' This writ petition called in question the order dated 17-1-1979 of the Administrator (Residual Properties). Lahore Division, Lahore.
2. The dispute in this case relates to a room situate in residential portion No, 2 of Property No, S-49- R-37, Chamberlane Road, Lahore. The portion of the property, in question, had been divided into two parts. The Deputy Settlement Commissioner, Lahore vide his order dated 30-1-1974 (Annexure A), transferred the entire upper portion in possession of Hakim Muhammad Yaqoob and Javed lqbal to Hakim Muhammad Yaqoob petitioner and lower portion (in possession) in favour of respondent No,
2. This was followed by Transfer Order dated 28-4-1977 in favour of respondent No,
2. According to Item No, 1 of Schedule A to the Transfer Order, in question, the lower portion (in possession) of Property No, S-49-R-37, Chamberlane Road, Lahore, has been transferred to respondent No,
2. It may be pointed out that respondent No, 2 vide his form RSS-VIII (House) No, 49, certified copy of which has been placed on record, claimed only one room with courtyard in ground floor in his self possession. He also made a statement on 24-11-1973 (Annexure G) before the Deputy Settlement Commissioner, that the lower portion in his possession may be transferred to him. The petitioner made an application dated 12-5-1978, which is available at page 41 of the Settlement File, for the transfer of one room, both room and tharas in his possession against FP Form No, 344 under Settlement Scheme No, IX, known as Scheme for the Management and Disposal of Available Urban Properties. The Deputy Settlement Commissioner, vide his order, dated 18-5-1978 (page 43 of the Settlement File) summoned the petitioner as well as respondent No, 2, and after spot inspection dismissed the application of the petitioner vide his order dated 7-1-1979 (Annexure E) on' the ground that no portion of the property in question was available for transfer, in that, the entire lower portion had already been transferred to respondent No,
2. The revision petition filed the petitioner was also dismissed by the Administrator 'Residual Properties), Lahore Division, Lahore, vide his order dated i7.1-1979 (Annexure H). The learned Administrator observed that the petitioner never claimed possession of any portion on the ground floor when the upper portion was transferred to him by the Deputy Settlement Commissioner and that in a statement, dated 24-11- 1973 (Annexure R-3), he admitted that the entire lower portion was in possession of respondent No, 2 and that the same be transferred in his favour.
3. The learned counsel for the petitioner has assailed the validity of the impugned order dated 7-1- 1979 of the respondent No, 1 on the ground that it was violative of the principle of natural justice in that, the petitioner was not provided an opportunity to lead evidence as to whether the room, in dispute, was available for transfer or not. It is next contended that the impugned order is contrary to the reports of the Settlement Inspector, dated 3-5-1978 (page 33 of the Settlement File) and 28- 2-1972 (Annexure I) and that the petitioner has been in possession of the room, in dispute, according to the aforesaid documents. The learned counsel for the contesting respondents submits that the petitioner himself made a statement on 24-11-1973 (Annexure R-3), before the Deputy Settlement Commissioner that he had no objection to the transfer of the entire lower portion including the disputed room and, therefore, he is estopped by his conduct to claim the room, in question. It is next contended by the learned counsel for the contesting respondents that after the issuance of Transfer Order in respect of the entire lower portion of the property, in question, in favour of respondent No, 2, the claim of the petitioner for the transfer of the disputed room is hit by the doctrine of past and closed transaction. The learned counsel for the contesting respondent further submits that the question as to the non-availability of the disputed room is concluded by concurrent finding, of fact which cannot be interfered with in the exercise of writ jurisdiction.
4. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also perused the record of the Settlement Department with their assistance. It is apparent on the face of record that respondent No, 2 only applied for one room with courtyard in the ground floor and the Transfer Order has also been issued in his favour with regard to the lower portion in his possession. The statement dated 24-11-1973 of respondent No, 2 (Annexure G) when read with his form No, RSS-VIII/94, clearly shows that the petitioner only applied for transfer of one room in the ground floor in his possession in respect of which the Transfer Order was issued in his favour. The order of the Deputy Settlement Commissioner, dated 30 1-1974 also shows that the entire lower portion has not- been transferred to respondent No, 2 but only the lower portion in his possession. The mere fact that the petitioner made a statement before the Deputy Settlement Commissioner that the entire lower portion be transferred in favour of respondent No, 2 would not ipso facto raise a presumption that the entire lower portion has been transferred to him. In any event, according to the Transfer Order only the lower portion in his possession has been transferred to respondent No,
2. Thus visualized,. The order of the Deputy Administrator (R. P.), dated 7-1-1979, as well as the 'order dated 17-1-1979 of the Administrator (R. P.), Lahore are based on A clear misreading of evidence and on this ground alone, the impugned orders are liable to be quashed.
5. It is clear from the record of the Settlement- Department that the Deputy Administrator (R. P.) examined some of the witnesses produced by the petitioner and thereafter adjourned the case for further evidence for recording the statement of the petitioner for 30-7-1978, but the evidence could not be recorded as respondent No, 2 filed an application for being impleaded as a party to the proceedings. Subsequently, the case was transferred to another Deputy Administrator (Residual Properties) who rejected the Form of the petitioner by the impugned order dated 7-1-1979, without providing an opportunity to the petitioner to conclude his evidence in terms of the order, in question, of his predecessor. The contention o the learned counsel for the contesting respondent that the petitioner himself did not choose to appear as a witness in the case and only confined to the submission of arguments despite ample opportunity, is not supported on record. The impugned order does not show that respondent No, 1 made any reference even to some of the witnesses examined by the petitioner, This being so. I am inclined to agree with the contention of the learned counsel for the petitioner that the order dated 7-1-1979 of respondent No, 1 is violative of the principle of natural justice. The petitioner also raised this question before respondent No, 1 as is evidenced from the grounds of revision petition, which I have perused from the record of the Settlement department, but the Administrator (R. P.) failed to advert to this question, which has resulted in grave miscarriage of justice and prejudice to the petitioner. The impugned orders are, therefore, liable to be quashed on this score as well.
6. In view of the above, the impugned orders are hereby declared to be without lawful authority and of no legal effect. The case is remanded to the Deputy Administrator (R. P.) Central III, Lahore, for disposal afresh of the Form of the petitioner in accordance with law and after hearing the parties.
7. With these observations, the writ petition is accepted with no order s to costs.