2003 PLP 563 (MLD)

‑‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Allotment of evacuee property‑‑‑Rejection of Form RSS‑III (Building site)‑‑‑Settlement Authorities rejected the Form on the basis of spot inquiry according to which the petitioner did not prove his construction and was not proved which be in possession of the property ‑‑‑Validity‑‑ Report of spot inquiry was not sufficient to non‑suit a person who had once been found in possession and transferred the area in dispute‑‑‑Order passed by the Settlement Authorities was set aside and the case was remanded to them for decision afresh after giving opportunity of hearing to the necessary parties to prove their claim‑‑‑Constitutional petition was flowed accordingly. A.R. Shaukat for Petitioner. M. Z. Khalil for Respondent No. 1, (on Court Call). Mrs. Sughra Ahmed for Respondents Nos.2 to

5. Date of hearing: 29th April, 2002. There is a property described as Plot Khasra No.2669 measuring 1 Kanal, 8 Marlas and 3 Sarsahis situated on Asghar Mall Road, Rawalpindi, which is in dispute and subject matter of Writ Petition No‑34‑R of 1986. Writ Petition No.26‑R of 1986 and Writ Petition No.50‑R of 1986. At one point of time its status was in dispute, however, all are atone now that the same was evacuee property. It is the case of Raja Muhammad Nazar petitioner in Writ Petition No.34‑R of 1986 that on 18‑1‑1961 he had applied for the transfer of the said property under Reservation Scheme, which application was accepted by the Deputy Settlement Commissioner on 10‑3‑1961 whereafter he was asked to pay 1/3rd price vide communication dated 20‑4‑1961. At that juncture one Mushtaq Hussain lodged a complaint that it was not evacuee property. As a result thereof the Deputy Settlement Commissioner vide memorandum dated 12‑4‑1962 informed him that reservation of the plot in his name had been cancelled. This order was appealed against by him which was accepted by the learned Additional Settlement Commissioner on 29‑6‑1962. Another development that took place was that the Additional Custodian Evacuee Properties remanded the matter to the Deputy Custodian in order to determine the status of the property. The property had in the meantime been included in the auction list for its disposal, which, however, was deleted at the initiative of the petitioner. The petitioner claims to have made payment of the price and P.T.O. was also issued to him. It was, however, then that he learnt that the P.T.O. issued was only for part of the same, and he made an application for correction of the. P.T.O. He is now aggrieved of order dated 1‑1‑1986 assailed through this petition. Kh. Noor Ullah who is petitioner in Writ Petition No.50‑R of 1986 is stated to have been transferred an area measuring 16 Marlas on 10‑11‑1973 on the basis of Form RSS‑VIII (Building sites). He also claims to have been issued a T.O. dated 4‑12‑1973. This transfer was challenged by Raja Muhammad Nazar and the learned Settlement Commissioner, Rawalpindi Division vide order dated 22‑3‑1976 set aside the order of transfer and remanded the matter to the lower Court with the direction that "necessary parties should be given opportunity to produce evidence and hearing. Lt.‑Col. (Retd.) Muhammad Rafique Raja petitioner in Writ Petition No.26‑R of 1986 has also submitted Form RSS‑VIII (Building sites) dated 24‑10‑1973. His form was, however, rejected. It is the case of the other side that the rejection of form was never challenged by him. There was another claimant/contender i.e. Qazi Muhammad Ashraf who is represented by his legal heirs and have been impleaded party through C. M. No. 1444 of 1998 in Writ Petition No. 34‑R of 1986 claiming to be in possession of part of the said plot having raised construction and entitled to the transfer under the Scheme for Management and Disposal of Urban Properties, 1977. In the context above mentioned, the Deputy Settlement Commissioner, Rawalpindi/Notified Officer passed order dated 1‑1‑1986 in which he took the view that none of the abovementioned persons was entitled to the transfer of the disputed plot.

