P L D 1980 Supreme Court 64 (PLP)

NASIM HASAN SHAH, J.-,Bungalow No. F. T. 2/10, Mcneal Road, Karachi, covering an area of 4227 sq. yds, an evacuee property, was in possession of the first respondent Jahangir R. Rustomaji, a local. The said respondent applied for its transfer on L. H. form, but the same was rejected on 10-11-1959 on the ground that its value being more than Rs. 10,000 it could not be transferred to a local. A review filed by the respondent also stood rejected. The bungalow was declared to be a "B'' category house and was drawn in favour of the appellant in the lot held under the Earmarking Scheme (Settlement Scheme No. V). The appellant claimed that the entire bungalow was transferred to him and he had paid the price thereof. A P. T. O. was also issued in his favour on 1-4-1960. A registered deed was also executed in favour of the appellant wherein the area of the property was mentioned as 4227 sq. yds. Subsequently, on certain allegations being made by the respondent inquiries regarding the validity of transfer in favour of the appellant were initiated by the Enforcement Police, but were later dropped and a P. T. D. was issued in his favour on 29-3-1962. However, the area of the house transferred to the appellant was not mentioned therein. On 30-8-1962 the Settlement Commissioner appears to have issued a suo motu notice to the appellant to show cause as to why the transfer of the bungalow in his favour be not cancelled on the ground that disputed property was a building site and was not a house, but these proceedings too were dropped and the transfer in favour of the appellant was held to be valid vide order dated 31-10-1962. In the meanwhile it was decided that non-transferee occupants of houses of large houses may be allowed to obtain transfer of land attached to the house if the same was in excess of three times the plinth area. In this connection by Memorandum No. F. 3(1)/60-SI, Karachi dated 30th July 1962, the Central Government issued an order under subsection (2) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the subject of transfer of excess land attached to houses of non-transferee occupants. This order is reproduced below : "If a house has been in occupation of more than one person and some of them have not been found entitled to the transfer of the house or any portion thereof, they may be permitted to buy the area in excess, if any attached or appurtenant to the house over and above three times the plinth area transferred to the person found entitled. The area in excess should be demarcated into plots according to the Schemes of the Local Improvement Trust or Municipality, if any, and not more than one plot transferred to one person. The price to be charged in the cases, of- .such person will be the prevailing market value at the time when the house was allotted to the person concerned. 1n case no proper allotment order was obtained by him, the price to be charged will be the prevailing market value at the time of transfer. The prevail in market value will be calculated in accordance with sub-paragraph (4) of paragraph 1 of Settlement No. VI (page 358 of Manual). In the cases of all others, the plots out of such excess area shall be put to open unrestricted public auction. This suggestion has been made to help the non-transferee of houses to settle down in the locality when they have spent a good portion of their lives and also to provide the residential plots for such person who would like to buy them." This order was amplified by the Press Note dated 22nd October 1962, issued by the Chief Settlement and Rehabilitation Commissioner. This Press Note is reproduced below : "In the Press Note, issued by the Chief Settlement Commissioner on 11th March 1961, it was laid down that only an area equal to three times the plinth area, with marginal adjustment up to 500 sq., yards, will be transferred to the transferees of the houses in accordance with the prescribed procedure. It was also laid down that any area in excess of these limits was to be treated as separate building site anti disposed accordingly. On further consideration, the Central Government have now been pleased to decide that if more than one person has been in occupation of a house, which has an area in excess of three times the plinth area attached to it, and some of these persons have not been found entitled to the transfer of the main house or any portion thereof such non entitled occupants of the house will be entitled to the transfer of the area in excess, which will be demarcated into plots according to the schemes of the Improvement Trust or Municipality, if any. Not more than one plot will, however, be transferred to any one entitled person. The price to be charged in the case of such transfers will be prevailing market value at the time the house was allotted to the entitled person. In case no proper allotment order was obtained by him, the price will be charged according to the prevailing market value at the time of transfer. The prevailing market value will be calculated in accordance with sub-paragraph (4) of paragraph I of Settlement Scheme No. VI. In cases wher.