1997 PLP 2633 (MLD)

Sh. Anwar‑ul‑Haq for Respondent Nos. 1 and

2. Nemo for Respondent No.3. Date of hearing: 30th August, 1995. This case has a chequered history. Transfer of Property No.BV‑5‑S‑3 commonly known as Haveli Deena Nath Hafizabad, District Gujranwala has been the bone of contention between various parties and the dispute between them went through various stages. In the initial round, the petitioner was not one of applicants for transfer of any part of this property which was on 3‑2‑1960 divided into two parts by the Deputy Settlement Commissioner, one bf which was transferred to respondent No. l while the other to other applicants. Wali Muhammad one of the applicants was found to be a non‑claimant and his application was rejected. He filed an appeal against .hoe order of transfer which was accepted by the Additional Settlement Commissioner on 26‑9‑1961 who remanded the case to the Deputy Settlement Commissioner for decision afresh. It appears that one Abdul had gone to the Settlement Commissioner by filing a revision which too was allowed and the matter was remanded to the Deputy Settlement Commissioner.

2. Pursuant to the aforesaid two orders of remand, the case was taken up by the Deputy Settlement Commissioner who vide his order dated 4‑6‑1965 disposed of the property by transferring one half to Muhammad Ajmal respondent No. l and subdivided the remaining half into 6 portions which were transferred to different persons. This order of the Deputy Settlement Commissioner was challenged in two appeals which were accepted on 11‑3‑1970 and once again the matter was remanded to the Deputy Settlement Commissioner for decision afresh. On 3‑1‑1974, the Deputy Settlement Commissioner passed an order upholding the transfer of the property as directed in his earlier order dated 4‑5‑1965. The matter was again taken to the Settlement Commissioner by filing two revisions, this time by Kharati, Sultan and Wali Muhammad and Ghulam Rasool, who are strangers to the present' proceedings. Both these revisions were dismissed by the Settlement Commissioner on 27‑5‑1974. This order of the Settlement Commissioner was upheld by 'this Court as also the Supreme Court of Pakistan vide its order dated 8‑4‑1980. Thus, ended the first chapter.

3. It is a common ground between the parties that the petitioners were and are in occupation of the part of the property which has been transferred to respondent No. l by order of the Deputy Settlement Commissioner dated 3‑1‑1974. It is also true as has been pointed out by the learned counsel for respondents Nos. l and 2 that at no stage of the earlier litigation did the petitioners apply for transfer of property in their occupation. However, after the repeal of the settlement laws and introduction of Scheme for management and disposal of available properties (commonly known as Scheme. No. IX), the petitioners claimed that they were in occupation of different portions constructed by them and applied to its transfer. These applications which were made to the Settlement Commissioner were sent to the Deputy Administrator (R.P.) who came to the conclusion that the property in possession of the petitioner was in excess of entitlement of respondent No. l being more than 3 times the plinth of the property, and therefore, directed the transfer of the portions in possession of the petitioners to them vide order dated 23‑12‑1985. This order was challenged by respondent No. l by filing an appeal before the Administrator who accepted the same on 22‑9‑1986 and set aside the order of the Deputy Administrator (R.P.) holding that the entire Property bearing No.BV 5‑S‑3 stood disposed of as far back as 3‑1‑1974 by the Deputy Settlement Commissioner and, therefore, there was nothing available for transfer under the Settlement Scheme No.IX. The order of the Administrator (R.P.) dated 22‑9‑1986 has been challenged by the petitioners by filing this petition.

4. Mr. A.D. Nasim, learned counsel for the petitioners has contended that the Administrator (R.P.) has failed to consider that by order dated 3‑1‑1974 respondent No. l was transferred a house which in law comprises of the constructed portion and three times the plinth and any area in excess therefore remained undisposed of and was available for transfer, under Settlement Scheme No.IX. In this behalf the learned counsel has referred to the definition of 'house as appearing in section 2 subsection (4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the pronouncement of the Supreme Court of Pakistan in Syed Muhammad Matin Mirza v. Jehangir R. Rustomji and another (PLD 1980 SC 64).

5. Sh. Anwar ul Haq, learned counsel for respondents Nos. l and 2 has very fairly not disputed the legal position that under the Displaced Persons (Compensation & Rehabilitation) Act, 1958, a house transferred to a person would mean the constructed area plus three times its plinth. He, however, submitted that in the present case, the petitioners are in occupation of the constructed area which was transferred to respondent No. l on 3‑1‑1974 and was as such not available for transfer under the Settlement Scheme No.IX, The learned counsel also submitted that no construction whatsoever was raised by the petitioners and as a matter of fact the property in their occupation had been constructed by the evacuees. He further maintained that there was no excess land which could be transferred under Settlement Scheme No.IX.

6. Having heard the learned counsel for the parties at length and perused the record, I am of the view that the impugned order of the Administrator is not sustainable for the reason that it fails to determine the real matter in controversy between the parties. There is no dispute that respondent No. l had been transferred half of the Property bearing No.BV‑5‑S‑

3. Haveli Deena Nath, Hafizabad by the order of the Deputy Settlement Commissioner dated 3‑1‑1974 and further that the aforesaid order had attained finality after the Constitutional petition of the other claimants had been dismissed by this Court and leave to appeal was refused by the Supreme Court of Pakistan. The only question before the Administrator (R.P.), therefore, was as to whether there was any area in excess of the entitlement of respondent No. l which according to law was confined to the constructed portion plus three times its plinth` area. Ix is unfortunate that this aspect of the matter was not gone into by the Administrator (R.P.) at all. The learned counsel for respondents Nos. l and 2 is correct in submitting that if the petitioners are in occupation of that portions which had been constructed by the evacuees, their applications for transfer under Settlement Scheme No.IX could not be entertained. But the difficulty is that the exercise required to be undertaken in order to find out as to whether the portions in possession of the petitioners have been constructed by them or already stood constructed by the evacuees has not been undertaken by the Administrator (R.P.). In these circumstances despite great reluctance, I have no option but to remand the matter to the Administrator (R‑P) with a direction to him to find out as to whether the property in possession of the petitioners had been constructed by Evacuees or the petitioners. If the Administrator comes to the conclusion that the property which the petitioners are occupying had not been constructed by them but by the evacuees their applications for transfer shall stand dismissed, If the answer is otherwise, then the Administrator is under legal obligation to determine whether the aforesaid area was in excess of entitlement of respondent No. 1, and if that be so, to dispose it of in accordance with law. The petition is disposed of in the above terms. No order as to costs. H.B.T./K‑219/L Order accordingly.