' This writ petition calls in question the order dated 20-5-1980 of the Deputy Settlement Commissioner, Lahore, whereby the question of transfer of excess area of House No, SE-3-R-273, situate in Village Amarsidhu, Lahore, was finally disposed of in favour of respondent No. 1.
2. The facts relevant for the disposal of this writ petition are that the petitioner and respondent No. 1 were applicants for the transfer of the house, in question. The Deputy Settlement Commissioner by order dated 22-8-1961 transferred the house to the petitioner on the ground that he had unauthorisedly occupied one room in the house. Respondent No, I challenged this order in appeal which was dismissed on 2-9-1962. His revision petition was also rejected by the Settlement Commissioner on 7-2-1963. Respondent No. 1 thereupon filed Writ Petition No, 1910-R/63 in the High Court of West Pakistan which was dismissed. A Letters Patent Appeal No, 334/1969 preferred by respondent No. 1 was also dismissed in limine by order dated 10-11-1969. Consequently, respondent No, I approached the. Supreme Court for the redress of his grievance in Civil Appeal No, 68 of 1971 which was dismissed and the transfer in favour of the petitioner was upheld. In the concluding para. Of the judgment (Annexure A), the Honourable Judges of the Supreme Court observed :- "The transfer in favour of the respondent (writ petitioner in the present case) is confined to House No, SE-R-273 and does not include the remaining evacuee land which has been encroached upon by the appellant."
' During the pendency of the appeal before the Supreme Court, respondent No. 1 obtained an order of transfer dated 4-3-1972 of an area of .1 kanal 2 marlqs and 111 sq. Ft. It appear$ that this fact was never brought to the notice of the Supreme Court. Consequently, the Deputy Settlement Commissioner passed another order dated 8-1-1978 to the following effect :- "The judgment dated 22-6-1973 of the Honourable Supreme Court is final whereby the transfer of Abdul Karim has been confined to House No, SE-3-R-273 and not to the evacuee land encroached upon by Saadat Ali. Office may proceed in the case in accordance with the judgment of the Supreme Court. No action is required on judicial side."
' Respondent No. 1 challenged this order by means of Writ Petition No, 458-R/78 in this Court. The writ petition was accepted by judgment dated 18-11-1979 (Annexure F) by my learned brother Khalil-ur-Rehman, J. As he then was, and the matter was remanded to the Settlement Authority with the direction that the observations made in the order of the Additional District Rehabilitation Officer dated 4-6-1959 referred to in the judgment of the Supreme Court should be kept in view and that the question of transfer of the excess area can be taken up only after the main house is demarcated in favour of the present writ petitioner. The observations of the Additional District Rehabilitation Officer dated 4-6-1959 are reproduced below for ready reference :- "The father and other relations of Mr. Saadat Ali Patwari have got allotment of house in village Amar Sidhu. He has been living with his father and has very recently shifted to a room of the property in dispute, in order to complicate matters and press home the advantage of the allotment order collusively obtained by him. The house belongs to Mohan Singh. The total area is about 1 kanal and six marlas and plinth area is about 3 marlas. Mr. Saadat Ali has built one katcha room and has surrounded an area of about 4 kanals with katcha walls. This shows that he has not only unauthorisedly built a katcha room but has also encroached upon piece of land measuring about 2 kanals 14 marlas of some other evacuee and has joined it with the property in dispute.
' His allotment already stands cancelled in view of'D. R. C.'s order dated 11-5-1957 on pages 121-122 of the file. I, therefore, direct him to surrender possession of the property in dispute i,e, the room opening on, the courtyard and demolished unauthorised construction and the katcha walls within a week failing which action will be taken against him under rules. The verandah falling along the main road is in possession of a refugee family and its ejectment is not advisable at this stage. The case of allotment of the property with the exception of the verandah will bOreferred to allotment board as and when it is got vacated."
' Thereafter, respondent No. 1 challenged this order by means of lntraCourt Appeal No, 38/80 which was also dismissed in limine with the following observations :- "Since the question of transfer of the aforesaid house in favour of respondent was finally settled by the Supreme Court's judgment, a question does arise as to its demarcation and until that is settled, no transfer of any land can be made which forms part of the said house. The direction given by the learned Single Judge is, therefore, nothing but requiring an implementation of the Supreme Court's judgment and as such no exception can be taken. On this view of the matter, we do not find any substance in this appeal which we dismiss in liming,"
' In pursuance of the remand order dated 18-11-1979 passed in Writ Petition No, 458-R/78, the learned Deputy Settlement Commissioner vide order dated 20-5-1981 (Annexure G) demarcated the main house. The certified copy of the site plan has been placed on record, and the remaining land measuring I kanal 2 marlas 111 sq. Ft. Whereupon respondent No. 1 has raised permanent construction and has also applied for its transfer under revised Settlement Scheme No, VIII. It is stated that he has already paid the entire amount and P. T. D. Also issued in his favour.
