' SAAD SAOOD JAN, J.--This is an appeal by special leave from the judgment of the Division Bench of the Lahore High Court, affirming the judgment and order of a learned Single Judge declaring the order, dated 20-11-1977, of the Deputy Settlement Commissioner to be without lawful authority.
2. Ghulam Muhammad Nasim Sindhu was a claimant displaced person. He was allotted house No,SXVIII-44-S-38 situate in Ichhra, Lahore, on 20-10-1956. When the Settlement operations startled he filed a C.H. Form. On this form the local Settlement Inspector made the following report: "He is a claimant and is the only occupant of the house. Its area is 2 kanals, out of which 4 marlas are built. It means 1 kanal 4 marlas of land is excess the three time the covered area. Annual assessm ent as per taxation record is Rs,180 P.A. It is a fit case for the issue of P.T.O."
' The Deputy Settlement Commissioner accepted the report and on its basis a P.T.O. Was issued to respondent No,1 on 16-11-1959.
3. In March 1962 respondent No,1 applied for a permanent transfer deed. The Deputy Settlement Commissioner (another officer) called for a report from the local Patwari to find out the extent of the excess area. In his report, the Patwari stated that the total area of the land underlying the house was 1 kanal 5 marlas and 223 square feet, whereas the entitlement of respondent No,1, after giving him allowance for the built up area came to 1 kanal 8 marlas and 132 square feet; accordingly, there was no excess area attached to the house. On receipt of the report the office of the Deputy Settlement Commissioner put up the following note: "The report of the Patwari is attached herewith. There is no land beyond three times covered area."
' On 8-5-1962 the Deputy Settlement Commissioner appended his initials on the report; thereafter, the permanent transfer deed was granted to respondent No,1.
4. It was the case of respondent No,1 that he had inducted the appellants in the property as his tenants. However that may be, in December, 1972 a number of persons including the appellants submitted a complaint to the Minister for Rehabilitation wherein they, inter alia, alleged that respondent No, 1 was holding area much in excess of his entitlement. They prayed that the excess area should be taken away from him and allotted to them as they were in possession thereof. In pursuance of this complaint, the Chief Settlement Commissioner asked the Settlement Commissioner (Urban) to hold an inquiry.
5. The Settlement Commissioner (Urban) in his turn called for a report from the local Deputy Settlement Commissioner. On 10-3-1973 the Deputy Settlement Commissioner sent his report wherein he stated: "The facts of the case are that the above-noted property was transferred in favour of Ghulam Muhammad Nasim for Rs,7,200 vide D.S.C.'s order dated 16-11-1959. The total area of the property according to Excise and Taxation Record is two kanals out of which 4 marlas are built up area.
According to the record the transferee is entitled only for 16 marlas and remaining 1 kanal 4 marlas was excess land. The office record shows that the transferee was never asked to pay the price of the excess land. The P.T.D. Has been issued to the transferee which means that the transferee is only the owner of only 16 marlas and the other 1 kanal and 4 marlas are available for disposal.
' On the other hand a fresh report of the Settlement Inspector and draftsman has been obtained, according to which the total area of the property at site is 1 kanal 11 marlas and 49 sq. Ft. And after transferring the above said property to Mr. Ghulam Muhammad Nasim an area of 15 marlas and 138 sq. Ft. Is available for disposal."
' Apparently the Settlement Commissioner was not satisfied with the report and he called for yet another report from the Deputy Settlement Commissioner (another officer). The second report was submitted on 15-6-1974. The material portion of this report reads as follows: "The excess land in the above noted property has already been calculated-0 Kanal 15 marlas 138 sq. Ft. 4 inch by my predecessor vide page 81 of the file. However, in compliance with your orders dated 7-6-1974, I visited the spot along with Settlement Inspector and Patwari in the presence of parties on 8-6-1974. The construction after 1947 in this property is in such way that it is very difficult to ascertain the old and new construction. However the relevant record has been consulted, which reveals that in the original transfer order the total area of the plot has been shown 2 kanals out of which 4 marlas built up and one Kanal, four marlas land has been shown in excess, original orders at page 11 of the file.
' In the survey register the accommodation of the house has been shown three rooms, but the copy of PA. List 1946-47 of Lahore Municipal Corporation, obtained by Settlement Inspector shows that the accommodation of the property in question is 2 rooms and open land vide Flag 'B'. According to spot measurement the total area of the property is 1 kanal 11 marlas 49 sq. Ft. 4 inch.
