SHAFIUR RAHMAN, J: --Leave to appeal was granted to examine whether the judgment of the Member, Board of Revenue, Baluchistan, dated 9-3-1988 declaring the garrage in dispute between the parties to be a common land open for use by all the residents of Ihata, was passed with jurisdiction after the repeal of the Settlement Laws.
2. Nathu Ram, an evacuee, owned a plot of land in the heart of Quetta City which measured approximately 12,301 sq. Ft. It had various houses built upon it. The houses were separately transferred to the claimants. House No.3-1/5 measuring 875 sq. Ft. Was transferred to one Salahuddin, from which it passed on to Khalilur Rehman, respondent No.1. House No.3-1/6 measuring 875 sp. Ft. Was transferred. To Zarif Ahmed respondent No.2. House No.3-1/7 measuring 1,163 sq. Ft. Was transferred to Hafiz Noor Habib respondent No.3. House No.3-1/8 measuring 1,169 sq.
Ft. Was transferred to Muhammad Yousaf respondent No.4 from whom Wali, Muhammad respondent No.5 acquired some interest in it. House No.3-1/9 measuring 1,100 sq. Ft. Was transferred to Muhammad Sharif from whom Haji Muhammad Akram Peracha respondent No.6 acquired interest in it. House No.3-1/10 measuring 5,719 sq. Ft. Was transferred to one Mst. Qamar Zia Begum from whom it was received by Tahira Begum and ultimately by the appellant Hanan alias Abdul Marian.
3. The proceedings which came up before the learned Member, Board of Revenue started on an application filed by the transferees of Houses other than 3-1/10 and it was directed against the transferee of house No.3-1/10. The grievance made and the relief sought was as hereunder:-- "One Mr. Wahid Agha has locked the main gate, which is causing great inconvenience to the residents. The owner of House No.3-1/10 had endeavoured to occupy the courtyard in 1956-57 and the Custodian Department after making on the spot inspection decided that the courtyard be in common use of the residents of compound.
It is requested that the lock of the main gate may please be unlocked and the ancient passage be restored."
4. The Member, Board of Revenue on this application started an adjudicatory proceedings after serving notice to all concerned. He also visited the site and by an order dated 9-3-1988 decided as hereunder: -- "In view of the above discussion I can safely conclude that the area of 188 sq. Ft. Is the available property which is hereby declared as lane, common for the use of all the residents of the `Ihata'.
The respondent, Abdul Hannan, is, therefore, directed to vacate the said area and a notice be issued to him accordingly. In case he fails to vacate the possession then he may be ejected in terms of Scheme No. I issued by Government of Baluchistan in pursuance of section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975)."
This judgment of the learned Member, Board of Revenue was challenged by the appellant by recourse to the constitutional jurisdiction of the High Court. The grievance of the appellant in the High Court was that the disputed property measuring 188 sq. Ft. (Khasra No.9) was in fact a part and parcel of the Property No.3-1/10 which stood transferred to his predecessor-in-interest. There was, according to him, an earlier adjudication with regard to it by the competent Settlement Authority (Additional Settlement Commissioner) on 5-7-1962, when, one Mst. Hamidan on the basis of its allotment to Abdul Majeed, had made a claim for its transfer. It was contended that the disputed property was not available property, that the appellant's predecessor-in-interest held a PTD and the Member, Board of Revenue had no jurisdiction to entertain, deal with and dispose of the sort of application that was presented by the respondents before him. In any case, according to the appellant, the property was not an available property to entitle the Member, Board of Revenue to deal with it in any manner.
5. By the impugned judgment and on facts it was found that the finding recorded by the Member, Board of Revenue suffered from no infirmity with regard to the fact whether this property stood transferred to Mst. Qamar Zia Begum and was part of a house No.3-1/10. Further, the High Court held, following the law laid down by this Court in Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236) that it was a case where discretion in the matter, even if possessed, could not be exercised in favour of the appellant. Hence, the Constitution Petition was dismissed with no order as to costs.
6. Mr. Basharatullah, Advocate, the learned counsel for the appellant has reiterated the grounds already noted which were presented before the High Court.
7. Before considering the merits of the case a word may be said about the way the case has been documented. Even after close of the arguments, the parties have continued submitting additional documents and most of these documents relate to the years 1985 to 1990. Beides, certain certificates of the Revenue Department functionaries like Patwari, Qanungo and others, have been filed with regard to the contents of the documents in their custody and possession. Such a course adopted is not conducive to proper adjudication of controversial matters having factual overtones.
It is the contemporaneous document which could be of assistance and not many documents of the period 1947 to 1962 when the P.T.D. Was issued have been filed. It is admitted that the properties are all entered in the Municipal Registers and the numbers given to them are of the Municipal Registers. Yet, not a single document, pertaining to their identity, limits etc., has been obtained from the Municipal record and filed. The P.T.Ds. Which have btzea made the basis of the claim by the parties mention only the number of the property and not its particulars in area or accommodation.
