1. The facts necessary for the disposal of this Constitutional petition are that the property No.8-77-R- 7/8 commonly known as 8, Jail Road, Lahore for the purpose of transfer was divided into two units.
2. One unit was transferred to Mrs. F.A. Siddiqui while the other unit was transferred to Bashir Ullah and Masih Ullah, vide order, dated 28-5-1960 of the then Deputy Settlement Commissioner. Muhammad Ehsan who died during the pendency of this petition and now is represented by the legal representatives agitated against the transfer order as no part of the building was transferred to him by filing an appeal as well as revision before the Settlement Authorities but the same remained unsuccessful. The matter was taken up to the Supreme Court by the deceased petitioner without any success. Muhammad Ehsan deceased petitioner thereafter submitted an application seeking transfer of the excess land attached to the said bungalow. On this application the Deputy Settlement Commissioner, vide order, dated 15-12-1971 after carrying out the measurements of the area at the spot recorded the conclusion that the total area of the bungalow was 10 Kanals 15 Marlas 37 sq. Ft., of which eastern portion measuring 4 Kanals 11 Marlas was transferred to Mrs. F.A.
3. Siddiqui transferee of the first unit. As regards the balance area of 6 Kanals 3 Marlas and 262 sq. Ft.
4. The Deputy Settlement Commissioner held Bashir Ullah and Masih Ullah respondents entitled to the transfer of an area measuring 1 Kanal, 13 Marlas and 261 sq. Ft. The remaining area, 4 Kanals 10 Marlas and 1 sq. Ft. Was transferred to the deceased petitioner. This was done by the Deputy Settlement Commissioner, vide order, dated 15-12-1971. Bashir Ullah and Masih Ullah challenged this order in Constitution jurisdiction W.P.1333/R of 1974 but the same was dismissed on 13-2-1976 by a learned Judge of this Court. Civil petition for Special Leave to Appeal C.P.S.L.A. No.288 of 1976 filed in the Supreme Court against the aforesaid order was also dismissed on 11-2-1979. In this manner the question of disposal of the main building as well as the excess area of property No. S-77-R-7; 8, Jail Road, Lahore attained finality. It is pertinent to mention here that Meraj Din one of the occupants of the excess area within the bungalow in question submitted an application seeking transfer of the land in his possession on the basis of construction raised by him. This application was, however rejected by the learned Deputy Settlement Commissioner, vide order, dated 14-7-1975 holding that the plot claimed forms part of the property already transferred and that the matter of transfer is sub jusdice before the High Court. Another important fact to be noted is that during the pendency of petition for special leave to Appeal before the Supreme Court the deceased-petitioner submitted an application seeking an order restraining Meraj Din from raising any construction over the portion in his occupation. The injunction prayed for was issued, vide order, dated 10-9-1978.
5. Meraj Din still did not feel frustrated and or, another application for transfer of the plot in his possession the then Deputy Settlement Commissioner, vide impugned order, dated 22-7-1981 obliged him by transferring to him 4 Marlas 180 sq. Ft. Out- of Khasra No.10053/849 and 848.
6. Another area measuring 1 Kanal, 17 Marlas 13 sq. Ft. Was ordered to be disposed of through auction.
7. This led to the filing of the present Constitutional petition.
8. 2.I have heard the learned counsel for the parties. Learned counsel for Bashir Ullah and Masih Ullah supported the case of the petitioners. The matter of transfer of the building and the excess area attained finality with the decisions rendered by the Supreme Court. Learned counsel for Meraj Din obviously had nothing to urge against the finality attaching to the transfer order passed in respect of the excess area found in the building. He, however, asserted that the area measuring 4 Marlas 180 sq. Ft. Transferred to Meraj Din does not fall in the excess land of Bungalow No. S-77-R-7/8, Jail Road, Lahore transferred to the deceased-petitioner. According to him this area was available on the spot in addition to the excess area of the aforesaid bungalow. He, however, admitted that the property No.S-77-R-7/8 falls in Khasra No. 10053/849/1 and that this Khasra number according to the revenue record measures 10 Kanals, 15 Marlas and 37 sq. Ft. If this is so then the other Khasra number mentioned in the impugned order is Khasra No.848. In the impugned order the Deputy Settlement Commissioner observed that the area measuring 2 Kanals, 1 Marla, 193 sq. Ft. Was situated in Khasra No.848 and 10053/849/1 which was in possession of Meraj Din, Petrol Pump, Muhammad Shafi son of Taj Din, Muhammad Shafi son of Mehr Din and Muhammad Ehsan and that Muhammad Ehsan was keeping excess land measuring 10 Marlas 1 sq. Ft. Out of this land which was still available for disposal and for which he has got, no entitlement. It was also observed in the. Same order that the area measuring 2 Kanals, 1 Marla 193 sq. Ft. Has been found evacuee and was still available for disposal. With these observations the excess land was found available and out of this land 4 Marlas 180 sq. Ft. Was transferred to Meraj Din respondent No.l and the balance area measuring, 1 Kanal, 17 Marlas 13 sq. Ft. Was ordered to be put to auction for disposal.
9. The approach of the Deputy Settlement Commissioner is fallacious and arbitrary. Khasra No. 10053/849/1 measuring 10 Kanals. 15 Marlas 37 sq. Ft. Stood transferred to the three transferees mentioned above. Nothing was stated in the impugned order to show as to how Muhammad Ehsan the deceased transferee was in possession of any A additional area over and above the excess land transferred to him and how Khasra No.848 can be joined along with the other Khasra No.10053/849/1. Again it was not seen that Khasra No.848 as per Khasra Amarti measuring 19 Marlas 55 sq. Ft. Was under the road. This being the position Khasra No.848 could not be utilized for the purpose of thi transfer. The learned Deputy Settlement Commissioner also failed t< give -a finding as to which is the Khasra number in which the land it occupation of Meraj Din was located. If it fell in Khasra No.10053/849/l then nothing was available for disposal. If it fell in Khasra No.84E then again the same was not available for transfer. This being the position the impugned order is unsustainable in law.
3. For the reasons given above this petition is accepted. The impugned order, dated 22-7-1981 is declared to have been passed without lawful authority and hence is of no legal effect.
10. 4.The parties are left to bear their own costs.