1983 PLP 449 (SCMR)

SHAFIUR RAHMAN, J.‑Leave to appeal was granted to the appellant who are the P. T. D,‑holders of various plots in Khasra No. 1550/452/96 in Bhakkar, now a district, to examine whether in demarcation proceedings and a revision arising out of it, the Settlement Commissioner could unsettle the transfer orders in their favour and remand the case for examination of their very entitlement alongwith that of the contesting respondents afresh. The facts of the case are that in March, April; 1961 the three groups of appellants and the two contesting respondents submitted their forms for the transfer of portions of plot bearing Khasra No. 1550/452/96 in their possession. Mst. Bano appellant in her form did not claim .to have raised any construction whatsoever on the plot, and claimed the transfer of 136 square yards. Eidoo and Bundi in their forms claimed a construction over an area of 14' x 13' and on the basis of their possession sought the transfer of area which was described as 102' x 56'. The Deputy Settlement Commis sioner himself inspected the spot and obtained the. report of the Settlement Inspector .and granted to them an area of 596 square yards. Hanif in his application did not claim any construction. The spot was not inspected by the Deputy Settlement Commissioner or any authority to find out the extent 'of construction and 580 square yards were transferred to him on 20‑11‑1964. Ibrahiua and Mst. Bundi applied on 4th March, 1960 for 05 square yards. They also did not claim to have raised any construction and they were transferred 445 square yards. In the background of the compet ing claims the matter came up for demarcation before the Deputy Settle ment Commissioner who on 16‑5‑1966 found that after accounting for the first three transfers in favour of the appellants an area of only 19 square yards remained and the transfer of 445 square yards in favour of the contesting respondent was physically not possible and he reduced their area to 19 square yards which was the residue left. On their appeal the Addi tional Settlement Commissioner on 4‑4‑1968 remanded the case to the Deputy Settlement Commissioner for its examination afresh. On 27‑7‑1968 the Deputy Settlement Commissioner maintained his earlier order of transfer of 19 square yards to Muhammad Hanif: The Additional Settlement Commis sioner maintained this order on appeal on 25‑10‑1968. The Settlements Revision was therefore filed by the respondents which was allowed. The Settlement Commissioner held that this confusion had taken place because each application was taken in isolation instead of all the applications being considered together with a view to adjust the claims of various persons claiming to have raised the construction or to be in possession of the same Khasra number. He, therefore, ordered that 11ist. Bano who had already surrendered her claim in favour of Hanif be left out and the others be equally considered for allotment of the plot. This aggrieved the appellants and they invoked the constitutional jurisdiction of the High Court contend ing mainly that as they had obtained P. T. D. and the proceedings were only for demarcation of the plots the transfer made in their favour itself could not be unsettled. The learned Judge dismissed the constitutional petition holding that the Settlement Commissioner had the jurisdiction to interfere by way of revision and to revise the original transfer orders which bad been made in a most haphazard manner by the Deputy Settlement Commissioner without regard to the actualities of the situation. A Letters Patent Appeal was thereafter preferred which met the same fate mainly for the reason that it was not a fit case where interference was called for in the constitutional jurisdiction. The learned counsel for the appellant contended that the learned Judge in the High Court as well as the settlement authorities were in error in think ing that Mst. Bano bad surrendered her rights in favour of Muhammad Hanif and had made an exit from the .scene. She could not on the strength of such a remand be excluded from a reconsideration of the competing claims of the parties in respect of the same Khasra numbers. The main ground urged by the learned counsel for the appellant is that after the P. T. D. had issued to then them there was no justification for any settlement authority to interfere with the transfer particularly so because only demarca tion proceedings were pending and that in any case, Ibrahim and Mst. Bundi could not take more than what was available after keeping in tact the transfers made in favour of the appellants which was of an earlier date. This appeal has come up for ex parte hearing as none from the side of the respondents has appeared to contest the claim. From the very recital of the facts it appears that there were three apparent defects in the order of the settlement authorities on the basis of which the appellant obtained the P. T. D. Firstly though all the applications both of the appellants as well as the contesting respondent had been filed in March, April, 1961 and related to portions of same Khasra number and the question of transfer of plot came up for consideration in August to November, 1964 they were not consolidated or dealt with together but each application was taken up in isolation and disposed of such as pointed oat by tire Settlement Commissioner in "a most haphazard manner". The manner was haphazard in the sense that in the case of Eidoo and Bundi report was obtained and actual construction was found to have been raised by the claimant, while in other cases neither such inspection was carried out by the Deputy Settlement Commissioner nor any finding was given that any construction had been raised by them nor did the claimants themselves claim to have raised any construction over the plot. The very application from contained a column "Particulars of the permanent construction put up by the applicant on the building site (a) covered area, (b) whether the permanent construction is a house, a shop or any other type of construction, (c) No. of rooms separately for ground and upper floors, (d) No. of garages, out houses etc., (e) whether plan approved by a competent authority. (f) approximate-mate amount spent on permanent construction. The duty of the Deputy Settlement Commissioner in this respect was as follows (Pare. 5, Settlement Scheme No. VI)‑ "He shall then scrutinize the application and if he is satisfied after spot inspection, where necessary, that the applicant has raised permanent construction on the building site, he shall communicate his orders to him in the form as in Appendix X .of Settlement Scheme No. I in the case of a claimant and in the form as in Appendix IX ibid in the case of non‑claimant or local, mutatis murandis." Not only did the other applicants not disclose at all the particulars of the permanent construction raised by them, the Deputy Settlement Commis sioner also did not ensure the satisfaction of this jurisdictional requirement in the case of other applicants either by getting the plot inspected or other wise. There is as indicated only one inspection report and that concerned the entitlement of Eidoo and Bundo. In this manner when the area trans ferred was found to be in excess of what actually existed, it was the bounden duty of the Settlement Commissioner or the Settlement Authorities for that matter to re‑adjust it. In the background of the jurisdictional defect in handling the matter the very entitlement had to be reconsidered in the light of law conferring the jurisdiction. As regards the surrender by Mst. Bano and her exclusion from the contest she did not either in the constitutional petition or in arguments before the High Court dispute this fact: It was for the first time taken up in this Court. It being a question of fact had to be challenged at the first oppor tunity. We, therefore, disallow this as a valid ground to be taken at this stage. We agree with the observations of the learned Judges in the High Court that it was not a fit case wherein constitutional jurisdiction could be invoked to interfere with the order passed by the settlement authorities which was eminently a just and proper order. The appeal is, therefore, dismissed with no order as to costs as the respondents were not represented. Appeal dismissed.