CHIEF SETTLEMENT COMMISSIONER/ MEMBER, BOARD OF REVENUE Versus K.M. SANA

1. NASIM HASAN SHAH, J.‑‑ This appeal, by leave of this Court, is directed against the judgment of a learned Single Judge of the Lahore High Court dated 15‑1‑1980 passed in Writ Petition No.67‑R of 1979.

2. The occupants of this huge property bearing No.SE‑27‑R‑8, Egerton Road, Lahore, have been locked up in litigation since the last 26 years or so. The precise issue in dispute between the parties at the moment is whether Col. K . M . Sana, transferee of the main bungalow (No.SE‑27‑R‑8) is also entitled to the "excess" land measuring 9 kanals 13 marlas 156 sq. ft. which is attached to bungalow bearing No.SE.‑27‑R‑8, Egerton Road, Lahore, or the same is liable to be disposed of through unrestricted public auction.

3. The Settlement Commissioner, in his order dated 31‑1‑1964, found that the out‑house occupied by Abdul Hameed Khan (respondent herein) formed a part of the bungalow and that Col. K.M. Sana was not only entitled to its transfer as part of the bungalow, alongwith three times the plinth area of the open land but also the "excess land" out of the lawn attached to it. This order of the Settlement Commissioner dated 31‑1‑1964 was challenged before the High Court in a writ petition by Abdul Hamid Khan (respondent), but without success. The matter then came up to this Court in Civil Appeal N0.118 of 1965 filed by Abdul Hameed Khan aforesaid and this Court in its judgment dated 15‑11‑1966 dismissed the appeal observing:‑

4. "The Settlement authorities and the High Court had rightly rejected the appellant's claim for transfer of the out‑house and a portion of the compound of the bungalow on the ground that he was not in occupation of the bungalow. It may be added that the transfer of 'excess area' in favour of respondent No.3 (Col. K.M. Sana) was also not open to correction by the High Court as the matter lay in the discretion of the Settlement authorities and no illegality had been committed in the exercise of that discretion. Lastly as the entitlement of the appellant (Abdul Hameed Khan) had been rejected by the Settlement Commissioner by order, dated 12‑9‑1961, he no longer had the locus standi to object to the transfer of the 'excess area' in favour of respondent No.3."

5. Undeterred by the above order of this Court, Abdul Hameed Khan moved a review petition (C.R.P.No.22 of 1966). This petition was heard on 17‑6‑1966 and was rejected by this Court with the following observations:‑

6. "It is clear that the petitioner (Abdul Hameed Khan) whose case for transfer cf the whole or pact of the property, it settlement, has been finally rejected. has no locus standi to assert any rights in respect thereof. Mr. Shabbir Ahmad refers us to certain instructions issued by the Chief Settlement Commissioner, which were never mentioned at the hearing of the appeal. Up to that stage, the case of the petitioner (Abdul Hameed Khan) was based on a claim to transfer of the whole or part of the property. If indeed there has been violation of any binding direction by the Chief Settlement Commissioner, the matter may be moved before him in some competent form, irrespective of anything said in our order of the 15th April, 1966."

7. In pursuance of the above order, the demarcation proceedings for ascertaining as to how much of the open area was liable to transfer to respondent No.l as part of the bungalow and how much of it was the "excess" area and liable to transfer on the prevailing market value, was taken in hand.

8. Relying upon the observations made on 17‑9‑1966 by this Court, while disposing of his review petition, Abdul Hameed Khan submitted a miscellaneous application before the Chief Settlement and Rehabilitation Commissioner praying that the land in excess of the prescribed limit be sold by unrestricted public auction. This application was forwarded for disposal to the Deputy Settlement Commissioner, who. vide his order dated 20‑9‑1968, held, that Abdul Hameed Khan had no locus standi to be impleaded as a party in the proceedings as he did not fall in the category of persons who were eligible for transfer of the excess land, if any.