- none o) the occupants of the houses is entitled to the transfer of the plots out of the excess area or they do not desire to buy the plots; the plots will be disposed of by unrestricted public auction. The Central Government have taken this decision to help non-transferee; of houses to settle down in the locality where they had passed a good portion of their lives. (2) The persons who have now been made eligible to the transfer o plots out of the excess area attached to the respective houses ma; submit their applications on plain paper to the Deputy Settlement Commissioner of the area concerned, giving brief details of the properties. the basis of their entitlement and other relevant facts of their case. The last date for receipt of applications by the Deputy Settlement Commissioners is the 30th November 1962. No application will be entertained after that date." In pursuance of this Press Note respondent No. 1 submitted a application on 29-I1-1962 stating that the plinth area of the hour being 443 sq. yards whereas the total area of the premises is 4227 yards he may be transferred the excess land in the plot. The Deputy Settlement Commissioner (Judicial) by an ex parte order dated 19-9-1963 accepted the request on the ground that the plinth area of the house as stated by the applicant is 443 sq. yards and on that basis the excess land was 2456 sq. yards and his share could be transferred to him as per rules on the prevailing market value. The D. S. C. (A), Karachi, was requested to issue the appendix after calculating the value of the land and the area to which the applicant was entitled for transfer. The said Deputy Settlement Commissioner, however, by his order dated 28-7-1964 refused to issue a P. T. O. on the ground that the appellant was the transferee of the entire area and nothing was left- for transfer. Moreover, after the issue of the P. T. D. in respect of the property he had no jurisdiction in the matter. The respondent filed an appeal against the said order in which the appellant was not made a party and only the Deputy Settlement Commissioner (A), Karachi was cited as a respondent, who held that in the P. T. D. issued to the appellant the area of the open space was not mentioned and only the building was mentioned and as there was no order of transfer of the excess land in favour of the appellant the P. T. D. was issued only for the house. He, therefore, restored the order of the D. S. C. (Judicial) dated 19-9-1963, set aside the order of the D. S. C. (A) dated 28-7-1964 and directed the issuance of the P. T. O. to the respondent by his order dated 9-9-1964. A P. T. O. was, therefore, issued in his favour on 12th October 1964, in respect of the excess land determined by the D. S. C. (Judicial) in his order dated 19-9-1963, namely 2455 sq. yds. followed by a P. T. D. dated the 2nd February 1965, and payment of price. The appellant became aware of these orders when demarcation proceedings were initiated in pursuance thereof. He, thereupon, moved the High Court by Constitutional Petition No. 732 of 1965, challenging the order of the D. S. C. (Judicial) dated 19th September 1963, and 9th September 1964, passed by the Additional Settlement Commissioner. The petition was allowed on the short ground that these orders were passed without notice to the appellant and violated the well settled principle that no order to the prejudice of a party can be passed without hearing him. Both the above-mentioned orders and all actions taken thereunder were found to be of no legal validity and the impugned orders were declared to be without lawful authority and of no legal effect. The effect of this declaration was expressed by the learned Judge as follows : "The consequence of it will be that the application dated 29th November 1962, shall be deemed to be pending and it would be opened to the Deputy Settlement Commissioner to decide this application according to law after giving notice to the parties." This order was passed on 24th January 1972. An L. P. A. was filed against this order which was dismissed on 31-3-1972 by a brief order, which may usefully be reproduced below : "We do not find this case fit enough for admission as the learned Single Judge has merely remanded the case to the Deputy Settlement Commissioner. Mr. Syed Anwar Ali however states that his contention that only the plinth area and extra land to the extent of three times the area of the plinth area could be transferred to the respondent No. 1 has not been considered. However, this objection can be satisfied by adding a rider by us that the Deputy Settlement Commissioner shall consider this point while deciding the contest between the parties. With these observations, we dismiss the appeal in limine." In pursuance of the order passed by the High Court the matter was taken up by the D. S. C. who was of the view that the plot in land was located in the Cantonment area and as such could not be sub-divided and disposed of separately. As for the question whether the excess area could be transferred to the appellant, it was observed that the location of the house and its appurtenances were such that the excess area could not be carved into separate building