1986 PLP 2782 (MLD)

‑‑‑Art .199‑‑Constitutional jurisdiction, exercise of‑‑Order of Revisional Authority passed without taking into consideration letter and spirit of relevant law, was declared illegal by High Court in exercise of constitutional jurisdiction. A.R. Shaukat for Petitioner (in W.P. 405/R of 1981). Sheikh Anwarul Haq for Respondent (in W.P. 405/R of 1981 and Petitioner in W.P. 460/R of 1981). Nemo for Respondents (in W.P 480/R of 1981). Date of hearing: 23rd December, 1985. This order will dispose of Writ Petitions Nos.405/R of 1981 and 460/ R of 1981 as these relate to the same impugned order of the learned Administrator (R.P.), Lahore Division, Lahore, dated 27‑4‑1981.

2. The first petition is by the auction‑ purcahser of Property No:SE XXII‑28‑S‑23 known as House No.23, Street No.28 located in Kumharpura, Hari Nagar, Lahore. It was owned by Madan Gopal a non‑Muslim evacuee. It was put to auction and purchased by the mother of the petitioner of the first petition, namely, Mst. Niaz‑un‑Nisa on 4‑11‑1960. She paid the transfer price and obtained a Permanent Transfer Deed. After her demise, it devolved on her son the petitioner in the first petition. A portion of this property was rented out by the petitioner's mother to Muhammad Shafi, father of respondent No.2 Muhammad Asghar. She filed an application for ejectment on the ground of default in the payment of rent. However, the matter was compromised and the defendant undertook to vacate the premises and handed over the possession to the plaintiff by 1‑7‑1980. The petitioner's mother in consideration of the compromise had withdrawn all her claim for arrears of rent outstanding against the tenant. Notwithstanding this, Muhammad Shafi father of the respondent No.2 did not hand over the possession. Therefore, on the application of the plaintiff bailiff of the civil Court visited the spot on 21‑7‑1980 and the respondent No.2 appeared at the scene and vacated the portion in possession of his father Muhammad Shafi. Later on, when he tried to take possession and raised construction on the spot, a report was made to the police on 7‑8‑1980.

3. The respondent No.2 got the transfer of the portion in dispute from the Deputy Administrator' (R. P . ) on 30‑4‑1980 on the plea of being in possession and the property being available. The petitioner in the first petition, the son of the auction‑purchaser filed a revision petition against the transfer in favour of the respondent No.2. This was rejected but the transfer from the name of Muhammad Asghar, respondent No.2 was also cancelled by the Settlement Commissioner vide order, dated 27‑4‑1981. Hence the aforetitled two constitutional petitions.

4. As regards the first petition viz. Writ Petition No.405‑R of 1981 it is pointed out by the learned counsel for the respondent No.2 that after obtaining the status quo order on 7‑7‑1981 which is to the following effect:‑‑ "The impugned order in so far as it relates to auction is suspended subject to notice." The petitioner has sold away the house which he had obtained in auction vide registered sale‑deeds, dated 19‑4‑1983. This is admitted by the petitioner and it is stated that because of financial difficulties, he had to sell away the property. It is well‑settled law by now that a party who obtains a status quo order and then disposes of the property subject‑matter of dispute is not only liable for violating the status quo order but his petition is' also liable to be dismissed. The petitioner is an old gentleman and in the circumstances, it does not appear to be in the interest of administration of justice to proceed against h im for violating the status quo order However, his writ petition is liable to be dismissed. Moreover, as contended by the learned counsel for the respondent No.2, from a perusal of the sale‑deeds it would appear that the petitioner had accepted the order of the learned Administrator (R . P) , dated 27‑4‑1981 impugned in this petition when he stated that the area underneath the Property No.SE‑XXII‑28‑S‑23, was 8 Marlas which he was selling through registered sale‑deeds. This was also finding of fact by the learned Administrator when he observed that "In view of this documentary record, it cannot be assumed that the property obtained by Niazunnisa, the predecessor‑in‑interest of the petitioner, is more than 8 Marlas and that the disputed premises measuring about 3 Marlas forms an integral part of this house. The petitioner has thus no case to claim the disputed premises as an integral, part of the property passed on to him by his mother." This is a finding of fact not interferable in exercise of Constitutional jurisdiction. The petitioner having sold the house auctioned in his mother's favour, he can lay no claim to the portion in dispute measuring 3 Marlas which has been ordered to be auctioned by the learned Administrator vide, order 27‑4‑1981. Hence Writ Petition No.405‑R of 1981 is dismissed but, in the circumstances, there shall be no order as to costs. Writ Petition No. 460‑R of 1981:

5. The contention of the learned counsel for the petitioner has been that after the dismissal of the revision petition of Syed Ale Ali, petitioner in the first petition viz. Writ Petition No.405‑R of 1981, there was no jurisdiction in the learned Administrator (R.P.) to have cancelled the transfer made in favour of the petitioner. If the learned Administrator (R. P. ) wanted to exercise suo motu revisional jurisdiction, he had to issue a notice which he has not done.

6. This writ petition has been filed by Muhammad Asghar to whom the portion in dispute was transferred by the Deputy Administrator (R.P.) on 7‑5‑1980 and which has been ordered vide the impugned order to be disposed of through auction. The petitioner will be entitled to its transfer under the latest scheme viz. Settlement Scheme No.IX which permits sale of properties available to the occupants. Moreover, it does not seem to be in accordance with the letter and spirit of the Settlement law that the petitioner be ousted from the portion in dispute for disposal of the property through auction. Consequently, the impugned order to the extent that it deprives the petitioner of the portion in his possession and directs its disposal through auction, is declared to b without lawful authority and of no legal effect. The portion in possession of the petitioner shall stand transferred to him in accordance with the order of the Deputy Administrator (R.P.). The petition is allowed but, in the circumstances, there shall be no order as to costs. H. B. T. Order accordingly.