1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave of this Court is directed against judgment dated 18th September, 1968 of the Lahore High Court ; whereby a learned Division Bench dismissed appellant's Letters Patent Appeal which had arisen out of an Urban Settlement Case.
2. Leave was granted to examine the following contentions raised on behalf of the appellant :- "that the property in dispute was not acquired by the Lahore Improvement Trust ; that the high Court has gone into disputed question of facts and has decided the dispute between the parties on merits itself. This according to the learned counsel, the High Court was not competent to do ; that at best the High Court could have remanded the case to Settlement Authorities for deciding the dispute between the parties."
3. ' These questions had arisen in the circumstances that follow :- ' The property in dispute is bungalow on Plot No, 8-F, Gulberg. The said plot is situated on part of land contained in Khasra Nos. 834 and 840 in the Revenue Estate of Village Ichhra, District Lahore. In 1955, the said property was purchased by deceased Shamsuddin Ahmad, predecessor-in-interest of respondents Nos. 1 to 4, from the Lahore Improvement Trust, for the sum of Rs, 36,500. The bungalow in question was requisitioned by the Provincial Government in September, 1959 and allotted to the petitioner. The petitioner filed an N. C. H. Form for the transfer of the said bungalow and on the 19th May, 1960, the Deputy Settlement Commissioner, transferred it to him.
4. ' Deceased Shamsuddin Ahmad challenged this order before the Settlement Commissioner on the ground that he had already purchased it from the Lahore Improvement Trust, the property in dispute was non-evacuee property and the subsequent transfer was illegal. The matter was considered by the Settlement Authorities and ultimately Syed Ijaz Hussain Shah, the then Settlement Commissioner, in revision, held that property in dispuite has not been acquired by the Improvement Trust and it had disposed of a property which did not vest in it. He, therefore, restored the disputed property in favour of the petitioner by his order, dated the 31st May, 1963.
5. ' The respondents Nos. 1 to 4 challenged this order .In Writ Petition No, 2054 of 1964. A learned Single Judge of the High Court by order dated the 18th September, 1968, set aside the order of the Settlement Commissioner on the ground that it was based on assumption of facts which do not exist on the record and being a judgment based on no evidence is without lawful authority. This view was also upheld by a Letters Patent Bench of the West Pakistan High Court, Lahore, in Letters Patent Appeal No, 287 of 1968, which was dismissed in limine on the 17th December, 1968. It was held that there was enough material to show that the area in dispute was included in the Scheme framed by the undivided Government of Punjab in February, 1947, it was duly acquired by the Lahore Improvement Trust under the sanction accorded by the Central Government and was not in the compensation pool.
6. ' An appeal Bench of this Court on hearing this appeal on 22nd of March, 1977 passed the following order :- "Remanded to Custodian, Evacuee Property, for holding an enquiry on the following points and making a report ;
(a) Whether the bungalow constructed on Khasra Nos. 834-Min, 839-Min and 840-Min. Was included in the sanction given by the Punjab Government on 18-2-1947 for acquisition under the Land Improvement Act, 1922, for development of building sites ;
(2) Whether the said bungalow was acquired by the Lahore Improvement Trust with the approval of the Custodian Evacuee Property and it ceased to be evacuee property ; and
(c) Whether the bungalow was sold to late Mr. Shamusuddin Ahmad by the Lahore Improvement Trust in accordance with the law.
7. "Enquiry will be completed and report submitted to the Court within six months. To be listed on the receipt of the report."
8. ' In pursuance of the afore-reproduced order, learned Custodian submitted his report, dated 1st September, 1980 which is very elaborate. It runs into neatly 26 pages. It is agreed by the learned counsel for the appellant that the Custodian's Report, for all practical purposes is against the appellant. He, however, explained that this Report was treated by the appellant as an order which the Custodian could pass by virtue of his power to declare a property as evacuee or vice versa. Be that as it may be, he further submitted that the appellant bona fide believed that the Report could be independently challenged before the High Court in writ jurisdiction ; he, therefore, filed a Constitutional Petition in this behalf in the High Court. It was dismissed mainly on the consideration that the Report in question having been submitted in pursuance of a direction of the Supreme Court, the matter could be agitated before the same Court. It is in this background that the appellant filed a separate Petition for Special Leave to Appeal (No, 508 of 1981) ; whereby the Report submitted by the Custodian and the order in that behalf passed by the High Court refusing to exercise writ jurisdiction have been brought under challenge.
9. ' After some discussion on the question whether Petition for Special Leave to Appeal No, 508 of 1981 relating to the same subject-matter could be independently pressed by the appellant during the pendency of the appeal, learned counsel for the appellant took up the position that he would not press it as such but would urge the points in support thereof as objections to the Report in this appeal which it is agreed by all the learned counsel would be deemed to be still pending notwithstanding the use of the word "remand" in the order, dated 22nd March, 1977.