sites without completely blocking the approach to the house. Therefore, the only alternative was to make an offer to the transferee of the house if he was prepared to accept the transfer of the excess area to him, on payment of its price as provided under the rules. It was held that the appellant as successful drawee of "B" category house was entitled to the transfer of the house and its appurtenances along with three times the plinth area only. For the excess area he was entitled to and directed to exercise an option to secure the same on payment of prevailing market price plus 50%. This he had to do within thirty days failing which it would be transferred to the respondent according to the rules, after providing for a common passage as access to the two portions. This order was passed on 20-2-1973. Both the parties challenged the above order by filing appeals before the Additional Settlemant Commissioner. The appellant claimed that no further payment could be demanded from him as the transfer in his favour had become final whereas according to the respondent the transfer in his favour made on 12-9-1963 by the D. S. C. (Judicial) of the excess area measuring 2455 sq. yards. whose price had also been paid by him and a P. T. D. also issued in 1965, was entitled to be maintained. The Additional Settlement Commissioner in his order dated 19-6-1973 held that the house was not situate in the cantonment area and otherwise also the order of the D. S. C. was inconsistent and contradictory, Furthermore it had not determined what the total area of the building was and whether the appellant was entitled to the excess area on the basis of three times the plinth area. The learned Additional Settlement Commissioner inspected the site in the presence of the parties and found that a dilapidated bungalow along with numerous mushroom construction existed on the plot in haphazard manner, some of them appeared to have been raised after the partition. As it was difficult which of the constructions were old and which were new, the draftsman of the Department was directed to visit the site and to measure the old and new constructions in the presence of the parties. This was done and after considering his report both the parties agreed to the measurements of the main building and outhouses. The area covered by the main bungalow and out houses was found to measure 655 sq. yds. and as the transferee was entitled to three times the plinth area he was held entitled to the transfer of 2620 sq. yds. in all: The claim of the respondent that he was entitled to the transfer of an area measuring 2455 sq. yds. was not found to be valid, because the remaining excess area (namely 4227 sq. yds. minus 2620 sq. yds.) only came to 1607 sq. yds. and it was this excess land which became available for transfer to the respondent on the basis of his application dated 29-11-1962, filed in pursuance of the Press Note of 22-10-1962. It was accordingly directed that the transfer document earlier issued to the respondent Rustomji may be corrected and the D. S. C. may demarcate the property accordingly. The order of the D. S. C. dated 20-2-1973 to the extent of offer of the entire area in favour of the appellant was set aside. The appeal of the two parties were disposed of accordingly. Both the parties were dissatisfied with the order passed by the Additional Settlement Commissioner dated 19-6-1973 because the appellant wanted the transfer of the entire area of the plot measuring 4227 sq. yds. whereas the respondent Rustamji was desirous of the transfer of 2455 sq. yds. instead of 1607 sq. yds. allowed to him in the order of the Additional Settlement Commissioner. Hence they filed two separate revision petitions. The learned Settlement Commissioner in his detailed order dated 31-8-1973 held that the claim of the appellant that he was the transferee of the entire area of the plot measuring 4227 sq. yds. for which he held a P. T. D. was erroneous as what was transferred to him was Bungalow No. F. T-2/10 which was only the house, the outhouses, the garage and three times the plinth area. The area in excess of three times the plinth area not being a part of the main house as defined in section 2(4) of the Act could not be disposed of in any manner except as provided by papas. 13 and 14 of the Schedule to the Act read with Settlement Scheme No. VI. As for the claim of the respondents to the transfer of the excess land on, the basis of the Press Note of 22-10-1961, it was held that the same could not have been issued by the Chief Settlement Commissioner and as the Press Note was ultra vires the Act, no legal right could accrue in his favour by virtue of the same. Therefore, the respondent Rustamji was not entitled to the transfer of the excess area on the basis of the application made by him on 29-11-1962 for the transfer of the disputed excess area. So far as the question whether the disputed excess area could be given to the appellant on prevailing market value plus 50 %, it was observed that the excess area may be given to him on the prevailing market price plus 50 %, However, it was further added that the existing plinth area and the area covered by