8. What precludes the appellant from claiming this disputed portion as a part of the house transferred to Mst. Qamar Zia Begum is the attestation of the mutation on 11-8-1962. The P.T.D. Was given effect to by this mutation. A plan of the property transferred was made out on the mutation sheet itself. Its area portion-wise was calculated. What it definitely showed is that the area transferred was 5719 sq. Ft. And it excluded the disputed area 12 x 15 ft., which had Khasra No.9. The entry had this meaning and no other is admitted by the appellant in the following words in paragraph 5 of the Petition filed in this Court:-- "That as per instructions referred to in para No.(3) above, P.T.D. Issued in favour of Qamar Zia Begum was produced by her to the Revenue Authorities; i.e. Tehsildar, Quetta, who attested Mutation No.389 on 11-8-1962, in respect of 5719 sq. Ft. At Khasra No.1159/3267 in favour of Qamar Zia Begum.
At this stage a mistake occurred on the part of the Revenue official 4r,d that was to the effect that area of 180 sq. Ft. Which was that of garage, which was separately claimed by Mst. Hamidan was not included in the area transferred to Mst. Qamar Zia Begum, even though it had been transferred to her under P.T.D. Issued to her under Municipal No.3-1/lU."
This recital clearly indicates that Mst. Qamar Zia Begum was aware of what was included and what was excluded, what was the mistake committed, if any. From 1962 till the matter was taken up by the Member, Board of Revenue, she made no grievance of it, nor got the Revenue Record corrected.
It is true that the basic document was not this mutation but the P.T.D. As the P.T.D. Contained no further particulars except number of the house, this mutation document acquired importance so far as the understanding of the P.T.D. By the concerned revenue functionaries and the transferee herself was concerned. The appellant in this background is precluded from saying that this disputed property was a part of The property transferred to Mst. Qamar Zia Begum.
9. As regards the earlier litigation between Mst. Hamidan and its disposal by the Additional Settlement Commissioner on 5-7-1962, the particulars of tile property are not sufficient to identify it with the one now in dispute. That is tile finding of the Member. Board of Revenue and we also find that there is knothole to establish its identity with the property now in dispute.
10. As regards the legal question whether the Member, Board of Revenue had the jurisdiction to entertain such an application as was filed by the respondents, and deal with it, one has to refer first to the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, section 3 of which provided as hereunder:-- "2. Transfer of property (1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal.
(a) in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and
(b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf: Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land: Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972.
(2) The agricultural land temporarily allotted under any of the aforesaid Acts or Regulations to a displaced person from Jammu and Kashmir State or to such other person as the Federal Government may determine who is not in cultivating possession of the allotted land, shall be offered for sale to, such allottee unless an order of cancellation of allotment has been passed against him in respect of such land: Provided that only so much land shall be offered to such allottee as does not, together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972: Provided further that the temporary allottee or other person who purchases the land so offered to him shall not eject the tenant from such land except on the ground that he has failed to pay rent in accordance with the terms of his tenancy: Provided further that, in the event of a displaced person from Jammu and Kashmir State or any of his successors-in-interest being repatriated to that State, he shall pay to the Provincial Government the price of the land held by him at the rate ascertained by that Government."
11. With regard to urban property the Scheme framed was Scheme No.I. It defines available property as hereunder:-- "`Available Property' means all properties in Urban areas other than such properties attached to the Charitable, Religious or Educational Trusts or institutions whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the Acts and Regulations mentioned in section 2 of the Act XIV of 1975, or which may become available for disposal after such repeal as a result of final order passed under subsection (3) of section 2 of the aforesaid Act shall be dealt with under this scheme."
The relevant conditions with regard to disposal in the Scheme are as hereunder:--
(i) Available properties of any value shall be deemed to have been resumed by the Government from the date of its availability.
(ii) No occupant whatsoever shall have any claim or any right over such properties' which become available as defined in Para. (ii) of Para 1 of this scheme and such occupants shall be ejected by the competent authority by force if necessary by serving a notice of ejectment."
12. If this plot had not been transferred to Mst. Qamar Zia Begum or anyone else, then it fell under the definition of an available property. It vested in the Government. The Member, Board of Revenue as the notified authority has the power to determine, while determining whether a property was available property or not, whether it stood transferred in accordance with law. That jurisdiction having been exercised correctly, to that extent, there is no defect in the order of the learned Member, Board of Revenue. His refusal to transfer it to anyone else in view of the nature and use of the property cannot also be objected to, because even if the appellant be taken to be in possession of it, he has no vested right to obtain it on transfer to the exclusion of others. To the extent that the Member, Board of Revenue declares that the property is not transferred to the transferee of House No.3-1/10, that it is a property which will not be transferred to anyone else, he is within his jurisdiction. However, the learned Member, Board of Revenue could not decide or determine, what rights in the nature of easements the adjoining owners had, or direct removal of obstruction to the enjoyment of such rights. These are essentially questions to be decided in Courts, having plenary jurisdiction in the matter. Except for this observation, we find that the appeal has no merit and is dismissed. No order is made as to costs.