P L D 1974 Lahore 350 (PLP)

Under paragraph No. 13, building sites are required to be transferred to claimants and non-claimant allottees or persons in authorised possession who have constructed permanent building over it. Under paragraph No. 14, all vacant evacuee building sites not falling under paragraph 13 shall be sold to the highest bidder in an unrestricted public auction. There is an explana tion added to paragraph No. 14 in which the expression `vacant building site' has been interpreted. According to this explanation, vacant building site is one on which no permanent building exists. It is, therefore, clear that a site on which a building, which is not a permanent building, is constructed and exists, will still be deemed to be a vacant site. A building site, therefore, does not mean a building site which is absolutely without construction. It is for this reason that it has been further provided in this explanation that "in the case of a dispute whether or not a particular site is a vacant evacuee building site, the decision of the Chief Settlement Commissioner or any other officer authorised by the Central Government in this behalf is final". There was no possibility of dispute arising in a case where the building site is free of any construction whatsoever. Such dispute can only arise where the question is whether the building constructed thereon is permanent and as such transferable under paragraph No. 13 or it is a building of some other character. If a property is therefore transferred by auction under paragraph 14, I have no doubt that it would be transferred inclusive of the building on it, provided the building is not permanent.

7. The question whether a building is permanent or not or whether the property is a vacant building site or not is a question within the exclusive jurisdiction either of the Chief Settlement Commissioner or any other officer authorised by the Central Government in this behalf. In view of this the Rent Controller cannot have any jurisdiction to resolve any dispute if it is subsequently raised by any party including the occupant thereof, regarding the nature of the site or the constructions thereon. If the building site has been auctioned under paragraph No. M and a dispute is raised before the Settlement Authorities, naturally the order of the Chief Settlement Commissioner or any other officer authorised by the Central Government shall be final. If, however, no dispute is raised there and the constructions were already in existence on the plot, it would be presumed that the constructions were of a character which would make the site a vacant building site and would be deemed to have been transferred to the transferee.

8. The terms "building site" and "permanent building" have been ,defined in Settlement Scheme No. VI. "Building site" is defined there as meaning

"any evacuee plot of land acquired under section 3 of the Act, which ,was vacant or free from any permanent construction at the time it became ,evacuee property and is not within a well-defined compound of a permanent building and shall include

(a) a site of which the permanent construction, if any, put up by the evacuee owner does not exceed in area 1/8th of the site; (b) any site on which a building after it became evacuee property was completely demolished by floods, fire, incendiaries or any natural calamity, whether or not any construction has subsequently been raised on it." "Permanent building" means a building constructed under a plan :approved by the Public Works Department of the Central Government or Government of West Pakistan, Municipal Corporation or Committee etc. If the building has been constructed without such approval, it would be a permanent building. If it was 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 it would still be a permanent building. It is open to the Chief Settlement Commissioner to declare any other construction or class of constructions as a permanent building.

9. The definition of "permanent building" therefore, excludes from its ambit the buildings of which plan has not been approved either before or after the construction by a local body and where it does not cover at least -1/4th of the area of the building site or seventy-five per cent. of the maximum area allowed for construction under the rules framed by the local body con cerned. If this definition is applied to the explanation to paragraph No. 14, it will be clear that even the permanent buildings which are outside the preview of the term "permanent building" in Settlement Scheme No. VI would also pass on to the transferees. At this stage reference may be made to Mahmooda Tahsin v. Ijaz Hussain Shah (PLD1965SC618) where it was held that the defini tion of "permanent building" in Settlement Scheme No. VI, cannot add any limitation to paragraph 13 so as to deprive a person of his right in that paragraph. It was, therefore, held that a person who has raised permanent construction over a plot would be entitled to the area on which those con structions actually exist, subject to this that any necessary right for a passage or other easement which are essential to the enjoyment of the property which is to be transferred to such occupant will also be granted to him by the Settlement Authorities. It was further held that except for the area actually under construction and the area necessary for enjoyment for a passage or other easement no other portion of a particular plot can be transferred to the occupant. This view was adopted in Fazal-ul-Haq v. Said Muhammad (1968 S C M R 113), Niaz Din v. S. M. Akbar (1968 S C M R 221) and Mohsan Khan v. Chief Settlement Com missioner (1969 S C M R 306).

10. These authorities are, however, not applicable to the present facts. They are applicable to cases falling under paragraph No. 13 where it is stated that a person who has constructed building, whether allottee or non-allottee, in authorised possession or unauthorised possession, is entitled to the transfer of the plot, on which he has raised constructions. There is no scope left in paragraph 13 for limiting this provision in any other manner.

11. This cannot, however, be said about paragraph No. 14 of the Schedule. In this paragraph it has been left open to the Chief Settlement Commissioner or the Officer duly empowered by the Central Government to decide disputes, inter alia on the question whether there was a permanent building on the site or not so as to exclude it from the operation of this paragraph Scheme No. VI has been enforced under section 16 of the above Act by the Chief Settlement Commissioner with the permission of the Central Government. The approval of the two authorities i.e. the Central Government and the Chief Settlement Commissioner to the definition of permanent building being there, this definition will at least be intra vires in respect of a case covered by paragraph No.

