' SHAFI-UR-REHMAN, J.-This judgment disposes of the following two Letters Patent Appeals:
(1) L. P. A. No, 173/71, Zafarullah Khan v. Muhammad Usman and 10 others.
(2) L. P. A. No, 199/71, Muhammad Usman and 7 others v. Chief Settlement and Rehabilitation Commissioner and 3 others.
2. Both these appeals arise out of judgment dated 5-7-1971 in Writ ' Petition No, 518-R/71, filed by Muhammad Usman and others.
3. In order to deal with these two Appeals, it will be necessary to go in some detail, into the factual aspect of the controversy, for it has given rise to protracted litigation between the parties and a number of matters apart from these Letters Patent Appeals, are coming up today for disposal after having been heard together.
4. Rana Zafarullah Khan is a claimant displaced person who was allotted and came to possess in 1951 Bungalow No, 47, Queens Road, Lahore. In the year 1957 the Commissioner, Lahore Division, who was also ex officio, the Rehabilitation Commissioner, verbally permitted the Administrator, Municipal Corporation, Lahore, to utilise 1 kanal 2 marlas and 135 square feet of land forming a part of the compound of this Bungalow for widening of the Road. The Lahore Corporation took possession of this portion of the compound forthwith, shifted the public drain to the new boundary of the compound after excluding this 1 kanal 2 marlas and utilised only 3 marlas of it in the widening of the Road. Another chunk of 10 marlas of the acquired land was leased out to a political personality of the day Mst. Mahmuda Begum. (The Settlement record describes her as a "leader of Republican Party"). The period of lease was fixed first at three years and then extended to ten years.
The lease authorised her to construct a number of shops in accordance with the approved plan of the Corporation. The formal correspondence with regard to the acquisition of this land, which in fact, was physically acquired and utilised, started somewhat later. When moved for a No-Objection Certificate the Secretary Urban recorded the following note on 15-7-1958 : "Is this a part of the compound of an evacuee bungalow or an independent plot. In the former case who is the occupant of the bungalow and since when, whether a claimant allottee or otherwise. If this is a portion of the compound of the house will it not form one unit and in that case how it is to be separated from the compound."
' Before the matter could be finalized at that level a note was received on 6-10-1958 from Provincial Refugee Minister which is as follows :- "I have seen the file and find that the land occupied by the Corporation authorities was needed by them for widening the Road etc. I have discussed this case with Mr. Latif Malik, C. E.
0., Lahore Corporation, who informed me that after applying to the Department to acquire land for public purpose, he presumed that the permission will be given automatically. No doubt he had taken a hasty step. In any case, there is hardly any instance when the land needed by the Corporation for public purposes has not been given to them.
(2) Regarding the construction of building, he explained that the leases are short term and the building in question will be demolished after the expiry of the leases.
(3) Please take a lenient view and regularise the acquisition of the land according to law.
(Sd.)
' Masood Sadiq 6-10-1958."
' This note of the Minister received no attention on account of the circumstances explained in the note of Secretary Urban, dated 23-4-1960, which is as follows : "The minute of the Provincial Refugee Minister (Mr. Masood Sadiq) dated 6-10-1958 may kindly be seen. No action was taken on that note because the Martial Law had been proclaimed on 7-10- 1958. Afterwards, this case became scandalous and did much damage to the reputation of a Minister, a Commissioner and an Administrator."
5. Rana Zafarullah Khan by an amended petition (Writ Petition No, 772/58) challenged the proposed sale by the Chief Settlement Commissioner in favour of Lahore Municipal Corporation. He also challenged the authority of the Lahore Municipal Corporation to take possession of it and of inducting Mst. Mahmuda Begum over a portion of it. He wanted that the sale be restrained, the unauthorised possession of the Corporation brought to an end and the obstructions created by Mst. Mahmuda Begum on the land removed. In resisting the petition, the Chief Settlement Commissioner took up the plea that the proposal to sell the land to the Corporation had been revoked, that the land in dispute formed a part of the compound of bungalow occupied by Rana Zafarullah Khan that orders had already been passed directing restoration of its possession to him after demolishing the constructions raised by Mst. Mahmuda Begum. It is not necessary for these appeals to examine the pleas taken by Mst. Mahmuda Begum and the Lahore Municipal Corporation.
