The brief facts leading to the filing of this Constitutional petition are as follows.
2. The petitioner is a registered educational society and is running a primary school under the name of Fatmi Boys and Girls School. Adjacent to the school premises, an open space measuring 933 sq. Yds. Bearing Survey No.G-1/A in available which is being used by the school for its purposes.
The petitioner-society had applied to the Settlement Authorities for the transfer of this open space which was an evacuee property and after some initial set-backs obtained a favourable order from the Central Government on 8-12-1971 when the Rehabilitation and Works Division Government of Pakistan conveyed its approval to the Chief Settlement Commissioner, Lahore of transfer of this piece of land to the Fatimi Boys and Girls School, Malir on payment of prevailing market price which was to be determined by the Chief Settlement Commissioner. Copy if this order was forwarded by the Chief Settlement and Rehabilitation Commissioner to the petitioner society vide its endorsement No.3630-- AQN/KAR/116/71 dated 3rd January, 1972 (Annexure 'F' at page 57 to the petition). Subsequent thereto, Deputy Settlement Commissioner-II, Karachi vide his letter dated 1st January, 1972 (Annexure ' G' at page 59) determined the price at Rs.18,660. On the representation of the petitioner society that the price be reduced the Deputy Settlement Commissioner suggested and the Additional Settlement Commissioner recommended that the price be fixed at the rate of Rs.4.33 per sq. Yard. The letter containing the suggestion of the Deputy Settlement Commissioner and the recommendation of Additional Settlement Commissioner dated 9-3-1972 is Annexure ' H' to the petition at page 61. The Additional Settlement Commissioner had forwarded his recommendation to the Chief Settlement and Rehabilitation Commissioner, Sindh. It is stated that the matter rested at this stage and no final decision as to the price was taken by the Chief Settlement Commissioner until the Settlement Department was wound-up and the Settlement Laws were repealed on 1st July, 1974 and the pending settlement work was entrusted to the Provincial Boards of Revenue, in this case, to the Board of Revenue, Sindh. They petitioner society later on learnt that in soma other proceedings between Mr. Mukhtar Ahmad Ansari end others and one S. Anwarullah Qadri, Deputy Settlement Commissioner, Karachi passed an order on 17-7-1984 in the last para. But one of which he made an observation that this plot was available for disposal by the Board of Revenue, Sindh (para. 11 of order dated 17-7-1984 Annexure ' I' page 63.). The petitioner society felt aggrieved from these observations even though it was not a party to the proceedings in which order dated 17-7-1984 was passed in which these observations were made and approached the Deputy Settlement Commissioner for expunction of these observations and determination of the price of the land in persuance of the order of the Central Government dated 8th December, 1971 and the recommendation of the Additional Settlement Commissioner dated 9- 3-1972 but no appropriate action was taken by the Department and finally vide letter dated 27th March 1989 the Additional Commissioner (E.P. Branch), Karachi informed the petitioner-society that this piece of land can only be disposed of by the Board of Revenue under the existing rules. The petitioner society feels aggrieved from the refusal of the respondents to abide by the order of the Central Government whereby the disputed piece of land was approved .To be transferred to the petitioner society on payment of its market value which was to be determined by the Chief Settlement Commissioner and maintains that this piece of land is no more available to the Board of Revenue for disposal since its disposal has already been effected and only formal transfer order is to be passed after the determination of its price and its payment by the petitioner society.
3. Additional Commissioner who is respondent No.2 had filed counter affidavit of Deputy Secretary Shakil Ahmad Khan in which the case set up by the petitioner does not appear to have been contested. The counter-affidavit is a narration of events and facts which are, on the whole, in consonance with the averments made by the petitioner society in the Constitutional petition.
4. I have heard learned counsel of the parties. Learned counsel appearing on behalf of the respondents has also reiterated the facts as contained in the petition and in the counter-affidavit.
5. There is no explanation from the side of the respondents as to why appropriate action was not taken within a reasonable time on the recommendation of the Additional Settlement Commissioner dated 9-3-1972, suggesting the reduction of price of the disputed land from Rs.18,660 to Rs.4.33 per sq. Yard (vide Annexure ' H' to the petition). No doubt, it was also the duty of the petitioner to see to it that the Settlement Department took appropriate action within a reasonable time.' Nevertheless, it was the duty of the respondents to have passed an appropriate order on the recommendation of the Additional Settlement Commissioner and it was up to the Settlement Commissioner to act according to this recommendation and reduce the price to Rs.4.33 per sq. Yard or to reject this recommendation and insist on the price earlier fixed by the department which was Rs.18,660 in all. This delay, however, cannot justify the respondent from going back upon a concluded transaction and claim that the disputed piece of land was still available to the Board of Revenue, Sindh for disposal. As held in the case of Sher Muhammad and others v. Settlement Commissioner and others (1988 SCM R 576), if the department does not issue the demand notice and there in subsequent delay on the part of the transferee to pay the cost of the land, the department cannot resume the land for such failure on the part of the transferee. I would, therefore, allow this Constitutional petition and declare that the disputed piece of land admeasuring 933 sq. Yard which was given Survey No. G-2/A was approved for transfer to the petitioner society vide letter dated 8th December, 1971 of the Rehabilitation and Works Division and the Chief Settlement Commissioner (now Board of Revenue) was only to assess its prevailing market price (that is, the price prevailing in the market on 8th December 1971) and the final transfer orders were to be passed after the price so determined is paid by the petitioner society, that this piece of land is no more available to the Board of Revenue for disposal and the respondent should now proceed to determine the price of the land in the light of the recommendation of the Additional Settlement Commissioner dated 9-3-1972.
6. Under the circumstances the parties are left to bear their own costs.