1987 PLP 1358 (SCMR)

SHAFIUR RAHMAN, J.‑‑By leave of this Court, three appeals raising common questions of law have come up for disposal. The questions raised concern the true meaning of "available properties" as defined in clause (c) of para. 1 of Scheme for the Management and Disposal of Available Urban Properties (hereinafter referred to as the Scheme) framed under section 3(1) read with section (1) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and the meaning of "possession" as defined in clause (1) of para. 1 of the Scheme for the purposes of claiming transfer of building site. Muhammad Ashraf Khan, appellant (Civil Appeal No.299 of 1980) was the occupant of a bungalow transferred to Major Muhammad Hanif, respondent No.2 as his tenant. Adjoining this bungalow was a vacant piece of land measuring 1 Kanal 18 sq. ft. Its transfer was sought on the basis of possession by Muhammad Ashraf Khan as well as by Major Muhammad Hanif after the plot had been declared evacuee by the Deputy Custodian on 29‑6‑1973 and confirmed by the Custodian on 12‑12‑1974. The Deputy Administrator, Residual Properties, examined the entitlement of both the applicants for this plot of land and passed the following operative order on 14‑1‑1980. "The total area of the plot in question is 1 Kanal 18 sq. ft. out of which 12 Marlas 78 sq. ft. is in possession of petitioner Muhammad Ashraf petitioner on which he has raised construction. From the above documents and judgments of Deputy Custodian and Custodian it has been established that Muhammad Ashraf is in possession of plot before the target date i.e. 1‑1‑1976 and he has also constructed house on the plot, therefore, the plot measuring 12 Marlas 78 sq. ft. bearing Khasra Nos.1830, 1837 and 1818 Canal Park, Lahore is transferred to Muhammad Ashraf against his R.P. Form No. 7013, dated 17‑3‑1978 and the rest plot of 7 Marlas 165 sq. ft. has been included by Major Muhammad Hanif in his own house which is about 84 feet long and 20J feet wide. This strip line (Street) (Gall) cannot be disposed of as independent unit, this site measuring 7 Marlas 165 sq. ft. is transferred in the name of Major Muhammad Hanif against his R.P. Form No.7129, dated 20‑11‑1973 under R.P. Scheme. Recover the dues under RP Scheme within one month and issue T.Ds." Aggrieved by this order both the affected parties, namely, Muhammad Ashraf Khan, appellant, and Major Muhammad Hanif, respondent No.2 filed revision petitions before the Administrator, Residual Properties. The Administrator decided the case by holding as follows:‑ (1) According to the order of the Deputy Settlement Commissioner passed on 19‑12‑1975 the land in dispute between the parties was ordered to be put to auction. That order remaining intact the land was not available property for disposal for the purposes of the Scheme. (2) The Administrator on inspecting the property in March 1980 found that "the so‑called construction made by Muhammad Ashraf Khan was nothing but two small newly constructed rooms which are separated by a distance of 20‑30 feet. Even the bricks and cement used in construction do not indicate that the construction was made before 1‑1‑1976. (3) The disputed property is still a part of compensation pool and should be auctioned in the forthcoming auction. (4) None of the parties have erected any construction prior to 1‑1‑1976. Aggrieved by this order, Muhammad Ashraf Khan, the appellant, filed a constitutional petition (30‑1‑R of 1980) in the High Court which was dismissed in limine on the ground that the finding of fact recorded was not such as to be liable to interference in constitutional jurisdiction. Mr. A. R. Shaukat, Advocate, the learned counsel for the appellant, contended that the requirement of the Scheme was that the property should be "available" and the possession of the applicant should be of a date prior to 1‑1‑1976 and there is no requirement of the Scheme that even the construction should have been in fact raised before 1‑1‑1976. According to the learned counsel, the land was available property as per definition given in the Scheme and the appellant Muhammad Ashraf Khan was undisputedly in possession of it. He had raised the construction and it was immaterial whether the construction was raised before 1‑1‑1976 or afterwards. In the other two appeals (Civil Appeals Nos.55 and 56 of 1985) the property is a part of the Bungalow No. 125‑D in Model Town. This plot measuring 4 Kanals was allotted to an evacuee who had not constructed till Partition the bungalow. In fact, three outhouses or quarters had been constructed thereon one of which was in possession of Sultan, a son of Mst. Bibi, appellant in Civil Appeal No.55 of 1985. The other two quarters were in possession of Mst. Barkat. These quarters alongwith the three times plinth area permissible to them i.e. 6 Marlas was transferred to Sultan and 12 Marlas to Mst. Barkat. Mst. Barkat associated later one Mst. Hafeez the mother of Mustafa Khan, the appellant in Civil Appeal No.56 of 1980. The excess area remaining i.e. 3 Kanals 2 Marlas was ordered on 19‑6‑1980 to be put to auction after satisfying the claims of these two occupants. The property was demarcated in 1964 and the portion to be auctioned was separated. On 29‑10‑1977 Mst. Bibi made a claim that she had constructed independently of Sultan and away from the property transferred to him four rooms, one kitchen, one bath‑room and a latrine on the open plot earlier ordered to be auctioned and that she was entitled to its transfer under the