10. ' Learned counsel for the appellant then raised the following contentions:-
(1) That the bungalow in dispute is situate in Khasra Nos. 834 and 840 while notifications relating to the acquisition of land for the relevant Lahore Improvement Trust Scheme contains the reference to Khasra Nos, 834 Min and 840 Min without any particularisation as to which Min parts of the said two Khasra numbers were the subject of acquisition. In other words according to him without such specifications the land underneath the bungalow would not be deemed to have been acquired ;
(2) That the original Town Development Scheme of 1947 of Lahore Improvement Trust was for about 1,100 Acres while the relevant notices issued in 1951 and the approval granted on 26-7-1951 related to much lesser area of about 540 Acres. There was no evidence before any authority to hold even if the bungalow in question was included in the original plan, it also remained included in the modified Scheme and did not form part of the abandoned area ;
(3) That the notification of approval by the Government, dated 26th July, 1951 specified the boundaries of the land in the approved Scheme as follows ; "bounded by the Jail Road Development Scheme area and Jail Road on the North, existing factories, Gandhi Park and the Railway Lines on the East, the Storm Water Drain on the South and the F. C. College, the Trust Development Scheme for the area adjoining that College and the Canal Park Colony in the West."
11. ' This description by boundaries of the area under the Scheme, according to the learned counsel for the appellant did not include the bungalow in dispute because as asserted by him, the survey map of the relevant locality of Lahore would show the bungalow in dispute as out of these boundaries. The reference point according to the learned counsel in this behalf is 'the Storm Water Drain on the South'. And that being so the bungalow, it was further argued, being beyond 'the Storm Water Drain on the South' was not included in the Scheme ; and lastly ;
(4) That the Central Government granted permission regarding the transfer of evacuee property for that Scheme which was prepared in 1947 regarding 1,100 acres. But the Provincial Government sanctioned the Scheme for a lesser area on 26th of July, 1951. Accordingly approval of the Central Government for a larger area in May, 1951 would not be lawfully available for the modified Scheme for the lesser area.
12. ' Learned counsel for the respondents on the contrary contended with reference to the official maps of Lahore that the bungalow in question with the two relevant Khasra numbers of land was in fact included in the Scheme which was sanctioned by the Provincial Government on 26-7-1951 in connection with which the Central Government had accorded approval on 16-5-1951. They also contended that the approval of the Central Government includes the bungalow/the land in dispute.
13. The questions raised before us are essentially on facts which according stood the tenor of the order passed by this Court on 22nd March, 1977 stood concluded. The bungalow in question was mentioned as having been constructed on Khasra numbers which included 834 Min and 840 Min pointed out by the learned counsel for the appellant. That being so, both these Khasra numbers, it cannot be denied, having been included in the Scheme, no question has been raised that the approval of the Provincial Government was not accorded for the original Scheme in which these Khasra numbers (with the bungalow) were included.
14. ' The main argument in this behalf of the learned counsel thus is left with regard to the reduction of the total area of the Scheme and/or the exclusion of the land in question by reference to the boundaries of the Scheme in the notification of 26th of July, 1951 with reference to the Southern boundary of "the Storm Water Drain" These are also questions of fact and have been decided by a Special Tribunal and the High Court against the appellant. These has been no departure from any law or principle with regard to that decision. We, however, on request of the learned counsel for the appellant ourselves felt satisfied by making reference to the relevant material including the maps that the bungalow with the land in question; was included in the Scheme which was approved by the Government and executed by the Lahore Improvement Trust. The Storm Water Drain pointed out by the learned counsel for the appellant on the survey map as being on the South of the Scheme is different from the Storm Water Drain pointed out by the learned counsel for the respondents ; whose arguments with reference to the other boundaries showing that the land in question was included in the Scheme which, no doubt, are weighty. According to the location of the property in question even if only three boundaries about which there is no dispute, are kept in view, it falls within the so-called smaller Scheme-(it is not necessary in this case to give a decision whether or not any part of the original Scheme was abandoned at any stage as it might prejudice some case which is not before us). Apart from this we found in this behalf intrinsic evidence on record including the statement of facts recorded in the Award by the Collector in 1954 when this dispute had not arisen. Learned counsel was also unable to render an affirmative answer to the question whether any other property small or big adjacent or around the property in question remained excluded from the Scheme which includes a vast area. The fact that this property was, with reference to its owners, assessed in the Award for the compensation also shows that it was included in the relevant Scheme and the existence of that Award at the relevant time has not been disputed before us.
15. ' After hearing the learned counsel at some length we have not been able to find force in any of his contentions. This appeal accordingly fails and is dismissed. There shall be no order as to costs.
16. ' The Civil Petition No, 508 of 1981 as noted in the earlier part of this judgment is also dismissed as not pressed.