Mst. TAMKEEN KHATOON vs SETTLEMENT COMMISSIONER, LAHORE DIVISION
This matter arises from a petition directed against a judgment of the Lahore High Court dismissing a writ petition filed by the petitioner, who occupied servant quarters of a transferred bungalow and claimed excess land attached thereto. The core legal questions involve whether an occupant of servant quarters is entitled to claim excess land, and whether the formula prescribed for calculating the transferable area of a house and its appurtenant land was correctly applied by the settlement authorities. The Supreme Court held that leave to appeal should be granted to examine whether the calculations of the settlement authorities suffered from an error patent on the face of the record, how the prescribed formula under the settlement scheme applies to excess land, and whether the issuance of a Permanent Transfer Deed (P. T. D.) bars such claims. The key principle laid down is that where an arguable question regarding the erroneous calculation of excess land transferable under settlement laws arises, leave to appeal is warranted for a comprehensive final hearing.
- Whether an occupant of servant quarters attached to a bungalow is entitled to claim the transfer of excess land appurtenant to the property?
- Does the issuance of a Permanent Transfer Deed preclude an aggrieved party from challenging the incorrect calculation of excess land transferred?
- How should the plinth area and appurtenant open space be calculated under the prescribed formula for properties transferred under settlement laws?
ORDER
1. NASIM HASAN SHAH, J.-This petition is directed against the judgment dated 11.3-1975 passed by a learned Single Judge of the Lahore High Court in Writ Petition No. 740-8 of 1969.
2. The relevant facts are that the petitioner is in occupation of four servant quarters attached to a big bungalow bearing Property No. S-42-R-27, Race Course Road, Lahore. She had submitted a C. H.
3. Form for its transfer which was rejected on the ground that she being in possession of the servant quarters was not entitled -to the transfer of the property. The petitioner challenged this determination right up to the High Court by filing writ petition (W. P. No. 208-R/ 62) which, however, was rejected on 30-4-1962. In the meanwhile, the bungalow was transferred to one Zamani Begum under the Earmarking Scheme, who associated respondents 2-8 in the transfer and were issued P.
4. T. D. On 16-6-1962.
5. On 22-10-1962, a Press note was issued by the Chief Settlement Commissioner with regard to the transfer of the excess land attached to the houses of non-transferee occupants. The petitioner filed an application on 29-10-1962 stating that respondents had been transferred some land in excess to their entitlement alongwith the bungalow which may be transferred to her. This application was forwarded to the Deputy Settlement Commis--sioner, who rejected it on the ground that no excess land was available and in coming to this conclusion observed as under: - "The constructed areas 15,102 Sq. Ft. And the of passage etc. Is 17,665 Sq. Ft., thus the entitlement of the transferee comes to 17 kanals 6 marlas 223 Sq. Ft. The total area of the property being 16 kanals 13 marlas 105 Sq. Ft. There is no excess area which can be given to the petitioner."
6. This order was passed on 10-10-1963. The petitioner filed an appeal before the Additional Settlement Commissioner against this order, which was dismissed by the Additional Settlement Commissioner on the ground that as the P. T. D. Had been issued he had no jurisdiction in the matter. The petitioner then went up in revision before the Settlement Commissioner, who dismissed the same on the twin grounds of issuance of P. T. D. And non-availability of any excess area. The petitioner again moved the High Court by a writ petition (W. P. No. 740/R/69). The learned Judge in the High Court did not advert to the plea as to the excess area but dismissed the petition on the short ground that the petitioner could not be deemed to be in occupation of the house as he was in possession of only the servant quarters and was, therefore, not entitled to the transfer of the excess land. This petition is directed against the said order of the learned Single Judge of the Lahore High Court.
7. Mr. Masud Akhtar, Advocate-on-Record, on behalf of the petitioner, has relied before us on the recent order passed by a Bench of this Court in Civil Petition for Leave to Appeal No. 1566 of 1980 on 8-3-1981. In this case too, the petitioners therein were the occupants of the servant quarters of the bungalow, which was transferred to the respondents therein, being the occupants of the main bungalow and the question was whether the said occupants of the servant quarters could lay any claim to the transfer of the excess area. This Court, after examining the calculations made in the case, observed that the calculations made on the second occasion-on the bass of it was held that no excess area was available-suffered from an error patent on the face of the record, which should have been taken note of by the learned Judge in the High Court. Leave was accordingly, granted.