Scheme. Mustafa Khan on the other hand claimed that he had raised a bungalow on a portion of this very excess land which was ordered to be auctioned and he claimed its transfer under Scheme No. VIII which was refused to him and he wanted that land should be transferred to him under the Scheme. The Deputy Administrator, Residual Property, inspected the property in the presence of both the applicants and with regard to the claim of Mst. Bibi, the following operative order was passed on 19‑6‑1980. "The petitioner Mst. Bibi has been heard. She is mother of Sultan, who is transferee of quarter in the property in question (125/1), Model Town, Lahore). His sons has got his entitlement i.e. quarter plus three times plinth area = (six Marlas). The new construction is made in the said transferred area of six Marlas; as such she is not entitled for the transfer of plot lying vacant opposite the quarter of Sultan, which has been placed in the auction list as plot No. 'A'. The R.P. Form of Mst. Bibi widow of Fateh Muhammad is rejected." and as regards the claim of Mustafa Khan, the following operative order was passed:‑ "I have inspected the spot in the presence of parties. The petitioner Mustafa Khan has constructed four rooms, Verandah, Bath, Kitchen and Septic Tank. The covered area of the bungalow is 1560 square feet, plus three times (1560 x 4) = 6240 square feet i.e. one Kanal 8 Marlas. Thus, an area (3‑2)(-)(1‑8) = 1‑14‑0 is still available. The construction and possession of the petitioner Mustafa Khan is established prior to 1‑1‑1976, therefore, his form under SS‑VIII is converted into R.P. Form the approval of which may kindly be given." The matter went in revision before the Administrator, Residual Properties. He too inspected the property and rejected the claim of Mst. Bibi holding as follows:‑ "My spot inspection revealed that two Kacha rooms were erected by Mst. Bibi on the land in dispute. It was quite evident that the construction of her two Kacha rooms was not prior to 11‑1‑1976, therefore, she could not fulfil the requirement under the Residual Properties Scheme. Moreover, she was living with her son since long and in the past she never agitated her independent rights." As regards the claim of Mustafa Khan, he observed as hereunder:‑ "is an unauthorised occupant of a portion of 125‑D, Model Town, Lahore, where he has built an Annexe and applied for its transfer under Settlement Scheme No. VIII. As per record his form was rejected under the old Scheme and, therefore, by no stretch of imagination the same could be converted and utilized for the disposal of land under the present Scheme. The recommendations made by the Deputy Administrator (RP) with regard to the entitlement of Mustafa Khan seems to be a recent construction and it too does not fulfil the requirement as stipulated under the R.P. Scheme. The same should also be put to auction." Mst. Bibi filed a Constitutional Petition (630‑R of 1980) in the High Court but the same was dismissed with costs holding that the question of fact determined by the Tribunals having exclusive jurisdiction could not be re‑investigated in contitutional jurisdiction. Besides, the finding being positive, categorical and recorded after taking into consideration the relevant facts, that she constructed two Kacha rooms which were not prior to 1‑1‑1976 there was left no merit. Mr. A.R. Shaukht, Advocate, the learned counsel for Mst. Bibi, has contended in the first place that the construction was outside the limits of property transferred to Sultan, her son and independently of that transfer she was entitled to the portion admittedly in her possession before 1‑1‑1976 notwithstanding that the construction was not there before 1‑1‑1976. Mustafa Khan filed a Constitutional Petition (662‑R of 1980) in the High Court which was dismissed. The learned Judge held that Mustafa Khan had deliberately made mis‑statement, in the writ petition and suppressed the material facts. In this case the High Court held that a finding of fact had been recorded which was not open to interference in constitutional jurisdiction. The appeal filed by Mustafa Khan in this Court is shown to be barred by 36 days. The reason given for this delay is that the applicant was not given copy when he called at the copying agency though its date of preparation was shown to be earlier to it. If that were so he should have got the necessary corrections in the date from the copy agency. We are not satisfied with the explanation given and hold that the appeal being time‑barred, is liable to and is dismissed on that ground alone. The law requiring consideration in the appeals in section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 which reads as hereunder:‑ "

