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Constitutional Petition No. S‑134 of 1986, decided on 13th January, 1987.

‑‑‑S. 2(2)‑‑Settlement Scheme No. VIII‑‑Transfer of evacuee property‑‑Order for‑‑Where property consisted of both built up area and additional area in excess of such built up area was transferred as open building site, transferee in possession thereof, held, would also be entitled to transfer of additional area in excess of built up area of property‑‑Defect if any, in transfer of excess area in favour of such transferee, however, could not be examined at the instance of person who never was applicant for transfer of same before Settlement Authorities.

‑‑Art. 199‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10(b)‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 2(2)‑‑Transfer of evacuee property, objection to‑‑Nothing on record available to show that property validly transferred to respondent was ever sold or transferred to petitioner by Government and petitioner also never raised such plea earlier‑‑Such plea, held, could not be entertained for the first time in constitutional petition.

‑‑Art. 199‑‑Evacuee Property and Displaced Persons Law (Repeal) Act (XIV of 1975), S. 2(2)‑‑Laches‑‑Constitutional petition, maintainability of‑‑Constitutional petition against order of Notified Officer filed about two years after passing of such order‑‑Only explanation offered on behalf of petitioner for delay in filing petition that papers had been processed in concerned Government Department for filing such petition which involved lengthy and complicated procedure, held, was hardly sufficient to explain laches‑‑No care having been made out, petition was dismissed summarily.‑‑[ Laches].

Abdus Sattar for Petitioner.

The petitioner has challenged in this petition the order dated 25‑1‑1984 passed by the notified officer dated 25‑1‑1984 after remand of the case by this court in Petition No. 52 of 1980. The following is the background of controversy.

Respondent No.l claimed to be in possession of a portion of evacuee plot bearing No.RB‑1/5, Arambagh Quarters, Karachi. He applied for transfer of the area in his possession under Settlement Scheme No.V. According to the order dated 11‑11‑1979 passed by the Deputy Settlement Commissioner, Karachi, he was found to be in possession of an area of 60 x 25 Ft. Which comes to roughly 166.6 Sq Yards, whereas he claimed transfer of 416 Sq. Yds. The request for transfer of the plot by respondent No.l was not accepted by the Settlement Authorities whereupon he filed petition No.52 of 1980 which was allowed by a learned Single Judge of this court and the case was remanded back to the notified Officer with the direction to examine the entitlement of respondent No.l in accordance with the Settlement Scheme No.8. On remand the notified officer found the respondent entitled to transfer of 416 Sq. Yds. of land under Settlement Scheme No. VIII as he had raised permanent construction over an area of about 141 Sq. Yds. and was in possession of 416 Sq Yds. on the prevalent market value. Learned counsel for the petitioner contends that the portion of the plot which has been transferred to respondent No. l is in excess of his entitlement as he was earlier found to be in possession of 166 Sq. Yds. only and as such the order transferring him a plot measuring 416 sq. yds. is not sustainable in law.

Alternatively, it is contended by the learned counsel that the property which has been transferred to respondent No.l already stood transferred to the petitioner by the Central Government under Section 10 (b) of the D.P, Act and as such the transfer of same in favour of respondent No.l is void.

It is true that in the order dated 11‑11‑1979 passed by the Deputy Settlement Commissioner Karachi the respondent No. l was shown to have claimed possession over an area of 60 x50 ft. only while he claimed transfer of 416 sq. yds., but his claim was never examined on merit. The entitlement of respondent No.l was examined for the first time in the impugned order and he was found entitled to the transfer of 416 sq. yds. As the property is transferred to respondent No.l, as an open building site he was also entitled to transfer of additional area in excess of the built up area. In any case, the defect if any in the transfer of excess area in favour of respondent No.l, cannot be examined at the instance of petitioner who were never the applicant for transfer of same before the Settlement Authorities. Apart from it the notified officer in the impugned order found that in addition to the constructed area the remaining area transferred to respondent No. 1 was also in his possession and, therefore, the order cannot be said to be without jurisdiction. The second objection of the petitioner against the transfer of plot to respondent No.l is that this area already stood sold to them by the Central Government under Section 10 (b) of the Displaced Persons (Comp. & Reh) Act, 1958. There is nothing on record to show that the property which has been transferred to respondent No.l was ever sold to the petitioner by the Central Government as alleged. It is also quite clear from the order of remand in Petition No.52 of 1980 which has attained finality, that no such contention was raised on behalf of the petitioner in those proceedings. In these circumstances the contentions raised by the learned counsel is totally unsupported by any order of Settlement Authorities or any other evidence recorded and as such is a new plea which cannot be entertained for the first time in this petition. It may also be mentioned here that the impugned order was passed on 25‑10‑1984 while the present petition was filed on 18‑10‑1986. The only explanation offered by the learned counsel for the petitioner for this delay in presenting the petitioner is, that the papers have been processed in the concerned Government Department for filing the present petition which involved lengthy and complicated procedure. This explanation is hardly sufficient to explain the laches. No case is made out. The petition is dismissed summarily.

H . B . T . / F‑15/ K Petition dismissed.

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