' SHAFIUR RAHMAN, J.--Two petitions, seeking leave to appeal against the judgment of the Lahore High Court dated 5-4-1989, have been filed. In the High Court, two Constitution Petitions were filed, one (Writ Petition No,2001/1986) challenging the order of the Rent Controller dated 17-7-1985 and of the appellate authority/Additional District Judge dated 13-3-1986 upholding the ejectment of the petitioner from the shop, and the other (Writ Petition No,274-R of 1982) against the order of the Administrator Residual Property dated 5-6-1982 whereby a part of the same shop was held to be available property and the delay by the petitioner in applying for it was condoned. The High Court, by the impugned judgment accepted the Constitution Petition of the respondents (Writ Petition No,274-R of 1982) and dismissed the one (Writ Petition No,2001 of 1986) filed by the petitioner, against his ejectment order.
2. The petitioner had admittedly obtained the shop in dispute on tenancy from the respondents on 1-6-1961 for a period of fifteen years. He had at one stage set up a claim for its purchase from them but that was not sustained. The case made out by him before the Administrator (Residual Property) was that after obtaining the shop on tenancy from the respondents he had added to it by suitable alteration another portion in possession of one Azizuddin obtained from him by giving him Pagri.
According to him, the portion so obtained from Azizuddin and amalgamated with the property of the respondents, was undisposed of property and he being in possession was entitled to its transfer. The Administrator Residual Property after getting the property inspected and conducting an inquiry ultimately by an order dated 5-6-1982 held that portion was undisposed of and condoned the delay in applying for its transfer by the petitioner. This was challenged by the respondents who were admittedly the transferees of the portion of the same shop which the petitioner was occupying and a part of which he was claiming to be undisposed of.
3. The learned Judge in the High Court extensively dealt with the antecedent transfer order and the disposal of the property. It was noted that the property in dispute was a part of the larger property hearing No,S-III-3-S-2 in Kabir Street, Urdu Bazar, Lahore. It was divided into six portions. The rents were apportioned and the transfer price was worked out. The entitlement of the respondents was determined on the 6th December, 1959, by the Deputy Settlement Commissioner, P.T.O. Issued to them on 14-3-1960 and P.T.D. On 4-6-1963. In this background it was not open at all for the Administrator Residual Property to hold that any part of the property remained undisposed of.
Hence the order of the Administrator Residual Property was set aside and that of the Rent Controller as affirmed by the appellate authority, maintained.
4. Ch.Mushtaq Ahmed Khan, Advocate, the learned counsel for the petitioner contended that from the material placed on record it was established that there was an undisposed portion of the property and the Administrator Residual Property has only held so and condoned the delay in filing of the Form. The petitioner had produced the receipt for the payment made to Azizuddin in respect of it. Such an order of the Administrator should not have been set aside. His ejectment from the whole property should not have been ordered particularly from the portion not obtained on rent from the respondents. It should have been deferred till his entitlement to that other portion of the property was finally determined.
5. The jurisdiction of the Administrator Residual Property depends on the availability of the property.
If the property is not found to be available at all for transfer then he has no jurisdiction to deal with it. In deciding the jurisdictional fact his finding is open to scrutiny in the Constitutional jurisdiction of the High Court. He had recorded finding on that jurisdictional fact by holding that portion of the property had remained undisposed of. This he had done on the basis of local inspection of the property and its construction. Transfer having taken place in 1959, the state of construction of the property in 1982 could hardly be an appropriate test for deciding this question. If the transfer order and the apportionment of rent between the transferees had been looked into and scrutinized, the conclusion that the totality of the property stood disposed of and nothing left to be claimed by the petitioner would have been unavoidable. Besides, the petitioner could not have without obtaining the written permission from the respondents amalgamated another portion of the property into the shop admittedly obtained on rent from them. The High Court has given detailed reasons for setting aside the conclusion of the Administrator Residual Property and these are sustainable on law and fact both.
6. No merit is found in any of the petitions and leave to appeal is refused in both of them.