' This petition is directed against the order passed by respondent No,2 on 20-10-1981 whereby the applications made by the present two petitioners as well as Rashiduddin and Ferozuddin and Azra Siddiqi for cancellation of the demarcation of areas in the P.T.Ds. Of respondents Nos.3 and 4 were dismissed on the ground that he had no jurisdiction to interfere with the P.T.Ds. And this property had gone out of the Compensation Pool and moreover Rashiduddin had already filed Civil Suit No,3870/79 for the very cause of action.
2. The petitioners are the permanent transferees of two portions out of the six tenements built on a portion of the said plot in the form of two structures. The plinth area of each of the two structures is about 250 sq. Yds. Upon which three tenements of similar size are built, therefore, the total plinth area of these two structures is 500 sq. Yds. Another portion of 570 sq. Yds. Is stated to be lying near these two portions for common use of the different ladies.
3. The respondents Nos.3 and 4 are the permanent transferees of C-2 and 1/2 by virtue of P.T.Ds.
Issued in their favour respectively on 30-11-1962 and 13-2-1962 respectively. Respondent No,6 is the successor of transferee of G-1 who was given P.T.D. For the same on 28-1-1963.
4. The petitioners have paid RS,17,280 for their portion and the respondents Nos.3 and 4 had also paid the same amount.
' The original P.T.Ds. Issued did not include any open portion of land but the P.T.D. In favour of respondent No,3 was amended on 12-10-1964 and an area as per approved plan was included. The approved plan showed an area of about 170 sq. Yds. Similarly respondent No,4 also got a site plan approved on 10-8-1965 showing that 224 sq. Yds. Of land in front of G-1 was transferred to him.
5. The case of the petitioners is that the open land was in common use of every one of the transferees till September 1979, where after respondent No,3 encroached 170 sq. Yds. And thereupon suit was filed by respondent No,5 against respondent No,3 and there it was learnt that respondents Nos.3 and 4 had got their P.T.Ds. Amended by virtue of the site plan having been approved.
' Another important factor to be noted, is that in 1976 a clarification was made by Deputy Settlement Commissioner where the open and covered areas of respondents Nos.3 and 4 were respectively clarified thereby respondent No,3 was shown to be owner of 178 sq. Yds. Of open space while respondent No,4 was shown to be as owner of 224 sq. Yds. Of open space.
6.The different counsels have told me that Suit No,3870/79 was dismissed in 1981 or thereafter.
' In para. No,15 of the petition the petitioners have stated that 88 sq. Yds. Out of 224 sq. Yds.
Transferred to respondent No,4 has been sold by her. The respondent No,4 has stated that she has not sold that area but that one Salahuddin has trespassed on that area and has constructed a building thereon. It has also been brought out that respondent No,6 has encroached upon a considerable area in front of her tenement G-1 which is claimed to have been transferred to respondent No,4 by virtue of the approved plan attached with the' P.T.Ds.
7.The main submission of the petitioners is that these two petitioners and the respondents Nos.3 to 6 are the allottees of six different tenements in the two buildings and that none of them had obtained any allotment of the open space which was there and that they were therefore entitled only to be the owners of the Plinth area in their occupation and that if the open land was required to be allotted to any of the transferees then in fact and as well as according to the instructions issued by the Chief Settlement Commissioner in 1961 the entire open area should have been equally distributed between the six tenements and each of the transferees should have been made the owner of a proportionate area. The conclusion, the petitioners, therefore, reached, is that the indirect method of transfer sought by respondents Nos.3 and 4 by having their P.T.Ds. Amended by the device of filing plans and having them attached with the P.T.Ds. As approved plans, without any notice to petitioners and respondents Nos.5 and 6, was unfair and against the instructions of the Chief Settlement Commissioner and was therefore, illegal.
8.The reply of the respondents Nos.3 and 4 is that they were entitled to get three times of the Plinth area which had been transferred to them respectively and since the Plinth area was 250 sq. Yds.
