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Petitioner: Syed WAJIHULHASSAN ZAIDI VS Respondent: GOVERNMENT OF PUNJAB through D.C., JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Mir Hazar Khan Khoso, Fazal Ilahi Khan, Saeeduzzaman Siddiqui Title:Syed WAJIHULHASSAN ZAIDI vs GOVERNMENT OF PUNJAB through D.C.,
JUDGMENT
Reported As: 1996 SCMR 558 Result: Appeals dismissed Judgment JUDGMENT SAIDUZZAMAN SIDDIQUI, J---- The abovementioned two Civil Appeals with the leave of this Court are directed against the judgment of a learning judge in Chambers of Lahore high Court dated 12- 9-1994. Leave to appeal was granted in the above appeals to consider the following legal contentions:-- "After hearing the learned counsel for the petitioner, leave to appeal is granted to consider, inter alia, whether in the instant .Ease, after the issuance of PTD, the settlement tribunal or the notified officer has jurisdiction to issue notice to resume the property; and whether the property can still be resumed 2. Interim relief already granted to continue." ' The cases have a chequered history of litigation. The dispute relates to an urban immovable property bearing No,B-XII-12-S-26, popularly known as S.P. House', situated in Civil Lines, Jhelum (hereinafter to be referred as the 'S.P. House' only). Syed Wajih-ul-Hassan Zaidi, appellant in Civil Appeal No,141 of 1995 and respondent No,1 in Civil Appeal No, 1029 of 1995 (hereinafter to be called as 'the claimant') came in possession of the S.P. House while posted as Superintendent of Police, at Jhelum. He was a claimant displaced person. He applied for transfer of the S.P. House on the basis of the possession of C.H. Form under Settlement Scheme No,I, framed under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), (hereinafter to be referred to as 'the Act' only). It is the case of the claimant that he was first transferred S.P. House vide P.T.O. Dated 11-1-1960 but subsequently he was also transferred open area attached to the S.P.
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House measuring 179 Canals and 7 Marla's, .Under paragraph 19 of the Settlement Scheme No,I, and accordingly an amendment was made in his P.T.O. Showing the Khasra numbers transferred to him as part of the house. It appears that when the claimant applied for issuance of P.T.D. In respect of S.P. House in his favor, it was noticed by the Settlement Authorities that there was not valid order for transfer of open land in excess of three times the plinth area of the S.P. House in his favor. The Deputy Settlement Commissioner who processed the case of claimant for issuance of P.T.D. Accordingly submitted a report to the Additional Settlement and rehabilitation Commissioner, Rawalpindi, on 6-1-1968 in which he stated that the file relating to the transfer of said bungalow was not available but from the record produced by the claimant it appears that S.P. House was transferred to the claimant vide P.T.O. No, 693 against evaluation price of Rs,45,120 and in the P.T.O. Which was issued to the claimant a note was appended, "Assessment of uncovered area will be communicated later on". The above report of Deputy Settlement Commissioner referred to an earlier report of his predecessor dated 1-2-1961 wherein it was stated that an area of 131 Canals 6 Marla's was shown as attached with the S.P. House out of which 48 Canals and 1 Marla was suggested to be transferred to the claimant free of cost while extra price was to be charged for 83 canals 5 Marla's. The market value of the extra land was stated to be about Rs,200 per Canal which was considered by his predecessor as very low. The Deputy Settlement Commissioner after referring to the concluding Para of the report of his predecessor dated 1-2-1961 observed in his note dated 6-1-1968 that the report of his predecessor dated 1-2-1961 was not an order transferring open land to the claimant but it was merely a report submitted to higher settlement authorities seeking their approval for transfer. The Deputy Settlement Commissioner in his above report further observed that notwithstanding the fact that no formal order for transfer of the excess land to claimant was passed yet the office recovered a sum of Rs,26,370 from the compensation book of claimant towards the price of excess land on 5-4-1960. However, relying on the copy of the letter of the claimant dated 20-3-1961 addressed to Secretary (Urban), Rehabilitation Department, Memo. No, 1320-RL-Reh/61 dated 20-3-1961 issued by Settlement Commissioner (Policy) and the fact that the claimant had already paid the full transfer price of the extra land, the Deputy Settlement Commissioner in his report dated 6-1-1968 recommended that since the price of excess land was already paid by the claimant, the transfer may be approved and P.T.D. Be issued to the claimant who was pressing hard for issuance of the same. On the above report of the Deputy Settlement Commissioner, dated 6-1-1968, the Additional Settlement Commissioner made the following