P L D 1965 Supreme Court 618 (PLP)

B. Z. KAIKAUS, J. This is an appeal by special leave against an order .of a learned Single Judge of the High Court of West Pakistan dismissing a writ petition challenging an order of the Settlement Authorities refusing to transfer an evacuee plot of land to the appellant. Adjacent to the house of Mst. Mahmooda Tahsin appellant on Mission Road, Lahore, is an evacuee plot which according to her own estimate is 10 marlas and 3 sqr. feet in area. She made a permanent construction on a part of this plot in the form of a garage and a room. The plot was being occupied by different persons and admittedly was not in her possession except to the extent of the construction she raised. She applied to the Settlement Authorities for the transfer of the whole plot contending that her construction on it covered more than the of the plot and there fore she was entitled to the transfer of the plot in accordance with paragraph 13 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act read with the definition of permanent building in Settlement Scheme No. VI. The relevant portion of para. 13 runs as below:‑ (13) An evacuee building site which has been‑-- (3) in unauthorized possession of any person and that person has constructed a permanent building on it, than that site shall be transferred to that person on payment of the prevailing market value plus fifty per cent. of such market value:" "Permanent Building" is defined in Settlement Scheme No. VI as follows:‑ "Permanent Building'' means‑ (a) 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, Cantonment Board, Improvement Trust or any other local body authorised by Government in this behalf ; or (b) a building constructed without such an approved plan, but subsequently approved by a competent authority; or (c) a Building for which plan has not been approved by a competent authority, but which has been constructed with build ing material normally used in the Lion‑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. (d) any other construction or class of constructions which may be declared by the Chief Settlement Commissioner as a perma nent building: Provided that a Deputy Settlement Commissioner may after adding an area not exceeding thrice the area comprised in a permanent construction. and. transferring it to the occupant according to prescribed terms dispose of the rest through unres tricted public auction." Without disposing of the application of the appellant for transfer of the plot the Settlement Authorities directed its sale by public auction and it was in fact auctioned on 15‑7‑1961. The appellant then made an application to the Deputy Settlement Commissioner praying that the auction be not confirmed because she had already filed an application for the transfer of the plot. The Deputy Settle ment Commissioner made a report to the Additional Settlement Commissioner saying that the appellant had built a pucca garage, a shed, and a small room and that the area covered by the construction being 2 marlas which was th of the total area the appellant was entitled to its transfer on payment of the prevailing market price plus fifty per cent. (in accordance with para. 1'3). The Additional Settlement Commissioner was however of the opinion that the plot did not fall under Scheme VI which scheme related to transfer of building sites. Following is the whole of the order which he passed on the application of the appellant:‑ "This plot does not fall under Scheme VI This auction is confirmed." The appellant then filed the writ petition out of which this appeal arises in the High Court challenging the auction and claiming that she was entitled to a transfer of the plot. The learned Single Judge of the High Court who dealt with the ,writ petition referred without any discussion to the reason. given by the Settlement Authorities that the plot did not fall under Scheme VI and then said "moreover Scheme‑ VI is meant to cover cases of persons who did not have a house and were forced to occupy vacant sites and build pucca construction on it and lived there. It would be abuse of power if persons with evacuee houses were transferred vacant sites encroached upon by them in an authorised manner." It is contended before us and we have found force in this contention that neither the reason put forward by the Settlement Authorities for refusing transfer nor that relied upon by the learned Single Judge is sound. Rights of the appellant are regulated by para. 13 of the Schedule to. the Displaced Persons (Compensa tion and Rehabilitation) Act which has been reproduced above. In accordance with this para. a building site is to be transferred to a person in unauthorised possession who has raised a permanent building over it. In accordance with section 16 of the Displaced Persons (Compensation and Rehabilitation) Act schemes have to be framed for transfer of property in accordance with the Schedule to the Act and Scheme No. VI has been framed by the Chief Settlement Commissioner for transfer of building sites. The Additional Settlement Commissioner had said that this plot was not within Scheme No. VI, but he did not state any reasons for this conclusion: Nothing in Scheme No. VI has been pointed out to us during argument which may exclude a plot like the one in dispute from its purview, but really it is the Schedule and not the Scheme that is to be looked at for‑ the determination of the right of the appellant. In accordance with the Schedule only two conditions are needed for transfer, the first being that the building site is in unauthorised possession of a person and the second that a permanent building has been raised on it. Both these conditions are admittedly fulfilled in the present case. Nor is the reason given by the learned Single Judge for dispos ing of the writ petition sound. There are no words in paragraph 13 excluding its application to a case .of encroachment The learned Single Judge was of the opinion that this provision was intended only to apply to cases "of persons who did not have a house and were forced to occupy vacant sites and built pucca construction on it and lived there", we find nothing in paragraph 13 confining its application to the cases mentioned by the learned Single Judge or excluding a case of an encroachment. There is no condition in paragraph 13 of the Scheme that the person in unauthorised possession who raises a permanent building should have no house adjoining the building site. What