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Writ Petition No. 1137/11 of 1977, decided on 1st October, 1985.

---S. 2--Petitioners who were transferred distinct portion or building comprising a flat which was a self-contained house also claiming compound wherein garages existed and which was transferred to respondent's father--Petitioner neither placing on file copies of transfer orders in their favour nor producing same during arguments--Petitioners even denied existence of garages in compound so that same could be considered as part of spot transferred to them--Compound, held, could not be said to have been transferred to petitioners in circumstances and they having failed to establish that entire compound was transferred to them would have no locus standi to call in question transfer of same in favour of respondents even if it suffered from some lacuna.

---Art. 199--Constitutional jurisdiction--Existence of garages in compound as also question of possession of property--Disputed questions of fact- Such questions, held, could not be determined in constitutional jurisdiction.

---Art. 199--Constitutional petition- -Laches--Petition filed more than two years after passing of impugned order and no plausible explanation given for such inordinate delay--Petition, held, suffered from laches and dismissed. --[Laches].

---Art. 199--Constitutional jurisdiction--Grant of relief--Discretionary- Exercise of discretion in favour of petitioners likely to result in demolition of house built by respondents and render them shelterless- -Interfere nee declined in discretionary constitutional jurisdiction.

Syed Zain-ul-Abidin for Petitioner.

Kh. Mushtaq Ahmad for Legal Representatives of Respondent No.2.

Date of hearing: 1st October, 1985.

The dispute between the parties relates to a part of property No.S-37-R-113/D, commonly known as Mehra Mansion, Beadon Road, Lahore. It is fairly a big building comprising a number of commercial and residential Units. The residential portion mostly consists of flats. On the ground-floor there is also a compound measuring 57' x 48' in which a latrine and a small store-room are located. The compound has an opening on the main road, through a passage, under which lies a septic tank.

2. The petitioners claim to be transferees of the residential flats. It is, so stated in para. No.4 of the writ petition. Their grievance, is that the courtyard and the passage annexed thereto do not form an independent unit but constitute essential amenities attached to the residential building consisting of several flats transferred to them. But, respondent No. 2 now represented by his legal representative, in connivance with the Settlement authorities managed to get transferred in his name a portion of the courtyard as a building site, at the back of the petitioners. A reference in this connection has been made to the Deputy Settlement Commissioner's order; dated 24-5-1975 (Annexure 'C') which is under challenge in this writ petition.

3. I have heard the learned counsel for the parties and have examined the available record. The petitioners' main argument, is, that a 'site' within well-defined compound of a permanent building, in view of the provisions of Settlement Scheme No. VI, cannot be categorised as a building site. That, even otherwise the site in dispute being part and parcel of the compound, stood transferred to them as an amenity annexed to their residential flats and was never available for transfer. The impugned order has been further dubbed as a contrivance, between respondent No.2 and the Deputy Settlement Commissioner. The possession of the respondent has also been disputed.

4. On the other hand, the case of the respondent, is, that their father and predecessor-in-interest, i.e. respondent No.2, who was a displaced person from Meera (India) since his migration to Pakistan, has been in possession of two garages and a courtyard appurtenant thereto, situated in the compound of the building, as his residence. That their possession over the said portion of the building extended over a period of 30 years. The garages stood demolished and he, therefore, had to apply for transfer of the site underneath the same as a building site. The Deputy Settlement Commissioner, by his order, dated 24-5-1975, transferred to him the portion in his possession. A copy of the said order has been placed before me by the learned counsel which shows that the Hakeem-ud-Din (deceased) had paid the rent, filed the form and the portion in his possession, was transferred in his favour. It may be added that this order is not congruent upon the order Annexure 'C'. My attention has also been drawn to a certified copy of a plan signed by the Deputy Settlement Commissioner. It discloses the existence of two garages and a small courtyard in front thereof. According to this plan, in between the enclosed courtyard of the petitioners and the structure of the main-building, there is a 5 feet passage which connects the open space in front of the main gate with the compound of the building. It is, submitted that after the transfer of the property in his favour, the respondent got the building plan sanctioned from the Lahore Municipal Corporation on 4-6-1976 and constructed a small house on the site in dispute. Reliance is also placed on the copy of the N . C . H . Form under Settlement Scheme No.1, annexed to the writ petition and on its basis transfer of the property to the deceased, is, sought to be justified both under the Settlement Scheme No. VIII as well as No.l.

5. The term 'building site' is defined in Para. 1(2) of the Settlement Scheme No.VI as under:

------ any evacuee plot of land acquired under section 3 of the Act, which was vacant or free from any permanent construction at the time it became evacuee property and is not within a well-defined compound of a permanent building and._"

It is, thus, obvious that if at the time of the partition, the site was under garages, at least so far as Settlement Scheme NO.VI, is, concerned, it did not qualify to be a 'building-site'. In the written statement it is stated that the property was transferred to the respondent under Settlement Scheme NO.VIIl, though, as observed above, during his submissions, the learned counsel for the respondents, attempted to demonstrate that the order, dated 24-5-1975 would also be deemed to have been made under Settlement Scheme No.l. It is, however, to be noticed that for application of Settlement Scheme No.VIlI, the property must be an 'available-property' and in case the compound of the building includes the site in dispute and the same was. already transferred to the petitioners, the property would not be available for its settlement on the respondent.

5. It is noteworthy that the distinct portion of the building comprising' a flat, in possession of each petitioner, was, transferred to him, as a self-contained house. It is, therefore, difficult to treat the compound as an integral part of any individual flat, or all the flats collectively unless it is so recorded in the title-documents relating to the flats. The petitioners have neither placed on this file, the copies of the transfer-orders in their favour, nor produced the same during arguments. It is, therefore, not possible to hold that the compound also stood transferred to them as part of their respective flats. As regards the user of the compound, as an amenity, my perusal of the two plans appearing on this file (one produced by the petitioners and the other by respondent No.2) leads me to the conclusion that even after the transfer of the property in dispute to respondent No.2, sufficient open space is available to serve as an amenity to the residents of the flats. It is true that under section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, the garages appurtenant to a house are to be considered as part thereof. But the petitioners do not E claim the garages, rather they deny their existence. However, such an issue and so also the question of possession, are disputed questions of facts, which cannot be determined in these proceedings.

7. Since the petitioners have failed to establish that the entire compound was transferred to them, they shall have no locus standi to call in question the transfer in favour of the respondent, even if it suffers from some lacuna.

8. There is another weighty reason for dismissal of this writ petition. The order under challenge was passed on 24-5-1975 and the instant writ petition has been filed on 21-8-1977. No plausible explanation for this inordinate delay extending over a period of about 26 months, is forthcoming from the record. The writ petition, thus suffers from laches.

9. The grant of relief under writ jurisdiction is discretionary. The facts and the legal position narrated above, apart, I do not feel inclined to exercise this discretion in favour of the petitioners, permit demolition of the house built by the respondents and render them shelterless, at this stage. The parties should live and let live.

For all these reasons, this writ petition is dismissed, with no order as to costs.

M.Y.H. Writ dismissed.

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