the garage and outhouses will have to be recalculated and the appellant will be entitled to three times of such plinth area as a part of the house and an area in excess of the same will be transferred to him on prevailing market value plus 50 %. The transfer documents ,issued to respondent Rustomaji were held to be liable to cancellatiol,as the appellant was held entitled to the transfer of any excess area, if so found after recalculations on the prevailing market price plus 50 %. Both the parties were dissatisfied with the above order. Consequently they filed Constitutional petitions in the High Court Constitutional Petition No 921 of 1973 was filed by Rustomji, while Constitutional Petition No.4063 of 1973 was by the appellant. Both these petitions were heard together and disposed of by a consolidated order by a Judge of the High Court. The learned Judge apart from certain findings recorded with regard to the interpretation of section 2(4) appears to have held that in view of the definition of the house as per second proviso to subsection (4) of section 2 of the Act, the three times the plinth area could at most be considered as part of the house, it could be reduced, but could in no circumstances be increased. He further held that as admitted by the parties before the Additional Settlement Commissioner the total constructed area of the main bungalow together with the-outhouses was 655 sq. yds. The result was that in addition to the constructed area the appellant was entitled to an open plot measuring 1965 sq. yds. so that the total area which could be transferred to him could not be more than 2620 sq. yds. The learned Judge also held that the finding of the Settlement Commissioner that the Press Note of 22nd October 1962, was ultra vires was erroneous and that the respondent Rustomji was entitled to the transfer of such part of the compound as was in excess of three times the plinth area in pursuance of the Order issued by the Central Government dated 30th July 1962, as further amplified in the Press Note of 22-10- 1962. He further held that the respondent Rustomaji was entitled to the excess area which was available for disposal and the Settlement Authorities had the power of disposing it of. He accordingly allowed the petition of the respondent Rustomji and directed that the P. T. D. issued to him on 2-2-1965 shall stand restored. This was an obvious errors because the above P. T. D. was in respect of 2455 sq. yds. which were found transferable to him vide the ex parse order of the D. S. C. (Judicial) dated 19-9-1963, but this order was ultimately set aside by the High Court (Mr. Justice Muhammad Haleem (vide order dated 24th January 1972. The P. T. D. could in fact, even on the learned Judge's own findings, be restored to cover the area of 1607 sq. yds. only. In the result the petition of the respondent Rustomji was accepted, whereas that of the appellant was dismissed. The appellant, therefore, filed two petitions for leave to appeal in this Court, one against the dismissal of his writ petition and the other against the acceptance of that of the respondent to. P. S. L. A. Nos. K-166 and K-167 of 1974). Both the petitions were heard together by a Bench of this Court on the 16th and 17th of September 1974, and the following extract from the order passed by this Court may usefully be reproduced below : "Mr. Akhtar Mahmood, learned counsel appearing on behalf of the petitioner has contended that in the aforesaid provision (subsection (4) of section 2) the words 'the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house', meant that the Chief Settlement Commissioner had to pass an order in such behalf. The High Court refused to accept this interpretation and held that an area in excess could not be termed to be a part of the house but that the Chief Settlement Commissioner had the power to reduce the area from out of three times as was allowed in the preceding clause of the proviso so that a house carried an area less than thrice the area of the plot as an appurtenant. Furthermore, that in either case the limit was three times the plinth area and no more, and that of this area, a portion could be reduced by the Chief Settlement Commissioner. It has been contended that the basis of the respondent's claim was the Notification dated the 30th of July 1962, which was superseded by the Press Note dated the 16th of April 1964, but the High Court failed to take into consideration the Press Note. The.Press Note of the 16th of April 1964, clearly provides thus : . Non-claimant displaced persons and locals will not be eligible to the transfer of the building sites out of the excess area. This question merits consideration and we accordingly grant leave to appeal in each of the two petitions . . . . ." Thus leave to appeal has been granted only for the consideration of the question whether the respondent Rustomji. could after the issuance of the Press Note of 16th April 1964, be granted any part of the excess land. Mr. Akhtar Mehmood, Mirza, in support of the appeals, has raised three points before us which are as follows : (a) Firstly that in so far as the appellant was entitled to the transfer of