1968 SCMR 221 (PLP)

MUHAMMAD YAQUB ALI, J.-This appeal by special leave of the Court concerns the transfer of a building site bearing plot No. 4657, Satellite Town, B Model Town, Lyallpur, under Settlement Scheme No. VI. The plot which was an evacuee property was in the un authorised occupation of the appellant and his son Ghulam Sabir and Muhammad Ismail, respondent No. 2 All three of them had put up separate constructions on the plot for residential purposes which in the case of the appellant and his son consisted of both pucca and katcha rooms and in the case of the respondent No. consisted of one, katcha room and an enclosed courtyard. Deputy Settlement Commissioner transferred the whole of tin plot to the appellant and his son and eliminated respondent No. 1 the finding that the one katcha room built by the latter did not answer the definition of a. permanent building in the Settlement Scheme No. VI. The appeal preferred by the respondent No. 2 from the order of the Deputy Settlement Commissioner was rejected by the Additional Settlement Commissioner without examining the merits of the respondent's claim that the structure put up by him was also permanent. His order was mainly concerned with the objection raised by the appellant and his son that the respondent No. 2 had not entered into possession within the prescribed date. On a revision petition filed by the respondent No. 2 the Settlement Commissioner, however, found that the entitlement of the parties for transfer of the portions of the plot in their respective possession was "almost similar and that there was no reason for him" to hold that the construction made by the respondent was not premanent. The portion in the occupation of the respondent was accordingly transferred to him. The order of the Settlement Commissioner was called in question by the appellant before the High Court in writ jurisdic tion on the ground that it suffered from an error apparent on its face inasmuch as the finding that there was no reason for him to hold that the construction made by the respondent was not permanent was based on no evidence The writ petition was dismissed by the learned Judges on the view that katcha construc tion was not synonymous with temporary construction within Settlement Scheme No. VI and maintained the transfer in favour of the respondent No.

2. Leave to appeal was granted to consider the correctness of the finding by the Settlement Commissioner that as no evidence existed that the structure put up by the respondent was not permanent; it should be held to be a permanent structure. On examining the facts of the case we, however, find it unnecessary to go into this question. Under paragraph 13 (3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act XXVIII, 1958, an evacuee building site which has been in unauthorised possession of any person and that person has constructed a permanen building on it shall be transferred to that person on payment of the prevailing market value plus fifty per cent, of such market value, The person entitled to transfer under the Settlement Scheme No. VI must, therefore, be in possession of the site and A the transfer in his favour will be confined to what he actually Possesses. The policy of law is obvious. As tresspassers such Persons were liable to be ejected from evacuee propetry, but since they had constructed permanent buildings they were, in the interest of rehabilitation, made eligible to purchase the sites of those buildings at the prevailing market price plus fifty per cent. such market value by way of penalty. The person in unauthorised possession of a building site being a wrong doer could not, therefore, be treated at par with a claimant, a non claimant or a local who though in possession of a part of a luaus or a shop may be transferred the whole of the house or shop a an indivisible property under the Displaced Persons (Compensa tion and Rehabilitation) Act. In dealing with a similar questio in the case of Mst. Mahmooda Tahcin v. S. Ijaz Hussain Shah and others (P L D 1965 S C 618) this Court observed "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 construction 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." The appellant was thus not entitled to the transfer of the portion of plot No. 4657 on which the respondent No. 2 had put up constructions whether permanent or temporary. In this view the appellant had no locus standi to dispute the transfer in favour of the respondent No. 2 by moving the High Court in writ jurisdiction. This appeal must, therefore, be dismissed without examining the legality of the transfer in favour of the respondent No.

2. In the circumstances there shall, however, be no order as to costs, Appeal dismissed.