is said above, however, does not conclude the matter. While there is no definition of "permanent building" in the Displaced Persons (Compensation and Rehabilitation) Act, there is a definition of the expression in Scheme No. VI the Scheme for transfer of building sites. This definition which adds a number of limitation to the ordinary conception of a permanent building has been relied upon in connection with the present dispute by the Settlement Authorities as well as by the appellant. The Settle ment Authorities relied upon it in order to show that the conditions prescribed by the definition with respect to a "permanent building" are not fulfilled in the present case while the appellant relied upon it for showing that if "permanent building" is raised on one‑fourth of a plot the whole plot is to be transferred. We have to point out that the definition of "permanent building" given in the scheme can neither reduce nor enhance the right of a person to transfer of land‑and that the entitlement of a person has to be determined in accordance with the Schedule without reference to the definition in the Scheme. Schemes are framed in accordance with section 16 of the Displaced Persons (Compensation and Rehabilitation) Act which runs as follows:‑ "(l6) Payment of interim compensation to certain persons, etc.‑(1) Subject to the provisions of this Act and the rules made thereunder, the Central Government may, by order in writing, require the Chief Settlement Commissioner or any other officer specially empowered by the Central Government to this behalf to prepare, in anticipation of the settlement of claims, one or more schemes‑ (a) for the grant of interim compensation to widows, orphans or old or intirm persons against verified claims in accordance with the prescribed scale; (b) for the transfer of immovable property on evaluation basis or otherwise to claimants, non‑claimants or locals in accordance with the provisions of the Schedule; or (c) for the making of deferred payments, in‑ accordance with the provisions of the Schedule, by persons to whom property is transferred under this Act. (2). . . . . . . . . It will be observed that schemes can be framed only for transfer of land "in accordance with the provisions of the Schedule". The definition of "permanent building" in the scheme limiting entitle ment to cases covered by the definition is not consistent with paragraph 13 in which the words "permanent building" must be presumed to be used in their ordinary sense. In accordance with para‑ 13 (there being no definition of permanent building in the Act) any person who has raised a permanent building in the ordinary sense of this expression on a piece of land in his unauthorised possession is entitled to its transfer The scheme, therefore,) cannot add any limitation to the definition so as to deprive a person of a right to a transfer where there is a permanent building in the ordinary sense of that expression. While on the one hand the irrelevancy of the definition in the scheme helps the appellant inasmuch as she is relieved of the necessity of proving that her case falls within one of the categories mentioned in the definition, it goes against her inasmuch as her right to transfer of the vacant land is concerned. In accordance with the definition if she had built on 11th of the plot she could be entitled to the transfer of the whole plot. However, this does not appear to be the right granted by paragraph 13 of the Schedule. That paragraph provides for the transfer only of the plot which is in possession and on which there is a building Now this may not necessarily mean that only the precise area on which a cons truction exists is to be transferred. It will have to be decided on the circumstances of each case as to whether there is a permanent construction on a plot although the construction does not cover the whole plot. Some ground may have been left open as a lawn in a house or as a courtyard or for a path or for some similar object in which case the open space should also go along with that part of the plot on which a construction actually exists, because it could be urged that the building is on the whole plot and not merely on the portion actually covered by the construction. When a person builds a house on a plot he does not cover every inch of the plot with construction. But apart from such consi deration it should be clear that under paragraph 13 a person cannot be entitled to anything more than the plot on which the construction has been raised. Of course the Settlement Authorities may with the approval of the Government have power to transfer an area apart from the scheme, but that is not the point with which we are concerned. We are only considering the scope of a scheme which is framed for giving effect to para.

13. In the present case there is a further difficulty in the way of the appellant. She admits that she is not in possession of that part of the plot on which she has not built. She is only in posses sion of the portion build upon and the remaining portion of the plot is in the possession of other persons, Paragraph 13 was not intended to entitle a person to a transfer of land which is not in his possession. There are two conditions necessary for transfer, one is unauthorised possession and the other a permanent construc tion over it. It is not like the transfer of a house in which case even if a person is in possession of a part he may be entitled to a transfer of the whole. This is the case of a trespasser who is confined to his possession and who in fact pays fifty per cent. of the market value as a penalty. From the preceding discussion it follows that the refusal of the Settlement Authorities to transfer the land to the appellant on the ground that it was not within the purview of Scheme No. VI is unjustified. The appellant is entitled to a transfer of the land her possession which she has built upon. .The order of the Settlement Authorities is therefore. set aside and there will be a determination afresh now of the right of the appellant to the transfer. The right will be confined to the area in her possession subject of course of this that any necessary .rights for a passage or other easement which are essential to the enjoyment of the property which is to be transferred to the appellant will also be granted to her by the Settlement authorities. This appeal is allowed in terms stated above, but there is no order as to costs. S. A. H. Appeal partly allowed.