Mst. Hajran widow of Abdul Majeed was transferred by the 'Chief Settlement Commissioner, vide order, dated 19-11-1960 property bearing NO.BXI-IS-57 (Bungalow) Gujranwala, for which a P.T.D.
Was issued in her favour by the Deputy Settlement Commissioner on 3-3-1962. On her application, the D.S.C. After obtaining the reports of the Settlement Inspector and the Patwari concerned, demarcated the property in question, vide order, dated 1-1-1971. Malik Abdur Rashid Khan, since deceased and represented by his heirs respondents Nos.l to 7, it is stated by their learned counsel, filed a revision petition in .The Office of the D.S.C. On' 20-6-1974, praying that "the order, dated 1-1- 1971 of the D.S.C., Gujranwala and the whole proceedings of demarcation taken after the issue of the P. T . D. Of Property No. BXI-IS-57 be declared to be illegal and without jurisdiction and as such void ab initio and of no legal effect and the land measuring twenty-four Marlas (24 M) of the petitioner included in illegal plan attached with the report be ordered to have stood already transferred to the petitioner predecessor-in---interest per R.L.II and the possession of the said quarters 'as directed by the learned S.C. Gujranwala in his order, dated 19-6-1974 be delivered to the petitioner". It may be noted here that Malik Abdur Rashid Khan had purchased the land allotted on R.L. lI in favour of Mian Irshad Ali. During the hearing of the revision petition, the S.C. Called for a report from the D.S.C. Who reported that the property in dispute was 8 Kanals 4 Marlas. The learned S.C. Observed that the revision petition is barred by almost 31 years. The case has, however, got to be decided on merits even if I had to invoke my suo motu revisional jurisdiction for the following reasons:----
(a) The impugned order, dated 1-1-1971 of the learned Deputy Settlement Commissioner, was made in an indecent haste (in a single day) without notice and even subsequent information to the parties likely to be affected in an executive manner.
(b) So far as the question of giving three times of the plinth area to a transferee is concerned, the position is that the transferee is entitled to have the same, if any land is available in that unit. It is not the position that the department is bound to give three times of the plinth area to a particular transferee even at the expense of the neighbouring transferees of other properties owned by other evacuee owner. In this particular case the impugned order, dated 1-1-1971 of the learned Deputy Settlement Commissioner (Urban) went to hit the agricultural land which fell within the jurisdiction of the Deputy Settlement Commissioner (Land).
(c) While making his ex parte and a very haste executive order, dated 1-1-1971, the learned outgoing Deputy Settlement Commissioner entirely depended upon the reports of his Head Clerk and Settlement Inspector of the same date and made an order consisting of only three lines and simply signed the sketch. The present learned Deputy Settlement Commissioner has, taken the measurements at the spot with the help of the revenue staff and has consolidated all the relevant record.
Such things have got to be straightened out and I accordingly declare the order, dated 1-1-1971 of the learned Deputy Settlement Commissioner as an illegal order, being bad in law and without any effect. For the purposes of determining the extent of bungalow No.S-XI-1-S-57 Gujranwala, the report, dated 18-10-1977 received, vide No.DSC-CRW/ RR/77/797 shall be adopted. It is further held that this bungalow which was owned by Mst. Harindar Kaur is situate in Khasra No. 542 and has got the total area of 8 Kanals 4 Marlas. The transferee Mst. Hajra Begum is only entitled to this much.
The question as to what belongs to whom, over and above this area of 8 Kanals 4 Marlas, is out of my provisions and hence no finding with regard to the alleged encroachment on any allotted agricultural land." This is, vide order dated 4-6-1978. This has been challenged by Mst. Hajra Begum and Government of Punjab, through Social Security Institution, represented by its Director, Gill Road, Gujranwala, who has got impleaded as a petition being a transfereee of the bungalow from Mst.
Hajran Begum.
2. Ch. Muhammad Hassan, Advocate, appearing for respondents Nos .l to 7, heirs of Malik Abdul Rashid, states that the area sold to respondents Nos.8 to 16 heirs, of Athar Hussain and to Ali Abbas represented by his widow respondent No.17, by the, petitioner Mst. Hajra Begum, his clients give up their claim thereto. So, also the learned counsel states that his clients lay no claim in respect of the bungalow sold by the petitioner Mst. Hajra Begum in favour of Social Security Institution, Gujranwala, petitioner No.2.
3. Learned counsel appearing for Mst. Hajra Begum has contended that the revision petition was smuggled into the record of the D. S.C. Even without first page which might have shown as to when it was filed and from the loose papers it was sent on to the Settlement Commissioner, who has passed the impugned order. It is secondly contended that the revision petition was barred by 31 years as observed by the learned Settlement Commissioner in the impugned order. He should have dismissed the same straightaway. Instead, he proceeded to observe that "the case has, however, got to be decided on merits even if I had to invoke my suo motu revisional jurisdiction."
Learned counsel contended that there was no such compulsion. The reasons the learned Settlement Commissioner advanced for doing so are untenable. He had observed, firstly, that the D.S.C. Had demarcated the property on 1-1-1971 in an indecent haste in a single day. This is not so.
Reports were called. Second report was submitted on 29-10-1970.. Instructions were asked to be submitted, vide order, dated 21-12-1970. After that order was passed on 1-1-1971 (Annexure 'B').