the entire property there was no excess land which was available for transfer. In this connection he pointed out that during the pendency of the petitions. before the High Court an application was moved by respondent No. 1 to stay the operation of the direction contained in the order of the Settlement Commissioner dated 31-8-1973, for recalculating the excess area. This application was disposed of by Dorab Patel, J., vide order dated 1-2-1974, whereby the Settlement Department was allowed to proceed with the calculations of the excess land, if any, but was restrained from passing any final order id that case. Calculations were, therefore, carried out by the D. S. C. and according to the reports submitted by him to the High Court on 30th June 1974 (i.e. few days after the decision of the constitutional petitions, which were decided on 20-6-1974) it was found that the plinth area of the bungalow was 6889 sq. ft. (765.5 sq. yards) and the open area was 11502 sq. ft. (1278 sq. yards) with the result that no excess area was left untransferred. (b) Secondly memo. No. 301-P-1-Reh/60, dated 9-1-1960 laid down a procedure for disposal of the area of the gardens and grounds attached or appurtenant to a house under the second "proviso" to . subsection (4) of section 2 of the Act. Normally a house is to consist of the plinth area plus further area upto three times the plinth area, but according to the aforesaid memo sometimes still further area could be declared to be a part of the house. It was submitted that the area to be given to the petitioner should have been worked out in the light of that memo. and the view of the High Court that the memo. was ultra vires of the powers of the Chief Settlement Commissioner on the ground that under the "proviso" only such instructions could be issued which would not let the area to be given exceed the limit of three times the plinth area was not correct because the "proviso" under which the instructions were issued was itself capable of extending the aforesaid limit ; and (c) Thirdly, the Press Note of the Chief Settlement Commissioner dated 22-10-1962 on the subject of transfer of excess land to houses of non-transferee occupants could not be availed of by the respondent Rustomji as it was superseded, so far as non-claimants and locals were concerned, by the subsequent Press Note dated 16-4-1964. As leave has been granted for the consideration of the last mentioned point alone it is not necessary to discuss the first two contentions at, any length except for a few passing remarks which follows hereinafter Taking up the point at (a) above, it may be mentioned that the calculations on which the petitioner relies have been made on the basis of the constructed area as existing on the site at present which includes some constructions made after the partition. Obviously these calculations are not in conformity with the law on the subject which contemplates taking into consideration of only such construction which were made by the evacuee. Learned counsel argued that the additional construction even though not made by the evacuee should be considered as improvements or accretions to the evacuee property and as such a part and parcel thereof. The argument advanced has no merit. These constructions were not, as already mentioned, made by evacuee; nor from the income of the aforesaid evacuee property, and being quite severable from the rest of the property could not be considered as part of the evacuee house as left by the evacuee for the purpose of calculating its plinth areas as it then existed. Taking up the point at (b) above, we were inclined to think that the memo. dated 9-1-1960 was not ultra vires the powers of the Chief Settlement Commissioner and in that respect Tufail Muhammad Khan v. Abdul Hamid etc. (P L D 1967 Lah.1058) which held to the contrary does not lay down correct law. The scope of the second "proviso" to subsection (4) of section 2 of the Act which states that "where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including out houses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of th: house", is wide enough to authorise the Chief Settlement Commissioner to say that out of the excess area (i.e. in excess of three times the plinth area) only a part and not the whole of the aforesaid excess should be treated as part of the house. In other words the "proviso" means that from the land in excess of three times the' plinth area which was not to form a part of the house, the Chief Settlement Commissioner could say that a part thereof should not be considered as a part of the house. To put it conversely whereas the basic definition of "house" excludes from its ambit that much of the area which is in excess of three times its plinth area but the "proviso" authorises the Chief Settlement Commissioner to add more area to the house by saying that do not exclude the whole of the area exceeding three times the plinth area but for instance add only a fraction of it to the house. Coming to vires of the memo. dated 9-1-1960 it is to be noted that the Chief Settlement Commissioner had delegated his powers under the "proviso" to section 2(4) to his subordinates