6. In view of such a position taken by the Chief Settlement Commissioner himself, this petition was disposed of on 2-2-1961 as infructuous. Some of the observations made in the judgment while disposing of the petition as infructuous require reproduction here because they have played an important and an abiding part in the tripartite controversy that arose subsequently and which 'requires to be resolved now. The judgment begins by observing that "in the light of written statement of the Chief Settlement Commissioner the writ petition has become infructuous because the disputed plot of land is not being transferred to respondent No 1 and instructions have been issued for demolition of structure set up on it by respondent -No, 2". In view of the direction already given by the Chief Settlement Commissioner to the Lahore Municipal Corporation to remove the unauthorised construction, the prayer for getting the structure demolished also was not entertained with the observation that "we have no reason to believe that the direction given by the Chief Settlement Commissioner will nut be implemented". As regards entitlement of Rana Zafarullah Khan it was observed that "as mentioned above, a provisional transfer order of the whole house which includes the entire compound has already been executed by the Settlement Department in favour of the petitioner, the question of respondent No, 2 being entitled to transfer of a part of the compound therefore does not arise at all". In the concluding portion of the judgment the conduct of the Lahore Municipal Corporation in taking wrongful possession of the plot in dispute and of giving it to Mst. Mahmuda Begum without any authority or Administrative expediency was depricated. It was also observed that the representation made that the plot of 1 kanal 3 marlas was required for widening of the Road was false. The judgment concluded by saying that "we would not have therefore hesitated in issuing an appropriate writ to respondent No, 1 for demolishing the shop built by respondent No, 2 on the disputed plot and restoring its possession to the petitioner. But as the Chief Settlement Commissioner has already passed orders in that behalf we have considered it unnecessary to resort to this course of action".
7. A petition for leave to appeal to the Supreme Court against this order was filed by Mst. Mahmuda Begum but it was disposed of on the ground that "when High Court dismisses a petition on the ground that it has become infructuous it cannot be said that there is a decision by High Court against which leave to appeal can be applied for. The petition is dismissed".
8. This judgment of the High Court, the substance of which has been-reproduced in some detail, was time and again considered by the Settlement Authorities. One view, and the more predominant one, in respect of it was that it has the effect of establishing the title of Rana Zafarullah over the whole of the compound of this bungalow irrespective of its proportion to the built-up area. It was also taken to be implied in the decision that nobody else could, on any ground, claim any portion of it from the Settlement Authorities. Muhammad Usman and 7 others who filed the writ petition out of which these Appeals have arisen, claimed to be the occupants of the site on which Mst. Mahmuda Begum was allowed by the Lahore Municipal Corporation to construct shops in accordance with the approved plan of the Corporation. Now, of course, their claim is that their interest in the site was antecedent to the acquisition of the interest by the Lahore Municipal Corporation, but they cannot possibly avoid their earlier commitment that they constructed the property with the authority of and deriving-interest from Mst. Mahmuda Begum. However, that aspect of their claim need not be gone into in these appeals. It will suffice to remark that they submitted forms under Settlement Schemes Nos. VI and VIII but it was not entertained. The High Court's order dated 2-2-1961 in Writ Petition No, 772/58 was interpreted by the Chief Settlement Commissioner on 22-6-1971 to imply that the bungalow with only three times its plinth area was to remain with Rana Zafarullah Khan and the excess could be utilised by Settlement Authorities.
However, this principle was placed under one limitation and it was that the land underneath the built-up shops was in any case to form part of the three times the plinth area which could be allowed to Rana Zafarullah Khan. Therefore, it was concluded that the shops whose transfer was sought, could not at all be transferred to any one in view of the decision of the High Court. The proceedings leading to this order whereby there was a clear refusal to entertain the claim to transfer made by Usman and others who claim to be the occupants of the shops were challenged by Constitutional Petition No, 518/R-71 by Muhammad Usman and others. It came up before the learned Judge in Chambers on 5-7-1971 and after referring to the judgment of the Supreme Court on petition for special leave dealing with the decision in Writ Petition No, 772/58 the learned Single Judge observed :- "In view of this observation of the Supreme Court there is no impediment in the way of the Chief Settlement Commissioner to transfer this property to the petitioners. However, it is for him to decide as to who is the person entitled to its transfer in accordance with law. The petition is accordingly disposed of."
' This has aggrieved Muhammad Usman and others, the writ petitioners, as well as Rana Zafarullah Khan, the two parties to the dispute. The grievance of Muhammad Usman and 7 others is that there should have issued a positive direction to the Chief Settlement Commissioner to transfer the land underneath the shops to the respective occupants and in any case if the transfer documents had been executed in favour of Rana Zafarullah Khan giving out that the land underneath these shops already stood transferred to him they should have been interfered with. Rana Zafarullah Khan, on the other hand, submitted in appeal that by such a decision in limine as is the subject-matter of appeal, the judgment of the High Court and the Supreme Court has not been correctly interpreted and such a view interferes with his established rights and that could not be done in the face of these decisions and the Permanant Transfer Deed which had already issued.