2. The learned counsel for the parties have been heard and record perused.

3. In his order the Deputy Settlement Commissioner in view of the stance of the parties has taken the view that the property was evacuee. The necessary implication thereof would be that transfer in favour of Raja Muhammad Nazar would stand revived in view of the removal of clouds as to the status of the property. It is, however, to be seen as to whether he was transferred the whole of the property or only a part of it. The perusal of the original record would show that though he had initially made an application for reservation of the whole of the property yet he was called upon to deposit the price of part of it i.e. 8 Marlas and 4 Sarsahis. Not only P.T.O. dated 11‑7‑1972 issued in his favour specifically describes the area transferred to him, there are notings preceding the issuance of the P.T.O. (Pages Nos.57‑58) which makes mention of the area. It may be mentioned here that in pursuance of the demand made by the department for the payment of price Raja Muhammad Nazar had submitted a deed of association dated 1‑7‑1961 which contains a recital "whereas the second party has to pay the amount of Plot Khasra No.2669 (8/4), Rawalpindi to the Settlement Department, West Pakistan as the same is under transfer to the second party (Raja Muhammad Nazar was second party in this document). This figure 8/4 has been taken and construed as 8 Marlas and 4 Sarashis in the proceedings by the officials and the parties. The executant and signatory to the document namely Raja Muhammad Nazar is bound by the same. Thus P.T.O. dated 11‑7‑1972 was rightly issued to him for an area measuring 8 Marlas, 4 Sarahis comprising Khasra No.2669. The binding nature of the representation of a party and that a party cannot approbate and reprobate was noted in A.R. Khan v. P.N. Boga through legal heir (PLD 1987 SC 107). Raja Muhammad Nazar thus cannot lay claim to the whole of the property and was entitled to the extent of the area mentioned in P.T.O. dated 11‑7‑1972. His petition succeeds to this extent. He will be issued necessary title documents on clearance of the outstanding dues if any in accordance with law.

4. In so far as Lt.‑Col. (Rtd.) Muhammad Rafique Raja is concerned, the perusal of the original Form dated 24‑10‑1973 submitted by him would show that he had applied for an area measuring 4 Marlas and addition of "one Kanal" was made later on. His Form was rejected without notice or hearing him. He cannot, however, extend or enlarge his claim beyond what he had asked for. The contention of his learned counsel that he is entitled to three times more in addition to the area in his possession on the strength of Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others (PLD 1991 SC 1) cannot be accepted in the facts and circumstances of this case. He should be satisfied with the transfer of area he applied for. Accordingly his writ petition is accepted to that extent. He will be issued necessary documents on payment of the dues in accordance with law.

5. Kh. Noor Ullah petitioner in Writ Petition No.50‑R of 1986 had claimed transfer of 16 Marlas out of Khasra No.2669 in pursuance of his Form dated 12‑10‑1973 and was issued P.T.O. dated 4‑12‑1973 for the same. The reason for non‑suiting him assigned by the Deputy Settlement Commissioner, in the impugned order is that the spot enquiry did not prove his construction and possession. This would not be sufficient to non‑suit a person who had once been found in possession and transferred the area in dispute. His case need to be considered afresh by the Notified Officer having jurisdiction in the matter. By setting aside the impugned order qua Kh. Noor Ullah the matter is remitted to the learned Member. Board of Revenue for its entrustment to the Notified Officer for determination of his entitlement afresh in accordance with law. The heirs of Qazi Muhammad Ashraf who had also become party in the proceedings before this Court, can also join the proceedings before the Notified Officer in order to establish their entitlement. It is observed that the learned Notified Officer will afford adequate opportunity of producing material enabling them to establish their entitlement. Writ petition filed by Kh. Noor Ullah is thus disposed of with the above observation. As a result of the above Writ Petition No.34‑R of 1986 and Writ Petition No.26‑R of 1986 are accepted in the terms indicated above, whereas Writ Petition No.50‑R of 1986 is disposed of in terms of the abovementioned observations. No order as to costs. Q.M.H./M.1379/L Order accordingly.