P L D 1967 Karachi 251 (PLP)

Wasim Rizvi for Respondents Nos. 1 and

2. S. M. Raza for Respondent No.

3. Ahmed Ali Memon for Respondents Nos. 4‑A to 4‑F. Dates of hearing : 27th August, 15th and 17th November 1965. This petition under Article 98 of the Constitution challenges the validity of the order of the Settlement Commissioner Mr. A. Rauf Chowdhry dated 18‑9‑62, passed in the exercise of his sou motu powers of revision whereby he set aside the transfer which had been made in favour of the petitioner. In the last paragraph of that order he also directed the transfer of the premises to Respondent No. 3 Abdul Matin, whom he treated as an informant.

2. The facts of the case are fully set out in the order of learned Settlement Commissioner and it may be briefly recapitu lated. The premises in dispute are part of a property bearing No. 113, Depot Lines, Cantonment, Karachi. There were two main buildings in the compound of this property, one of which known as Alice Building was earlier transferred to one Abdul Hakim Khan. That transfer is not in dispute. Abdul Hakim Khan having died his heirs respondents 4 (a) to (f) had been joined in this petition but they have not put in appearance and their claim with regard to the rest of the property, which is now in dispute, does not form the subject of consideration in these proceedings before me.

3. When Abdul Hakim was transferred the Alice Building he further claimed that he was entitled to the remaining part of the property as well but this claim was considered by the Settlement Commissioner and the matter had also gone up to the Chief Settlement Commissioner who rejected his claim and it had been ordered that the property ' be put into earmarking list. It was then that the present petitioner Shoukat Ali Khan came on the scene. He is a claimant and was in occupation of a part of the outhouse of the main premises which is now in dispute. He thus filed a form on 31‑5‑60 for the transfer of the main building excluding the Alice Building and in view of the notification of 15th April 1960 (page 133 of the old Settlement Manual) the permission of the Additional Settlement Commis sioner was required for the entertainment of this belated form and this permission was granted on 16‑6‑

60. This was done at the recommendation of the same Deputy Settlement Commissioner who had earlier rejected the claim of Abdul Hakim Khan for this building and had directed it to be put into earmarking list which decision had been upheld by the Settlement Commissioner and the Chief Settlement Commissioner. Upon the N. C. H. Form dated 31‑5‑60‑the petitioner was granted a P. T. O. on 6‑8‑60 for all the premises excluding Alice Building for a consideration of Rs.38,

000. On 28‑10‑61 under the orders of the Settlement Commissioner a notice was given to Shoukat Ali Khan by the Deputy Settlement Commissioner about this transfer and a further show‑cause notice was given by the Settlement Commissioner himself to the petitioner on 9‑12‑61 as to why the P. T. O. granted to him on 6‑8‑60 should not be cancelled. The petitioner filed a written statement and after hearing all the parties concerned and also inspecting the site the Settlement Commissioner passed the impugned order dated 18‑9‑62.

4. The learned Settlement Commissioner passed the order cancelling the transfer in favour of the petitioner on two grounds. Firstly, that the transfer to the petitioner by the Deputy Settle ment Commissioner favoured of collusion particularly as it was the same D. S. C. who had formerly recommended that the property be put on the earmarking list. The second ground of the order was that the petitioner admittedly being in possession only of an outhouse partly or wholly was not entitled to the house as defined in the Act. This house in the present case was the main building together with appendages, such as the outhouse and ground.

5. As I am of the opinion that the finding of the learned Settlement Commissioner on that second ground is clearly right and the claim of the petitioner can be disposed of on that ground alone, I do not find it necessary to go into the first question.

6. In order to understand the contention raised with regard to the second point the definition of house as contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter called the Act, may be reproduced:‑ " `house' means 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 outhouse is in the possession of a person other than the person or persons in possession 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: Provided that where any building or premises not so declared consist of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed to be a house : Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including outhouses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house." The petitioner was admittedly not in possession of the main house. It may be stated here that there were two independent residential buildings within the compound of 113, Depot Lines, one of which known as Alice Building had already been transferred to Abdul Hakim Khan and in the other residential house there were local Christians who had long. been in occupation thereof. The petitioner was admittedly not in possession of the main house. He was found by the, Settlement Commissioner on site ins pection to be in possession only of a part of an outhouse attached to this building. Now, it would be seen from the definition quoted above that `house' means evacuee residential premises 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 out house is in the possession of a person other than the person or persons in possession of such residential premises. The outhouse is thus clearly an appurtenant to the "residential premises". It is the residential premises which constitutes the house for the purposes of the Act and the possession which would entitle the person (in such possession) to apply for the transfer of the house. The residential premises would thus include the various appendages and notwithstanding the fact that some of these may be in possession of some other person, the residential premises would still be the house which would be the subject‑matter of transfer to the person who would be in its possession. The only exception is contained in the second proviso, whereby the, gardens or the grounds attached to a house can be separated from it if the area thereof exceeds three times the plinth area of the house. What will be separated will be the area in excess of this three‑fourth. Apart from the effect of the second proviso as stated above the outhouse and garages, etc. must go with the residential premises for the purposes of transfer. It cannot, therefore, by any rules of interpretation be held that a person in occupation of an outhouse, a garage, a part of the garden or a part of the ground, all of which are appendages to the house, can be said to be in possession of the house itself. By house, I mean, the residential premises. It follows that a person in possession of a residential premises would also under this law be deemed to be in possession of the appendages for the purposes of transfer. Such a view was also taken by my brother Sajjad Ahmad, J. in Petition No. 34 of 1963 though he did not decide that petition upon that ground.

7. For the reasons given I am satisfied that the petitioner was not in possession of the house and as such he was not entitled to its transfer. I accordingly uphold the order of the learned Settlement Commissioner to this effect.

