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Civil Appeal No. K‑124 of 1980, heard on 14th April, 1985.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑

‑‑‑S. 3(1)(a)‑‑Scheme No. I framed by Government of Baluchistan for Disposal of Evacuee Properties in Urban Areas in Baluchistan, para. 2(iii)‑‑Transfer of evacuee house‑‑Appellant who was transferred property under para 2(iii) of Scheme neither raising construction on property by crucial date viz. before promulgation of Scheme nor exercising option to retain property within prescribed period‑‑Conditions precedent for exercise of option under para. 2 (iii) of Scheme, held, not fulfilled‑ Order of High Court to same effect based on correct appreciation of fact and law‑‑Interference declined by Supreme Court.

Talmiz Burney, Advocate Supreme Court for Appellant.

Raja M. Afsar, Advocate‑on‑Record for Respondent No. 1.

Respondent No.2: Ex parte.

Date of hearing: 14th April, 1985.

‑Dispute between the paties relates to what was originally a house consisting of one room, measuring less than 900 square feet, which was a party of entire property in Ram Bagh Lane, Quetta belonging to the evacuee Hukam Chand. After the owner migrated from Pakistan, the house got dilapidated and was demolished. On 20‑9‑1977 appellant applied for the transfer of the house under the provisions of sub‑paragraph (iii) of paragraph 2 of the Scheme No. 1 framed by the Government of Baluchistan for the disposal of evacuee properties of the urban areas in Baluchistan. This Scheme was framed by the Provincial Government in exercise of the powers conferred by subsection (1)(a) of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The house was transferred to appellant within three days and Permanent Transfer Deed was also issued to him on 23‑9‑1977.

Messrs National Food Processing Industries Limited, the first respondent herein, had applied for the transfer of this property earlier in March/April, 1977 but their request was refused on the ground that it being a part of a large area of Ram Bagh Lane could not be divided and transferred to any person, including the residents of the area. On coming to know that the property was transferred within such a short period of three days to appellant, the first respondent applied to the member, Board of Revenue for cancellation of P. T. D. issued in appellant's favour. Learned Member ordered an enquiry which was held by the Secretary, Board of Revenue who for the reasons mentioned in the Report submitted by him recommended cancellation of P.T.D. issued in appellant's favour. However, learned Member rejected the application by the order dated 14‑11‑1977 on the ground that he had no power to cancel the P.T.D. once having been issued in respect of the property, and the respondent had also no locus standi to agitate the matter.

The respondent then challenged these orders in a Constitutional Petition in the Baluchistan High Court which succeeded as the learned Judges of the Division Bench of the High Court who heard the case held that appellant was not qualified to claim transfer of the property under paragraph 2 (iii) of the Scheme for the reason that he had neither raised the superstructure on the property by the crucial date of the promulgation of the Scheme, nor had he exercised the option to retain the house within the prescribed period.

Leave to appeal against the judgment of the High Court was granted by this Court to the appellant to consider whether the High Court had misread the provisions of the sub‑paragraph (iii) of paragraph 2 of the Scheme.

Paragraph 2 of the Scheme reads as under:‑

"2. Disposal of available properties.‑‑ (i) Available properties of any value shall be deemed to have been resumed by the Government from the date of its availability.

(ii) No occupant whatsoever shall have any claim or any right over such properties which become available as defined in sub‑para. (ii) of para. 1 of this scheme and such occupants shall be ejected by the competent authority by force if necessary by serving a notice of ejectment.

(iii)Subject to the condition laid in sub‑para. (vii) of para.2 of this Scheme, the occupants of houses, shops and building sites on which permanent constructions have been made will be given option to retain such houses, shops and building sites within the time prescribed in this behalf by competent authority on payment of the present market value, which would be fixed in accordance with the conditions of the property and. its location, by the competent authority."

The High Court has rightly held that the condition precedent for the exercise of option under sub‑paragraph (iii) of paragraph 2 in case of a building site is that the occupant has already made a permanent construction before the promulgation of the Scheme, and the option is exercised within the time prescribed which through a public notice dated 28‑2‑1976 was upto 31‑3‑1976. The High Court has held that appellant did not fulfil both these conditions, for, on his own admission in the counter‑affidavit filed by him, he made construction on the disputed property in about February 1977, and had exercised the option much later than the target date. The respondent was also held to be an aggrieved person on correct view according to law.

Since the impugned judgment of the High Court is based on correct appreciation of facts and law, interference by this Court is not is warranted at all.

For these reasons the appeal is dismissed but the parties are left to bear their own costs.

M . Y . H Appeal dismissed.

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