3. Learned counsel for the petitioner contended that in terms of paragraph 19(2) of the Settlement Scheme No, I, the excess of the land attached or appurtenant to the house transferred to the petitioner cannot be disposed of as building site under paragraph 14 of the Schedule to the Displaced Persons (Compensation & Rehabilitation) Act, 1958 (hereinafter called the Act), until the petitioner did not desire to purchase the remaining part of the land. I am afraid, the petitioner cannot take any benefit of the aforesaid provisions, in that, the litigation is going on with respect to the property, in question, since 1961 between the parties, but this point was never agitated before any competent forum. This has not been urged even in the present writ petition although, the learned counsel argued this point at the time of preliminary hearing of the writ petition as well as during the course of final arguments. It is, therefore, not necessary to examine the contention of the learned counsel for the contesting respondent that the provisions of paragraph 19 of Settlement Scheme No 1 have been declared ultra vires of the Act vide Tufail Muhammad Khan v. Abdul Hamid and others (1) and the stand taken by the learned counsel for the petitioner that the Supreme Court merely overruled Tufail Muhammad Khan's case in so far as, holding memorandum No, 301- P-1-Reh., dated 9-1-1960 to be ultra vires which contained instructions given to subordinates in matter of exercise of power delegated by the Chief Settlement Commissioner for the disposal of excess area. The sole question to be determined in this case is that afterd emarcation of the house transferred to the petitioner, whether there was any excess area over and above three times plinth area transferred to the petitioner and who was entitled to the transfer of the excess area i,e, whether the petitioner or respondent No, I. The question relating to disposal of excess area stands settled by the judgment of the Supreme Court in Sahibzada Syed Muhammad Matin Mirza v.
Jahangir R. Rustamji and another (2). Learned counsel for the parties also have strongly relied upon this authoritative pronouncement in support of their respective claims. It appears that the first notification issued by the Chief Settlement Commissioner on the question of transfer of excess area is contained in Memo. No, 301-P-1-Reh./60 dated 9-1-1960 followed by other notifications dated 11-3-1951 [Settlement Manual (Second Edition) page 518-519] and Press Note dated 22-10- 1962 which again had been superseded by the Press Note dated 16-4-1964. The scope of these notifications is dealt with at pages 74-75 of the Supreme Court judgment quoted above which reads thus "As to the question, however, whether the petitioner is entitled at present to rely on Memo., dated 9- 1-1960 it will be sufficient to mention that the concession contained in that memo. Was withdrawn by a. Press Note dated 11-3-1961 on pages 518-519 of the Settlement Manual (Second Edition).
' This Press Note reads as follows :- ' In the instructions issued by the Chief Settlement Commissioner on 9th {{FOOT NOTE}}
(I) PLD 1967 Lah. 1058 (2) PLD 1980 SC 64 {{FOOT NOTE}} ' January, 1960, regarding disposal of the area of the ground and gardens attached or appurtenant to a house, it was inter alia laid down that the person to whom the house was transferred, would be entitled to purchase the area in excess of three times the plinth area subject to certain conditions.
A number of representations have been received by the Chief Settlement Commissioner that this concession gives undue advantage to the transferee of the house to detriment of the interest of claimants who have not been able to obtain any property so far. The Chief Settlement Commissioner has accordingly decided to withdraw this concession with effect from the date of issue of this Press Note. Only an area equal to three times the plinth area of the house will be allowed to be transferred to the transferee of the house in accordance with the prescribed procedure. Marginal adjustments will, however, be allowed up to 500 sq. Yds. On payment of the price of the excess area allowed for such adjustments. In case, however, the transferee of a house has made full payment for the area in excess transferred to, him over and above three times the plinth area before the issue of this Press Note, the transfer of the area in excess in his favour will be allowed to stand.
' The Chief Settlement Commissioner has also decided that reservation of building sites in favour of those who offer to pay the average auction price plus 50% in accordance with the instructions issued by him on 24th June, 1960, should be stopped with effect from the date of issue of this Press Note. All available building sites will in future be disposed of by unrestricted public auctions unless any person is entitled to their transfer under the law."
' No doubt, the aforesaid Press Note saves the cancellation of the extent of plinth area in certain cases but in this regard we may observe that it was accepted by both the parties in the proceedings before the Additional Settlement Commissioner, as noted in his order dated 19-6-1973, that area of the bungalow and outhouses was 655 sq. Yds. And by adding three times the plinth area the petitioner was entitled to the transfer of 2,620 sq. Yds. We are not prepared to open the question of calculation on the subject to which both sides had at one stage of the case agreed.
