the sale proceedings and they never knew what was happening in the office of the Settlement Authorities. In these circumstances we are of the view that the appellants did not had any adequate remedy to redress their grievances before the Settlement Authorities.

11. The term "permanent building" has not been defined under the Displaced Persons (Compensation and Rehabilitation), Act, 1958, and when an occupant of evacuee sites makes an application for the transfer of the site under Scheme No. VI of the Act then it is enjoined upon the Settlement Authorities to make a thorough enquiry in each case and to give a proper, judicial determination about the nature of the property after the perusal of the evidence and inspection of the site, if any. The definition of the "permanent building" as given under Scheme No. VI of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, has been held to be ultra vires of the Schedule by their Lordships of the Supreme Court in Muhmooda Tahsin v. Ijaz Hussain Shah (PLD 1965SC61) and it seems that the Deputy Settlement Commissioner ingored the applications for the transfer of the building site of the appellants for the main reason that the Scheme had defined the permanent building to mean, a building constructed under a plan approved by the Public Works Department, etc. or Municipal Corporation or Committee, etc. In these circum stances we feel that the interest of justice will be fully met if we remand this case to the Deputy Settlement Commissioner, Lahore, to make a proper investigation and judicial enquiry in this case as required by the provisions of the Settlement Scheme No. VI in each individual case and to pass orders in accordance with Law. It will be open to the respondents to make any objection before the Deputy Settlement Commissioner, if they so prefer, about the non‑submission of the application, etc., on behalf of the appellants. They can also object if they find that the persons concerned, who are in physical occupation of their respective plots, have not raised a permanent construction upon the building site under their occupation or the requisite constructions has been put up by them after the scheduled date. However, we would like to make it clear that the transfer of the plots in favour of the respondents stands subject to any order that they may be passed by the Settlement Authorities on the forms submitted by the appellants. With these observations we dispose of this appeal without making any order as to costs, K. M. A. Appeal accepted.