1990 PLP 1013 (SCMR)

Sh. Abdul Marian, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners (in C.P. No. 634 of 1986). M.Z. Khalil, Advocate‑on‑Record for Respondent (in both ‑ the Petitions). Date of hearing: 22nd January, 1990. NASIM HASAN SHAH, J.‑‑This order will dispose of the above two petitions as they relate to one and the same property. The property in dispute is Flat No.21 in a building bearing Property No.S‑50‑R‑35 situated at Hall Road, Lahore. Flat No.22, which is situated exactly on top of Flat No.21, is occupied by Anwar Ahmad Lari, petitioner No.1. It appears that on the C.H. form filed by petitioner No.1 both Flats Nos.21 and 22 were transferred to him and thereafter a P.T.D. was also issued in his favour. In the meantime, he associated petitioners Nos. 2 to 5 (who are brothers and sisters) as transferees in the said two Flats. Respondent No.3 (Mrs. P.G. Irani), now deceased and represented by her legal heirs being a local did not apple for the transfer in the beginning. However, after promulgation of Scheme No. VIII she applied for the transfer of Flat No.21 and was transferred the same by the Deputy Settlement Commissioner vide order dated 18‑4‑1974. The petitioners challenged the transfer through a writ petition in the High Court asserting that Flat No.21 having been already transferred to them was not available for transfer and hence could not be transferred under Settlement Scheme No.VIII to Mrs. Irani; moreso when a P.T.D. had even been issued in respect of its transfer in favour of the petitioners. The High Court, however, rejected the Writ Petition holding that Flat No.21 was a distinct property and that as the petitioners were not entitled to more than one house the P.T.D. in respect of Flat No.21 could be ignored as its transfer was obtained in contravention of the law. Hence this petition for leave. Mr. S.A. Manan has criticised the order of the High Court contending that both the flats were treated as one property and transferred to the petitioners and after the P.T.D. was issued in their favour the Settlement authorities had no jurisdiction to entertain the form of the respondent under Settlement Scheme No.VIII, as Flat No.21 was not "available" for transfer at that time. There is some force in these contentions but we feel that in so far as Flat No.21 was a distinct and a separate unit it could not have been transferred to the occupant of Flat No.22 in the first place and the transfer of the two flats to petitioner No.1 was indeed in contravention of the law. In so far as a fair, just and equitable order has been passed by the High Court we are not inclined to exercise our discretionary jurisdiction to grant leave to appeal in such a case. AA./A‑692/S Leave refused.