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Writ Petition No. 1804‑R of 1976, decided on 16th December, 1985.
‑‑‑S. 2(2)‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Thara declared to be independent unit of property and not part of adjoining property‑‑Order of Settlement Authority excluding Thara from adjoining property not supported by any reasons although documentary evidence on file showed such Thara to be part of adjoining property‑‑Order of Settlement Authority being non‑speaking order, was declared to be of no legal effect by High Court in Constitutional jurisdiction‑‑Case was remanded to Notified Officer for disposal in accordance with law after affording opportunity of hearing to parties.
Ch. Muhammad Mahmood for Petitioner.
Ch. Faiz Muhammad Siddiq for Respondents.
Date of hearing: 16th December, 1985.
Muhammad Mustaqeem, petitioner, by means of this constitutional petition has challenged order, dated 22‑7‑1976 of the Settlement Commissioner; Lahore, whereby he dismissed petitioner's revision petition and maintained order, dated 1‑9‑1969 of the Deputy Settlement Commissioner, who had held that portion shown red in the sketch Exh.P.I. in possession of Imam Din was not part of Property Nos. C/37 and C/38 transferred to the petitioner's predecessor.
2. The dispute in this case relates to a 'Thara' situated in front of Property Nos. C/37, C/38 and C/36. It was occupied by Imam Din, respondent. The Settlement Authorities transferred Property Nos. C/37 and C/38 in favour of Abdul Hakeem who had later on sold to the petitioner. Property No. C/36 was transferred to Imam Din respondent. Ono‑4‑1969 the petitioner moved an application seeking demarcation of the Property Nos. C/37 and C/38 purchased by Muhammad Abdul Hakeem transferee. In demarcation proceedings Imam Din was also associated, who claimed that the disputed 'Thara' was part and parcel of House No. C/36 transferred to him. The learned Deputy Settlement Commissioner observed in his order, dated 1‑9‑1969 that Property Nos. C/36, C/37 and C/38 belonged to one evacuee owner as shown in plan Exh.P.I. prepared by Settlement Department.
The disputed 'Thara' has been shown part of Property Nos.C/37 and C/38 but in possession of Imam Din, transferee of Property No. C/36. The Deputy Settlement Commissioner without giving any reason, held that the disputed 'Thara' did not constitute part of the above-mentioned properties and directed its disposal through auction. This order of Deputy Settlement Commissioner was challenged by petitioner and Imam Din through separate revision petitions which were, however, dismissed on 22‑7‑1976 by the Settlement Commissioner, Lahore.
3. Imam Din, respondent did not agitate matter any further.
4. Learned counsel for the petitioner contended that the disputed 'Thara' as indicated in sketch Exh. P.I. is part of the Property Nos.C/37 and C/38. Neither the Deputy Settlement Commissioner nor the Settlement Commissioner categorically held that it was an independent unit or part of some other property, as such it could not be assumed that it was not part of Property Nos. C/37 and C/38.
5. Learned counsel for Imam Din respondent also did not support the impugned orders.
As Imam Din did not challenge the impugned orders, he can lay no claim to the disputed property because the impugned orders as against him had attained finality. Admittedly the Deputy Settlement Commissioner and the Settlement Commissioner gave no reason in the impugned orders to exclude the disputed 'Thara' from Property Nos. C /37 and C /38 which otherwise appears from copy of the plan Exh . P. I . to be part thereof.
6. In the result, this petition is allowed and the impugned orders are declared to be of no legal effect. The case is remanded to the Notified Officer (Deputy Settlement Commissioner) to dispose of petitioner's application for demarcation of the Property Nos. C/37 and C/38 in accordance with law after providing opportunity of hearing to him within two months from the date of this order.
A . A . Petition accepted.
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