endorsement:- "Seen the D.S.C. Jhelum. CTL give his opinion about the value of the land in view of its position and condition." ' This was followed by another report of Deputy Settlement Commissioner, Jhelum, to the Additional Settlement Commissioner, Rawalpindi Division, Camp at Jhelum, which was to the following effect: "Kindly refer to your orders dated 1-4-1968, on my report dated 8-1-1968, in respect of Bungalow No, B-XII-12-S-26 along with 131 canals of land, Civil Lines, Jhelum transferred to S. Wajih-ulHassan Zaidi, for S.P. JMR. ' From the perusal of the copies of the documents, produced by S. Wajih-ul-Hassan Zaidi in respect of the property mentioned above, for construction of the duplicate file of the property, it reveals that the Tehsildar, Jhelum vide his reply dated 8-12-1960, fixed the market value of the land under dispute at Rs,200.00 per Canal taking into consideration the position of the land at that time. Now the land has been got developed by the transferee with the help of the machinery, and moreover the transferee has also covered 12 canals and 18 Marla's of land in his land which was previously covered by the Barsati Nalla. In view of the report of the Tehsildar regarding fixation of market value Rs,200 per Canal and in view of the position of the land at that time, market value recommended by the Tehsildar Jhelum seems to be reasonable and if approved then transfer of the surplus land
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measuring 12 canals and 18 Marla's which was previously covered by the Barsati Nalla, in favor of Mr. Wajih-ul-Hassan Zaidi be ordered and price recovered accordingly. (Sd.) D.S.C., Jhelum" ' The Additional Settlement and Rehabilitation Commissioner approved the above report of Deputy Settlement Commissioner on 1-5-1968. The Deputy Settlement Commissioner, Jhelum,-accordingly, directed issuance of P.T.D. To the claimant showing 48 canals 1 Marla of land as having been transferred to claimant free of cost along with the building and 131 canals 17 Marla's against the cost already recovered from the claimant. It appears that one Muhammad Ramzan questioned the transfer of Khasra No, 178 as part of S.P. House in favour of the claimant by filing an appeal before the Additional Settlement Commissioner, Rawalpindi Division, which was dismissed on 14-10-1972. Against the order of Additional Settlement Commissioner, Rawalpindi Division, the said Muhammad Ramzan preferred Revision No, 26/72 in the Court of Major Muhammad Iqbal Cheema, Settlement and Rehabilitation Commissioner, Rawalpindi Division, Rawalpindi. The Settlement and Rehabilitation Commissioner by order dated 8-11-1973 accepted the revision petition partly and remanded the case of Deputy Settlement Commissioner with the following directions:-- "After hearing the parties and perusal of the relevant record whatever the merits of the case of the petitioner may be, I have not been able to lay my hands upon any orders whereby the suit Khasra number alongwith host of other Khasras has been transferred to the respondent. As rightly pointed out by the learned counsel for the petitioner, the order to which a reference has been made pertains to the determination of the market value of the excess land allowed to the respondent but it does not say anywhere that certain Khasra numbers have been transferred to the respondent. In such circumstances when the very order transferring the disputed Khasra number alongwith other Khasra numbers is lacking it would have been proper for the learned lower Court to have either inquired into the matter himself or ordered inquiry in this regard to find out as to what precisely been transferred to the respondent and whether the Khasra number in question was included in the transfer order. If not, he should have given a finding as to whether the said Khasra number also stood transferred to the respondent if it constituted evacuee trust property in which case the matter should have been referred to the Chairman Evacuee Property Trust Board, Pakistan who is possessed of the requisite powers in such matters. ' The petitioner stands convicted under section 302, 1.P.C. For causing the death of Habibullah and under section 307, P.P.C. For making murderous assault on Noor Muhammad who has-also since died. The heirs of Habibullah and Noor Muhammad appeared in the Chamber of Mr. Justice Wali Muhammad In view of the discussion made above the revision petition is accepted partially and the case remitted to the learned Deputy Settlement Commissioner for holding an inquiry as indicated above and in case he comes to a conclusion that the suit Khasra number has not been transferred to the respondent then it shalt be excluded from the transfer documents of the respondent and in case his finding is otherwise then the case shall need a reference to the Chairman, Evacuee Trust Board, Pakistan, as indicated above." ' There is nothing on the record before us to show that the claimant challenged the above order of Settlement Commissioner, dated 8-11-1973. It appears that before the above-quoted directions of the Settlement Commissioner in the remand order dated 8-11-1973 could be given effect to the Evacuee Laws Repeal Act of 1974 was promulgated with the result the matter remained pending. The Deputy Administrator, R & P; Jhelum in implementation of the remand order of Settlement Commissioner dated 8-11-1973, issued a notice to the claimant on 13-3-1978, to show cause within 15 days of the service of the notice as to why the illegal transfer of the S.P. House in his favor may not be resumed and cancelled for the following reasons:--