' In view of the survey register, P.A. List the excess land calculated by my predecessor (i,e, 15 Marlas 138 sq. Ft.) is correct."
' The Settlement Commissioner then conveyed the findings of his inquiry to the Chief Settlement Commissioner with the following observations: "I have weighed the arguments of the parties and visited the spot and have seen the record. From the perusal of the record it is clear that G.M. Nasim is the transferee of the property in dispute. This is also proved beyond doubt that Budha remained in possession of the property and order of the D.C.E.P. Dated 21-5-1959 (Annexure T') is clear in this respect. This is also a fact that the allotment of a Government Quarter could not be a bar to the transfer of a house to the claimant. There is a photo stat copy of Rent-deed executed between Chiragh Din and G.M. Nasim for the payment of rent. On the other hand Muhammad Din complainant had not been able to prove anything against G.M. Nasim. In view of these facts I wonder if there is an occasion for the interference of the Settlement Department at this winding up stage when a P.T.D. Stands issued in favour of G.M.
Nasim. However, the question of surplus area requires looking into."
' Before any action could be taken on this report, the Settlement laws were repealed. The undisposed of properties were transferred to the Provincial Government and the Settlement work was entrusted to the Provincial Board of Revenue. By its letter dated 29-3-1975, the Board of Revenue gave the following direction to the local Deputy Settlement Commissioner: "According to the law the transferee of a house is entitled to get three times the plinth area. You are competent to determine the question of excess area irrespective the P.T.D. Which has since been issued in this case.
' You are, therefore, hereby directed to adjudicate upon the question of excess area attached to property No, SX-VIII-44-S-38 by hearing the transferee as well as the complainant."
' In compliance with the direction given by the Board, the Deputy Settlement Commissioner held an inquiry. His findings are recorded in his order dated 20-11-1977. He came to the conclusion that respondent No, 1 was holding an area measuring 15 marlas and 138 square feet in excess of what was permitted by law and that excess area was still available for disposal. The relevant part of his order reads as follows: "I have heard the learned counsel for both the parties, gone through the record and visited the spot and have come to the conclusion that Mr. G.M. Nasim had been transferred property No, S-XVIII- 44-S-38, Ichhra, Lahore, measuring 16 marlas according to the order of the then learned Deputy Settlement Commissioner dated 16-11-1959 and the P.T.D. Was also issued in his favour according to the orders referred to above on 10-8-1962. The order of the Deputy Settlement Commissioner dated 16-11-1959 is quite clear and there is no ambiguity in respect of the area of the property in question. It had also been declared vide his orders referred to above that besides the property transferred, there is also excess land available in the said property. The excess land has not so far been disposed of in any manner, hence the same is still available for disposal. M/s. Muhammad Din, Wajid All, Soofi Chiragh Din, Zaffar Ahmed, Sultan Muhammad, Noor Muhammad, Muhammad Ismail, have applied under Settlement Scheme No, VIII, for the transfer of the excess land in their possession. I have marked an area of 16 marlas on the plan submitted by the Settlement Inspector alongwith the report dated 17-11-1977. This area has been shown as ABCDEFGHIJ on the plan. The plan is also signed by me. The remaining area of the excess land is available for disposal which is in possession of the petitioners. Hence a copy of my order be supplied to the Deputy Settlement Commissioner (Plots) for the disposal of their forms under the law and on merits."
6. Being dissatisfied with the above order of the Deputy Settlement Commissioner, respondent No, 1 filed a Constitution petition in the High Court to challenge its legality. A learned Single Judge accepted the petition and declared the order of the Deputy Settlement Commissioner to be without lawful authority. He was of the view that as the property in dispute had been measured before the issuance of the P.T.D., it was not open to the Settlement Authorities in the absence of any allegation of fraud/misrepresentation to re-open the matter after the issuance of the P.T.D. He also held that the proceedings initiated under the orders of the Minister for Rehabilitation were without jurisdiction and that in any case the appellants had no locus standi to impugn the legality of the P.T.D. Issued to respondent No, 1.
7. From the order of the learned Single Judge the appellants filed an intra-court appeal. A Division Bench of the High Court dismissed the appeal with the observations that the appellants had no locus standi to file the appeal, for, Scheme No,VIII under which they were seeking transfer of the property did not contemplate the making of an application for making the property available and that in any event as the appellants had been inducted into the property by respondent No, 1 and orders for their ejectment had already been passed they were not entitled to seek transfer of the same under the Scheme.
