1994 PLP 563 (SCMR)

‑‑‑‑Para. 6‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Disposal of residual property‑‑‑Appellant having raised construction over property in question, applied for transfer of same under provisions of Settlement Scheme No. IX‑‑ Other occupants of such property who were similarly circumstanced were allowed transfer of the portion over which they had raised construction, while portion in possession of appellant was not transferred to him‑‑‑Validity‑‑ Appellant's case being exactly the same as that of other transferees who had been granted relied by relevant authorities, appellant, too, was entitled to transfer of the portion of property which was in his possession and over which he had constructed his house‑‑‑Authorities were directed to transfer constructed portion of property in question, in favour of appellant on terms and conditions which were applicable to such transfer/disposal of property. Khan Muhammad Younas Khan, Advocate Supreme Court instructed by Mahmood A. Qureshi, Advocate‑on‑Record for Appellant. Respondents: Ex parte. Date of hearing: 30th March, 1991. ABDUL SHAKURUL SALAM, J: ‑‑This appeal by leave arises in the following circumstances:‑‑ There is Ahata No.1171, Sialkot Cantt. The Deputy Settlement Commissioner vide order dated 25‑10‑1975 transferred certain, portions to some persons‑ including the appellant and Abdul Ghaffar etc. The remaining part of the Ahata being available was applied for transfer under Settlement Scheme No.IX known as Disposal of Residual Properties Scheme by various persons including the appellant as well as Abdul Ghaffar etc. on the ground that they had raised construction on the premises and were in possession. On the application of the appellant a report was called for and the Settlement Inspector reported as regards the appellant that "he is in possession of five rooms and a kitchen. The same are reported to have been constructed by the appellant before February, 1969. The area thereof is

497. The applicant is entitled to have this area transferred alongwith its three times plinth area. May allow to summon the applicant." Appellant as well as others were called for by the Deputy Administrator (Residual Properties), Sialkot, who transferred the portion constructed by Abdul Ghaffar etc. on the ground that the notice for demolition issued by the Cantonment Board had been withdrawn, but the application of the appellant was dismissed. This is vide order dated 28th February, 1979. The appellant filed a revision petition which was allowed by the Administrator, Residual Properties, who remanded the case for fresh decision vide order dated 31‑5‑1979. The Deputy Settlement Commissioner again dismissed the application of the appellant and directed the disposal of the area through auction vide order dated 4‑2‑1980. His revision failed before the Settlement Commissioner vide order dated 30‑4‑1980 and his writ petition was dismissed by the High Court on 29‑6-1980. Hence this appeal.

3. Contention of the Learned counsel for the appellant is that the case of the appellant was exactly the same as that of Abdul Ghaffar etc. who were allowed transfer of the portion over which they had raised construction on the ground that the notice for demolition was withdrawn by the Cantonment Board, except that the notice against the appellant was withdrawn a little later. In the suit against the Cantonment Board for a permanent injunction it was stated by the representative of the Board that the latter had withdrawn the notice against the appellant. This is vide statement dated 8‑4‑1985 on the basis of which the suit of the appellant was dismissed under Order VII, Rule 11 C.P.C. as the cause of action had ceased to exist on the withdrawal of the notice. It is further contended that even today the construction raised by the appellant as reported by the Inspector and quoted above still exists on the spot.

3. Since the case of the appellant is exactly the same as that of Abdul Ghaffar etc. who have been granted relief by the relevant authorities, therefore, this appeal is allowed and the Deputy Administrator (Residual Properties) is directed to transfer the constructed portion as reported by the Settlement Inspector in favour of the appellant and issue a demand notice for the requisite transfer price within two months which shall be paid by the appellant within the next one month. As nobody has appeared to oppose the appeal, there shall be no order as to costs. AA./S‑791/S Appeal accepted.