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"(1) Under Settlement Scheme No,I am evacuee property can be transferred to the occupant provided he is in its physical possession on or before 20-12-1958. You occupied the property in the capacity of Superintendent of Police, Jhelum on your posting in 1959. (2) Under the rules three times of the plinth area could be transferred to the legitimate transferee but you got transfer of the entire area of the Bungalow in question which was many a times more than the entitlement of legal transferee. (3) You got the property transferred illegally despite the fact that your possession was after the target date. (4) You got transferred an area of 179 Kanals and 7 Marlas of an other property having no concern whatsoever with the Bungalow No,B-XII12-S-26, Civil Lines, Jhelum. The owner of the Bungalow in question and that of the land are different. (5) The price of the excess land of the Bungalow in question as well as the price of the other land was not paid." The above notice issued by the Deputy Administrator (R.P.) Jhelum was challenged by the claimant before the Lahore High Court in Writ Petition No, 451-R of 1978 but it was withdrawn on 2-4-1990 as follows:-- ' Learned counsel for the petitioner after arguing the case at length seeks permission to withdraw the petition as he would like to meet the objcetions taken in the show-cause notice before the notified officer and then pursue his remedy in accordance with law if the decision goes a to him. Dismissed as Withdrawn. 2. The Member, Board of Revenue (Settlement) will direct the notified officer to decide the matter within three months. ' Raja Tehmasap Khan, the vendee applicant, will be at liberty to seek permission to join the proceedings before the notified officer. ' The record produced through Mr. Wali Dad, Record Keeper, has been returned." ' After withdrawal of Writ Petition No,451/R of 1978 the case was taken up by Raja Saeed Akhtar, D.S.C./ Additional Deputy Commissioner (General), Jhelum, who after reviewing the history of the case, by order dated 8-7-1990 directed resumption of the property transferred to the claimant along with the surplus land, as follows:-- "It is not understood as to how the additional entries made in the provisional transfer order dated 11-1-1960 were made on 18-10-1968 which included Khasra Nos. 168, 171 to 191, 379 to 381 and some additional land. I have scanned the file and no other order of any competent authority is available which could be made the basis for recording the above entries in the provisional transfer order dated 11-1-1960. Accordingly, I adjudge the transfer of the property along with the surplus land as illegal. Consequent upon the decision made hereinabove, the property and the surplus land are resumed to Government." ' The above order of Additional Deputy Commissioner (General), Jhelum, was challenged by the claimant in Writ Petition No, 181/R of 1990 which was allowed on the ground that the A.D.C. (G), was not a notified officer and accordingly, the case was remanded to the Member, Board of Revenue/C.S.C. With the direction to entrust it to a notified officer for decision in accordance with the law. As a result of the remand order passed in Writ Petition No,181/R of 1990, the Additional Commissioner (R), Rawalpindi, as notified officer, took up the case and upheld te transfer of the house as well as surplus land in favor of the claimant, by order dated 12-7-1993. The order passed by the notified officer was challenged by the Government of Punjab (appellant in C.A. 1029/95) before the Lahore High Court, Rawalpindi Bench, in Writ Petition No, 1060 of 1993. A learned Judge in Chambers of that Court by the impugned judgment partly accepted the writ petition filed by the Government of Punjab and held the transfer of the S.P. House and the open area to the extent of 35 canals 8 Marla's plus land measuring 12 canals 8 Marla's, which was previously covered by 'Barsati