Similarly, the above Press Note saved only those cases where a transferee had made full payment for the area in excess transferred to him over and above three times the plinth area prior to the date of the issuance of that Press Note namely 11-3-1961 but the appel'ant does not fall in that category because there was no conscious transfer of any`excess area (i,e, over and above three times the plinth area) to him and nor a separate assessment of price of the aforesaid excess in that perspective. Learned counsel for this purpose wanted to rely on issuance of P. T.
0. To him on 1-4-1960 and subsequent P. T. D. But as we have already held that, according to it, it was only of "house" that was transferred to him and not of any area over and above the three times the plinth area In this respect it may be mentioned that he stands in the same position as the respondent who relied upon a notification dated 22-10-1962 which was later on rescinded as explained in the sequal.
' We now come to the third and vital contention that the Press Note of 22nd October, 1962, could not be availed of by the respondent as the same had since been superseded by the Press Note dated 16th April, 1964, on the subject of "disposal of land attached to houses in excess of three times the plinth area, it was laid down in para. 5 as follows: - "Non-claimant displaced persons or local occupants of the houses will not be entitled to the transfer of any building site out of the excess area. If, however any such person duly applied for the transfer of the building site in response to the Press Note dated the 22nd October, 1962 and has made full payment before the issue of revised orders by the Central Government his case need not be re-opened."
' A Press Note was also issued on the same day, explaining the above decision and the relevant part of it is as follows :- "In the Press Note issued on the 22nd October, 1962, the persons in possession of houses to whom such houses had not been transferred were permitted to apply for the transfer of one of the building sites made out of the excess area attached to the houses subject to certain conditions.
The Central Government have now decided in supersession of the previous orders on the subject that only a claimant will be entitled to the transfer of one of the building sites in the excess area provided he had applied for the transfer of the main house in the prescribed manner but did not get it in view of the fact that another person with a superior title secured the transfer. Non-claimant displaced persons and locals will not be eligible to the transfer of the building site out of the excess area."
5. It, therefore, appears that the question of disposal of excess area is to be examined in the light of the last Press Note on the subject dated 16-4-1964 which holds the field. It is true that in terms of the Press Note dated 16-4-1964, non-claimant displaced persons and local occupants of the houses are not entitled to the transfer of any building site out of the excess area, but the transfer already made in their favour could not be re-opened if the building site bad already been transferred to them in pursuance of the Press Note dated 22-10-1962 earlier issued. The petitioner was admittedly not transferee of the disputed land in pursuance of the Press Note dated 22-10- 1962 and, therefore, no benefit could be availed of by him in pursuance of the instructions contained in para. 4 of the Press Note dated 16-4-1964. In this background, it is immaterial to examine the effect of another notification dated 16-4-1964 wherein the Central Government decided in supersession of previous orders that only claimants will be entitled to the transfer of one of the building sites. I am, therefore, of the view that the respondent No, being a non-claimant was not entitled to the transfer of the excess area pursuance of the second Press Note dated 16-4-1964 as plot in dispute, has not been transferred to him before the issuance of the revised order of the Central Government dated 16-4-1964. Be that as it may, the petitioner has no locus standi to avail any benefit of the revised Press Note dated 16-4-1964 as it applied only to the claimants who had applied for the transfer of the main house in the prescribed manner but his entitlement was rejected in favour of another person with a superior title. The main house admittedly has been transferred to the petitioner, and, therefore, in terms of the a for B said Press Note, he has no vested right to claim the excess area, in dispute, even if unauthorisedly transferred in favour of respondent No, 2.
6. In any event, an independent cause of action acrued to the responder No. 1 under the revised Settlement Scheme No, VIII. Therefore, the mer fact that his form for the transfer of the main house was earlier rejected by the c Settlement Authorities and this decision was ultimately upheld by the Supreme Court would not in any way affect his entitlement to claim the land in his possession on which he has raised permanent construction under revised Settlement Scheme No, VII In terms of the decision of this Court in Intra Court Appeal No, 38/80, the only condition precedent for the transfer of the excess area was that in the first instance, the demarcation of the house should be made. That having been done by the Settlement Authorities, no exception can be made for transfer of site, in dispute, in favour of respondent No. 1 who has been found to be in possession and raised construction thereon and, therefore, the petitioner could not lay any claim to such portion. This view finds support from the judgment of the Supreme Court in Irshad Ahmad v. Settlement Authority, Punjab (1).
7. Learned counsel for the petitioner finally submitted that no proper demarcation of the house was made by the Deputy Settlement Commissioner and an excess area has been transferred to respondent No. 1 which is violative of the order of the Supreme Court dated 22-6-1973. I am afraid, the question D relating to availability of excess area after demarcation of the main house transferred to the petitioner is a question of fact which cannot be examined in the exercise of constitutional jurisdiction.
' For the reasons stated above, the writ petition fails, but there shall be no order as to costs. {{FOOT NOTE}}
(1) 1981 SCMR 758 {{FOOT NOTE}}