' This judgment will dispose of Writ Petitions Nos.3015 of 1978 and 909-R of 1980. The dispute in both the writ petitions relates to Thara on Khasra No,568/225 with area of 110 ft. x 10 ft. situated within the municipal limits of Sillanwali, District Sargodha. As per Revenue Record, it is owned by the Provincial Government. Factually, it was purchased by the evacuees Sadhu Ram etc.in 1945 from the Provincial Government and a regular sale-deed was executed by the functionaries of the Government in favour of the vendees. However, for one reason or the other, this sale was not reflected in the Revenue Record.
' For all intents and purposes, this property was hidden evacuee property.
2. Admittedly, none of the parties in the two writ petitions had, to begin with, filed transfer forms to claim the Thara in question, in all probability due to the reason, that the nature of thisproperty as evacuee was not known.
3. Efforts to secure transfer of this Thara begin in 1979 when Muhammad Shall, petitioner in W.P.
No,909-R of 1980, hereinafter called "transferee" applied to Ch. Bashir Ahmad, Additional Commissioner/Administrator, Residual Property for permission to file transfer form for this Thara, after condoning the delay in submission of the form. This is vide his application dated 17-7-1979.
The same day the Administrator condoned the delay and granted permission to the "transferee" to file transfer form. The Deputy Administrator (RP), on 26-12-1979 allowed the prayer of the "transferee" for transfer of this Thara vide his transfer form No,681. Respondents Nos. 2 to 5 in W.P.
No,909-R of 1980 (hereinafter called "occupants") claimed to have occupied this Thara and raised shops wherein they are carrying on their business of the Thara to the "transferee" vide order of Deputy Administrator (RP) dated 26-12-1979, they filed a joint appeal before Mr. Shamsher Ali Khan, Additional Commissioner (Consolidation) in his purported capacity as Administrator (RP). This appeal was allowed on 9-11-1980. The "occupants" were permitted to file their transfer forms in respect of the portions of the Thara in their possession. The order of Deputy Administrator (RP) dated 26-12-1979 was set aside and he was asked to explain as to why he decided the case in favour of the "transferee", who was not in possession of the property.
4. The "transferee" has challenged the orders dated 25-10-1980 (regarding condonation of delay in appeal) and 9-11-1980 passed by Mr. Shamsher Ali Khan, Additional (Commissioner/Administrator
(RP) as being without lawful authority through his W.P. No,909-R of 1980.
5. Writ Petition No,3015 of 1978 has been filed by Manzoor Alunad, whose stance, throughout, has been that disputed property is owned by Provincial Government and is not evacuee in character.
He applied to the Collector for sale of portion of Khasra No,568/225 measuring 270 sq. ft., being in his possession. According to him, while his application was being processed, Muhammad Shafi (transferee) succeeded in obtaining transfer of Khasra No,564/63 showing it to fall in front of evacuee shops purchased by him in auction vide order of Collector dated 29-12-1970. The appeal filed by Manzoor Ahmad was accepted by Commissioner and case was remanded vide order dated 23-2-1971.
' According to him, the "transferee" filed revision before Board of Revenue, which was accepted on 25-8-1977 and the order of remand passed by Commissioner was set aside, thereby restoring the order of Collector dated 29-12-1970, transferring portion of Khasra No,568/225 to him, treating it to be Provincial Government property.
' Review filed by Manzoor Ahmad failed before Member, Board of Revenue on 6-10-1977. He has challenged vires of orders dated 25-8-1977 and 6-10-1977.
6. From the perusal of the above noted somewhat lengthy facts, it is clear that Muhammad Shafi ("transferee") had been making efforts to secure the Thara in dispute firstly before the Revenue Authorities, claiming to be Provincial Government property, and then before the functionaries under the Evacuee Laws Repealed Act, 1975, taking the stance that it is evacuee property.
7. As already observed vide para 1 (supra), the disputed Thara is not Provincial Government property, it having been sold to evacuees before creation of Pakistan and sale-deed having been executed in lieu of the sale. It was in fact hidden evacuee property. In this view of the matter, the order of Collector dated 29-12-1970, transferring it to the "transferee" and all the subsequent orders inclusive of the two orders dated 25-8-1977 and 6-10-1977 by Member, Board of Revenue are coram non judice. However no relief can be granted to Manzoor Ahmad, petitioner in this writ petition as he was claiming portion of the disputed Thara as Provincial Government Property. Writ Petition No,3015 of 1978 is dismissed.
