House No.3-5 situated in Jaranwala, an evacuee property -consisted of three independent units described as portions A, B and C. On 7-3-1960, the Deputy Settlement Commissioner transferred portion C to the petitioner, portion A to Fateh Muhammad and others and the transfer of portion B was defered by making reference to the Additional Settlement Commissioner, which was stated to be occupied by Jamat-e-Adhmadia. An appeal was filed by the petitioner which was disposed of by the Additional Settlement Commissioner accepting the same to the extent of portion A by giving the same to the petitioner. However, his appeal with regard to portion B was rejected on 19-8-1960 by observing that the same was being used by Anjaman-e-Ahmadia as a Jamat Khana. Fateh Muhammad challenged this order by filing revision, which was dismissed by the Settlement Commissioner. His second revision also was dismissed. He filed Writ Petition No.473-R of 1962, which was accepted by a learned single Judge (Late Anwarul Haq, J. As he then was) remanding the matter to the Additional Settlement Commissioner. L.P.A. No.82 of 1966 was filed by the petitioner, which was dismissed on 25-2-1974. The matter was then taken up by Agha Nasir Durrani, Settlement Commissioner on 23-9-1981, who rejected the petitioner's claim for the transfer of portion A with the direction to the Deputy Settlement Commissioner to work and determine the entitlement of the petitioner for the land attached to bungalow as per policy:
2. As to portion B, the learned Settlement Commissioner vide his order, dated 9-8-1961 remanded the matter to the Additional Settlement Commissioner for fresh decision in the light of scheme promulgated by the Central Government on 19-5-1961, which dealt with such-like properties. On 'remand, the Additional Settlement Commissioner on 9-6-1964, found portion B being used by Jamat-e-Ahmadia respondent No.1 for their religious purposes and directed its transfer to them.
The petitioner challenged that order by filing a revision petition, which was accepted by the Settlement Commissioner on 26-11-1965, who was of the view that portion B was part of the bungalow which had been allotted to the petitioner, it should also be transferred to him. This order was challenged by respondent No. l by filing Writ Petition No. 356-R of 1966. The said petition was disposed of on 21-11-1968 by remanding the matter to the Settlement Commissioner for fresh decision in accordance with law. On remand, the Settlement Commissioner on 13-11-1973 found that the petitioner could not claim transfer of portion B. As to the entitlement of -respondent No.1 for the transfer of the same, he remanded the matter to the Deputy Settlement Commissioner. The above order was challenged by the petitioner by filing Writ Petition No.981-R .Of 1973, which was dismissed by the same learned Judge (Late K.E. Chauhan, J. As he then was) on 13-12-1973, who had decided Writ Petition No.356-R of 1966. This order was challenged by the petitioner by filing C.P.S.L.A. No.154 of 1974, which was dismissed by the Hon'ble Supreme Court on 3-7-1974. In this way the contest of the petitioner concluded with the judgment of the Supreme Court.
3. The same order of the Settlement Commissioner, dated 13-11-1973 was challenged by respondent No.1 in Writ Petition No.490-R of 1974, which petition was accepted on 30-9-1974 by M.S.H. Quraishi, J. (as he then was) and the order of the Settlement Commissioner was found suffering from certain defects directing the Settlement Commissioner to decide the matter afresh in accordance with law. In pursuance of this remand order Mr. Muhammad Khalil Bhatti, Additional Commissioner (Revenue) Faisalabad Division, Faisalabad exercising the powers of Settlement Commissioner took up the matter, inspected the spot and found that Jamat-e---Ahmadia was in possession since 1952 of portion B and the area between this building and the path leading to the portion 'C', and observed that portion B the description of which was given by him shall stand transferred to Jamat-e---Ahmadia. He further observed that the petitioner was entitled to the allotment of portion C alongwith three times the plinth area. The operative part of his order is as follows:-- "So, DSC Faisalabad is directed to measure the area which is left out from portions 'A' and 'B' and then take into account the built up area of portion 'C' as on 20-12-1958 ignoring the constructions made thereafter, then three times of plinth area will be given to Major Muhammad Nawaz Khan on the northern side of the path and if further area is required in the south of the path, it will be adjacent to portion 'C'. The surplus area will be carved out adjacent to portion ' A' between the 20 feet path and there street on the southern side. This surplus area should be clearly demarcated and will be put to auction according to the rules for disposal of residual properties."
The petitioner felt aggrieved of this order and filed the present writ petition.
4. It is contended by the learned counsel for the petitioner that Transfer Order (TO) having already been issued in favour of the petitioner on 20-6-1983, interference with the property transferred to the petitioner was neither warranted nor permissible under the law. It is contended that after the matter of transfer had become final with the order,, dated 23-9-1981, no modification could be made by the Settlement Commissioner as to the extent of his entitlement.
5. On the other hand, the learned counsel for the respondent No. l contends that the impugned order has been passed by the Settlement Commissioner in pursuance of long litigation pertaining to the entitlement of the parties and the Settlement Commissioner has passed the , order, after inspection in the presence` of the parties concerned; no grievance can be made by the petitioner about the same. It is contended that order, dated 23-9-1981 relied upon by the petitioner is ineffective qua the rights and entitlement of respondent. No. 1, which had been passed by the Settlement Commissioner in the absence of respondent No. 1. It is further contended that any measurement carried out in pursuance thereof and transfer documents issued are of no effect as at that time the matter was still sub judice in pursuance of remand order passed in Writ Petition No:490-R of 1974.