and the memo. dated 9-1-1960 is nothing more than instructions given to the said subordinates in the matter of the exercise of that power. Similarly, the word "plinth area" not having l been defined in the Act he could have in exercise of his powers of "Superintendence and Control" as given to him under section 9(3) of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958 issued the aforesaid directions to his delegates as to the manner in which it may be calculated. Section 9(3) lays down that "subject to the provisions of this Act and of such orders as may from time to time be made by the Central Government in this behalf, Settlement Commissioner, Additional Settlement Commissioners, Deputy Settlement Commissioners and Assistant Settlement Commissioners (and any other officers) shall perform the duties and discharge the functions assigned to them by or under this Act under the general superintendence and control of the Chief Settlement Commissioner". By memo. dated 9-1-1960 it is provided that "the Chief Settlement Commissioner has decided that the following procedure will be adopted for disposal of the area of the gardens and grounds attached or appurtenant to a house under the proviso to subsection (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and para. 14 (sic) of, the Settlement Scheme No. 1". The memo. dated 9-1-1960 is the der6iion of the Chief Settlement Commissioner to be followed by his delegates to determine which part of the area was not to form part of the house in terms of the second proviso of subsection (4) of section 2. ; It was no in the nature of legislation as held in Tufail Muhammad's' case but determination within the scope of second "proviso to section 2(4) of the Act conveyed in the form of instructions in exercise of his powers of superintendence and control providing procedure for his subordinates who were to exercise his delegated powers on the subject. In other words the procedure prescribed is not be construed in the nature of a legislation, but rather in the nature of instructions issued for the guidance of the Deputy Settlement Commissioners dealing with the question of disposal of land attached to houses in excess of three times the plinth area of the house on a uniform pattern so as to avoid conflicting decisions in this matter. Thus looked at from whatever angle the aforesaid memo. did not suffer from any infirmity. As to the question, however, whether the petitioner is entitled at present to rely on memo., dated 9-1-1960 it will be sufficient to mention that the concession contained in that memo. was withdrawn by 'a press note dated 11-3-1961 on page 518-519 of the Settlement Manual (Second Edition).; This Press Note reads as follows : "in the instruction issued by - the Chief Settlement Commissioner on 9th January 1960, regarding disposal of the area of the ground and gardens attached or appurtenant to a house, it was inter alia laid down that the person to whom the house was transferred, would be entitled to purchase the area in excess of three times the plinth area subject to certain conditions. A number of representations have been received by the Chief Settlement Commissioner that this concession gives undue advantage to the transferee of the house to the detriment of the interests of claimants who have not been able to obtain any property so far. The Chief Settlement Commissioner has accordingly decided to withdraw this concession with effect from the date of issue of this press note. Only an area equal to three times the plinth area of the house will be allowed to be transferred to the transferee of the house in accordance with the prescribed procedure. Marginal adjustments will, however, be allowed up to 500 sq. yds. on payment of the price of the excess area allowed for such adjustments. In case, however, the transferee of a house has made full payment for the area in excess transferred to him over and above three times the plinth area before the issue of this press note, the transfer of the area in excess in his favour will be allowed to stand. The Chief Settlement Commissioner has also decided that reservation of building sites in favour of those who offer to pay the average auction price plus 50% in accordance with the instructions issued by him on 24th June 1960, should be stopped with effect from the date of issue of this press note. All available building sites will in future be disposed of by unrestricted public auctions unless any person is entitled to their transfer under the law." No doubt, the aforesaid press note saves the calculation of the extent of plinth area in certain cases but in this regard we may observe that it was accepted by both the parties in the proceedings before the Additional Settlement Commissioner, as noted in his order dated 19-6-1973, that area of the bungalow and outhouses was 655 sq. yds. and by adding three times the plinth area the petitioner was entitled to the transfer of 2620 sq. yds. We are not prepared to open the question of calculation on the subject to which both sides had at one stage of the case agreed. Similarly, the above press note saved only those cases where a transferee had made full