This Constitutional petition is directed against order dated 9-10-1982 of the Settlement Commissioner/Administrator (R.P.), Lahore whereby transfer of excess area measuring 2 Kanals 4 Marlas in favour of respondents has been maintained.
2. Briefly stated, the Property No.NE-IR-309, G.T Road, Lahore is located in Khasra Nos.5404 and 5402 with a total area of 9 Kanals 14 Marlas 128 sq.ft. This property, according to learned counsel, was transferred in favour of petitioners by order dated 31-12-1959 and P.T.O issued in their favour on 28- 4-1961 and there being no excess area, the same could not have been transferred by the Deputy Administrator vide his order dated 13-11-1979 in favour of respondents and consequently this order could not have been maintained by the Administrator, Lahore on 9-10-1982. Both these orders are impugned in this writ petition.
3. Main argument of learned counsel for petitioners is that property was transferred in 1959 in favour of petitioners in full and there being no excess area, the same could not have been transferred in favour of respondents. According to record of this writ petition, there have been divergent reports as to the excess area and the petitioners also filed an application dated 10-6- 1978 before the DSC Annex: `C' to the writ petition that in case of excess area, the same may be sold to them. Learned counsel for petitioners, with reference to the record, has shown contradictions in calculating the excess area and finally relied upon the order dated 31-7-79 of the DSC, Lahore where in para 10, it was observed as hereunder:-- "There is no excess area available in this property, therefore, the petitions of the transferees are allowed. The T.O has already been issued for the full property. Since no excess area is available in the property therefore' the aforesaid 3 B.S. Forms or any other Form received in R.P scheme in respect of Bungalow No.NE-I-R-309, G.T. Road, Lahore are liable to be rejected:" .
4. The aforementioned order was passed on the application of petitioners where they were agitating that there was no excess area in the property. However, by order dated 13-11-1979, Deputy Administrator transferred the disputed property in favour of respondents on their Forms being available property which order was maintained by Administrator (R.P.), Lahore on 9-10-1982.
5. In support of his contention, learned counsel for petitioners also relied upon the report of DSC/Deputy Administrator recommending to the Settlement Commissioner/Administrator, Lahore that disputed area is part of Bungalow No.NE-IR-309. According to learned counsel for petitioners, this was a reference to the Settlement Commissioner which has not been decided but he concedes that petitioners filed revision petition against transfer order dated 13-11-1979 in favour of respondents but the same was dismissed on 9-10-1982. He further submitted that Administrator had no jurisdiction to take up the proceedings on a reference as well as on revision petition as property had already been transferred in favour of petitioners. It is, however, admitted that question of jurisdiction was challenged in Writ Petition No.468 of 1980 and the same was dismissed as having been withdrawn.
6: Learned counsel for petitioners also argued that petitioners filed a civil suit for possession of disputed property and the same was decreed and this was maintained , in R.SA No.70-84 by this Court on 14-7-1.986. It is further submitted that respondents also purchased 10 Marlas of land by way of registered sale-deed from the petitioners and it can reasonably be inferred that they reconciled to the ownership of disputed property and that the same could not be transferred in their favour and in these circumstances, impugned orders are nullity in the eye of law.
7. At the very outset, I may state that learned counsel for petitioners has consumed most of the time by stating certain facts on the basis of orders which were not brought on the record. He orally stated that property in dispute was transferred in favour of abdul Hameed by order dated 31-12- 1959 of the DSC who in turn entered into an agreement of association with Hussain Bakhsh. This order of the DSC although referred in one of the proceedings, but has not been placed on the record and that is the only document which could show the entitlement of petitioners as to how much area has been transferred in their favour. It appears that the same has been deliberately withheld so that correct facts are not brought out. As to the ejectment proceedings and sale of some of the property in favour of respondents, it is submitted by the learned counsel for respondents that the same did not relate to the excess area. I have gone through the order dated 14-7-1986 passed in S.A.O No.70-84 decided by this Court and also copies of sale-decd and am in complete agreement with learned counsel for respondents that it is difficult to hold that the same relate to excess area.
8. Admittedly in this case DSC and Settlement Inspector were making contradictory reports as to the excess area for reasons best known to them. This sort of situation is highly diplorable. In report dated 6-6-78, excess area was found to be 4 Kanals 6 Marlas 114 sq.ft. In other report dated 13-7-78 Settlement Inspector calculated the excess area as 3,924 sq.ft. and yet by order dated 31-7-1979, excess area in para 9 was calculated to be 8 Marlas 158 sq.ft but in para 10, it was said that no excess area was available in respect of disputed property. Learned counsel for petitioners is, therefore, very right in submitting that contradictory reports on the question of excess area were available.
9. Whatever may be the position, controversy regarding the excess area was agreed to be resolved when reference filed by the Settlement Department and revision petition filed by petitioners against order .dated 13-11-1979 was pending before the Administrator, Lahore. These proceedings continued before him for a much longer tine and the case was adjourned from time to time and certified copies of all the interim orders passed by the Administrator have been placed on the record with C.M 4703-88.
10. In one of the orders dated 10-8-1981, both the learned counsel for the parties agreed that a fresh sketch of the property be prepared and for this reason, Mr. R.A. War, present learned counsel, also sought adjournment to raise objections in. case there was any inaccuracy in the preparation of sketch. This is so stated in the order dated 19-8-81. In pursuance of above, fresh measurements were taken with the consent of the parties and finally excess area was reported to be 2 Kanals 4 Marlas as is observed in the impugned order. It was stated by the Administrator that "with the consent of the petitioners a team comprising of Naib-Tehsildar, Settlement Inspector and Revenue Patwari under the supervision of Dy. Settlement Commissioner was constituted by my learned predecessor to measure the site in presence of the parties and report with site plan of the premises. It was done by the team in presence of the parties and submitted their joint report as under:-- .
1. Total area9K-14M-128 sq.ft.
2. Area at site9K-17M-27 sq.ft.
3. Built-up area of house servant quarters etc.1K-12M-81 sq.ft.
4. Lay down of floors.OK-1M-25 sq.ft.
5. High tension1K-7M-25 sq.ft.
6. Excess area2K-4M-0 _ sq.ft On the basis of above, learned Settlement Commissioner concluded that there was an excess area of 2 Kanals 4 Marlas and that the same was rightly transferred in favour of respondents.
11. If petitioners had not agreed before the Settlement Commissioner for preparation of sketch afresh, I would have remanded the case with some strictures as to the contradictory calculations but the petitioners themselves agreed that fresh plan of the property be prepared in order to resolve the controversy. Learned counsel for petitioners submits that property was transferred in favour of petitioners in 1959 but it is regrettable that the same order has not been produced on the file of this Court. On the contrary, petitioners themselves filed an application, which is not disputed, that in case of excess area they were entitled for its sale. It cannot be said, therefore, that there was no excess area in the property in question. It has been held in PLD 1980 SC 64 "Sahibzada Syed Muhammad Matin Mirza v. Jahangir R. Rustomji", PLD 1983 SC 143 "Muhammad Bashir. v. Settlement and Rehabilitation Commissioner" and PLD 1991 SC 1 "Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu" that excess area cannot be transferred to the transferee. According to calculation as mentioned in the order of Administrator dated 9-10-1982, total area of the property is 9 Kanals14 Marlas 128 sq.ft. out of which 2 Kanals 4 Marlas have been transferred to respondents and petitioners have no vested right to purchase this excess area.
12. Looked from any angle, petitioners have no right whatsoever to claim the excess area and in view of this, writ petition is dismissed with costs.