P L D 1968 Lahore 1279 (PLP)

A. R. SHEIKH, J.‑

The facts giving rise to this writ petition are these. Evacuee Properties Nos. B‑111‑S‑1‑18 and B‑111 S‑1‑18‑A (hereinafter referred to as Properties Nos. 18 and 18‑A) situate on the Lahore‑Sheikhupura Road, are contiguous to each other. Both these properties were originally one and belonged to Pt. Bakhshi Ram and Bhanpat Rai ;Ram) in equal shares according to the assessment register for the year 1946‑41 of Municipal Committee, Sheikhupura (Aunexure `Q'), in which the annual value given is Rs. 240.00 and Rs. 216.00 for the two shares, respectively. The Excise and Taxation record for the year 194546, (Annexures A and B) shows these properties in the separate names of the two owners and the area in case is 1 kanal 15 marlas. However, the built‑up plinth area in the case of Property No. 18 is 15 marlas and the gross annual value proposed is Rs 4,C44.00, whereas the built‑up area for Property No. 18‑A is shown as two marlas and the annual value proposed is Rs. 105.62. Property No. 18 along with a part of Property No. 18‑A having a petrol pump, which had been installed by Pt. Bakhshi Ram, the owner of Property No. 18, was obtained by way of allotment by Pir Muhammad Aslam, husband of Mst. Fahmida Kausar (respondent No. 1) after the partition of the country, while the remaining portion of Property No. 18‑A was allotted to certain other persons, not interested in the present proceedings. With the advent of settlement opera tions, respondent No. 1 applied for transfer of Property No. 18 belonging to Pt. Bakhshi Ram against her C. H. Form on the basis of allotment of her husband. The Assistant Settlement Commissioner by his order dated the 9th of January 1960, held her entitled to transfer of the property on evaluation price amounting to Rs. 9,600.00 according to the assessment of the Municipal Committee produced by the said applicant along with her C. H. Form. Subsequently on the 17th of December 1960, the Deputy Settlement Commissioner, Sheikhupura, during the course of inspection of the office record noticed that the area of the premises transferred to the allottee was more than that shown in the record and he accordingly had actual measurement of the premises and a plan prepared and finding that instead of 1 kanal 15 marlas she had been transferred 2 kanals 19 marlas of land, enhanced the assessed value from Rs. 9,600.00 to Rs. 14,400.00. Property No. 18‑A, which is shown to have devolved before partition of the country on Piare Lal and Barkat Ram, sons of Pt. Dhanpat Rai, was included in the earmarking list (cate gory `C') and was transferred in favour of Mst. Farhat and Mst. Rahat, the petitioners, on the application of Mst. Farhat to the effect that she had been successful in the draw of earmarking of Property No. B‑II‑S‑IV‑258 in Sheikhupura Town but had failed to get the same because of the claim for transfer of the same by its occupant and that Property No. 18‑A be transferred in her favour in lieu of the aforesaid house. This application vas allowed and a P. T. 0. was issued in favour of Mst. Farhat for Property No. 18‑A in association with her sister Mst. Rabat, petitioner No. 2, on the 3rd of May 1960.

2. The present dispute has arisen out of the application for demarcation made by the petitioners when they found that they were not getting the total area of 1 kanal 15 marlas as given in the records of the municipality and the Excise and Taxation Department prior to 1947. 'The Additional Settlement Commis sioner passed an order on the 29th of April 1961, directing the Deputy Settlement Commissioner to call the parties, consult the taxation record and make decision equitable between the parties on the spot. The Deputy Settlement Commissioner in pursuance of the said order of the Additional Settlement Commissioner after spot inspection, proceeded to transfer to the petitioners, three rooms with the enclosed courtyard in possession of Mst. Mehr Bibi and two rooms in possession of Muhammad Din. The rest of the entire property, i.e., whole of Property No. 18 and 1 kanal 4 marlas out of Property No. 18‑A was given to respondent No.

