1995 PLP 1039 (MLD)

Ch. Muhammad Rafiq Khan for Respondent No.

1. Hamid Ali Mirza for Respondents Nos. 2 and

3. Date of hearing: 22nd August, 1994. By way of this writ petition, the petitioners call in question an order of Additional Deputy Commissioner/Deputy Administrator (Residual Properties), Gujranwala, dated 1‑4‑1994 (Annexure `C') by which the learned officer has held that he has the jurisdiction to demarcate the properties and has directed the Settlement Inspector to visit the spot and demarcate the properties involved in Houses Nos. 1‑445, 1‑446 and 1‑447 situate in Rasool Nagar, Tehsil Wazirabad, District Gujranwala. The properties belonged to the same evacuee and were transferred to various persons in the course of settlement operations. What is not in dispute is that Property No. 1‑445 was finally transferred to the petitioners on 21‑3‑1981, Property No. 1‑446 to one Shabir Hussain son of Khuda Bux on 11‑1‑1974 and Property No. 1‑447 to Muhammad Hussain son of Mian Jalal Din (respondent No. 1 herein) on 18‑6‑1979.

2. Apparently a dispute arose between the transferees regarding the boundaries of the transferred properties. Respondent No. 1 initially agitated the matter by filing an ejectment application before Rent Controller, Gujranwala which was dismissed on 31‑3‑1983. It is common position that the order of the Rent Controller was not subjected to challenge and attained finality. Respondent No. 1 then filed an application for demarcation to the Chief Settlement Commissioner which was sent to Deputy Administrator (Residual Properties), Gujranwala for decision. The Deputy Administrator issued notices. The issuance of notices was challenged by petitioners herein by way of a suit on the ground of lack of jurisdiction. The suit, however, was dismissed on 20‑4‑1983 on the ground of being premature.

3. After dismissal of the suit, the learned Deputy Administrator proceeded in the matter. The petitioners herein filed an application (Annexure D) calling in question the jurisdiction of the Deputy Administrator to decide the matter. As stated, by way of the impugned order the Deputy Administrator has dismissed the objection petition, .has held that he has the jurisdiction and has directed the Settlement Inspector to proceed to demarcate and report.

4. In support of the petitioner, Mr. Anwar Hameed, learned counsel for the petitioners has raised two contentions. Firstly, that as laid down in 1982 SCMR 1103 (Ch. Abdul Haq v. Mst. Mustajab Bano and others), after the transfer of properties the Settlement functionaries have become functus officio and has no jurisdiction to decide any question including the question of demarcation. Secondly, that in any case a demarcation had taken place in 1974 and second demarcation cannot legally be held.

5. Mr. Hamid Ali Mirza, Advocate appearing for Settlement Department has supported the legal position that after the issue of transfer order/PTD the functionaries of Settlement Department do not retain any jurisdiction whatsoever to pass any order in respect of the transferred properties.

6. Mr. Muhammad Rafiq Khan, learned counsel for the respondent No. 1, however, has attempted to deny the applicability of the principle laid down in 1982 SCMR 1103 by distinguishing that while the other two transfers were under the Displaced Persons (Compensation and Rehabilitation) Act; 1958 the transfer in favour of his client was under the Scheme for disposal of Residual Properties prepared under section 3 of the Repealing Act 14 of 1975.

7. In my view the principle laid down in the reported judgment of the Supreme Court squarely applies to the facts and circumstances of this case. The attempted distinction by the learned counsel for the respondent No. 1 does not hold water because it does not really matter as to under what provision the property has been transferred. What really matters is the factum of the transfer of properties and the issue of final documents of title viz. the transfer order/permanent transfer deed. Once the transferee is constituted as full owner, it is well‑settled that the Settlement Authorities will not have and should not have any power to deal with the transferred properties in any manner. In other words, the transferred property is like any other property, any dispute of which is decided by the Court of general jurisdiction viz. Civil Court.

8. In this view of the matter that I am taking, the second contention of Mr. Anwar Hameed, Advocate need not be decided. This point may be left open for decision by appropriate forum as and when the question of demarcation is agitated again.

9. Respectfully following the principle of law laid down in 1982 SCMR 1103 (Ch. Abdul Haq v. Mst. Mustajab Bano and others), I hold that the impugned order has been passed without lawful authority and as such is of no legal effect. I would, therefore, allow this writ petition, leaving the parties to bear their own costs. AA./M‑1951/L Petition accepted.