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Writ Petition No. 534/R of 1976, decided on 7th April, 1986.

---Ss. 4 & 5--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975;1, S.2(2)--Evacuee property--Entitlement to transfer- Only material point for entitlement to transfer of plot in Katchi Abadi being whether applicant /petitioner was in occupation of same on or before 15-3-1972---Evidence on record showed that applicant /petitioner was in occupation of such plot prior to specified date--Questions that applicant was minor or filed belated form for transfer of same or was unauthorised occupant, held, were immaterial for determining entitlement of applicant for, transfer of plot--Such plot could be transferred if same was available and petitioner was entitled to transfer thereof.

Khakan Elabar for Petitioner.

Kh. Muhammad Farooq for Respondents.

Muhammad Zakaullh Khan, petitioner herein, claims that he is in possession of an evaucee plot measuring 3 Marlas situate in Kachi Abadi: Mohallah Kausarabad, Jhang Road, Faisalabad since 1970. He raised construction thereon at his own expense. With the promulgation of the Transfer of Evacuee Land (Katchi Abadi) Act, 1972 on 18-9-1972 and Scheme framed thereunder for conferring proprietary rights on the eligible occupants of plots, he submitted a requisite form on 1-2-1976

The Settlement Inspector after spot inspection made a report in his favour. The learned Deputy Settlement Commissioner, however, rejected petitioner's form presumably on the ground that the same was time-barred and that the petitioner was an unauthorised occupant thereof. Being aggrieved by the aforesaid order the petitioner filed appeal which was dismissed by the learned Additional Settlement Commissioner, vide his order, dated 24-3-1976. Petitioner's case was disposed of with certain other occupants of the plots in the aforesaid Katchi Abadi. Muhammad Afzal Saleemi whose form was rejected, challenged the aforesaid order through Writ Petition No. 1094-R of 1977 which had already been allowed by this Court and the case remanded to the Notified Officer in the light of the observations made in that order, subject, of course, to a condition that the petitioner in that writ petition made no encroachment on a thoroughfare. The petitioner has also assailed the aforesaid order by means of this writ petition.

2. Learned counsel for the petitioner contended that the petitioner is in occupation of the disputed plot before the crucial, date viz 15-3-1972 and entitled to have the same transferred in his favour under the provisions of the Scheme made in pursuance of Act, XIII of 1972. Learned counsel referred to copy of Letter No. 433/75/152, dated 27-8-1975 (Annexure 'A'), report of the Settlement Inspector (Annexure 'C') and notice, dated 5-1-1972 (Annexure 'F') issued to him by the Municipal Committee, Lyallpur for the demolition of the unauthorised construction raised by the petitioner on the spot to show that the petitioner is in occupation of the disputed property prior to the crucial date and entitled to its transfer.

3. Kh. Muhammad Farooq, Advocate, learned counsel for the newly-added respondent Nos. 2 to 4, on the contrary, submitted that the petitioner was minor and that he was not in occupation of the disputed property prior to 15-3-1972, as such, he is not entitled to transfer of the disputed plot. It was further contended that the petitioner had encroached on a tharoughfare located in front of the houses in their occupation and if allowed to remain in occupation thereof, it would create hardship for them.

4. The contentions raised by learned counsel for the parties have been considered with reference to the documents on the file. The perusal of the documents prima facie shows that the petitioner was in occupation of the disputed plot prior to the crucial date. The question as to whether he was minor at the relevant time or not, is immaterial for determining his entitlement to the transfer of the disputed plot. It k, appears that the learned Deputy Settlement Commissioner rejected petitioner's form for transfer of the disputed plot, on the ground that he had encroached upon the thoroughfare and had filed belated form.

5. I find no substance in the finding of the learned Deputy Settlement Commissioner that since the petitioner had filed a belated form he was not entitled to the transfer of the disputed plot. .The crucial point is as to whether the petitioner was in occupation of the disputed property on or before 15-3-1972. The factum of, he being in unauthorised possession, would also be no bar for the transfer of the disputed plot to him if the same was available and the petitioner entitled for its transfer.

The impugned order passed by the Deputy Settlement Commissioner on 5-3-1976 is, therefore, declared to be of no legal effect. The case is remitted to the Notified Officer who shall dispose of petitioner's form in the light of the observation made above subject, of course, that the plot in dispute in occupation of the petitioner is not an encroachment on a thoroughfare. If so he shall dispose of the matter in accordance with law.

6. This petition is allowed in terms indicated above with no order as to costs.

H . B . T . Petition allowed.

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