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Nala' in favor of claimant as valid, while the transfer of remaining area in his favor was declared illegal and of no legal effect. The claimant filed I.C.A. No, 545/94 against the judgment of the learned Single Judge but it was dismissed as not maintainable in view of the provisions of section 3 of the Law Reforms Act 1972. After dismissal of the I.C.A. By the Lahore High Court, two. C.P.L.As. Were filed before this Court, one by the claimant and the other by Provincial Government of Punjab seeking leave to appeal against the judgment of learned Judge in Chambers which was granted as aforesaid. ' The learned counsel for the claimant contended that after the issuance of P.T.O. In favor of the claimant, the office of the Settlement and Rehabilitation Commissioner (General), Lahore, on 23-8- 1960, issued a letter to the Deputy Settlement Commissioner, Jhelum asking the latter to intimate if the claimant Was willing to retain surplus area of S.P. House on payment of the market value and in case the claimant was not willing to take the extra land, the mode for disposal of land may be suggested. The contention of the learned counsel 'for the claimant is that in response to the above letter, the D.R.C., Jhelum on 31-8-1960 intimated the Settlement and Rehabilitation Commissioner that the claimant was willing to retain the surplus land and accordingly, the price of excess land was recovered from his compensation book. In support of his contention, the learned counsel relied on the amendment made in the P.T.O. Issued to him. It is, accordingly, contended by the learned counsel for the claimant that the excess land having been transferred to the claimant in accordance with the provisions of Para. 19 of the Settlement Scheme No,I and the then existing instructions of Chief Settlement Commissioner, the same could not be reopened after the repeal of the Evacuee Laws as it was neither a pending case on the date of repeal of the Act nor it was a case which was remanded by a superior Court for disposal to the notified officer. The learned counsel for Government of Punjab on the other hand firstly, contended that at no stage of proceedings, any valid order for transfer of excess area of land as part of S.P. House was passed in favour of claimant by a competent Settlement Authority. In the alternative, it is contended by the learned counsel for Government of Punjab that in any case the transfer of extra land to the claimant which was in excess of three times of the plinth area of the S.P. House was wholly without jurisdiction and as such on the basis of such a void transfer, the claimant could not claim any right or title to the excess land. ' The first question which arises for determination in the present case, therefore, is, whether the land in excess of three times of the plinth area of S.P. House could be transferred to the claimant as part of the S.P. House under Settlement Scheme No,I. The next question which needs consideration in the case is, whether any valid order for transfer of land in excess of three times of the plinth area of the S.P. House was ever passed by any competent Settlement Authority in favour of the claimant. The last question which requires to be addressed in the case is, whether the issuance of notice to the claimant after the repeal of the Act by the notified officer was competent in law. We will take up these points for consideration in the order mentioned above. ' The first point relates to the validity of the transfer of open area in excess of three times of the plinth area of S.P. House, to the claimant under Settlement Scheme No,l. The claimant applied for transfer of S. P. House on the basis of his possession on C.H. Form under Settlement Scheme No,I on 17-11-1979. Against column No, 4 of his C.H. Form, the claimant disclosed the particulars of the house for which he applied for transfer as "Bungalow No,A.26 (known as S.P. House, Civil Lines, Jhelum belonging to evacuee Dhan Raj Shah and Tulsi Das Shah". Against column No, 13 of the C.H. Form, the gross monthly rent of the S.P. House was stated to be Rs,100. The rest of the entries of the C.H. Form of claimant are not relevant. For the present controversy. The claimant was issued Appendix X dated 1-12-1959 in which the property transferred to him was shown as 'House No,A/26, SP's House, Jhelum B XII12-S-26 at an evaluation price of Rs,45,120 calculated on the basis of 40 times of the
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amount of rent of Rs,1,128. This was followed by P.T.O. No, 693 dated 11-1-1980 issued in favour of the claimant which mentioned the schedule of property transferred to the claimant as "House No,BXII. 12.S. 26, Civil Lines, Jhelum". There is a subsequent endorsement on the P.T.O. Under schedule of property which reads as "included Khasra Nos. Part of 168, 171 to 191, 379 to 381 (Nallah included and some land behind Nallah) transferred vide Adl. S.W.C. Order dated 1-5-1968." In the P.T.D. Issued in favour of the claimant on 30-11-1968 the property transferred to the claimant is shown as "Property No,B-XII-12-S-26 House (35K-3M) and open land included Khasra Nos. 168, 171 to 191, 379 to 381, 131K- 17M. The house as originally defined in section 2(4) of the Act meant a residential premises of any value in an urban area or of the value or rupees ten thousand or more in a rural area, together with the gardens, grounds, garrages and outhouses, if