8. In the instant case, the learned counsel for the petitioner has argued that according to the formula prescribed for working out the area liable to disposal along with the house transferred to its occupant, the respondents had clearly obtained area in excess of their entitlement. In this connection, reliance was placed on Memo. No. 301-PI-Reh/60, dated 9-1-1960 at page 104 of the Settlement Manual and the relevant part of which is as follows: -- "2. (1) The plinth area of the house should be determined by measuring the space covered by rooms, covered verandahs, outhouses and garages and the foundation area of pucca boundry walls. The plinth area of the ground floor as well as the upper floors will be calculated and added up to determine the total plinth area of the house.
(2) Out of the area of the gardens and grounds attached or appurtenant to the house, an area equal to three times the plinth area calculated in accordance with sub-para. (1) above will be treated as part of the house.
(3) Uncovered passages, corridors, pucca open terraces and pucca cemented or bricked courtyards will be allowed in addition to three times the plinth area as calculated in accordance with sub-para. (1) above.
(4) The remaining area will be treated to be in excess In the instant case, it is submitted that the Deputy Settlement Commissioner (whose calculations were upheld by the learned Settlement Commissioner) found the area to which the respondents were entitled to transfer was 17 kanals 6 marlas 223 Sq. Ft. On the footing that the constructed area of the bungalow was 15,102 Sq. Ft. And the area under passages, etc. Was 17,665 Sq. Ft. After adding both together and multiplying the result by four the entitlement worked out to 17 kanals 6 marlas 223 Sq. Ft. However, according to the prescribed formula, only the plinth area could be multiplied by four to which area uncovered passages etc. Could be added. In this manner, the respondents were entitled to some 12 or 13 kanals only.
9. As for the contention that the P. T. D. Has been issued, reliance is placed on a recent judgment of this Court in Sahibzada Syed Muhammad Matin Mirza v. Jahangir R. Rustomji and another (PLD 1980SC64), wherein it has been held that it is only three times the plinth area which must be deemed to have been transferred as a part of the house if no conscious transfer of any area in excess thereof is mentioned in the P. T. D.
10. On behalf of the respondents Major M. Ishaq has submitted that the present case is similar to the case of Abdul Hamid Khan v. Settlement & Rehabilitation Commissioner etc. PLD 1966SC719, and furthermore the point that the settlement authorities did not observe the formula prescribed for working out the area which is transferable to the occupants of the main bungalow was not taken either before the Settlement authorities or in the High Court.
11. We observe that the question involved in the case of Muhammad Siddique etc. v. Ch. Sarfraz etc. (C. P. S. L. A. No. 1566 of 1980), in which leave has been granted only recently was the question was the same, namely, whether the occupants of the servant quarters are entitled to the area found in excess of that transferable to the occupant of the main house. No doubt, the judgment in the case of Abdul Hamid Khan v. Settlement & Rehabilitation Commissioner etc. Was not noticed in the said order but as leave has been granted on the same question as is arising herein we feel that leave should also be granted in this case and the applicability of the said ruling can be considered at the final hearing. It is also true that the petitioner did not specifically raise the point that the respondents had been held entitled to the transfer of the whole open area contrary to the formula prescribed in the relevant regard. However, notice that the petitioner throughout has been urging that the respondents had been wrongly granted area in excess to which they were not entitled but that the learned Judge in the High Court had not adverted to this point on the ground that the petitioner is not entitled to the transfer of the excess area being an occupant of the servant quarters.
12. The question whether the absence to specify the reason for asserting that the respondents had obtained area in excess of their entitlement precludes the petitioner to raise, at this stage, the specific objection on which it is founded will also require consideration.
13. We would, accordingly, grant leave to appeal.
14. To be heard with Civil Petition for Special Leave to Appeal No. 1566 of 1980.
15. Security in the sum of Rs. 2,000.
16. To be made ready on the present record with liberty to the parties to file additional documents, if any.
17. The hearing of the appeal to be expedited to the extent possible.