' This is second round of litigation qua the subject-matter of the case. Earlier, Writ Petition No, 89-R of 1962, filed by late Nawabzada A.K. .Mumtaz, predecessor-in-interest of the petitioners, was dismissed on 26-2-1962 and his 'L.P.A. No, 107 of 1962 was also dismissed on 21-7-1967. It was thereafter on 18-12-1968 that the impugned order was passed by the learned Settlement Commissioner which has been challenged through this petition. The factual background germane to the controversy, stemming from the material on record is briefly stated hereunder.
2. Late Nawabzada A.K. Mumtaz had applied for transfer of House No,49-Lawrence Road, Lahore bearing No,S-51-R-62/A by submitting C.H. Form on 14-7-1959. The house was owned -by one Lala Behari Lal, an evacuee. The house was transferred to him and Appendix-X was issued to him on 6- 11-1959. Whereafter P.T.O. Was issued on 21-1-1960. It may be mentioned that the land which was divided into plots was known as 'Allah Ditta Nursery' was sought to be disposed of through public auction as building site in the year, 1960 which attempt, however, failed. On 7-1-1961, an application was made by late Nawabzada to the Settlement Commissioner, Lahore for the transfer of "extra land" bearing Khasra Nos.667, 668, 670 and 673 that the same were also in his possession; that he was willing to pay the price of the same separately. A memo. Dated 25-1-1961 was issued by the Deputy Settlement Commissioner on behalf of the Additional Settlement Commissioner informing that the same have been transferred to him on payment and the price will be communicated later on after calculation. The transfer of the extra land came to be considered before the Allotment Committee which recorded its finding that the house allotted to the petitioners was situated in Khasra No,673 and was entitled to have three times the plinth area option may be given for selection in a compact block, The Deputy Settlement Commissioner was directed to examine this aspect in consultation with him. On 17-5-1961, the Deputy Settlement Commissioner informed him about the decision of the Committee asking him to surrender the land accordingly. The Department intended to put the plots to auction to be held on 16-1-1962. On 12-1-1962, an application was filed before the Settlement Commissioner for deletion of the plots from the auction list which was forwarded to the Additional Settlement Commissioner with the instructions to withhold the confirmation of the auction in the meantime. Without awaiting the decision of the matter at the departmental level, the late Nawabzada A.K. Mumtaz filed Writ Petition No, 89-R of 1962 which was dismissed by a learned Single Judge of this Court where against, L.P.A. No, 107 of 1962 was field. It may be noted that during-the pendency of L.P.A. The appellant had on 19-4-1962, applied to the Deputy Settlement Commissioner for the issuance of P.T.D. Which was issued on 21- 5-1962, after the auction of the plots had been held. His L.P.A. Mentioned above, was dismissed on 21-7-1967. The matter was not agitated any further by him. However, the learned Settlement Commissioner took up the matter suo motu in respect of the applications dated 7-1-1961, which was for the transfer of the extra land and latter application dated 12-1-1962 for the deletion of the plots from the auction list, who by order dated 18-12-1968, came to the conclusion that memo.
Dated 25-1-1961, by the Additional Settlement Commissioner, Lahore to late Nawabzada "was issued without proper authority and jurisdiction and so the same as well as the so-called "order" of approval on which its issue is based are quite unwarranted, void ab initio and of no legal effect" and that late Nawabzada A.K. Mumtaz was "not entitled to anything beyond the area of " existing bungalow of Behari Lal Chopra" as shown in the map of the Lahore Municipality referred in the note of the proceedings of 7-11-1968 which does not include the pieces of land claimed in the said application as a part of the area of that bungalow and comprises a separate area of 12 Kanals, Q Marlas and 105 sq. Ft. Only". The present writ petition was filed by the successor-in-interest of late Nawabzada A.K. Mumtaz, challenging this order.