Therefore, they could seek the transfer of 750 sq. Yds. Of lands but they have got only 178 and 224 sq. Yds. And hence the same was within their rights. They have further stated that the petitioners have no locus standi to challenge these transfers and that the petitioners had never applied for the open spaces and in any case the petitioners have allowed constructions over different parts of Kanga's Compound which has an area of 4,365 sq. Yds. Of land and not merely 1078 sq. Yds. Of land and therefore the petitioners are guilty of laches as well as of having waived their rights if any.
9. I have no hesitation in coming to the conclusion that the open space in a compound had to be equally distributed and demarcated between different allottees/transferees by the Settlement Department as it was the settled policy of the department and, therefore, on that basis the petitioners or their predecessor transferees should have been allowed to appropriate the proportionate portions of open space. But the main difficulty in the way of the petitioners is that they have made an artificial distribution of the whole Plot No,P.R.2/3/1. It is, in fact, an admitted position that the entire plot consists of 4,365 sq. Yds. And the same also consists of different portions of the building but the transferees of the other portions have not been made parties in this petition and therefore, all the necessary parties have not been impleaded.
10. The petitioners have given no basis as to why they treat 1078 sq. Yds. Of land as a separate portion. It has been pointed out by the respondents that Alnoor and Prince markets have been constructed over the open space of the entire compound of 4,365 sq. Yds. Area and that these markets were constructed more than ten years earlier. It has been stated that about 2422 sq. Yds.
Out of the entire open space of 2900 sq. Yds. Has been transferred to the other transferees and the petitioners have never challenged the same.
11. The rejoinder affidavit of the petitioner Atiq Hussain admits the position that the entire plot is 4,365 sq. Yds. Moreover, it has also been stated in the rejoinder affidavit of Atiq Hussain that Haji Salahuddin and his wife were allowed to construct a building by respondent No,4 on 88 sq. Yds. Of land.
12. In the circumstances of this case it appears to me that the petitioners have allowed and suffered many buildings to be constructed in the open spaces of the entire compound of 4,365 sq.
Yds. And that positions cannot be reversed in any manner and therefore it is not the respondents Nos.3 and 4 alone but many others who sought and secured the transfers of open spaces in the said compound in their favour which are now beyond the reach of either the petitioners or even the settlement authorities and, therefore, the entire area is not available now for re-allocation between the different transferees.
' In para. 15 of the petition the sale of 88 sq. Yds. Of land by respondent No,4 was admitted by the petitioner but the petitioner had avoided to mention as to when that transfer took place and had even failed to mention that the same had been constructed upon by Salahuddin who was not even impleaded as a party. It, therefore, appears to me that the situation has gone completely out of hands and the petitioners are themselves responsible for the same as in the first instance they never applied for the transfer of proportionate open space of the entire compound in their favour and moreover they allowed many buildings to be constructed in the entire space of 4,365 sq. Yds.
Their imaginary division of the entire compound into two portions of 1078 sq. Yds. And about 3,300 sq. Yds is the main basis of their claim and since this division is found to be a complete fiction and imaginary, therefore, it is completely baseless as this Court cannot proceed on the basis of a division which has no justification at all and which is even conceded by the petitioner Atiq Hussain.
13. Moreover I do not find anything wrong in the view taken by the respondent No,2 that after the issuance of the P.T.D. He had no jurisdiction to deal with the matter of the P.T.Ds.
14. I may also state that the main basis of attack of the petitioners was the clarification made by Deputy Settlement Commissioner in 1976 whereby he merely clarified the open space and the covered space of respondents Nos.3 and 4 in their respective p.T.Ds. But this clarification made in 1976 was of no consequence because the two P.T.Ds. Of respondents Nos.3 and 4 had been duly amended in 1964 and 1965 where site plan had been attached with those P.T.Ds. And those site plans had been approved by the Deputy Settlement Commissioner concerned and in those site plans the total areas of respondents Nos.3E and 4 had been specified and therefore the P.T.Ds. Had been duly amended by 1965 showing the same areas which were ultimately clarified into open and covered spaces in 1976. Therefore, in 1976 it was a mere clerical amendment of the two P.T.Ds.
Without changing their basic feature.
15. This petition is, therefore, found to be not sustainable in law in view of the changed circumstances and in view of the fact that 4,365 sq. Yds. Of the compound have been allowed to be built upon in different markets under the very nose of the petitioners,