P L D 1967 Lahore 375 (PLP)

Major Ishaq Muhammad Khan, S C (Legal) for Respondent No.

1. Farrukh Amin for Respondent No.

2. Date of hearing: 29th September 1966. The case relates to property No. 72‑$, Model Town, Lahore. It has, according to the records of the Excise and, Taxation Department, an area of six kanals out of which 15 marlas are under permanent construction. According to the Taxation record, the construction is single‑storeyed comprising two rooms and its rental value is assessed at Rs. 300.00 per annum. This property is shown in red in the, plan of the entire Model Town, Lahore (Annexure A/3). The . red indicates private plots constructed or under construction. There is also a certified copy of the plan of the house placed on the record (Annexure A/2). This was submit ted by the owner for the purposes of construction. In the site- plan, main building and the outhouses which he intended to cons truct are indicated. The outhouses were to comprise of five rooms. Mian Abdul Khaliq, learned counsel for the petitioner states that there are four rooms and one garage in existence of the plot and they are in accordance with the plan. According to him, the petitioner is in possession of two rooms and one room is in posses sion of Khurshid Ahmad, petitioner in Writ Petition No. 326‑R of 1963, and the other two rooms are in occupation of two other persons who have not taken any steps for the transfer of the property. He admits that the rooms in his possession and in possession of other persons are those shown as outhouses in the plan A/2. The petitioner is a claimant. He put in CH form for the transfer of property comprised in plot No. 72‑B, Block B, Model Town, Lahore. Khurshid Ahmad also submitted an NCH form .for the transfer. The Deputy Settlement Commissioner on the 9th of Decem ber 1959 held that the property was not a house and refused to transfer the same to the petitioner and Khurshid Ahmad on the ground that this was a vacant site and was liable to be disposed of in a public auction. The possession of both the applicants, however, was not disputed. The petitioner referred an appeal against this order but none. was filed by Khurshed Ahmad. The appeal of the petitioner was rejected on the 21st of July 1960. The petitioner filed a revision petition which was dismissed by the learned Settlement Commissioner by his order dated the 15th of August 1961. Khurshid Ahmad also had filed a revision petition before the Settlement Commissioner challenging the order of the Additional Settlement Commissioner passed in appeal filed by the petitioner and also the order of the Deputy Settlement Com missioner. His revision petition was dismissed by the order of the Settlement Commissioner dated the 20th of March‑ 1962. The petitioner and Khurshid Ahmad then filed second revision petitions which were not entertained by the Chief Settlement Commissioner for the reason that they have not filed the same before the 12th of January 1962. The petitioner then filed Writ Petition No. 2334‑R of 1962 and Khurshid Ahmad filed Writ Petition No. 326 of 1963. In the meantime, another development had taken place. The plot was reserved by the order of the Settlement and Rehabilita tion Commissioner dated the 19th of February 1962 in favour of Mst. Rashida Khanum. She was impleaded as a party on her application and is respondent No. 2.

2. The point for consideration is: What is the nature of the premises in possession of the petitioner? They were shown in the plan submitted by the evacuee as outhouses to the main building. They were constructed before 1947. The main building was never constructed. The Excise and Taxation Department assessed the built‑up premises to taxation before Independence of 1947. It is, therefore, to be seen‑ whether under the circumstances, the construction on the spot is a house or outhouses within the meaning of clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. The house is defined in clause (4) of section 2 of the Act to mean "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, grounds, garages, and outhouses, if any, attached to or appurtenant to such premises; notwithstanding that any such garden, ground, garage or outhouses is in the possession of a person other than the person or persons in posses sion of such residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 16 of The Schedule to be a big mansion or hotel; or such class of buildings or premises in a rural area as may be declared by the Central Government, by, notification in the official Gazette, not to be houses within the meaning of this clause. "The outhouses if they are attached to or appurtenant to evacuee residential premises become part of the residential premises and the persons in possession of the outhouses or the garages cannot claim to be in possession of the house. The person in occupation of such houses, therefore, cannot lay claim to the transfer of the main house This was the view taken in Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner (P L D 1966 S C 719) which relied on an earlier judgment in Mst. Fazalunnisa Begum v. The Chief Settlement Commissioner (Civil Petition for Special Leave to Appeal No. K‑34, of 1966) of the Supreme Court of Pakistan, and held that "a person in possession of an outhouse or a garage cannot for the purpose of the transfer of the house or a portion thereof be considered to be in its occupation fur the reason that the outhouses and garages are appurtenances to a house, but a house cannot be an appurtenance to an outhouse or a garage." The position here is a little different. Here the present construction was intended to be used as outhouses by the original evacuee owner for his main residential building. He, however, did not construct the main building till Independence of 1947. The construction, under the circumstances, is neither attached nor appurtenant to any main building. In the circumstances, it cannot be said that this construction is an outhouse within the scope and purpose of clause (4) of section 2 of the Act. The premises are used for residential purposes and fall well within the definition of clause (4) of section

2. Mr. Ishaq Muhammad Khan, learned Settlement Commis sioner (Legal), however, contended that if a particular construction ,was intended to be used as an outhouse‑ by the evacuee owner, it could not be a house at all and argued that in such circum stances such premises have to be transferred as a building‑site. There is no warrant in the Act, the Schedule or the Scheme for such an argument of the learned Settlement Commissioner (Legal). If one were to accept this contention, the position would come to this that if an evacuee owner submitted a plan for constructing a shop and a godown and he constructed the godown, but before he could construct the shop he became evacuee and after that the. godown was allotted as a shop to a refugee who used it for the purpose of business, the godown could not be transferred to the allottee as a shop and it has to be transferred as an evacuee building‑site. Such a situation will result in absurdity. If a shop is constructed with a godown appurtenant to it, the godown under the definition will be a part of the shop but if godown alone is constructed without the shop, ‑ then the godown for the purposes of definition in clause (12) of section 2 will not be attached or appurtenant to a shop because there does not exist any shop. The godown in possession of a person who used it for commercial purposes will have to be transferred as a shop.

3. Thus if there are premises which were originally intended to be an outhouse or a godown, but the main building was not constructed, such premises will not be appurtenance to a house or a shop within a meaning of clause (4) or clause (12) of section

2. They will have to be transferred as house or a shop, according to the use to which they were put on the 20th of, December 1958. The Settlement Authorities is refusing to consider the case of the petitioner have acted without lawful authority. Their orders merit to be quashed.

4. So far as the case of Mst. Rashida Khanum is concerned, the plot was only reserved for her, but it has not transferred in her favour so far, and, therefore, no right has been created in her favour. The question raised that the Settlement Authorities were not competent to transfer the plot to her by reservation, therefore, does not call for any adjudication.

5. The result is that the petition is accepted, the orders of the Settlement Authorities are quashed and the case is remanded to the Deputy Settlement Commissioner who will dispose of the form submitted by the petitioner and the NCH form of Khurshid Ahmad, petitioner in writ petition No. 326‑R of 1963. There shall be no order as to cost. K. M. A. Petition accepted.