8. From the judgment of the Division Bench, the appellants sought leave to appeal from this Court.
During the hearing of the petition and in the presence of the parties the following order was made: "We, therefore, summoned Mr. Shahzad Jahangir, learned Advocate for the Settlement Department to assist us in this matter. He should instruct the learned Deputy Settlement Commissioner, Lahore to go to the spot and measure the area on which the pacca construction existed on the date when the orders of transfer were passed, namely, 16-11-1959 as also the open land available on the said date. The date and time when the learned Deputy Settlement Commissioner will visit the spot for carrying out the above measurement should be communicated to the learned counsel for both the parties. After carrying out the measurements the learned Deputy Settlement Commissioner should prepare a report detailing the results of his measurements."
' In due course Mr. Shahzad Jahangir submitted an elaborate report accompanied by a site plan.
According to his report, after adding thrice the plinth area, the house still had an excess land to the extent of 10 marlas and 198 square feet. As respondent No, 1 did not object to the report, leave to appeal was granted to the appellants.
9. Learned counsel for respondent No, 1 raised a preliminary objection to the competency of the appeal on the ground that it was barred by time. He stated that the learned Single Judge made his order on 18-4-1979. The appellants preferred the intra-Court appeal on 22-5-1979. It was dismissed on 9-4-1980. The appellants filed the petition for special leave to appeal on 21-5-1980. According to the learned counsel in this case the intra-Court appeal was not available to the appellants by virtue of the bar contained in the proviso to section 2, Law Reforms Ordinance, and as such the time spent in pursuing that appeal had to be disregarded. Consequently, the time for filing the petition for special leave to appeal started running against the appellants from the date the learned Single Judge announced the judgment. As the appellants filed the petition more than 60 days after the judgment of the learned Single Judge, the appeal should be dismissed on the ground of limitation. In support of his contention he referred to the case of Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344.
10. The proceedings which led to the order dated 20-11-1977 of the Deputy Settlement Commissioner were not intended to call in question the legality or propriety of the orders of transfer of the house but their object was to find out if the house had any excess area attached to it. These were initiated under a direction issued by the Board of Revenue on 29-3-1975. There was thus scope for some doubt whether these were entirely independent proceedings attracting, so far the competency of an intra-court appeal was concerned, the bar contained in the proviso to section 2, Law Reforms Ordinance. Considering that the appellants have been diligently pursuing their remedy, it is a fit case where delay, even if exists, ought to be condoned. We would order accordingly.
11. There is no dispute at all that respondent No 1 is transferee of the house alone. The provisional transfer order issued to him on 16-11-1959 and the permanent transfer deed drawn in his name on 10-8-1962 do not purport to transfer to him anything more than the house. There is no order of any Settlement Authority transferring to him any land other than the house. There is also no order of the Chief Settlement Commissioner in his favour enlarging the area of the house. Now the expression "house" has been defined in section 2(4), Displaced Persons (Compensation and Rehabilitation)
Act, 1958. According to the definition a house means: "Evacuee residential premises of any value in an urban area, * * * * * * * together with the gardens, grounds, garages and out houses, if any, attached to or appurtenant to such premises, * " * '
Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including outhouses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house."
The proviso to the definition is significant. By operation of this proviso, in case the land attached to the house transferred to respondent No, 1 exceeded three times its plinth area, he could not lay a claim to the excess land by virtue of transfer documents issued in his favour by the Settlement Authorities. Reference in this context may be invited to the case of Muhammad Aslam Khan v. Chief Settlement Commissioner 1972 S CM R 545 where the question was whether under the Displaced Persons (Compensation and Rehabilitation) Act, a displaced person was entitled to more than three times the plinth area of the house transferred to him; the question was answered in the negative. Similar observations were made also in the case of Muhammad Bashir v. Settlement and Rehabilitation Commissioner PLD 1983 SC 143. Thus, it was held: "Now a house within the meaning of the Act would only be an evacuee residential premises along with three times its plinth area out of the gardens etc. Attached or appurtenant to it plus any further area out of the excess land determined by the Chief Settlement Commissioner to be also a part of the house. The remaining land would be an area which was no longer a part and parcel of the house and, therefore, would not be transferred in connection with the transfer of the house."
' This being the legal position, the question for consideration is whether there was any land attached to the house transferred to respondent No, 1 which was in excess of three times its plinth area.