3. It is contended by the learned counsel for the petitioners that P.T.D. Having been issued and there being no allegation of fraud or misrepresentation on the part of the transferee, there was no jurisdiction left with the department to impair the validity of the same. Reliance is placed on Sher Afzal Khan and others v. Haji Razi Abdullah and others (1984 SCM R 228) and Muhammad Rasheed v, Abdul Salam and others (PLD 1991 SC 953) in this regard. It is contended that the petitioners were entitled to the transfer and purchase of the excess area under para.19 of the Settlement Scheme No,I and Memo. Dated 9-1-1960 and order dated 25-1-1961 by which the excess land was ordered to be transferred, could not be cancelled later on nor the petitioners could be deprived of the same by invoking memo. Dated 11-3-1961. Relies on Pakistan through the Secretary, Ministry of Finance v.
Muhammad Himayatullah Faruki (PLD 1969 SC 407) and Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973) that order once having been issued, could not be withdrawn. According to the learned counsel the learned Settlement Commissioner in his impugned order has acted erroneously in relying upon a wrong site plan of the bungalow which order is liable to be declared as illegal and without lawful authority.
4. It is contended by the learned counsel for the respondents that only the house which was applied for transfer was transferred to late Nawabzada for which the Appendix was issued as also the P.T.O. And the P.T.D. And that extra land was neither attached to the house nor part of the same; it could neither deemed to be transferred nor any vested right accrued in his favour for the purchase of the same. According to him, even memo dated 25-1-1961 would show that the land was in the form of plots which was not part of or attached to the main bungalow. It is contended that the plots were to be disposed of as building site which were put to auction and on payment of the price P.T.O. And P.T.D. Were issued in favour of his client. It is contended that it was Patwari concerned, who made false and concocted report on the application of late Nawabzada which led the Deputy Settlement Commissioner to issue memo. Dated 25-1-1961; it being without any valid basis, was of no effect had rightly not been implemented. It is contended that the petitioners fully participated in the proceedings before the learned Settlement Commissioner, who has recorded the findings and the conclusion on due examination of the record which findings do not suffer from any illegality and are not amenable to challenge in writ jurisdiction. Reference has been made to Sahebzada Syed Muhammad Matin Mirza v. Jahangir R. Rustomji and another (PLD 1980 SC 64), Muhammad Bashir v. Settlement and Rehabilitation Commissioner, Lyallpur and others (PLD 1983 SC 143), Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others (PLD 1991 SC 1) and Noor Muhammad Arain and another v. Muhammad Mubarik Khan and others (1994 SCM R 376).
5. After hearing the learned counsel for the parties and going through the relevant documents/record the main points that essentially emerge for consideration are:--
(i) What was the property transferred to late Nawabzada A.K. Mumtaz for which he was issued P.T.O.
And P.T.D.
(ii) The legal-effect of memorandum dated 25-1-1961 on the touchstone of section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, paragraph 19 of Settlement Scheme No,I, memo dated.9-1-1960 and of 11-3-1961.
6. In his C.H. Form late Nawabzada had asked for the transfer of House No, S-51-R-62/A, known as 49-Lawrence Road, Lahore. It was this house for which Appendix X was issued to him on 6-11-1959 and P.T.O. Was issued on 21-1-1960. Photo copies of Appendix-X and P.T.O. Have been shown to me by the learned counsel for the petitioners. It makes mention of property No,S-51-R-62/A, Lawrence Road, Lahore which was transferred to late Nawabzada for the evaluation price of Rs,1,08,000. The P.T.D. Which was issued to him during the pendency of L.P.A. No,107 of 1962 on 21-5-1962 also conform to the same description of the property which finds mention in Appendix-X and the P.T.O. It was thus the said house which had been transferred to late Nawabzada and P.T.D. Was issued.
Application dated 7-1-1961 made by late Nawabzada for the transfer of "extra land" on payment and memo ASRC/61/352, dated 25-1-1961 in response to the said application, would also make it clear that plots bearing Khasra Nos.670, 669, 668 and 667 had not been transferred to him and it was only after the issuance of P.T.O. He asked for the transfer of the same. His request apparently was acceded to. In the litigation that ensued later on with the disposal of the said extra land through auction also, the stance of late Nawabzada was that he was entitled to the transfer of the same on payment of the price. The matter of the transfer/sale of this extra land, however, remained inchoate and his Writ Petition No, 89-R of 1962 and L.P.A. No,107-R of 1962 were dismissed.