payment for the area in excess transferred to him over and above three times the plinth area prior to the date of the issuance of that press note namely 11-3-1961 but the appellant does not fall in that category? because there was no conscious transfer of any excess area (i.e. over and above three times the plinth area) to him and nor a separate assessment of price of the aforesaid excess in that perspective. Learned counsel for this purpose wanted to rely on isssuance of P. T. O. to him on 1-4-1962 and subsequent P. T. D. but? as we have already hold that, according to it, it was only of "house" that was transferred to him and not of and area over and above the three times the plinth area. In this respect it may be mentioned that he stands in the same position as the respondent who relied upon a notification dated 22-10-1962 which was later on rescinded as explained in the sequal. We now come to the third and vital contention that the Press Note of 22nd October, 1962, could not be availed of by the respondent as the same had since been superseded by the Press Note dated 16th April, 1964, on the subject of "disposal of land attached to houses in excess of three times the plinth area, it was laid down in para. 5 as follows:- "Non-claimant displaced persons or local occupants of the houses will not be 'entitled to the transfer of any building site out of the excess area. If, however any such person duly applied for the transfer of the building site in response to the Press Note dated the 22nd October, 1962 and has made full payment before the issue of revised orders by the Central Government his case nerd not be re-opened." . A Press Note was also issued on the same day, explaining the above decision and the relevant part of it is as follows : "In the Press Note issued on the 22nd October, 196'',, the persons in possession of houses to whom such houses had not been transferred were permitted to apply for the transfer of one of the building sites made out of the excess area attached to the houses subject to certain conditions. The Central Government have now decided in suppression of the previous orders on the. subject that only a claimant will be entitled to the transfer of one of the building sites in the excess area provided he had applied for the transfer of the main house in the prescribed manner but did not get it in view of the fact that another person with a superior title secured the transfer. Non-claimant displaced persons and locals will not be eligible to the transfer of the buildings sites out of the excess area." It is an admitted position that the respondent is a local and that he had not made payment of the . plot transferred to him before the issuance of the revised orders of the Central Government dated 16-4-1964. It is, therefore, contended that he could not be transferred any portion of the open space, even if some happened to be "excess land" Mr. Saeed-uz-Zaman Siddiqui, learned Advocate for respondent No. 1, however, contended that the the Press Note of 16th April, 1964, was in the nature of subordinate legislation and could not take away the right vested in the respondent on account of the order of transfer dated 19-9-1963, passed in his favour by the Deputy Settlement Commissioner wherein he was held to be entitled to the excess land. We are unable to accept this plea because the order dated 19-9-1963 was held to be invalid by the Sind High Court vide judgment passed on 24-1-1972, oft the ground that the said order was passed without hearing the appellant. Consequently, the order of the Deputy Settlement Commissioner dated 19-9-1963 could not and did not confer any right on the respondent which can be deemed to have been saved or continued despite the supersession, in the relevant regard, of the Press Note of 22-10-1962. In this view of the matter the transfer of some part of the excess land even if some does exist, in pursuance of his application dated 29-11-1962 made under the terms of the Press Note.of 22nd October, 1962, is liable to be cancelled. The result is that the appeal partly succeeds in so far as it declares that the transfer to Rustomji was without lawful authority. As regards the claim of the appellants to have any area in excess on three times the plinth area on the bass of the notification dated 9-1-1960 is concerned that fails. He will be entitled only to the transfer of the bungalow and out-houses measuring 655 sq. yds. plus three times the plinth area namely 1965 sq. yds. i.e. in all to 2620 sq. yds., the figure accepted by both sides (see order of the Additional Settlement Commissioner dated 19-6-1973). The net result is that the case is remanded to the appropriate authorities who will be at liberty to deal with and dispose of the excess area, namely, 1607 sq. yds., which has become available as a result of this order in accordance with law relevant and applicable to cases of the present type. The parties herein will be at liberty to prefer their claims to the transfer of this area on grounds other than those which have already been decided above by us. There appeals stand disposed of in the above terms. No order as to costs. s. A. H. Order accordingly.