1994 PLP 536 (MLD)

The petitioners, Kh. Shafqat Hussain and 8 others have challenged the validity of the order, dated 16-12-1982 having been passed by the learned Settlement Commissioner (Land and Urban) Punjab, Lahore whereby a piece of land measur=-ag 15 Marlas and 135 square feet out of Plot No.10 Khasra Nos.662 and 663 measuring six Kanals one Marla and 100 square yards was declared available for its transfer to its occupants, namely, the contesting respondents on their Forms. The facts of the case are that aforesaid Plot No.10, known as Allah Ditta Nursery situated at Lawrence Road, Lahore was auctioned on 13-3-1963 by the Settlement Authority for a sum of Rs.1,75,000 in favour of Ghulam Muhammad son of Ghulam Rasool. The auction-purchaser surrendered his rights in favour of predecessor-in-interest of the petitioners through a deed of association dated 8-6-1966 for valuable consideration. The agreement of association was approved by the competent authority on 5-1-1967. The transfer price was paid. A P.T.O. was issued on 5-1-1969 in favour of the petitioners. The demarcation of the plot was also undertaken and in consequence, possession of the plot minus 15 Marlas 135 square feet was given to the petitioners. The dispute between the parties precisely relates to this piece of land measuring 15 Marlas 135 square feet. This land was however, found in physical possession of the contesting respondents. On an application, an order of ejectment was passed under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 against the petitioners on 31-7-1969 by the learned Deputy Settlement Commissioner under the- direction of learned Settlement Commissioner vide his order, dated 5-1-1970. The said order was however, recalled by the learned Settlement Commissioner on 25-9-1971 on the application of the petitioners. On 29-6-1970, the contesting respondents filed their N.C.H. Forms for the transfer of the property to them. An application for condonation of delay was also filed alongwith their N.C.H. Forms.' The learned Settlement Commissioner, rejected these Forms on 4-11-1970 without hearing the petitioners. The learned High Court set aside the order, dated 21-4-1973 passed by the learned Settlement Commissioner and remanded the case to the learned Settlement Commissioner for its fresh decision. On remand, the impugned order, dated 16-12-1982 was passed in favour of the contesting respondents.

2. It is submitted by the learned counsel that an integral part of the property in question cannot be sliced away for giving it to the contesting respondents on the ground that the property in dispute already stood transferred in favour of the petitioners. The learned counsel, therefore, argues that the Settlement Authority travelled beyond its jurisdiction in depriving the petitioners from the property in question. It is argued by the learned counsel that N.C.H. Forms of the respondents were rejected by the learned Settlement Commissioner on 4-11-1970 and as such they could not be now allowed to file fresh Forms under Scheme NO.VIIL Learned counsel for the contesting respondents submits forcefully that the land in question was built by the evacuees before 14-8-1947 and that the contesting-respondents are in its authorized occupation since then. He argues that the auction pertained to the vacant plot and that it did not at all include the built up area in possession of the contesting respondents. He maintains that this fact was kept in view by the learned Settlement Commissioner when the ejectment proceedings having been initiated against the respondents were withdrawn on 25-9-1971. According to learned counsel, the learned Settlement Commissioner vide his order, dated 25-9-1971 has, in fact accommodated all the occupants of the plot in question. He further states that the aforesaid order was not challenged by the petitioners before any forum and as such it had attained finality. He has informed the Court that the contesting-respondents are the poor displaced persons and have been occupying only a small portion of the property in question. In support of his plea learned counsel relied upon Mst. Shahjahan Begum v. Mst. Shabbir Fatima P L D 1991 SC 614 and Mst. Shahzada Begum v. Ahmad Kamal etc. P L D 1991 SC

617. According to the learned counsel a finding of fact has been given by the learned Settlement Authorities that the area in possession of the contesting-respondents was not a part of the plot in question which was auctioned by the Settlement Authority in favour of the petitioners. Sh Muhammad Hanif learned counsel for the Settlement Department supports -the impugned order on the ground that only vacant plot was auctioned. In reply the learned counsel for the petitioners relied upon Imdad Ali v. Ghulam Nabi 1980 S C M R 561(2), Sardar Jahangir Khan v. Nasrullah 1989 S C M R 752, Mst. Amino Begum v. D.S. Commissioner P L D 1980 Lah. 571, Mst. Kaneez Fatima v. Muhammad Siddique P L D 1976 Lah. 1530, Mst. Zainab Bibi v. Mst. Iqbal Begum P L D 1974 Lah. 350.

3. I have heard the learned counsel for the parties at considerable length and have also gone through the entire record with care. Learned Settlement Commissioner vide his impugned order came to the conclusion that the land in possession of the respondents was in fact built upon much before 14-8-1947.. The contesting-respondents are displaced persons. They have tiled N.C.H. Forms for the transfer of the property in their own rights. They, therefore, cannot be deprived of the property in their physical possession. The impugned order appears to be proper and fair. The rule laid down in the judgments reported as Mst. Shah Jahan Begum v. Mst. Shabbir Fatima P L D 1991 SC 614 and Mst. Shahzada Begum v. Ahmad Kamal etc. P L D 1991 SC 617 would apply with full force to the facts and circumstances of this case. The competent Settlement Authority is directed to transfer the property to the contesting respondents (property measuring 15 Marlas, 135 square feet) within 2 months without fail. Compliance report shall also be submitted to this Court through the learned Registrar. With these remarks, the impugned order is upheld by dismissing this petition with no order as to costs. However, in the circumstances, it would be appropriate for the Settlement Authority to explore the possibility of giving some other property to the petitioners from the available property against the surplus auction price lying with the Settlement Department. H.B.T. /S-375/L Petition dismissed.