14. The expression, `vacant building site' will, therefore, include the building which is otherwise permanent, provided it is not covered by the definition of `permanent building' in Scheme No. VI. Although there appears to be no direct authority on this point but cases under section 10 of the above Act may be cited with advantage. Section 10(2)(b) authorises the Central Government to depart from the provision of the Act and its Schedule in regard to modes laid down therein for transfer of the property in the Compensation Pool, and to provide for a different mode of transfer. Sometimes Schemes and instructions which had the approval or sanction of the Central Govern ment were held to be intra vires on the basis of the above power conferred upon the Government. Thus in Muhammad Swalih v. Chief Settlement Commissioner, Lahore (P L D 1972 S C 326), para. 20 of Settlement Scheme No. I, and a press note issued thereunder was justified on this ground. Sale of properties by negotiation was held justified for the same reason. M. M. Rashid v. Chief Settlement and Rehabilitation Commissioner (P L D 1963 Lah. 227), Muhammad Akbar v. Govern ment of Pakistan (P L D 1966 Pesh. 132), Major J. H. Naqvi v. Director, Enforcement Directo rate (PLD1966SC512), Gulam Fatima v. Settlement Commissioner (PLD1968SC147) (press note dated 7-4-60 justified), Chief Settlement Commissioner v. Jamaluddin (1968SCMR697), Abdul Qayyum v. Chief Settlement Commissioner (PLD1968SC362) and Majid Ali Naqvi v. Additional District Judge & Ex Officio Settlement and Rehabilitation Commissioner (1970SCMR375). This analogy can apply to determine the validity of the definition of a: permanent building vis-a-vis paragraph No. 14.

12. The further argument of the learned counsel for the appellants that the construction belonged to the appellants is devoid of any force. The building site was inter alia acquired under section 4 of the above Act free from all encumberances. Moreover, an unauthorised construction would be in the nature of accretion to and would form part of the evacuee property or the property acquired on behalf of the Central Government as held in Shamima Khatoon v. Settlement and Rehabilitation Commissioner (P L D 1967 Kar. 315) and the remedy of the appellants was to get a charge created for the amount invested by them. It was held in that case that :- "The ordinary law of the Land is that if a tenant or an occupant of a. tenement adds some further construction in a building it would become an accretion to the building enjoyable by the owner of the property. It is in the nature op accretion to the property. Recently, this point was considered by a Division Bench of this Court in Writ Petition No. 820/1962, decided on 27th August 1965, to which I was also a party. In that case, it was urged by the petitioner that the construction raised by him was an evacuee property and could not be transferred under the Settlement Scheme. This contention was repelled by the Division Bench. My Lord the Chief Justice while dealing with this aspect of the case observed as under :- `In view of the above provision the amount that the petitioner may have invested in putting up the construction on the first floor of the building would be a charge on the property to the extent that such investment is accepted by the Chief Settlement Commissioner, and no more. Any addition to the evacuee property would form part of the same and it will be open to the Department to dispose of the property as it exists.' In view of these clear observations the contention of the Department that the construction raised by the petitioner could not be taken into consideration for purposes of transfer has no force whatsoever." It may be stated that the decision in the Division Bench case was reversed in appeal by their Lordships of the Supreme Court in Muhammad Swalih v. Chief Settlement Commissioner, Lahore on another ground but the point under Reference No. 2 was not overruled or dissented from.

13. In Ghulam Hussain v. Muhammad Hayat (P L D 1971 S C 573) the dispute was about a plot which was transferred to the appellant. The Rent Controller held that there was a relationship if landlord and tenant between the parties. He consequently passed an order of fixation of tenative rent under section 13(6) of the above Ordinance. This rent was reduced by the High Court in a second appeal. The order of the High Court was reversed by the Supreme Court and the order of the Rent Controller was restored. It is apparent from the judgment that this property was being used for residential purposes. Their Lordships referred to section 30 of the above Act also while dealing with this case and held that "a person in possession of an evacuee property shall be deemed to be a tenant of the transferee on the same terms and conditions as payment of rent or otherwise .on which he held it immediately before the transfer." This obviously vas held in view of the residential character of the property. Although the points raised in these appeals were not raised before their Lordships but this case clearly goes to show that cases of residential plots having buildings on them are governed by section 30 of the Act and section 13 of the Ordinance.

14. In view of the finding that the property in dispute must be taken to have been transferred along with the construction thereon, although it may be a building site under the above Act, it cannot be doubted that it falls within the definition of "house" or "residential building" under the above Ordinance.

15. The upshot of the above discussion is that it was rightly held that the Rent Controller had jurisdiction.., over the matter. The appeals are without force and are, therefore, dismissed. There will be no order as to costs. K. B. A. Appeals dismissed.