12. Earlier the Settlement Authorities had treated the area of the plot on which the house was located as 2 kanals. Their assumption in this regard was based on the assessment record maintained by the Excise Department. However, after detailed measurements were made under the supervision of Mr. Shahzad Jahangir the area was found to be 1 kanal 11 marlas and 49 sq. Ft. In 1960 the local Patwari had in this report declared the area to be 1 kanal 5 marlas and 223 square feet; but, then, preference should be given to the report submitted by Mr. Shahzad Jahangir for he had the measurements carried out by another Patwari in the presence of the parties and their counsel. Now, the next matter needing consideration is with regard to the plinth area of the house.
According to the appellants the plinth area was only 4 marlas whereas respondent No, I averred that it extended over 10 marlas. In this context it may be noticed that at the time when the house was being provisionally transferred to respondent No, 1 the plinth area was declared to be 4 marlas only and a finding was recorded that the house had an excess area measuring 1 kanal and 4 marlas attached to it. Respondent No, I did not challenge these findings before the higher Settlement Authorities. However that may be, Mr. Shahzad Jahangir in his report has found the plinth area to be 5 marlas and 19 square feet. Calculating the entitlement of respondent No, 1 on this basis the excess area attached to the house would come to 10 marlas and 198 square feet.
13. Learned counsel for respondent No, 1 challenged the calculations of Mr. Shahzad Jahangir with regard to the plinth area. He contended that it was not less than 10 marlas. In support of his contention he relied upon the extract from the P.A. List prepared by the Lahore Municipal Corporation for the year 1946-47 and the report of the Patwari prepared in 1960. As already mentioned respondent No, 1 did not challenge the accuracy of the report of Mr. Shahzad Jahangir at the leave granting stage or even later till the appeal came up for hearing. However that may be, the relevant entries in the extract from the PA. List are: "8. The plinth area 10 marlas
10. The approximate number 2 rooms/open land." of the rooms.
' The entry against the plinth area appears to be incorrect, for, two rooms would not ordinarily, unless they were very large, cover an area of 10 marlas. It is to be noticed that in the assessment register maintained by the Excise Department the plinth area of the house has been shown to be 4 marlas only. Now the record of the Excise Department relates to the year 1954 when the controversy with regard to plinth area had not arisen. It is also to be noticed that if the report of Patwari, upon which respondent No, 1 heavily relies, is scrutinised it will be found that although the area of the first two rooms mentioned therein does come to slightly more than 4 marlas but the area of no two rooms, whatever combinations one may try, when taken together, would extend to 10 marlas.
Obviously the entry with regard to the plinth area as recorded in the P.A. List is erroneous.
14. As regards the report of the Patwari that no excess area was attached to the house, it suffered from a basic error, for, while working out the plinth area he had taken into account the area of five rooms whereas at the time of Independence the house had only two rooms (see the PA. List upon which respondent No, 1 himself relies). For the purpose of calculating the plinth area such construction as had been made by the evacuee or out of the income of the property could alone be considered. In this context, reference is invited to a judgment of this Court in the case of Muhammad Matin Mirza v. Jahangir R. Rustomji PLD 1980 SC 64 wherein it was observed: "Taking up the point at (a) above, it may be mentioned that the calculations on which the petitioner relies have been made on the basis of the constructed area as existing on the site at present, which includes some constructions made after the partition. Obviously these calculations are not in conformity with the law on the subject which contemplates taking into consideration of only such construction which were made by the evacuee. Learned counsel argued that the additional construction even though not made by the evacuee should be considered as improvements or accretions to the evacuee property and as such a part and parcel thereof. The argument advanced has no merit. These constructions were not, as already mentioned, made by evacuee; nor from the income of the aforesaid evacuee property, and being quite severable from the rest of the property could not be considered as part of the evacuee house as left by the evacuee for the purpose of calculating its plinth area as it then existed."
As both grounds of attack on the report filed by Mr. Shahzad Jahangir fail, it must be accepted as correct. According to this report as already stated the house had an excess area of 10 marlas and 198 square feet. Respondent No, 1 cannot lay a claim to this area under the transfer documents issued in his favour; as such it has to be treated as still available for disposal.