Secondly, that the Deputy Settlement Commissioner in his order, dated 1-1-1971 has depended on the reports of his subordinates but that would only show that he had taken care to pass the order after spot inquiry. Lastly, it was contended that even if the Settlement Commissioner had felt compelled to invoke his suo motu jurisdiction, he had to issue notice to the petitioner No.l, notwithstanding that she had been proceeded ex parte in the revision petition.
4. Learned counsel for the contesting respondents Nos.l to 7 has submitted that the petitioner No.1 Mst. Hairs Begum has no locus standi to maintain this Constitutional petition because she has sold away all the property to either the Social Security Institution or to Khawaja Akhtar Hussain and Ali Abbas represented by their heirs and the answering respondents do not claim any property sold in their favour. Learned counsel also submitted that the order of the D.S.C., dated 1-1-1971 set aside by the learned Settlement Commissioner, vide the impugned order, dated 4-6-1978 was itself illegal for having been passed after issuance of P.T.D. In favour of Mst. Hajra Begum as the Settlement Authorities had become functus officio after the issuance of P.T.D. He also submitted that since the Settlement Commissioner has set aside an illegal order, the order of the Settlement Commissioner impugned in this petition even if it be illegal, is not liable to be set aside in exercise of Constitutional jurisdiction because the learned Settlement Commissioner had set right the wrong and the petitioner has no right. Learned counsel further submitted that the petitioner has misstated the fact in the petition when it was said that the bungalow was sold by her to the Social Security Institution in June, 1974, whereas in fact it was sold on 20-11-1975. In reply, the learned counsel for the petitioner has referred to Maqbool Ahmad and another v. Settlement and Rehabilitation Commissioner, Sargodha and others PLD 1983 SC 337, to contend that even after the issuance of Permanent Transfer Deed, the Settlement Authorities had the jurisdiction to demarcate the property which they had earlier transferred.
5. I have heard the learned counsel for the parties at great length and also perused the record with their assistance. The following points emerge distinetly:- Firstly, that after the revision petition of the respondents' predecessor-in-interest Malik Abdul Rashid had been found to be barred by 31 years, there was no compulsion for the Settlement Commissioner to go on to invoke his suo motu revisional jurisdiction. Secondly, if the Settlement Commissioner had to invoke his suo motu jurisdiction, he had also to issue notice to the persons likely to be affected by exercise of suo molu jurisdiction, i.e. Mst. Hairs Begum which was admittedly not done. Earlier notice to her in the revisional proceedings which had been taken ex parte would not mean that when he intended to invoke his suo motu revisional jurisdiction, he was not to issue her a notice to proceed further.
Thirdly, although the Settlement Commissioner has slashed the transfer in favour of Mst. Hairs Begum and reduced the area transferred in her favour, yet he has passed no order as to whom the extra area would go. He had expressly said that "the question as to what belongs to whom over and above this area of 8 Kanals 4 Marlas, is out of my provisions and hence no finding with regard to the alleged encroachment on any allotted agricultural land."
Fourthly and finally, the learned Settlement Commissioner having not given the area which he though was excess and claimed by the respondent Malik Abdur Rashid as agricultural land having been allotted to his vendor, and the respondent having not challenged the deprivation in any manner either by approaching the Settlement Authorities on the land side or by filing a petition in this Court, the order of the Settlement Commissioner has become final against the respondent Malik Abdul Rashid.
6. The contention of the learned counsel for the respondents, successor-in-interest of Malik Abdur Rashid that the petitioner No.l has no locus standi because she has sold the entire area, is not quite correct. Firtsly, according to her learned counsel, there is still some area with her and, secondly, if the petition were to fall, she would be liable to her vendees for the consideration received. The fact that the respondents do not claim the property sold in favour of the vendees is not enough to deprive the petitioner No.l of her rights to maintain the Constitutional petition. The contention regarding the misstatement about the date of sale in favour of Social Security Institution is neither important nor fatal. The contention that the order of the D.S.C., dated 1-1-1971 set aside by the Settlement Commissioner in the impugned order, dated 4-6-1978, was itself without jurisdiction because after issuance of P.T.D. Settlement Authorities had become functus officio and, therefore, the order of the Settlement Commissioner impugned in this petition need no be interfered with, is not quite correct, in view of the judgment of the learned Supreme Court of Pakistan quoted by the learned counsel for the petitioners viz. PLD 1983 SC 337, wherein it was laid down that the Settlement Authorities can demarcate the property transferred to a person after the issuance of a P. T . D.
7. From what has been stated above, it would be quite clear that Mst. Hajra Begum was transferred the property under the orders of the Chief Settlement Commissioner, dated 19-11-1960. She was issued the P.T.D. On 3-3-1962. The property after spot inspection and reports of the relevant officials, was demarcated in her favour by the D.S.C. On 1-1-1971. On a revision filed after 3J years and so finding, the learned Settlement Commissioner had no compulsion or justification to invoke his suo motu revisional jurisdiction. Even if he were to proceed, he could not pass any order without notice to the lady which was admittedly never done. The reasons given in the impugned order are not correct either. Depriving the lady and not giving anything to the respondent either, was arbitrary.
Settled affairs have unduly been unsettled. Therefore, in all these circumstances, the order of the learned Settlement Commissioner, dated 4-6-1978 was clearly without lawful authority and of no legal effect. It is so declared. The petition is allowed. However, the parties are left to bear their own costs in the circumstances.