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Civil Petition for Special Leave to Appeal No. 288 of 1976, decided 11th February 1979.

(On appeal from the judgment and order of the Lahore High Co Lahore dated 13‑2‑1976 in W. P. No. 1333,'(1;/1974).

----Sched. read with Central Government Transfer of Excess Land ‑Order dated 22‑10‑1962‑Transfer of excess land‑Contention that petitioners having succeeded up to Supreme Court being held entitled to get only one karal and some marlas while contesting respondent being held entitled to get 4 kanals and some marlas in spite of having been unsuccessful such a preposition sounded unjust‑Petitioners having got transfer of house under Settlement laws alongwith prescribed three times of plinth area on quite modest price of only 40 times of gross annual tent of house in 1946 whereas excess land attached to house liable to be transferred to non‑transferee occupants being on basis of prevailing market value, contention, held, without force.

----Sched. read with Central Government Transfer of Excess Land Order dated 22‑10‑1962‑Transfer of excess land‑Contention that property according to Town Planner having fallen in a zone of 4 kanals residential plots petitioners entitled to at least 4 kanals of excess land‑Scheme referred to having not yet been sanctioned by Govern ment and in any case such scheme having no authority to override settlement laws, Town Planner's letter, held, of no relevance.

S. Jamil Hussain Rizvi, Senior Advocate Supreme Court instructed by S. Ali Imam Naqvi, Advocate‑on‑Record for Petitioners.

Malik Muhammad Qayyum, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadr4, Advocate‑on‑Record for Respondent No. 3.

Date of hearing : 11th February 1979.

.‑This petition is ' directed against the order dated the 13th February 1976, passed by the Lahore Court in Writ Petition No. 1333‑R of 1974. .

The relevant facts are that Property No. S‑77‑R‑7 known as 8‑Jail Road, Lahore, was in possession of different persons. The same was held to be two houses and transferred to the petitioners (Maseeh: Ullah and Bashir Ullah) and Mrs. Siddiqui. This order of transfer was, despite protracted litigation, upheld by this Court vide order dated 22‑12‑1969.

The total area of the entire bungalow, at the time of Partition, was 10 kanals 15 marlas and 37 sq. ft. One portion of it was as already stated, transferred to Mrs. Siddiqui alongwith three times plinth area and there is no dispute about the transfer in her favour. The other portion occupied by the petitioners and Muhammad Ehsan, respondent No. 3, was transferred, as already stated, to the petitioners but after transfer of three times the plinth area of their house, some surplus area remained transferable. This area fell for transfer under the provisions of the Central Government Order dated 22‑10‑1962 dealing with the question of transfer of excess land attached to the house of non‑transferee occupants. . . The relevant portion of which is as follows;----

"If a house has been in the 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."

Consequently, the respondent No. 3 applied on 30‑11‑1962 that the surplus land attached to the house be transferred to him as an occupant of the portion of the house that he had been unsuccessful in obtaining. The Deputy Settlement Commissioner by his order dated 15‑12‑1971 found that out of the portion transferred to the petitioners, they were eligible to the transfer of 1 kanal 13 marlas and 261 sq. ft. while the rest namely 4 kanals 10 marlas 1 sq. ft. was surplus area which could be transferred to respondent No. 3. Aggrieved by this order, the petitioners filed an appeal in the Court of the Settlement Commissioner, which was dismissed on 28‑6‑1974. He then filed a writ petition in the Lahore High Court challenging both the orders passed by the Deputy Settlement Commissioner and the Settlement Commissioner but this, too, was dismissed by the High Court on 13‑2‑1976, hence this petition.

Mr. Jamil Hussain Rizvi, counsel for the petitioners, urged two points in support of this petition; firstly that it was unjust that the petitioners who had succeeded upto the Supreme Court, would only get 1 kanal 13 marlas and 261 sq. ft. while respondent No. 3, who had been unsuccessful, would get 4 kanals 10 marlas 1 sq. ft. and secondly that the petitioners were entitled to at least 4 kanals as according to the Town Planner the property in question falls in a zone of 4 kanals residential plots.

There is no force in either of both these contentions. The petitioners have got transfer of the house under the Settlement Laws alongwith the prescribed three times of the plinth area and the transfer price of this is quite modest being only 40 times the gross annual rent of the house in 1946 whereas the excess land attached to the house liable to be transferred to non‑transferee occupants is on the basis of the prevailing market value. Be that it may this area could not be transferred to the petitioners under the law.

So far as the contention that according to the limits set by the Improve ment Trust, the petitioners ought to have been given at least 4 kanals. This submission is based on the letter written to petitioner No. 2 by the Lahore Improvement Trust, which reads as follows :‑

"To

Mr. Bashirullah,

Bungalow No. 8,

Jail Road, Lahore.

No. 2531. Dated 11‑3‑1964

Ref.‑---Your application dated JO‑3‑1964 to know the zoning of property No. S‑77‑R‑6 (Khasra No. 846).

The property referred to above, is zoned for 6 kanals residential plots under the sanctioned Government House Area Scheme but it‑is zoned for 4 kanals residential plots in the revised scheme which is not yet sanctioned by the Government.

(Sd.) Town Planner,

Lahore Improvement Trust."

The above letter shows that the scheme referred there in has not been sanctioned and the terms of the letter, in any case, cannot override the settlement laws wherein the petitioners were held as entitled to 1 kanal 13 marlas and 261 sq. ft, In fact, the letter is really of no relevance.

The upshot is that no ground exists for interference. This petition fails and is dismissed.

Petition dismissed.

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