' The dispute in this Constitution petitions pertain to the transfer of residential portion of evacuee property bearing No,F/1256 situated in Choona Mandi, Lahore. The disputants are Ellahi Bakhsh and 12 others---the legal heirs of Allah Bakhsh who claimed the property on the basis of having purchased it from one Kaloo and Muhammad Hussain and others---who arc sons of Siraj Din.
2. The facts in brief are; that the disputed property comprised of residential as well as commercial units. It was put to auction on 5-11-1960 with following description in the list of auctions:-- S. No.Property No.Location Name of EvacueeName of occupantPart/ FullAnnual Rent.
1. F/1256 Kundi- garahS. Kanwar Bir Chiragh Din etc.Portion150
2. --do-- --do-- --do-- Sijaj Din --do--70
3. --do-- --do-- --do-- Chanan Din --do--12
4. --do-- --do-- --do-- M. Sadiq --do--12
5. --do-- --do-- --do-- A. Majeed --do--24
3. Units Nos. 280, 281 and 282 were shops and are not in dispute in this petition. The dispute is confined to Unit No,279 which was residential in nature. One Kaloo was the successful bidder of the aforesaid unit. He deposited the price of property, was given P.T.D. And alienated the property in favour of Allah Bakhsh the predecessor-in-interest of petitioners in consideration of Rs,16,000. The ejectment proceedings were initiated against the respondents by Allah Bakhsh. Muhammad Hussain (herein respondent No,1) agreed to pay the rent to the Allah Bakhsh by means of a compromise agreement dated 16-9-1975.
4. On 27-12-1977, Muhammad Hussain submitted an application that residential portion of property F/1256 was not auctioned and be transferred to him to the Deputy Administrator (Residual)
Properties. Respondent No,2 Muhammad Ashiq also filed similar application. The Deputy Administrator (Residual) Properties by means of order dated 2-2-1978 dismissed these applications by holding that this property was not an available property under Scheme.
Muhammad Hussain and Muhammad Ashiq filed revision petitions which were accepted and the case was remanded to the Deputy Settlement Commissioner vide an order dated 23-2-1978. In remand proceedings, the Deputy Settlement Commissioner concluded that the property appearing at item No,164 of auction list was not auctioned and therefore, be transferred to Muhammad Hussain, Muhammad Ashiq and Taj Din. The present petitioner filed revision petition which was also dismissed by the Administrator (Residual) Properties, Lahore Division. These orders were successfully challenged in the constitution petition bearing No, 188-R/80 by the present petitioner. His Lordship Mr. Justice Abdul Shakoor Salam as then he was, accepted the petition, set aside the order of the Administrator (Residual) Properties and remanded the case to the Deputy Administrator (Residual) Properties/Notified Officer for deciding the case afresh in accordance with the observations contained in the order. The relevant part of the order of this Court is as follows:- "The crux of the problem boils down to is that the portion in possession of Siraj Din bearing Property No,1256 shown at S.No, 279 of the auction list having been auctioned in favour of Kaloo and P.T.D.
Having been issued in his favour, the petitioners who had purchased that from Kaloo, are obviously entitled to be secure in their rights. If there were any property though bearing the same number but in possession of Chiragh Din etc., shown at S. No,164 of the auction list and has not been auctioned and has been transferred to the respondents and Transfer Order issued in their favour, the respondents too will be entitled to retain the same. The impugned orders however do not distinctly deal with the question as to what was in possession of Siraj Din at the time of auction in 1960 for which he was issued P.T.D. Nor do these deal with whether in 1977 there was any other property in possession of Chiragh Din etc. Which could be transferred to the respondents. Therefore, the impugned orders are declared to be without lawful authority and of no legal effect. The matter is remitted to the learned Administrator (R.P.) Lahore Division, Lahore to determine as to what was in possession of Siraj Din at the time of auction in 1960 for which he was issued P.T.D. That what was in possession of Siraj Din, the petitioners will he entitled to be secure in their rights having purchased the property from the P.T.D.-holder. If there was any other property of which Chiragh Din etc. Were in possession in 1960, and that had not been auctioned, the respondents being transferees shall also be secure in their rights.
' In pursuance of the order of this Court the learned Additional Commissioner (Residual)/Notified Officer/Administrator (Residual Properties) proceeded to divide the property and transferred it to the parties in accordance with following formula:- "It is also significant that the building has now entirely changed. On my visit to site, I observed that almost the whole constructed portion has collapsed and the building is in ruins. The first floor is completely demolished. The rooms and the shops on the ground floor have also fallen down. There is only a small portion on which Muhammad Hussain respondent has erected some temporary structure. It may therefore be said that at present the division has to be made vis-a-vis the total area on which the building existed. The record of Municipal Corporation shows that the building consisted of 6 marlas. After having deducted the area meant for three shops, about which there is no dispute, the remaining area can now be divided between the petitioner and the respondents in proportion to the annual rent mentioned in the auction list. The property under item No,297 which Kaloo purchased has the annual rent of Rs,70 whereas the property under item No,164 which is remaining part of the residential portion carries the annual rent of Rs,150. I think in the given circumstances it would be a fair yardstick to divide the area of building between the parties.
' In view of the fact.
' I decide that the two parties are entitled to scure in their rights in respect of the proportionate area of building per formula (70:150) mentioned above. The Depty Administrator (R.P.) Urban would make the division at site in the presence of the parties and deliver the possession to them. While dividing the area he should prefer to include the portion already in occupation of a party in the area allotted to each."
4. Feeling aggrieved with this order the legal heirs of Kaloo have filed this Constitution petition.
5. Learned counsel appearing on behalf of the petitioners submitted that the impugned order was in contravention of order of remand; that the Deputy Administrator (Residual)/Notified Officer was required to decide the question of transfer by determining the area in possession of Siraj Din at the time of putting property to auction. He had no business to evolve the formula. It is further contended that the entire house in dispute in fact was auctioned to Kaloo who was issued P.T.D.
And so the petitioners were entitled to transfer of whole of the residential property.
6. On the other hand learned counsel for the respondents supported the impugned order.
7. I have heard the arguments of learned counsel for the parties at length and gone through; the record. After carefully taking into consideration the contentions of the parties, I am of the view that the contentions of the petitioners have force. The order of remand passed by his Lordship Mr.Justice Abdul Shakoor Salam, J. Is very clear and unambiguous. Directions given to Deputy Administrator Residual Property are specific. From the tenor of order of the High Court, it is clear that the Deputy Administrator Residual was directed to determine the rights of the parties in accordance with the directions contained therein. He was required to decide the rights of the parties by first determining the area in possession of Siraj Din at the time property in dispute was put to auction. It is quite clear that he has not done so. The impugned order being in contravention of the order of remand is illegal, and without lawful authority.
8. In result the impugned order cannot be sustained. For reasons stated above this Constitution petition is accepted. The impugned order is set aside as having been passed without jurisdiction and without lawful authority on account of it being in defiance of the remand order of the High Court. The case is remanded to the Deputy Administrator Residual)/Notified Officer who shall decide the case strictly in accordance with the directions contained in the order of remand. He shall decide the case within two months of receipt of order.