The property which had been transferred to the predecessor-ininterest of the petitioners and which finds mention in the P.T.O. And P.T.D. Has thus remained in tact. The contention, therefore, that after the issuance of the P.T.D. The Settlement Authority has no jurisdiction in the matter, is misconceived. Whatever was transferred to late Nawabzada has remained with him. It is only the question of his entitlement to the transfer of extra land which became subject-matter of proceedings before the learned Settlement Commissioner.
7. The claim of late Nawabzada for the transfer of extra land is based on memo. Dated 25-1-1961.
This memo. Was issued in pursuance of his application dated 7-1-1961 for the transfer of the extra land. The said order is claimed to have been issued on the basis of memo. Dated 9-1-1960, printed at page 515 of the "Manual of Settlement Law and Procedure", The abovementioned memo. Was, however, withdrawn vide Press Note dated 11-3-1961, printed at page 518 of the Manual. The learned Single Judge while disposing of Writ Petition No, 89-R of 1962 had taken note of the abovementioned policy memo. And Press Note and it was observed that "The fact remains that the transaction has not yet been completed. Neither the price was ever determined nor it was adjusted out of the compensation book of the petitioner. Consequently, the petitioner cannot successfully claim the transaction as regards the surplus land had been completed". While dismissing L.P.A. No, 106 of 1962, the learned Division Bench also took note of the change of policy in particular the following portion of the Press Note that:-- "In case, however, the transferee of a house has made full payment for the area in excess transferred to him over and above the three times the plinth area before the issue of this Press Note, the transfer of the area in excess in his favour will be allowed to stand."
' Since the predecessor-in-interest of the petitioners was claiming that his compensation book was lying with the Settlement Authorities ever since the transfer of the main house, it was observed by the learned Division Bench that "it is yet to be seen if the appellant can be said to have made the full payment for the excess area before the 11th of March, 1961 within the purview of the aforementioned clause". The matter was, however, left at that as the same was pending with the Settlement Authority. The observations in the context of the controversy concerning the same subject-matter and the parties have great relevance and import. The law is fairly settled by now in view of amber of precendents as to the extent of area a transferee of a house is entitled to. In Sahebzada Syed Muhammad Matin Mirza's case (supra) section 2(4) of the Act, paragraph 19 of the Settlement Scheme No,1 and memo. Dated 9-1-1960 as also Press Note dated 11-3-1961 came to be considered before their lordships in a case wherein the appellant had claimed the entire bungalow with area which was mentioned as 4227 sq. Yard for which the P.T.D. Had been issued.
The matter of transfer was, however, reopened by the Settlement Commissioner to determine the entitlement of the transferee. The Settlement Commissioner had taken the view that the area in excess of three times the plinth area being not part of the main house, could not be disposed of in any manner except as provided by paras.13 and 14 of the Schedule of the Act. Considering the import of memo. Dated 9-1-1960 and Press Note dated 11-3-1961, it was held that "similarly the above Press Note saved only those cases where a transferee had made full payment for the area in excess transferred to him over and above three times the plinth area prior to the date of issuance of that Press Note namely 11-3-1961 but the appellant does not fall in that category because there was no conscious transfer of any excess area (i,e, over and above three times the plinth area) to him and nor a separate assessment of price of the aforesaid excess in that perspective. Learned counsel for this purpose wanted to rely in issuance of P.T.O. Td him on 1-4- 1960 and subsequent P.T.D. But as we have already held that, according to it, it was only of "house" that was transferred to him and not of an area over and above the three times the plinth area. In this respect it may be mentioned that he stands in the same position as the respondent who relied upon a notification dated 22-10-1962 which was later on rescinded as explained in the sequel". It thus shows that not only there has to be a conscious order of transfer for the excess area, full payment of price of-the same before coming into force of the Press Note dated 11-3-1961 is to be established in order to claim its benefit. In Muhammad Bashir's case (supra) somewhat similar controversy came to be considered by their lordships and it was held at page 149 as follows:-- "The area exceeding three times the plinth area of the evacuee residential premises, in view of the second proviso added to it by Ordinance LIII of 1959, no longer being part of the 'house', cannot be transferred as such. Nor can any provision of the Scheme relating to the transfer of houses and shops be availed of in this connection. It therefore follows that para.19 of Settlement Scheme No,I definitely became repugnant to the provisions of the Act, after the amendment made in the definition of "house". Firstly, because after the incorporation of the second proviso to section 2(4) any additional area, out of the excess land, beyond the area measuring three times the plinth area, could only be given by the Chief Settlement Commissioner and could not be obtained at the option of the transferee of the house, as provided for in para.19; secondly, and more importantly the excess land no longer formed part of the house, which could be disposed of according to the provision relating to the transfer of house. Hence para.19 of Settlement Scheme No,I which was framed for implementation of the provisions of the Act and Schedule relating to transfer of 'house' and 'shops ' was no longer available in connection with the transfer of such 'excess land' which had ceased to partake the character of a part of house." (Underlined for emphasis).
' In Muhammad Din and others' case (PLD 1991 SC 1) the view taken in the abovementioned judgment was reiterated and it was held that transferee could not lay a claim to the excess area which had to be treated as still available for disposal. It was so held despite the fact that the P.T.D.
Had been issued td the transferee for the excess area as well. In Noor Muhammad Arain's case (supra), it was again held that "since the area in excess of three times the plinth area was not a part of the "house" that was transferred to him he had no concern with the area put to auction because the same was, in the eye of law, never transferred to respondent No,
1. The recital in the P.T.O. And P.T.D. To the effect that the "full house" stood transferred to respondent No,1 has been erroneously considered to have the effect of also transferring the excess area in his favour". The entitlement of a transferee to a "house" is thus well-defined.
8. In the present case, the learned Settlement Commissioner has described memo. Dated 25-1-1961 as "so-called" for his view that "no orders were passed in his favour by any competent authority as the so-called order relied upon by him bears the signatures of a Deputy Settlement Commissioner who even signed the said memo. Dated 25-1-1961 as "Deputy Settlement Commissioner for.
Additional Settlement and, Rehabilitation Commissioner". He was, therefore, not entitled to make any payment on any such account. In fact, no amount has so far even been assessed or demanded from him on that account. He has already applied in Form C.P. IV for the amount payable to him and what has been deducted from his compensation book which has been done in accordance with the said Appendix prepared on the basis of the rent of the bungalow in his possession transferred to him. In the circumstances, no right beyond the transfer of the said bungalow has accrued to him on the basis of depositing of any compensation book by him". He has accordingly found the memo. Dated 25-1-1961 to have been "issued without proper authority and the jurisdiction and so the same as well the so-called "order" of approval on which its issuance is based are quite unwarranted, void, ab initio and has no effect".
9. Besides, the intimation through memo. Dated. 25-1-1961 as to the transfer of. The excess land did not mature into a transaction complete inasmuch as the price of the same had to be calculated and was to be paid by the transferee. Admittedly, this stage never came and no price was paid by the transferee. It was in this context that even the learned Single Judge while dismissing Writ Petition No, 89-R of 1962 had noted this fact that the transaction had not yet been completed, neither the price was ever determined nor was it adjusted from the compensation book. For availing of the said benefit which was in the nature of an exception, it was to be established that "the transferee of a house has made full payment for the area in excess transferred to him over and above three times the plinth area before the issue of this Press Note"; it was only in that eventuality that "the transfer of the area in excess in his favour will be allowed to stand". No indefeasible right had accrued in favour of late Nawabzada merely with the issuance of memo.
Dated 25-1-1961.