6. From the abovementioned background of the case, it is evident that the petitioner had been in possession of main bugalow described as portion. C. He fought for the whole of the property but did not succeed. The matter of his entitlement stood clinched by the judgment of the Supreme Court in C.P.S.L.A. No.154 of 1974; when his petition was dismissed taking the view that "the petitioner has been transferred the main bungalow and the maximum that he is entitled to is a certain proportion of the plinth area of the main bungalow in addition to the bungalow. If the fate-house or the superstructures at the rate are be and this limit he can in no event be entitled to the same". The petitioner thus, could claim a certain portion of the plinth area in-addition to the main bungalow.
The extent to which a person is entitled under the law is three times the plinth area. This is so in view of section 2(4) of Displaced Persons (Compensation and Rehabilitation) Act, 1958, which defines the expression 'House' and has come to be considered in a number of judgment. In Muhammad Aslam Khan v. Chief Settlement Commissioner (1972 SCM R 545), it was held that transferee was not entitled to more than three times of plinth area of house transferred to him. In Muhammad Bashir v. Settlement and Rehabilitation Commissioner (PLD 1983 SC 143) it was observed that "a house within the meaning of the Act would only be an evacuee residential premises alongwith three times its plinth area and the remaining land would be an area which was no longer a part and parcel of the house and therefore, could not be transferred in connection with the transfer of the house. In Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others (PLD 1991 SC 1), the matter was again dealt with by their lordships quite elaborately and it was held that in case the land attached to the house transferred to a person exceeds three times it plinth area, no claim could be laid to the excess land by virtue of transfer documents issued by the Settlement Department.
7. In the present case, reliance is placed on a report which was approved by the Deputy Settlement Commissioner on 6-4-1983 and T.O. Was issued in pursuance thereof. Such an exercise was undertaken by the Deputy Settlement Commissioner in pursuance of order, dated 23-9-1981 of the Settlement Commissioner, Rawalpindi Camp at Faisalabad, the operative part whereof is as follows:---- "The revision petition filed by the petitioner, therefore, finds no merits so far as his, claim for transfer of portion A alongwith the portions, C main bungalow is concerned and as such '-it is rejected.
However, the order of the learned Deputy Settlement Commissioner so fax it relates for resumption of the land attached with. The main bungalow in favour of Government is concerned, those remarks need to be modified- to this extent only' that the entitlement of the petitioner for the land 'attached .With the' bungalow, be Worked out and determined by the Deputy .Settlement Commissioner- in accordance with the instructions and policy prevailing at the time of filing this appeal/revision."
The matter then came to the Deputy Settlement Commissioner. He appeared to have entrusted it to an official of the Department for measurement and demarcation, who reported that total area of the property was 11 Kanlas and 13 Marlas and worked out the entitlement of the petitioner to 8 Kanals, 10 Marlas and 179 Sq. By adding four times the plinth area. The said report was approved by the Deputy Settlement Commissioner 'and T.O. Issued accordingly thereafter. The report shows that none else was associated with the process of measurement and demarcation except the' petitioner and his entitlement was worked out by including four time the plinth area whereas the entitlement under the law was only to the extent of three times the plinth area. The Deputy Settlement Commissioner approved the same without application of his own mind ignoring the legal position as to the extent and entitlement to the plinth area. The petitioner cannot, therefore, legitimately base his claim on such a report or the T. O., issued in pursuance thereof.
8. The learned counsel for the respondent No. l contended that in any case any such determination would not bind respondent No. l who had not been associated in the process by the Deputy Settlement Commissioner. The binding force and effectiveness of such an order or the T.O. Issue in pursuance thereof was considered in the case of Muhammad Din and others (supra). In that case PTD for the property had been issued by endorsing the report of the Patwari that there was no land beyond three times of the covered area, in the year 1962. On the initiation of the certain persons that the transferee was holding area much in excess of his entitlement, it was reopened by the Settlement Commissioner and on inspection by the Deputy Settlement Commissioner of the site it was found that PTD had been issued for the excess than the entitlement of three times the plinth area. The order of the Deputy Settlement Commissioner was challenged by the transferee before this Court, which was declared to be without lawful authority in view of the PTD having already been issued. An ICA against the order of the learned Single Judge failed and the matter reached before their Lordships of Supreme Court. The argument that after issuance of PTD it was not permissible for the Department to reopen the matter was repelled by their lordships and it was held that "respondent No. l cannot lay a claim to this area under the transfer document issued in his favour, as such it has to be treated as still available for disposal". It was further observed at page 11 that" in the proceedings held by the Deputy Settlement Commissioner, the legality or propriety of the transfer of the house to respondent No. l 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. l under the transfer documents issued in his, favour". The appeal was. Accordingly accepted by - their lordships with a direction to the Board of Revenue to dispose of the excess land in accordance with the relevant scheme.
9. This being the legal position obtaining in the matter, the petitioner cannot lay claim over and above three times the plinth area of the house transferred to him. What has been transferred in excess of his entitlement is not sanctified by law and has to be dealt with in accordance with law that is what the Settlement Commissioner has done through the impugned order by issuing a direction to the Deputy Settlement Commissioner to carry out measurement of the area and to work out the surplus for disposal in accordance with law. The petitioner cannot have any legitimate grievance qua the same. There is no illegality with such an order so as to warrant interference by this Court in equitable jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is, however, observed and expected that while carrying out measurement and demarcation, .The functionary concerned shall associate the parties concerned with .The process and keel, their requirements in view while demarcating the excess area.
10. This petition is dismissed accordingly with the above observation. No order as to costs.