P L D 1965 (W (PLP)

KHAMISANI, J.‑

This is a petition filed under Article 98 of the Constitution challenging the order of the Settlement Commissioner dated the 21st of July 1964. This petition has been filed with a view to have this order set aside and to have the order passed by the Additional Settlement Commissioner dated 10th of July 1962, held as valid and binding.

2. The relevant facts on which this petition is founded are that out of the total area of 8,380 square yards of Survey No. SR 1/8‑9/D1 (open plot) on Bunder Road 2,(00 square yards were allotted to the petitioner by the Deputy Rehabilitation Commissioner, Karachi, on the 1st of February 1949. The petitioner built a cinema on 2,473 square yards which was destroyed by fire on account of the same being opposite the Memon Mosque. The petitioner was thereafter given permission to raise permanent constructions on the allotted area of 2,000 square yards by the Rehabilitation Commissioner under Annexure `B' dated the 14th of March 1951. The Custodian by his order dated the 17th of March 1951, filed with the petition as Annexure `C', declared those constructions as non‑evacuee. The Assistant Custodian consequently granted a certificate dated the 31st of March 1951, (filed with the petition as Annexure `D') with regard to the constructions on the plot being non‑evacuee. The certificate also mentioned that the plot on which the constructions were raised was evacuee.

3. By Notification No. 1042‑F & M‑Reh./59 dated 12th November 1959, the persons who had raised permanent constructions on evacuee plots, regardless of the fact whether the plots were allotted to them or not, were called upon to make applications under Settlement Scheme No. VI. The petitioner consequently made an application on the basis of which the Additional Settlement Commissioner came to the conclusion that permanent constructions were raised by the petitioner on an area of 2,473 square yards and considering the facts of the case he, by his order dated the 10th of July 1962, (Annexure `E') allotted an area of 3,114 square yards from the above‑mentioned plot to the petitioner. The Enforcement Police thereafter made an application in the year 1963, to the Settlement Commissioner on account of which the Settlement Commissioner entertained the matter as a suo motu revision and set aside the order passed by the Additional Settlement Commissioner. The order of the Settlement Commissioner is dated the 21st of July 1964 and has been filed with this petition as Annexure `G'. This order of the Settlement Commissioner inter alia held the allotment in favour of the petitioner good to the extent of 2,000 square yards and directed that the excess area of 1,114 square yards which was in unauthorised occupation of the petitioner should be put to unrestricted auction. It is against this order of the Settlement Commissioner that this petition has been filed.

4. The impugned order of the Settlement Commissioner mentioned above has been argued to have been passed without any legal authority. The learned counsel for the petitioner has contended that the admitted position on the record is that permanent constructions were raised by the petitioner on 2,473 square yards out of which the constructions on an area of 2,000 square yards were authorised whereas the constructions on an area of 473 square yards were unauthorised. It has been argued by the learned counsel for the petitioner that the permanent constructions unauthorisedly raised on an area of 473 square yards could not in law be taken away from the petitioner and directed to be put on an unrestricted auction. He has for this purpose relied upon paragraph 12 of the First Schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958 (XXVIII of 1958), Paragraph 12 reads as under:‑-- "

12. An evacuee building site which has been‑ (1) allotted to a claimant on which a permanent building has been constructed by him, shall be transferred to him on payment of the market value prevalent at the time of allotment and may, if the claimant so desires, be adjusted against his claim; (2) allotted to a non‑claimant displaced person or local on which a permanent building has been constructed by him shall be transferred to him on payment of the market price prevailing at the time of allotment; (3) in unauthorized possession of any person and that person has constructed a permanent building on it, then that site shall be transferred to that person on payment of the prevailing market value plus fifty per cent. of such market value: Provided that no such additional price shall be charged if that building site forms part of an area on which displaced persons have raised a number of permanent houses, dwellings or shops so as to form a cluster or collony." Under this paragraph it is clear that (sic) the area on which unauthorised constructions had been raised is also necessarily to be allotted to the persons who have raised such construc tions. The only difference between the permanent constructions on plots which are allotted and on plots which are not allotted is that different rates will be charged for such constructions. The rates chargeable for authorised and unauthorised constructions are given in clauses (1) and (3) of paragraph 12 respectively. In A view of what is said in paragraph 12 it is quite clear to us that the impugned order of the Settlement Commissioner dated the 21st of July 1964 is in violation of it and is therefore illegal. The learned counsel for the Settlement Commissioner also concedes that the order of the Settlement Commissioner is not warranted by law and that he therefore cannot support it.

5. With regard to the excess area of 641 square yards covered by the total area of 3,114 square yards allotted by the Additional Settlement Commissioner under Annexure `E', the case of the petitioner is that the Settlement Authorities have the power under Settlement Scheme No. VI to give the open area to the extent of three times the area on which constructions has been raised depending upon the circumstances of each case. The open area in addition to the area under construction is usually given for facilitating the use of the construction. The provision in respect of the allotment of the open area of this kind appears in paragraph 3 of Settlement Scheme No. VI. Paragraph 3 of the Settlement Scheme No. VI reads as under: "(3) `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 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. ; or (d) any other construction or class of constructions which may be declared by the Chief Settlement Commissioner as a permanent 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 unrestricted public auction." The proviso to this paragraph talks of the power of the Settlement Authorities mentioned above. In view of what is contained in paragraph 3 reproduced above it is quite plain that the Additional Settlement Commissioner had under Annexure `E' allotted 3,114 square yards which covered both the constructed area of 2,473 square yards and open plot measuring 641 square yards for the purpose of allowing the petitioner a facility of using the constructions raised by him. Under these circumstances we do not see any illegality in the order of the Additional Settlement Commissioner under which 3,114 square yards had been allotted to the petitioner. The learned counsel for the Settlement Commissioner also concedes that the impugned order of the Settlement Commissioner dated the 21st of July 1964, regarding the allotment of excess area of 641 square yards from the plot was also bad in law and could not be sustained. In view of the legal position mentioned above and in view of the concessions made by the learned counsel for the respondent we are of the considered view that the order of the Settlement Commissioner dated the 21st of July 1964 (Annexure `G') is illegal and is therefore to be set aside. The order of the Settlement Commissioner mentioned above is consequently set aside.

6. The result is that the order passed by the Additional Settlement Commissioner dated the 10th of July 1962, (Annexure `E') will stand restored. The petition filed by the petitioner is consequently allowed. We, however, in the circumstances of this case, wish to make no order as to costs. K.B.A. Petition accepted.