8. I now come to the last paragraph of the order beginning from "as the informant Abdul Matin", in which a direction has been given that the house in question be offered to the said Abdul Matin as the informant at 1 times the evaluation price at which it was wrongly transferred to Shoukat Ali Khan. It was further directed that if the said Abdul Matin does not pay this price then the said house should be put to public auction. It was strenuously contended by Mr. Naimuddin that the order to offer the house to Abdul Matin cannot in any case be sustained. He had of course also contended that the transfer to Shoukat Ali Khan was good.

9. Mr. S. M. Raza, the learned counsel appearing for Abdul Matin, frankly stated that he was not able to contend that this part of the order was valid but what he did contend was that if it is found that Shoukat Ali Khan is not entitled to the transfer of the house this part of the order cannot be quashed at his instance because he would then have no locus standi to press for it.

10. I will briefly first deal with the question of the validity of this part of the order. 'The provision with regard to informa tion in respect of any hidden evacuee property or an irregular transfer is contained in the notification dated 1st September 1961 (gage 314 of the New Settlement Manual). Para. 2 of this notification lays down that such an information shall be submitted to the Director of Enforcement within whose jurisdiction the property is located. Then there is an elaborate procedure provided for the investigation of such information. Then comes paragraph 9 which provides that ‑ if the Settlement authority within whose jurisdiction the evacuee property, to which the information relates is situated, is satisfied to a case decided by a Custodian or a Court or a Settlement authority, that the informant had furnished substantial information leading to the decision, he may, on payment, transfer the whole or any part of the said property to the informant: provided that the informant would have been entitled to the transfer of the said property had he been in its possession. It will be plain from these provisions that this part of the order of the Settlement Commissioner is bad for two reasons: firstly, that he could not himself deal with the case of the informant in this suo motu revision and secondly, that he had not even considered the entitlement of the alleged informant as required by the said proviso to para.

9. In the case of Abida Khatoon v. Ghulam Shabbir (P L D 1964 S C 793) it was observed by the Supreme Court as follows:‑ "The law is expressed in permissive terms the authority may transfer the house, in whole or in part to the informer, in such a case, and we entertain no doubt that the decision might take into account other factors besides that of the information proving to be true. The informer, may be of a status totally disproportionate to the property in question, so that it would be wholly unreasonable to transfer the property to him. He. may be a person of questionable character, whose name is on the police registers or even a convicted criminal, and to transfer public property to him may be clearly inappropriate. He may have obtained his informa tion by infamous means. A variety of circumstances can be imagined which would weigh with the authorities in making a decision involving the transfer of property vested in the Central Government."

11. In another case, that is Muhammad Siddiq and others v. The Chief Settlement Commissioner (P L D 1965 S C 123) it was held by the Supreme Court that "in no case, in proceedings purely under section 20 of the Act, a transfer to the alleged informant would be possible". The discussion on this point appears at page 131 of the report. I have, therefore, no hesitation in holding that the direction contained in the last paragraph of the order of the learned Settlement Commissioner is not in accordance with law. That brings me to the second question whether I should refuse to give such a declaration in the present petition filed by Shoukat Ali Khan, whose claim for the transfer of the house I have held was rightly rejected. Mr. Raze relied upon a Division Bench case of this Court at Lahore reported in Masitullah v. Chief Settlement Commissioner (P L D 1965 Lah. 672). In that case, the property had been transferred to an army officer who, at the time of partition, was stationed in a part of the country which now comprised in India and he had obtained the transfer upon the ground that he became a displaced person though originally he belonged to Punjab. In the first instance, a learned Single Judge following an earlier decision had held that the said army officer was a displaced person. The informant Masitullah then challenged the correctness of this view by a letters patent appeal which came before a Division Bench. The Division Bench held that it was a requirement of the law that a person claiming a house in an earmarking must have a claim equivalent to the 50 %. of the price of the property concerned and as Masitullah did not have a claim of the required value he bad no locus standi to come to Court. They relied upon an observation of the Supreme Court in the case of Imdad Ali v. The Settlement Commissioner in which the learned Chief Justice, while dismissing the petition for special leave to appeal had held that they did not hear the counsel for the petitioner who attempted to argue that the house could not in law go to the informer because it was clear that the petitioner bad no vested right in the house and that he had otherwise no locus standi in these proceedings to question the disposal of the house by the Settlement Authorities. I am of the view that the facts of both the cases quoted above were different from the facts of the present case, and therefore the observations made in them must be read in relation to those facts only. In the present case, the premises in dispute bad been actually transferred to the petitioner who had in association with the petitioner No. 2 paid the full price. It was after this that upon a suo motu revision the settlement Commissioner set aside the order of transfer in his favour. He, therefore, was clearly a person aggrieved within the meaning of the word as used in Article 98 of the Constitution, There cannot, therefore, be any doubt that the petitioner did have the locus standi to challenge the impugned order passed by the Settlement Commissioner. If after hearing the Court reached the conclusion that the petitioner himself was not entitled to the transfer of the house, I do not think that the Court is then precluded from declaring a part of the order illegal which is clearly not in accordance with law and which order as a whole was properly brought before this Court in a petition by the present petitioner. I accordingly hold that the petitioner has locus standi. It may be added that he is claimant and is in possession though only of an outhouse and so if the property is not offered to Abdul Matin it would be put to public auction as has been ordered by the Settlement Commissioner himself in the impugned order. In such an auction the petitioner would also have the right to bid. For the reasons given I set aside the last part of the impugned order whereby the learned Settlement Commissioner had directed that the property should be offered to Abdul Matin, respondent No.

3. The rest of the order shall be maintained with the result that as ordered by the Settlement Commissioner the property shall he put to public auction. K. B. A.