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Writ Petition No. 548-R of 1976, decided on 13th January, 1986.

---Art. 199--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2 (2)--Transfer of evacuee property--Dispute over area of property--Total area of evacuee house transferred to petitioner claimed to be 11 Marlas and 2 Sarsais--Such house had only one access from thoroughfare and on all other three sides was surrounded by residential houses--No measurement of house in dispute was available in relevant record of Municipal Committee--Order of Settlement Authority, confining area of house in dispute only to 2 Marlas and 2 Sarsais and putting out remaining 9 Marlas to sale by auction, held, was unjustified and illegal in circumstances--High Court in constitutional jurisdiction set aside order of Settlement Authority.

Iftikhar Ahmad Dar for Appellant.

Muhammad Akram Khokhar for Respondent No.3.

Date of hearing: 13th January, 1986.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question orders dated 10-4-1974 and 24-3-1976 respectively passed by the Deputy Commissioner, Sheikhupura and Settlement Commissioner, Lahore Division, Lahore.

2. Necessary facts briefly stated are that petitioner who is a non claimant displaced person applied for transfer of house No. B-V-S-4-17 Nankana Sahib District Sheikhupura through an N.C.H. Form. The order of transfer of the house aforementioned was passed in his favour by the Deputy Settlement Commissioner on 22-6-1960. PTD pertaining thereto was also issued to the petitioner on 25-11-1971.

3. On 10-8-1970 land measuring 3t Marlas out of Khasra No. 15613 of Nankana Sahib was put to auction. It was purchased by respondent No.3 who was the highest bidder in the auction. Auction in favour of respondent No.3 pertaining to the aforementioned plot of land was confirmed on 15-8-1970. Babu the petitioner challenged this auction through an appeal which was treated as a Revision and disposed of by the learned Additional Settlement and Rehabilitation Commissioner of his order dated 11-2-1974. By the said order the matter was remitted to the Deputy Settlement Commissioner for adjudication in the light of evidence that may be adduced by the parties. The Deputy Settlement Commissioner by his order dated 10-4-1974 upheld the auction in favour of respondent No.3. He however, held that the house transferred to the petitioner according to the taxation record was on land measuring 2 Marlas and 2 Sarsais only but the total area in his possession at the site on actual measurement was found to be 11 Marlas and 2 Sarsais and, therefore, the remaining 9 Marlas should be either paid for by him failing which the excess area be disposed of through auction.

4. This order was challenged by the petitioner before the Settlement Commissioner through a Revision which was dismissed by the learned Settlement Commissioner by his order dated 24-3-1976. Hence the present Constitutional petition.

5. This Writ Petition in so far it challenged the impugned orders regarding sale by auction of 3J Marlas in favour of respondent No.3 was dismissed by order dated 20-4-1976 whilst by the same order the matter as regards remaining land was admitted for consideration.

6. The learned counsel for the petitioner submitted that direction of the Deputy Settlement Commissioner for disposing of 9 Marlas of land through auction is wholly illegal and is based on an erroneous assumption that the land of the house transferred to the petitioner was only 2 Marlas and 2 Sarsais. He submitted that there is no taxation record of the local authority viz. Municipal Committee, Nankana Sahib which may show that the land of the house transferred to the petitioner measured as has been held by the Deputy Settlement Commissioner. He in this regard referred to the endorsement on the application of the petitioner by the Secretary, Municipal Committee, Nankana Sahib stating that 'there is no measurement of the property in question available in the record of the Municipal Committee.

7. The learned counsel referring to the plan, annexed with this petition of the house in dispute submitted that the said house has only one access from thoroughfare and on all the other three sides it is surrounded by houses owned respectively by Makhay Khan on the East, by Muhammad Ramzan on the West and by Muhammad Hussain and Abdul Sattar on the North. In the same context it was urged by him that finding by the Deputy Settlement Commissioner that the petitioner was in occupation of excess land when seen in the light of the endorsement of the Secretary of the Municipal Committee falls to the ground.

8. The last contention of the learned counsel for the petitioner was that the Settlement Commissioner while rejecting the Revision of the petitioner did not advert to this aspect of the matter and confined his discussion to the auction in favour of respondent No.3. The learned counsel submitted that this also amounts to failure to exercise jurisdiction in respect of a specific plea raised before the Settlement Commissioner that even if 311 Mantas transfer is to be maintained in favour of respondent No.3, the order of Deputy Settlement Commissioner to the extent it directs the sale by auction of 9 Marlas should not be maintained.

9. Having given consideration to the controversy involved, I find that the contentions raised on behalf of the petitioner as regards the objection to the impugned order qua the 9 Marlas of alleged excess land in possession of the petitioner have force. It has been correctly pointed out that in the face of the endorsement of the Municipal authorities that there was no measurement of the house transferred to the petitioner in the record of the Municipal Committee, finding of the Deputy Settlement Commissioner that the said house had land measuring 2 Marlas and 2 Sarsais is not maintainable.

10. I also see reason in the argument of the learned counsel for the petitioner that the petitioner being admittedly found to be in possession of 11 Marlas and 2 Sarsais of land on part of which house has been built and structure of the house itself being in excess of 2 Marlas and 2 Sarsais as is also apparent from the annexed plan, it was unjustified to hold that the transfer of the house to the petitioner be confined to 2 Marlas and 2 Sarsais. Such an order becomes all the more illegal when there is no finding given in this respect despite site inspection. Un reasonability of this order is also apparent on the record in view of un controverted assertion of the petitioner that the house has excess from the thoroughfare on the South and its boundaries on all the other three directions are surrounded by houses of other people and thus 9 Marlas out of such a location could not be carved out for sale by auction and more so when there is no demarcation either of these alleged excess 9 Marlas in possession of the petitioner.

11. In view of the foregoing discussion, allowing this petition I would set aside the impugned orders of Deputy Settlement Commissioner and Settlement Commissioner respectively dated 10-4-1974 and 24-3-1976 to the extent these directed the sale of alleged 9 Marlas excess land 4 by auction if the petitioner does not pay the price therefore. The purchase by auction of 3J Marlas in favour of respondent No.3 shall, however, remain intact as the writ petition qua respondent No.3 has already been dismissed.

There will however, be no order as to costs.

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