8. Coming now to Writ Petition No,909-R of 1980 filed by Muhammad Shafi "Transferee". The case set up in this writ petition is that the disputed Thara was rightly transferred to him by the "Deputy Administrator"/Residual Property, vide order, dated 26-12-1979 and the subsequent order dated 9- 11-1980 (condoning the delay in the appeal of "occupants") and the order dated 9-11-1980 (setting aside the order dated 26-12-1979 and allowing "occupants" to file transfer forms) were liable to be quashed.
9. Rana Muhammad Sarwar, learned counsel for the "transferee" has contended that the disputed Thara measuring 110 ft. x 10 ft. was evacuee in character, which falls in front of the two Shops Nos.61 and 62, purchased by the "transferee" through open auction in 1964-65. According to him, it is the "transferee", who has constructed the 5 shops and given on rent to the "occupants" and, therefore, the transfer of the disputed Thara in his favour was justified. He also contended that the Additional Commissioner, Consolidation (Rao Shamsher Ali Khan), who passed the order dated 9-11-1980 did not have the authority to act as Administrator Residual Property. He has referred to Notification dated 9-11-1980 (Annexure 'M' with W.P. No,909-R of 1980) to contend that the powers of Administrator/RP conferred on Additional Commissioners in Punjab stood withdrawn w.e.f. 9-11- 1980 and thus the order of Rao Shamsher Ali Khan dated 9-11-1980 was bad in law. I am afraid this is not so. A notification becomes operative from the date of its publication and the endorsement appended to this notification shows that it was being forwarded to Superintendent, Government Printing Press for publication. Obviously, the publication must have taken place after 9-11-1980 and therefore, the order of Rao Shamsher Ali Khan dated 9-11-1980 cannot be termed to be without jurisdiction. It is further submitted that it is the policy of the Government settled way back in 1939 (copy of the policy letter dated 2-12-1939 placed on record) that Tharas in front of the shops in colony districts should be transferred/sold to the "occupants" of the shops. He also relies on Muhammad Ashraf v. Dost Muhammad etc. 1983 SCMR 383 wherein their Lordships of Supreme Court have laid down that Tharas in front of shops/houses in colony districts were to go alongwith the said properties.
' I am afraid there is no force in this submission. The policy of the Government and the precedent case relied upon are relatable to Government owned properties in colony districts. The disputed Thara, on his own showing, is evacuee property, and, therefore, cannot be dealt with in the light of the Government policy or the dictum of their Lordships of Supreme Court in Muhammad Ashraf's case, Supra as the facts are quite distinguishable.
10. Rana Muhammad Sarwar, learned counsel has referred to Shajra Annexure 'B' with W.P. No,909-R of 1980 to contend that the area of Khasra No,568/225 given in the Aks Shajra marked in red, tallies with the area of the Thara in dispute. According to him, through this Aks Shajra, it is also established that the disputed Thara lies in front of shops Nos.61 and 62, purchased by the "transferee". I regret I cannot agree. The location of the shops is not indicated on this document. Even otherwise, there is no material on the record, to show the location of the two shops or their contiguitvy to the Thara.
11. On the other hand, it has been contended that the "occupants" are in possession of different portions of the Thara, they having constructed their shops thereupon, and thus under the Scheme for Disposal of Urban Available Properties, framed under 1975 Act, they are entitled to its transfer.
12. As noted in the earlier part of this judgment, Muhammad Shafi ("transferee") claims to be in possession of the disputed Thara, having constructed shops thereupon, and leased it out to the "occupants", which position is strongly controverted by the other side. There is not enough material on record to verify the factual position. The Administrator/RP for that matter, the Deputy Administrator/RP have not cared to divert their attention to this aspect, which goes to the root of the case.
The disputed question of fact cannot be gone into and/or adjudicated E upon in writ jurisdiction.
13. Consequently, I have no option but to remit the case back to the Notified Officer, Sargodha, who shall visit the spot in the presence of the parties and permit them to lead such evidence, as may be desired by them, to establish, as to which of the contending parties is in actual physical possession of various portions of the Thara, in question, which shall be transferred to the person/persons, so found to be in actual physical possession. Writ Petition No,909-R of 1980 is disposed of in the above terms. No costs in both the cases.