8-A. Confining the discussion now to these two Appeals, what is required to be considered is the nature of the order which was impugned in the writ petition, and the effect of the order passed by the learned Judge in the background of the precedent litigation. The learned Judge has taken the order impugned in the writ petition to be an office note recorded on the Administrative side interpreting and determining the effect of judgment of this Court in Writ Petition No, 772/58. This is what the Department also considered (Annexure A) when it refused to give copies of such a noting to Muhammad Tufail appellant. When a statutory functionary therefore proceeds in his notings to interpret a judgment of this Court) and a party feels aggrieved by such noting or views as are recorded by the statutory functionary with regard to the effect of a judgment, the remedy does not lie in invoking the Constitutional jurisdiction for getting the view corrected. It is only when a determinative order in exercising a statutory power is passed that a grievance can arise.
'Nevertheless, when occasion does in fact arise as it did, when a Constitutional petition was filed by Muhammad Usman and others or an application for leave to appeal in Supreme Court by Mst.
Mahmuda Begum an observation could be made with a view to interpret, clarify and, provide the guidelines to the statutory functionaries without adverting to the merits of the controversy. The judgment in limine pronounced by the learned Judge which is the subject-matter of appeals, does nothing more than interpret and indicate the effect of the order passed in Writ Petition No, 772/58 and such an interpretation is in conformity, and has been expressed to be in conformity, with the order of the Supreme Court refusing leave to appeal. There is no legal defect in it. When a writ petition is dismissed as infructuous, it is only a fact noted. No finding is recorded. No adjudication takes place. No determination of the dispute is attempted. No decision is given. If any observation is made with regard to the merits of the controversy or the rights of the parties to allay their misgiving or to provide a guideline to the statutory functionary it is obiter dictum which in plain words, means "A judicial opinion not bearing on the elements of a case and therefore, not binding".
If this principle of law had been kept in view, no controversy relatable to the order passed in Writ Petition No, 772/58 would have ever arisen, and so much time and paper would not have been consumed in dilating over it.
9. Such being the effect of the disposal of Writ Petition No, 772/58, we have to take note of the position adopted or the claim made by each of the three parties including one statutory authority.
The Chief. Settlement Commissioner in his note dated 22-6-1971 took the following view of the decision : "Now in view of the High Court's orders, three times of the plinth would also include the area on which shops have been built."
10. This limitation on his power inferred by the Chief Settlement Commissioner from such a disposal of writ petition was totally misconceived and uncalled for. A corrective in the nature of a clarification was called for and the hard core of what that clarification could be was provided by the order under appeal. The next question is could this be done by any other method more appropriate to the proceedings. One set of appellants, i,e, Muhammad Usman and others contend that the Provisional Transfer Deed held by Rana Zafarullah Khan as well as the Permanent Transfer Deed, which mention the whole compound of the bungalow as the property transferred to him, required correction and these should have also issued a direction to the Statutory Authority to entertain their claim to transfer and actually to transfer the property to them. The "Chief Settlement Commissioner having himself taken the view that the compound transferable to Rana Zafarullah Khan in spite of the Permanent Transfer Deed could not be more than three times the plinth area the demarcation proceedings in the offing, there was no occasion to do anything of the sort. The claim of Muhammad Usman etc. Could not be determined before that, as the availability of the land itself was a question open to examination on the factual plane.
11. Rana Zafarullah Khan on the other hand, strongly feels that on the basis of the Provisional Transfer Order considered with the order made in Writ Petition No, 772/58, he was the transferee of the whole compound irrespective of its proportion to the built-up area and such an order as is impugned in appeal directly, interferes with it without ever affording him an opportunity of hearing in the matter. If we, for a moment, keep out of consideration the judgment in Writ Petition No, 772/58, such could not be submission on the strength of Provisional Transfer Order for if more than three times the plinth area could not be transferred with the bungalow, the mere issuance of a P. T.
D. Or its mentioning so will not make any difference. The decision in Writ Petition No, 772 of 1958 cannot, as already pointed out, be availed of for making a claim, or founding a right concerning the actual physical limits of the property transferred.
12. There is no merit in either of these appeals. Both are dismissed with costs.