15. The learned Single Judge was clearly in error when he declared the order dated 20-11-1977 of the Deputy Settlement Commissioner to be without jurisdiction on the ground that after the issuance of the permanent transfer deed and in the absence of any allegation of fraud or misrepresentation the Settlement Authorities were not competent to re-open the matter. It is to be noticed that in the proceedings held by the Deputy Settlement Commissioner the legality or propriety of the transfer of the house to respondent No, 1 was not in any way in issue. The inquiry was confined to the question whether there was an excess area which could not under the law be treated as part of the house and, for that reason, did not stand transferred to respondent No, 1 under the transfer documents issued in his favour. Such an inquiry was not hit by the rule laid down in the case of Sh.
Abdul Latif v. Deputy Settlement Commissioner 1976 SCMR 503 to which the learned Single Judge has referred in support of his order.
16. The other ground given by the learned Single Judge in holding the proceedings as incompetent was that these had been initiated by the Minister for Rehabilitation who did not figure anywhere in the Scheme of the Displaced Persons (Compensation and Rehabilitation) Act. It is true that the occupants of the land attached to the house had filed their complaint with the Minister for Rehabilitation but then the inquiry and further proceedings were held under the order of the Chief Settlement Commissioner who admittedly stood at the apex in the hierarchy of the Settlement organisation. The learned Single Judge did not refer to any rule which placed a limitation on the power of the Chief Settlement Commissioner to initiate action for protecting property forming part of the compensation pool by laying down that he should proceed only when an application was directly received by him. On the contrary, there appears to be no bar to his starting the proceedings on his own or on information received from any source. In the circumstances the question whether the Minister for Rehabilitation figured in the Re-settlement Schemes or whether the occupants had any locus standi to file a complaint before him does not arise. However that may be, after the repeal of evacuee laws, all undisposed of evacuee property stood transferred to the Provincial Government. See section 3, Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975. The said Government could thereafter take proceedings to retrieve properties which under the repealed Act had not yet been disposed of. In the present case the Deputy Settlement Commissioner who made the impugned order was proceeding under a directive issued to him on 29-3-1975 by the Board of Revenue (see paragraph 5 ante). His order could, therefore, hardly be regarded as one without jurisdiction.
17. In holding that the appellants had no locus standi to file an intra-court appeal, the Division Bench overlooked the fact that there was already a finding by the Deputy Settlement Commissioner that the house transferred to respondent No, 1 had an excess area elitending over 15 marlas which was still available for disposal. This was a finding of fact with which the learned Single Judge had elected to interfere on entirely erroneous grounds. In appeal the appellants merely wanted to get that finding restored. It was not a case of filing an application under Scheme No, VIII for making the property available for disposal so that they could seek its transfer. In fact as a consequence of the order of the learned Single Judge respondent No, 1 has been allowed to perfect his claim to an area which under the law did not form part of the house transferred to him.
As the appellants were seeking transfer of the said area and the order dated 20-11-1977 did recognize, rightly or wrongly, their entitlement thereto they had undoubtedly the locus standi to challenge the legality of the order of the learned Single Judge for it cannot be said that they were not aggrieved by it.
18. As already noticed, after the transfer of the undisposed of property to the Provincial Government it is now required to be disposed of in accordance with the scheme framed in pursuance of clause
(a) of section 3, Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Whether under the scheme the appellants had a better claim thereto than respondent No, 1 was a matter which should have been left to the relevant authorities to be decided in accordance with the scheme. The learned Division Bench ought not to have shut out the case of the appellants in a summary manner as it had chosen to do in this particular case.
19. For reasons stated above, we accept the appeal, set aside the orders of the Division Bench and the learned Single Judge and direct the Board of Revenue to dispose of the excess land as calculated in the report filed by Mr. Shahzad Jahangir in accordance with the relevant Scheme.
There will be no order as to costs.
ABDUL SHAKURUL SALAM, J.--I really regret that I am unable to agree with the proposed judgment of my learned brother. The case as I see it is whether after a decade of issuance of Permanent Transfer Deed, the Settlement Authorities have any right to go behind it and that too when the law under which these Authorities were created had already been repealed.
2. The essential facts are that the respondent No, 1, a claimant displaced person, was transferred house No,SVIII-44-S-38, Inchhra, Lahore, on 16-11-1959. On his application for issuance of Permanent Transfer Deed, after the report of the Patwari dated 8-5-1962 that "there was no land beyond three times covered area" and payment of all dues, the respondent was transferred the evacuee interest "full". It is nobody's case that the land now said to be in excess of three times the plinth area did not belong to the evacuee. Thus, the entire interest of the evacuee over the property was permanently transferred to the respondent. He was issued Permanent Transfer Deed on 10-8-1962.
