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Writ Petition No. 629 of 1962, decided on 1st September 1965.

S. 2(4) & Sch. Part 1‑House‑Means any evacuee residential premises"‑Two cabins on roof of top floor of building used as residential units and later converted into pucca construction‑Such property residential unit which can validly be transferred to occupant‑Mere fact that pucca construction unauthorised‑‑Irrelevant‑Any unauthorised construction raised by occupant‑Would be in nature of accretion to and form part of evacuee property‑Settlement Authority to dispose of property as existing at time of transfer.

Muhammad Salih v. Chief Settlement Commissioner Writ Petition No. 320/62 (unreported) ref.

Zahiruddin for Petitioner.

Wasim, Addl. S. C. (Legal) for Respondent No. 1.

Amir Ahmed Khan for Respondent No. 2.

Date of hearing: 1st September 1965.

This writ petition is directed against the order of the Settlement and Rehabilitation Commissioner in revision No. SCK 123/62, decided on 19th June, 1962. By this order the learned Settlement and Rehabilitation Commissioner rejected the revision of the petitioner is respect of the property in dispute.

2. The dispute between the parties is in respect of the two small pucca rooms with two latrines and bath rooms existing on the roof of Mukhi Mansion, Frere Road, Karachi. This was transferred to the petitioner on a C. H. Form by the Deputy Settlement Commissioner by order dated 14th March, 1960. The petitioner submitted her C. H. Form on 10th November, 1959. She got the property deleted from C' category list, prepared for ear‑marking proceedings, on the plea that she is entitled to its transfer as a claimant displaced person in possession. On 12th December, 1961, the Additional Settlement Commissioner cancelled the P. T. O. of the petitioner on the ground that the construction raised by her on the roof being unauthorised, could not be taken into consideration for purposes of transferring to her the property in-dispute. He held that the transfer of bare roof was irregular. The Settlement Commis sioner on revision agreed with this finding and dismissed the revision on 19th June, 1962. The petitioner has challenged these orders in this writ petition.

3. In order to appreciate the case of the petitioner, it may be mentioned that the property in dispute is on the roof of the top floor of a double storey building. The first floor has been transferred to a stranger. The second floor has been transferred to Fazal Hasan Qureshi, respondent No. 2. The premises in dispute has taken the shape of the third floor of the property in dispute. It is not one of those cases in which only a bare roof has been transferred to a party. On the other hand even the Additional Settlement Commissioner has observed in the impugned order that the Municipal Revision Book Extract on his record clearly proved that before Partition there existed two cabins on the roof in dispute. He has further observed that, unauthorised permanent constructions were raised on the terrace without the prior permission or sanction of the Custodian or Municipal Authorities in the year 1953‑54 In spite of the existence of such superstructure he has held the transfer to be irregular.

4. The short question, therefore, for consideration is whether the top floor of the property in dispute is a residential unit and was properly transferred to petitioner. In support of the petition Mr. Zahiruddin counsel appearing for the petitioner has urged that before the property in dispute became evacuee property, this portion of the property was used as a residential unit. He further contended that any construction even unauthorised raised by an occupant of an evacuee property becomes part of the evacuee property. He has contended that the construction on the third floor of the property in dispute is a residential unit and it was validly transferred to the petitioner by the Deputy Settlement Commissioner.

5. On the other hand, Mr. Wasim, the learned counsel for the Department has contended that a roof of an evacuee property cannot be the subject‑matter of transfer because it is not a house. In support of his contention the learned counsel has referred me to the definition of house' in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Had it been a case simplicitor of roof, perhaps the learned counsel for the Department might have been justified in his argument. But in the present case the Department itself has admitted that there existed two cabins on the third floor of the building in dispute since before Partition. This fact is also borne out by Annexure "A", a certified copy of the Municipal records. It shows that on the top floor in 1946‑47 these two cabins existed which were assessed at Rs. 11/2. In the Custodian record of the year 1949 (Annexure 'R') it is shown as two small rooms. 1n any case these cabins must have been used for residential purposes otherwise there was no question of charging Rs. 10 or Rs. 12 as rent. This evidence already establishes that prior to Partition the top floor was used as a residential unit. It will be further noticed that this superstructure was a part of a double storey building. It was open to the Settlement Authorities on the definition of 'house in section 2(4 to treat it as a residential unit. It was further open to them to declare it as a separate unit and transfer it as such. In these circumstances, it is difficult for me to appreciate how the transfer in favour of the petitioner can be described as irregular.,

6. Apart from this, in the present case the petitioner has constructed, though unauthorisedly two rooms on the terrace of the third floor which exist for a long time. Mr. Wasim, the learned counsel for the Department contended that it cannot be treated as an evacuee property and could not be taken into consideration for transferring it as a house. This contention has also not impressed me. The ordinary taw of the Land is that if a tenant or an occupant of a tenement adds some further construction in a building it would become an accretion to the 8 building enjoyable by the owner of the property. It is in the nature of accretion to the property. Recently, this point was considered by a Division Bench of this Court in writ Petition No. 820/ 1962, decided on 27th August, 1965 to which I was also a party. In that case, it was urged by the petitioner that the construction raised by him was an evacuee property and could not be transferred under the Settlement Scheme. This contention was repelled by the Division Bench. My Lord the Chief Justice while dealing with this aspect of the case observed as under:‑

"In view of the above provision the amount that the petitioner may have invested in putting up the construction on the first floor of the building would be a charge on the property to the extent such investment is accepted by the Chief Settle ment Commissioner, and no more. Any addition to the Evacuee property would form part of the same and it will be open to the Department to dispose of the property as it exists."

In view of these clear observations the contention of the Depart ment that the construction raised by the petitioner could not be taken into consideration for purposes of transfer has no force whatsoever. It is interesting to note that the learned Additional Settlement Commissioner was more worried on account of the apprehension that the unauthorised construction raised by the petitioner may not be demolished by K. M. C. He failed to notice that this construction existed since 1953 and the risk if any would be of the petitioner and not damaging to the Department. I am constrained to hold that the learned Additional Settlement Commissioner in holding the transfer in favour of the petitioner as irregular has fallen into a grave error and has not in the least assisted in augmenting the Compensation Pool. In that view of the matter, I would hold that the transfer of the tenement in dispute to the petitioner was absolutely legal and was not irregular as held by the Settlement Authorities.

7. In the result the impugned orders are quashed. The transfer in favour of the petitioner is restored. The petition is allowed with no order as to costs.

K.B.A.

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