9. The said order was challenged by Abdul Hameed Khan by filing an appeal before the Additional Settlement Commissioner. The learned Additional Settlement Commissioner set aside the impugned order and directed the Deputy Settlement Commissioner to dispose of the petition of Abdul Hameed Khan on its own merits and take up the question of measurements of the excess area separately and while doing so he should tolerate the presence of Abdul Hameed Khan. The case was, accordingly, taken up by the Deputy Settlement Commissioner who heard the parties and directed the Patwari and the Settlement Inspector to measure and to report the excess area. Col. K.M. Sana, respondent No.l herein, was not happy with the measurements carried out by the Settlement Inspector and submitted an objection petition on 23‑7‑1969 against it. The dispute relating to the accuracy of the measurements etc. dragged on for several years. Some officers favoured Col. K.M. Sana's point of view, while others were inclined towards Abdul Hameed Khan. This latter point of view was not acceptable to Col. K.M. Sana, who moved the Chief Minister of the Punjab and or 7‑2‑1975 the latter passed the following order: ‑

10. "Col. K.M. Sana agreed and stated that he would abide by the results of a final measurement conducted under the personal supervision of the Commissioner, Lahore Division."

11. Abdul Hameed Khan challenged the above order in the Lahore High Court (W.P.No.143‑R of 1975) contending that the Chief Minister had no jurisdiction to interfere with the demarcation of the property being made by the Settlement authorities and his order dated 7‑2‑1975 was without lawful authority. This writ petition was heard by the then Chief Justice of the Lahore High Court (Sardar Muhammad lqbal) who dismissed the same holding that the petitioner (Abdul Hameed Khan) had no locus standi to move the writ petition.

12. Accordingly, the demarcation of the property was not undertaken under the supervision of the Commissioner Lahore Divisor but before he would complete it he was transferred. In the meanwhile, the Member, Board of Revenue exercising the powers of the Chief Settlement Commissioner withdrew the case (regarding demarcation of the property) from the Commissioner, Lahore Division and sent it to the Deputy Settlement Commissioner vide his order dated 18‑2‑1977.

13. Before the Deputy Settlement Commissioner, applications were submitted by both the parties objecting to the presence of the other, in these proceedings. Abdul 1lameed Khan submitted that Col. K.11, Sana had no locus standi to join the proceedings because his entitlement with regard to bungalow had already been determined, while Col. K.M. Sana submitted that Abdul Hameed Khan had no locus standi to be impleaded as a party on the ground that he had lost his case up to the level of the Supreme Court. The Deputy Settlement Commissioner held, in his order dated 16‑10‑1977, that both the parties i.e. Col. K.M. Sana as well as Abdul Hameed Khan had the locus standi to join the proceedings. This order was objected to by Col. K.M. Sana through a revision before the Chief Settlement Commissioner which failed. The Deputy Settlement Commissioner ultimately vide his order. dated 19‑11‑1978, found that an area of 9 kanals 13 marlas and 156 sq. ft. was the "excess" area and that it should be disposed of in accordance with law.

14. Feeling dissatisfied with this order, Col. K.M. Sana challenged this order by filing a writ petition in the Lahore High Court (W.P. No.67‑R of 1979). A learned Single Judge heard the matter and disposed it of by its order dated 15‑1‑1980According to the learned Judge, the order of the Deputy Settlement Commissioner allowing Abdul Hameed Khan to be associated in the demarcation proceedings was not justified as he had no locus standi as held by the Supreme Court in its order, dated 15‑4‑1966. He, therefore, declared the order of the Deputy Settlement Commissioner dated 19‑11‑1978 to have been passed without lawful authority and directed that the case be remanded to the Chief Settlement Commissioner who may look into the matter himself and may after associating the petitioner (Col. K.M. Sana) either direct the completion of the measurement already made by the Commissioner/ Chief Settlement Commissioner in November, 1975 or in case he finds such measurement to be incorrect he may by an order in writing assign the task to an officer not below the rank of the Additional Settlement Commissioner for measuring the excess area in the presence of the petitioner (Col. K . M . Sana) or his authorised agent.