10. The import of a particular order is determinable not only from.Its tenor alone but also the enabling law. Order dated 25-1-1961 purports to have been issued in pursuance of memo. Dated 19-1-1960; paragraph 4 of which entitled the transferee of the house to purchase the excess area.
The price to be charged, was to be determined under paragraph 5 of the same. Neither the department worked out/calculated the price payable nor the transferee took prompt steps, approached or urged the department to calculate the price. The matter remained as it was and eventually on 11-3-1961 the Chief Settlement Commissioner withdrew the said concession with an exception that a transferee who had made full payment for the area in excess transferred to him before the issue of the Press Note, the transfer of the excess area in his favour would be allowed to stand. The same instructions contained a direction that all building sites will in future be disposed of by unrestricted public auction. It is thus evident that the payment of the price was an essential element and condition of the transfer which remained unfulfilled till the coming into force of revised policy dated 11-3-1961. No vested right thus had accrued in favour of the transferee. Such an inchoate offer contained in memo. Dated 25-1-1961 which was 'dependent upon fulfilment of the condition i,e, the payment of price had neither been acted upon nor carried into effect, the same could legitimately be treated to have been rescinded and withdrawn w,e,f, 11-3-1961. Reliance of the learned counsel for the petitioners on Mian Irshad Ali v. Government of Pakistan- through Secretary, Ministry of Rehabilitation, Islamabad and 13 others (PLD 1975 Lahore 7) in this connection is misplaced inasmuch as in the precedent case Mian Irshad Ali had been allowed by the Central Government to retain the land under his temporary allotment against his verified- claim, urban and rural combined which order was implemented by the Deputy Settlement Commissioner (Land) confirming the area of his temporary allotment. But afterwards by a subsequent communication the Central Government cancelled the said allotment. It was in this context that the later order of cancellation of the Central Government was found to be illegal and was quashed. The facts of the present case are, however, entirely different inasmuch as the purported order regarding the sale of excess/extra land was never implemented, locus poenitentiae was thus available to the authority.
It cannot also be ignored that the department itself had treated the excess land as building site and placed the same for its disposal through public auction. The reliance of the learned counsel for the petitioners, therefore, on Himayatullah Faruki (supra) and Chief Secretary, Government of Sindh's case (supra) is also not apt which cases concerned with service matters having their own peculiar facts.
11. There is an application (C.M. No, 4113 of 1988) made by the petitioners for placing on the record the documents appended therewith including some site plans. The object of which is to dispute the finding of the learned Settlement Commissioner as to the extent and correct measurement of the house. Suffice it to observe, before the learned Settlement Commissioner, Asad Mumtaz Ali Khan, son of late Nawabzada A.K. Mumtaz and his attorney had been appearing and on 27-11-1968 conceded that the area of the bungalow, transferred was 12 Kanals, 0 Marla, 105 sq. Ft. It has been taken note of by the learned Settlement Commissioner in his order impugned herein but was not specifically controverted by the petitioners in the writ petition or by filing any affidavit. In view of the said stance of the petitioners before the learned Settlement Commissioner reference to any other document is neither warranted nor legal; indeed perusal of the record of the proceedings conducted by the learned Settlement Commissioner would show that extensive efforts were made to arrive at the correct conclusion as to the area of bungalow transferred to late Nawabzada. The findings so recorded by him are amply supported by the material on record and cannot be interfered with by this Court in writ jurisdiction.
12. It may be noted that some persons made applications laying claims against each other which matter cannot and need not be embarked upon by this Court in these proceedings as the controversy essentially related to the entitlement of the petitioners to the excess/extra land.
The sum and substance of the above is that the predecessor-in-interest of the petitioners had been issued P.T.D. For Property No,S-51-R62/A, Lawrence Road, Lahore which did not include the excess/extra land; the purported transfer of the extra land claimed on the basis of memo dated 25-1-1961 did not create any indefeasible right as it was not backed by any valid order and also that no price had been paid before coming into force of Press Note dated 11-3-1961. The order of the learned Settlement Commissioner, impugned herein, thus calls for no interference by this Cowl. The petitions accordingly dismissed. No order as to costs.