3. After more than ten years on a miscellaneous application dated 25-12-1972 of appellant No, 1 to the Minister for Settlement and Rehabilitation, Punjab, reports were called and on 29-3-1975, the Member, Board of Revenue (Settlement and Rehabilitation), Punjab, directed the "Deputy Settlement Commissioner" to "adjudicate upon the question of excess area", who on 20-11-1977 declared some area as excess.
4. The respondent sought a declaration under the Constitutional jurisdiction of the High Court that the orders dated 25-3-1975 and 20-11-1977 were without jurisdiction and lawful authority which was granted by a learned Single Judge and the order was upheld on appeal by a learned Division Bench of the High Court.
5. The appellant wanted this Court to enter into enquiry about the extent of the property transferred to the respondent.
6. Now only such an enquiry is not undertaken by this Court under the special jurisdiction and it confines itself to question of law but in this case the orders impugned before the High Court, which are under appeal, have declared the orders of the Settlement authorities to be without jurisdiction and lawful authority, and rightly so. The first order is of the Member, Board of Revenue (Settlement and Rehabilitation), Punjab, dated 29-3-1975 wherein he had said that the "Deputy Settlement Commissioner" was "competent to determine question of excess area irrespective the P.T.D. Has since been issued in this case" and had directed the Deputy Settlement Commissioner "to adjudicate upon the question of excess area". This order is clearly illegal as it has undeniably been passed in the secrecy of office without notice of hearing to the respondent in whom the rights had vested. Nobody's rights can be put in jeopardy finalised decade ago in such like manner. Secondly, the observation that the "Deputy Settlement Commissioner" was "competent to determine the question * * *" is out of the mark. The Deputy Settlement Commissioner had ceased to exist with the repeal of the law under which he was created. Thirdly, the bald assertion that that can be done "irrespective the P.T.D. Has since been issued in this case" is patently arbitrary. What is the use of issuance of Permanent Transfer Deed if it can be gone behind after a decade? If it were so permissible there will be no certainty in the rights of displaced persons to whom land or houses have been transferred, and they will be put on tenterhooks at the mercy of changing officials, which is contrary to elementary principles of law and administration.
6-A. As regards the second order impugned in the Constitutional petition of the Deputy Settlement Commissioner dated 20-11-1977, it is clearly without jurisdiction as the office of the Deputy Settlement Commissioner had come to an end with the repeal of the law under which that office was established vide Act XIV of 1975, with effect from 1-7-1974. Therefore, there was no Deputy Settlement Commissioner in existence in law on the date the order was passed. For 'pending proceedings' the repealing law had provided for appointment of "Notified Officer". And in this case there were no "pending proceedings" on the relevant date. Miscellaneous applications to a Minister or office noting do not constitute "pending proceedings". For the first time the Member, Board of Revenue (Settlement and Rehabilitation) Punjab issued the direction on 29-3-1975. This was after the repeal of the law.
7. For the foregoing reasons I am clear and certain that after the report of the Patwari that there was no excess area and the Chief Settlement Commissioner having never exercised his jurisdiction under section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to say that so much area shall now be treated as part of the house, the "full" interest in the property passed under the Permanent Transfer Deed in favour of the respondent when the Deed was issued to him on 10-8-1962. After a decade on a miscellaneous application nobody could go behind the Permanent Transfer Deed and certainly the purported operative order of the "Deputy Settlement Commissioner" dated 20-11-1977 challenged in the Constitutional petition was without jurisdiction and lawful authority as he did not exist in the eyes of the law having disappeared with the repeal of the law under which he was created. I would, therefore, dismiss the appeal but leave to parties in the circumstances to bear their own costs.
ORDER OF THE COURT ' In accordance with majority opinion of the Judges, the appeal is accepted, the orders of the Division Bench and the learned Single Judge are set aside and the Board of Revenue is directed to dispose of the excess land as calculated in the report filed by Mr. Shahzad Jahangir in accordance with the relevant Scheme. There will be no order as to costs. {{Note text}} (Sd.)
ShafiurRehman, J (Sd.)
Zaffar Hussain Mirza, J (Sd.)
Saad Saood Jan, J (Sd.)
Ali Hussain Qazilbash, J (Sd.)
Abdul Shakurul Salam, J