any, attached to or appurtenant to such premises notwithstanding that such garden, grounds, garrages or outhouses were in possession of a person other than the person in possession of residential premises. However, a residential building situated within the premises of an industrial concern or a building declared as a big mansion under paragraph 15 of the First Schedule to the Act were excluded from the definition of the house. By Ordinance No, LIII of 1959 which was promulgated on 28-9-1959 and which was given effect to from the date the Act was enforced, two new provisos were added to section 2 (4) of the Act. The second proviso to section 2 (4). Which is relevant here was to the following effect: "Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times of 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, shaft not be treated as part of the house." ' The question relating to the transfer of the open land as part of residential premises under paragraph 19 of the Settlement Scheme No,I came up for detailed examination before this Court in the case of Muhammad Bashir v. Settlement and Rehabilitation Commissioner, Lyallpur (PLD 1983 SC 143). ' This Court after considering the original definition of 'house' as given in section 2 (4) of the Act and the effect of introduction of second proviso to section 2 (4) ibid by Ordinance LIII of 1959 on paragraph 19 of Settlement Scheme No,I. Observed as follows:-- "We observe that the words gardens and grounds attached or appurtenant to an evacuee residential premises occurring in the main part of the definition of the word "house" in section. 2 (4) of the unlamented Act, as promulgated on 26-3-1958, were not defined in the Act or in the Schedule and, therefore the entire grounds and gardens attached or appurtenant to an evacuee residential house were to be treated as part and parcel of the house; accordingly, the whole lot was liable to transfer, if the house was in possession of a claimant, at a price determined on evaluation basis. It was for the first time on 19th May, 1959 that in Settlement Scheme No,I framed under section 16(1) (b) & (c) of the said Act that the extent of the gardens and grounds was sought to be limited to approximately three times the plinth area of the house including garages and outhouses, if any by clause (3) of para. 1 of the Settlement Scheme No,1; with the result that under it a claimant in possession of a house could get the house alongwith approximately three times the plinth area of the house including garages and outhouses, if any, out of the gardens and grounds attached or appurtenant to it at a price determined on evaluation basis, while the land in excess thereof could only be obtained as per para. 19 of the said Scheme on payment of the prevailing market value. Apart from the question whether this limitation in the extent of the gardens etc. Which could go to the transferee of a house at a price determined on evaluation basis and the rest could now only be obtained on the prevailing market value, made this provision ultra vires, especially when this concession was available only to claimants, whereas both non-claimants and locals could get the houses in their possession only on payment of the prevailing market value is not of any particular importance, . By the point, which is of importance to us, is that both under the
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unlamented Act, as also under the provisions of Settlement Scheme No,I, the entire gardens etc. Which were attached or appurtenant to an evacuee residential premises were regarded as for forming part of the house. The only difference was that under the unlamented Act, the claimant could get the whole of gardens etc. Even if they exceed three times the plinth area of the house a little cheaper, while after the promulgation of Settlement Scheme No,I, he had to pay more, for getting the area of the garden etc. Which was in excess of three times the plinth area. Nonetheless, the entire property in both the situations was treated as a house, the difference existed simply in connection with the price to be paid for it. However, a fundamental change occurred after the amendment in the definition of the "house" by the incorporation of second proviso to section 2 (4) of the Act. Now, a house within the meaning of the Act could only be an evacuee residential premises along with three times its plinth area out of the gardens etc. Attached or appurtenant to it plus any further area out of the excess land determined by the Chief Settlement Commissioner to be also a part of the house. The remaining land would be an area which was no longer a part and parcel of the house and, therefore, could not be transferred in connection with the transfer of a house. This is evident from the fact that paras. 1, 2, 3 and 4 of the schedule deal with transfer of a house, naturally as defined in section 2(4) of the Act. The area exceeding three times the plinth area of…
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