Through the present writ petition, the petitioner called into question the Order dated 20-5-1991 passed by Deputy Commissioner, Rawalpindi whereby the demarcation proceedings on the application of Secretary, Regional Transport Authority were initiated and also assails the demarcation report dated 23-5-1991 made by Tehsildar, Rawalpindi.
2. On 21-12-1959 evacuee Bungalow No,CL-55-A stated to be measuring 44875 situated in Civil Lines, Mayo Road was drawn in the name of petitioner in Earmarking Scheme.
3. Provisional TransferOrder No,DSC/RWP-II/145 dated 25-5-1960 and thereafter Transfer Order dated 12-12-1973 was issued in favour of the petitioner by the said department, whereby the property stood permanently transferred to the petitioner.
4. The Bunglow remained in possession of various Government departments and the Settlement Department was its last occupant, who vacated the said Bungalow in 1982. It was in dilapidated condition and the petitioner stated demolished the same after taking possession from the Settlement Department.
5. Out of the area of the said bungalow, Abdul Majeed and others were also contenders to the extent of one kanal of land and the matter went up to Supreme Court of Pakistan and finally through Civil Appeal No,421 of 1986, which was decided on 20-3-1991, the dispute was decided in favour of the petitioner.
6. The adjoining Bungalow bears No,C1-55.-C, which was in possession of the Province of Punjab through Regional Transport Authority, Rawalpindi. A dispute about the demarcation had arisen and Deputy Settlement Commissioner (Notified Officer), Rawalpindi conducted the demarcation of the two Bungalows. In the process of demarcation, plan was also prepared after making demarcation at the site. This demarcation was effected by Deputy Settlement Commissioner without notice to the petitioner vide Order dated 15-3-1978.
7. On the representation of the petitioner,the Deputy Settlement Commissioner (Notified Officer), re-called its Order dated 15-3-1978, which was passed in the absence of the petitioner and passed a fresh Order dated 16-9-1978 after notice to the parties and the demarcation plans were finally settled.
8. Ghulab Khan, who was contender to the extend of one kanal of land was aggrieved of re-call of the Order dated 15-3-1978 and fresh Order passed by Deputy Settlement Commissioner (Notified Officer) on 16-9-1978. He accordingly filed a Writ Petition No,1022-R/78. This writ petition was dismissed by this Court vide judgment dated 27-3-1985. The matter was lifted to Supreme Court of Pakistan through Civil Appeal No,421 of 1986. This appeal was finally dismissed by the apex Court vide its judgment dated 20-31991.
9. Belatedly another limb of dispute was raised by Secretary, Regional Transport Authority, Rawalpindi, being in possession of adjoining bungalow, Availing of the opportunity that some area allotted to the petitioner was lying open, he made an application on 18-5-1991 to Deputy Commissioner, Rawalpindi with the request that Property No,CL-55-A, CI-55-B and CL-55-C be demarcated. All the three properties were evacuee in character. As regards property No,CL-55-A, it already stood transferred in favour of the petitioner but the remaining' properties were still available evacuee property.
10. The DeputyCommissioner forwarded the application to Assistant Commissioner, Saddar who remitted the said application to Tehsildar Rawalpindi, who has prepared the demarcation report dated 23-5-1991 but the petitioner was not associated with the demarcation process. Resultantly, the area of Bungalow of the petitioner, which originally was 44875 s.ft was reduced to 30738 s.ft.
11. It is contended by learned counsel for the petitioner that the demarcation proceedings were without lawful authority, as these were conducted ex-parte and in the absence of the petitioner.
Next it was argued that the demarcation of the property of the petitioner stood fainalized by the Deputy Settlement Commissioner (Notified Officer) vide his Order dated 16-9-1978 which had attained finality. Adding further, the petitioner submitted that Tehsildar Rawalpindi on the Order of DeputyCommissioner/Assistant Commissioner could not cause any demarcation because it was an evacuee property. Adding to his arguments, the learned counsel submitted that the perusal of the demarcation would show that it was completely a biased report, which was made in violation of the instructions issued by Financial Commissioner in respect of demarcation.
12. Admittedly the property of the petitioner stood permanently transferred in favour of the petitioner. Its demarcation was completed by Deputy Settlement Commissioner (Notified Officer), vide its Order dated 16-9-1978. That the other adjoining property bearing No,CL-55-A and CL-55-B were also evacuee properties which were still available. The Deputy Commissioner, who was not Notified Officer as such, was not authorized to even to pass an order for demarcation of the evacuee property bearing No,CL-55-B and CL-55-C. The record reveals that the demarcation report was merely cursory and it was prepared without observing the rules relating to the demarcation. In the presence of demarcation report dated 16-9-1978, which has attained finality, the Deputy Commissioner, Rawalpindi could not pass an Order for demarcation of the property pertaining to the petitioner. Patently, the Order passed by Deputy Commissioner forwarding the application of Regional Transport Authority to Assistant Commissioner and Tehsildar preparing the demarcation report dated 23-5-1991 is without lawful authority. Consequently, I allow this writ petition and declare the Order of Deputy Commissioner dated 20-5-1991 and demarcation report dated 23-5-1991 having been passed and made without lawful authority and of no legal effect.