1. The petitioners feeling aggrieved by that order invoked the revisional jurisdiction of the Settlement Commissioner against all the three orders, namely, 9th January 1960, 17th December 1960 and 31st May 1961, passed by the three succes sive Deputy Settlement Commissioners in the case. The Settle, ment Commissioner after calling for the report passed an order on 6‑9‑1962, the operative portion of which reads as under:‑ "The petitioners are justified in their claim that no part of Property No. B‑III‑SI‑18‑A, which was originally transferred to Mst. Farhat with whom her sister Mst. Rabat has since entered into association should be affected by any subsequent order. I, therefore, order that the property bearing No. B‑III‑IS‑18‑A according to the taxation records be retained by Mst. Farhat and Rahat and that nothing contained in the above‑mentioned orders dated 17‑12‑60 and 31‑5‑61, shall affect the transfer of any part of this property (No. B‑III‑IS‑18‑A) to the petitioners. Both the parties shall be charged the transfer prices of the properties transferred in their favour respectively in accordance with the relevant provisions of law and the instruction. It is for the parties to obtain demarcation of properties transferred to them, respectively, if required." Both the parties appear to have remained satisfied with this order and the Deputy Settlement Commissioner again demarcated the premises by his order dated the 17th of November 1962, giving only 11 marlas with five rooms built thereon out of Property No. 18‑A to the petitioners and the rest along with Property No. 18 to respondent No.

1. The Additional Settlement Commis sioner rejected the petitioners appeal and the same has been the fate of their revision petition before the Settlement Commis sioner. The petitioners have now come up in writ jurisdiction before this Court.

3. The contention put forward on behalf of the petitioners is that demarcation has not been carried out in accordance with the order of the Settlement Commissioner, dated the 6th of September 1962, which is the final and binding order between the parties. Learned counsel for the petitioners contends that under the garb of demarcation, a big chunk of the property transferred to the petitioners has been sliced off and given to respondent No. 1 in flagrant disregard of the order of the Settlement Commis sioner, who had held in unequivocal terms that the property is to be demarcated according to the taxation record. He maintains that both according to the taxation record of the Municipal Committee and the Excise and Taxation Record, the property admittedly belonged to two co‑sharers, namely, Pt. Bakhshi Ram and Pt. Dhanpat Rai, in equal shares, and appears to have been at some stage partitioned giving equal share of I kanal 15 marlas to either certain of course with different built up areas, according to the entries in the Excise and Taxation record for the year 1946‑47, (Annexures 'A' and 'B'). He further argues that even the plan (Annexure B') filed by Pt. Bakhshi Ram, owner of Property No. 18, for erection of a new building instead of the old structure, also covers only 'Property No. 18 and makes no mention of any petrol pump thereon. In other words, he argues that the boundaries of Property No. 18 do not extend to the area under the petrol pump which, according to the Excise and Taxation record, was situated in Property No. 18‑A and for which area Pt. Bakhshi Ram was a tenant of Pt. Dhanpat Rai or his sons Piare Lal and Barkat Ram. He contends that respondent No. 1 had applied only for Property No. 18 specifi cally giving the name of the owner as Pt. Bakhshi Ram according to the entries in the C. H. Form available on the record and the Settlement authorities were not in any manner vested with power of transferring two properties, namely, Property No. 18 pod a part of Property No. 18‑A belonging to two different evacuee owners, to one person, especially in excess of the very prayer for transfer made in the C. H. Form. It is also contended that respondent No. 1's husband was the allottee of residential premises covered by Property No. 18 and that alone could be claimed by her for purposes of transfer. It is maintained that the petrol pump installed in Property No. 18‑A belongs to the Burma Shell Company, of which the Hindus were the lessees and agents in the first instance, who were succeeded by Pir Muhammad Aslam as an agent, but the said premises could not be considered to be available for transfer to the allottee of Property No. 18 as a part of the said property, as it actually stood within Property No. 18‑A and the Hindu agent of the petrol pump was merely a tenant of the owner of Property No. 18‑A. He relies on N. M. Khan and another v. Chief Settle ment and Rehabilitation Commissioner and another (P L D 1962 Lah. 468), and argues that two properties, or at least some part of the second property, could not be legally transferred to respondent No. 1 and the orders of demarcation passed by the authorities in contravention of the Settlement Commissioner's order dated the 6th of September 1962, is a case of lack of jurisdiction. As against this, learned counsel for respondent No. 1 argues that Properties Nos. 18 and 18‑A were composite properties comprising both residential and commercial premises and if while dealing with Properties Nos. 18 and 18‑A, the Department has considered a portion of Property No. 18‑A as a part of Property No. 18, the Settlement Authorities have not overstepped their jurisdiction vested in them under the second proviso to section 2(12) of the Displaced Persons (Compensation and Rehabi litation) Act of 1958, and the order is not open to writ jurisdiction. It is next contended that the 'C' category earmarking list prepared by the Department merely shows five roomed property in possession of Muhammad Din and Mst. Mehr Bibi and it was that property alone which was available for earmarking and the rest of the Properties Nos. 18 and 18‑A stood already transferred to respondent No. 1 and that portion of Property No. 18‑A could not be re‑transferred at a subsequent stage to the petitioners as the name was not included in the list. It was also argued that if the transfer in favour of the contesting respondent is irregular, it is the Department that could move in the matter and the petitioners have no locus standi. Learned counsel made an attempt to argue that the petitioners could only get three times the plinth area of the property transferred to them and according to their own case as the built up area is only two marlas, they could at the most get six marlas by way of open grounds or lawns appurtenant to the house transferred to them and that would make eight marlas in all, but instead they have already been given eleven marlas of land including the superstructure, and on that score also they have no locus standi to challenge the transfer made in favour of his client. He argued that para. 19 of Settlement Scheme No. 1 is ultra vires and for that purpose he relied on Khan Tufail Muhammad Khan v. Abdul Hamid and others (P L D 1967 Lah. 1058), and two unreported judgments of this Court, namely, S. Khurshid All v. The Chief Settlement and Rehabilitation Commissioner and others (Writ Petition No. 210/R of 1962, decided on the 12th of October 1965) and Nawabzada A. K. Mumtaz v. The Settlement Commissioner, Lahore and others (Letters Patent Appeal No. 107 of 1962, decided on the 21st of July 1967).