3. Transfer of property.‑‑(1) All properties, both urban and rural, including agricultrual land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied, which may be avilable for disposal immediately before the repeal of the aforesaid Acts and Regulations, of which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal. (a) in the case of urban properties, by the Provincial Government under a Scheme to be prepared by it in this behalf; and (b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf: Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land: Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972. (2) The agricultural land temporarily allotted under any of the aforesaid Acts or Regulations to a displaced person from Jammu and Kashmir State or to such other person as the Federal Government may determine who is not in cultivating possession of the allotted land, shall be offered for sale to such allottee unless an order of cancellation of allotment has been passed against him in respect of such land: Provided that only so much land shall be offered to such allottee as does not, together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972: Provided further that the temporary allottee or other person who purchases the land so offered to him shall not eject the tenant from such land except on the ground that he has failed to pay rent in accordance with the terms of his tenancy: Provided further that, in the event of a displaced person from Jammu and Kashmir State or any of his successors‑in- interest being repatriated to that State, he shall pay to the Provincial Government the price of the land held by him at the rate ascertained by that Government." The Scheme framed under clause (b) of subsection (1) of section 3 of the Act just reproduced provides in clause (c) of para. 1 the definition of "available properties" in the following words‑ "(c) 'Available Properties' means houses, shops, buildings sites, hotels, Industrial concerns and cinema houses (whether allotted by the Industries Rehabilitation Board or not) which were available for disposal on and immediately before the first day of July, 1974 or which may, thereafter, become available for disposal but do not include properties attached to chraritable, religious or educational trusts or institutions." "Possession" has been defined in clause (i) as hereunder:‑ "(i) 'Possession means possession obtained on or before the first day of January, 1976 by any person and include his successors‑in‑interest and assignee." The entitlement for transfer is provided in para. 6 of the Scheme which is as hereunder:‑ "

6. Transfer of house, shop and building site having construction.‑‑(1) Subject to the provisions of this Scheme, an available house or shop of any value in possession of a person may, if he applies in this behalf, be transferred to him on transfer price or on such price as may be fixed by the Administrator (Residual Properties) of the area concerned: Provided that where a house or a shop is applied for by more than one person in possession, it may be transferred to them jointly. (2) An available building site on which a person in possession has raised a permanent construction and applies for its transfer, it may be transferred to him on the transfer price: Provided that in addition to the constructed area, only such portion of the available open space may be transferred to the applicant which may not exceed three times the constructed area. (3) Where any person having made a permanent construction on a building site does not apply for its transfer, it shall be disposed of through unrestricted public auction, alongwith the construction. The value of such construction shall be determined by the Deputy Administrator (Residual Properties) of the area concerned and paid to such a person out of the auction proceeds by such authority as may be specified." "Building site" has been defined in clause (d) of para . 1 in the following words:‑ "(d) 'Building site' means any vacant plot of land which is not within a well‑defined compound of a permanent building and includes‑‑ (i) a site on which the permanent construction, if any, does not exceed in area by 1/8th of the site; (ii) any site on which any building existed but was completely demolished by floods, fire, incendiary or by any natural calamity. " In the Act "available property" has been qualified by the words 'for disposal'. In the scheme too while defining "available properties" this qualification has been kept intact. A property which is ordered to be publicly auctioned but the auction had not in fact been held before the "repeal of the aforesaid Act" will on such a description be an available property. A mere order neither creating nor declaring, the vested right of some one else in the property will not have the effect of taking the property out of the category or description of "available" and by the force of the law such a property "shall stand transferred to the Provincial Government". The statutory functionaries were, therefore, wrong in treating such a property as not an available property. In the Act, for agricultural land the test of entitlement is occupation of such land "continuously for four harvests". As regards urban properties the disposal is required to be under a scheme to be prepared by the Provincial Government. The Scheme defines possession and the date 1‑1‑1976 has been made decisive. In respect of building sites possession by itself is of no avail. It has to be coupled with construction raised by the person in possession. It follows, therefore, that possession as on 1‑1‑1976 coupled with construction raised on the building site alone entitles one to claim its transfer under the Scheme. The departmental view is correct and the contention of the learned counsel for the appellant that the construction need not be tagged to 1‑1‑1976 is untenable. Such being the state of law, Mst. Bibi cannot claim any portion of the property as her construction has been adjudged to be of a date later than 1‑1‑1976. Similarly, Muhammad Ashraf has failed before the designated authorities in proving that the construction raised by him was of 1‑1‑1976 or a prior date. In the circumstances all the three appeals are liable to be dismissed and are accordingly dismissed with no order as to costs. M. B. A./M‑109/S. Appeals dismissed.