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Civil Appeal No. 29 of 1983, decided on 8th October, 1984.

(On appeal from the judgment and order of the Lahore High Court, dated 15th December, 1976, passed in Writ Petition No. 1781/11 of 1976).

‑‑‑Art. 185(3)‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑Land Settlement‑‑Recalled excess area‑‑Disposal‑‑Leave granted to consider whether recalled excess area could not be transferred to petitioner instead of putting same to auction.

‑‑‑Ss. 10 & 11‑‑Land Settlement‑‑Recalled excess area‑‑Transfer of Entitlement to‑‑Appellant in possession of vacant plot Raised construction over it‑‑Entitlement to vacant part in dispute Case remanded to Deputy Settlement Commissioner‑‑Entitlement of appellant to such portion rejected in violation of directions in remand order‑‑Held, area in dispute should have been given to appellant as per directions of Additional Settlement Commissioner.

A.R. Shaukat, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Appellant.

Shahzad Jahangir, Advocate Supreme Court and Abdur Razzaq Advocate‑on‑Record (absent) for Respondent No. 1.

Ch. Hafiz Ahmad, Advocate Supreme Court for late A. Karim, Advocate‑on‑Record for Respondent No. 2.

Date of hearing: 8th October, 1984.

This appeal is directed against the order of the Lahore High Court, dated 15‑12‑1976 passed in Writ Petition No. 1781/11 of 1976. Leave was granted by this Court per order, dated 28‑3‑1983 to consider the question whether the recalled excess area could not be transferred to the petitioner instead, of it being put to auction.

2. The appellant is stated to be in possession of open plot measuring about 6 Marlas since prior to 20‑12‑1958. According to him, he raised pucca construction over the said plot. He submitted the Requisite Form for the transfer of the said property to him on the basis of his possession and subsequent construction over it. The adjacent plot measuring three Marlas situated opposite to Hindu Temple was put to auction was transferred to the highest bidder i.e. Nazir Hussain for Rs.860. This auction was confirmed on 2‑8‑1960. Application, dated 16‑3‑1973 was filed by respondent No. 2 Muhammad Siddique an associate of Nazir for demarcation of the said plot near Hindu Temple. On 19-5‑1973 the appellant filed an application before the Deputy Settlement Commissioner urging therein that he was in possession of the plot owned by Santa son of Haroo and that B.S. Form under Settlement Scheme No. VIII was also filed by him on 29‑1‑1973. It was also urged that construction over the ‑said plot was duly ascertained by the Settlement Inspector, he suspected a foul play as the respondent No. 2 was carrying out demarcation of his plot in the absence of the appellant. A favourable report was submitted by the Inspector of the: Settlement Department which was disputed by the appellant on the 'plea that the area was more than eight Marlas. Inspection of the plot on the spot was made by the Deputy Settlement Commissioner who hold that the plot measured 7 Marlas only and construction over this plot was also admitted by the same officer who, however, proposed that 31 Marlas of vacant site be disposed of in accordance with law. The appellant filed an appeal against the order of the learned Deputy Settlement Commissioner which was treated as revision and was accepted vide order, dated 14th June, 1976 and the case was remitted back to the D.S.C., Sialkot. On remand, according to the appellant, the learned D. S. C. acted in violation of the directions 'given by the learned Additional Settlement Commissioner in his order, dated 14‑6‑1976, and illegally rejected the entitlement of the appellant, vide his order, dated 9‑7‑1976. Aggrieved from this order the appellant filed writ petition No. 1781/11 of 1976 which resulted in the impugned order of the Lahore High Court.

3. We have examined the ‑plea raised by the learned counsel for appellant and find that directions given by the learned Additional Settlement Commissioner had not been fully followed by the learned Deputy Settlement Commissioner, Sialkot. The learned Additional Settlement Commissioner had directed as follows in his order, dated 14‑6‑1976:

----The case is remitted to the Ld. D.S.C., Sialkot to probe into the matter afresh after visiting the spot personally and determine the No. of plot 22 and the plot No. Nil in possession of the petitioner. The extent of the plot in possession of the petitioner may also be given and if plot No. NIL and plot No. 22 happen to correspond according to the findings of the D. S. C. in that case the area of 32 Marlas be excluded and the area disposed of to Mst. Sardaran Bibi which is 11 and the balance of it should be disposed of in favour of the petitioner against his B.S. treating the same as Form under R.S.S. VIII (building site). ",

The learned Deputy Settlement Commissioner heard the parties and inspected the spot according to the direction given in the remand order and held that in view of the facts and reasons given in his order, he believed that the portion occupied by the appellant is a part of area of 31 Marlas which, under the direction of the remand order, the respondent is entitled to retain. So the said area, being not available for transfer, the form, if any filed by the petitioner/appellant is incompetent. The concluding para of the said order reads as follows:‑‑

"The total area of the plot minus portion of Mst. Sardaran Bibi is 3.256 plus 1.66 = 5 Marlas and 50 sq. ft. = 1,410 sq. ft. Out of the same, under the observations of remand order, the respondent is entitled to have an area of 3 Marlas = 952 sq. ft. Thus the excess area of 1,410 minus 952 = 458 sq. ft is available for disposel. The same is demarcated on the plan Exh. P.M. as A, B, C, D, measuring 21' x 21'. The same should be brought on C.S.C. IV register which is being maintained for undisposed of properties."

We find that the area demarcated on the plan Exh. P.M. as A, B, C, D, measuring 21' x 21' should have been given to the appellant as per direction of the learned Additional Settlement Commissioner which reads "the balance of it should be disposed of in favour of the petitioner against his B.S. treating the same as Form under R.S.S. VIII". The' learned counsel for the Department Mr. Shahzad Jahangir also rightly conceded that the balance area of 21' x 21' should have been given to the appellant. Order accordingly. Appeal is allowed to this extent. No order as to costs.

M.I. Appeal allowed.

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