4. The situation that emerges after hearing arguments advanced on behalf of both the parties is that there were two contiguous Properties Nos. 18 and 18‑A belonging to two different evacuee owners, the area of either property being 1 kanal 15 marlas. The petrol pump was admittedly installed in a part of Property No. 18‑A and according to the various provisions or the Displaced Persona (Compensation and Rehabilitation) Act. 1958, as also the schemes framed thereunder, the contesting respondent was entitled to only one house and unless and until the Settlement Department while dealing with Property No. 18‑Al proceeded to transfer a part of the property as business premises, provisions of section 2(12) were not attracted. Therefore, the argument on behalf of respondent No. 1 that the Settlement authorities have treated Properties Nos. 18 and 18‑A as composite property and have carved out a residential‑cu m‑business premises out of both the properties and transferred it to the contesting, respondent, does not stand to test. According to the final order operative between the parties passed by Mr. Ali Ahmad, Settlement Commissioner, the two properties are distinct proper ties and have to be demarcated in accordance with the entries in the Taxation record, either of which, as already observed above, measures 1 kanal 15 marlas, neither less nor more. The orders passed by the Assistant Settlement Commissioner and Deputy Settlement Commissioner on the 9th of January 1960, or on the 17th of December 1960 or 31st May 1961, were not to affect the transfer of any part of Property No. 18‑A to the petitioner. That being the position, we find that the orders of demarcation passed by the Settlement authorities being violative of the provi sions of section 2(12) of Act XXVIII of 1958, as also the orders of the Settlement Commissioner dated the 6th of September 1962, merit quashing and we order accordingly. The case will now go back to the Settlement Commissioner to demarcate the proper ties on the basis of the Taxation record giving 1 kanal 15 marlas each to both the parties and in accordance with the Taxation record and also in compliance with the orders of the Settlement Commissioner and in the light of the observation: made above.

5. As we have disposed of the case on the basis of the order dated the 6th of September 1962, of the Settlement Commis sioner, the final and operative order between the parties, we are not called upon to express any opinion on the other contentions raised by learned counsel for respondent No. 1.

6. The writ petition succeeds and is allowed. However, there will be no order as to costs. A.E. Petition allowed.