15. Aggrieved by the order of the High Court, the Chief Settlement Commissioner moved a petition for leave to appeal in this Court to challenge it. Abdul Hameed Khan has submitted an application (C.M.P.No.1142 of 1983) under Article 187 of the Constitution read with Order XXXIII, Rule 6 for being impleaded as a party in these proceedings. Leave to appeal was granted to the Chief Settlement Commissioner against the order of, the High Court; Abdul Hameed Khan, however, was not impleaded as a party and it was observed that the application filed by him (C.M.Nn.1142 of 1983) should be heard alongwith the main appeal.

16. In support of the appeal, Mr. bhahzad Jehangir representing the Chief Settlement Commissioner, submitted that the order of the learned Judge in the High Court directing the Chief Settlement Commissioner to look into the matter himself or to assign the task to an officer not below the rank of the Additional Settlement Commissioner for the purpose of getting the excess area measured afresh is against the law because when the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was repealed by the Displaced Persons Laws (Repeal) Ordinance, 1974, the proceedings in the instant matter were pending before the Deputy Settlement Commissioner and under the notification issued on 16‑111974, the authority notified to dispose of the proceedings pending at the time of the repeal of the Act was the Assistant Commissioner in the District. Accordingly, after this notification, the High Court could not direct the Chief Settlement Commissioner to deal with this matter himself or to assign it to an officer higher than the Additional Settlement Commissioner. Hence, the order of the High Court setting aside the measurement carried out by the Deputy Settlement Commissioner in his order, dated 19‑11‑1978 and directing that the measurement should be made afresh by the Chief Settlement Commissioner or an officer higher than the Additional Settlement Commissioner was not sustainable.

17. Mr. S.M. Zafar, learned counsel for respondent No.l, submitted before us that he did not wish to contest the demarcations carried out by the Deputy Settlement Commissioner any longer and was prepared to accept them as correct. Accordingly, he was satisfied with the order dated 19‑11‑1978 so far as it held that the area that was excess or surplus was 9 kanals 13 marlas 156 sq. ft. He only wanted a clarification with regard to that part of the order of the Deputy Settlement Commissioner whereby he had directed that the aforesaid "excess" area should be disposed of in accordance with law. The learned counsel submitted that this direction could cause confusion and was liable to be misinterpreted in the sense that it may be argued that under the said order the excess area must be sold by unrestricted public auction, as was being claimed by Abdul Hameed Khan.

18. The learner' counsel for Ardul Hameed Khan has indeed submitted before us that the "excess" area could only be disposed of through open public auction and could not be given to the transferee of the main bungalow and he relied upon this Court's judgment in Sahebzada Syed Muhammad Matin Mirza v. Jahangir R. Rustom;2 and another P L D 1980 S C 64, in support of this submission

19. After having heard both sides we feel that the matter has become quite simple. Since the contesting respondent is not objecting to the order of the Deputy Settlement Commissioner, dated 19‑11‑1978. whereby he found the excess area to be 9 kanals 13 marlas 156 sq ft. the main issue that was in controversy, namely, whether the Deputy Settlement Commissioner was competent to make the measurements and has correctly carried them out, stands resolved. As for the other question is concerned namely, whether the observation that the aforesaid "excess" area should be disposed of in accordance with law implies that it should be disposed of through .unrestricted public auction, this matter too stands determined by this Court (in its order, dated 15‑4‑1966). Herein, it was held that the order of the Settlement Commissioner dated 31‑1‑1964 transferring the excess area in favour of Col. K.M. Sana was a matter which lay in the discretion of the Settlement authorities and no illegality had been committed in the exercise of that discretion. It is, therefore, manifest that the order of the Deputy Settlement Commissioner dated 19‑11‑1978 to the effect that the excess area should be disposed of in accordance with law must be construed to imply that it has to be disposed of in accordance with the order of this Court dated 15‑4‑1966, namely, that it shall be transferred to respondent No.l, Col. K.M. Sana. So, far as Abdul Hameed Khan is concerned, this Court in this very order has also held that he has no locus standi to object to the transfer of the excess area in favour of Col. K.M. Sana.

20. The upshot is that this appeal succeeds to the extent that the order of the High Court dated 15‑1‑19810 setting aside the order of the Deputy Settlement Commissioner dated 19‑11‑1978 holding 9 kanals ft 13 marlas 156 sq. ft. to be the excess area and must be transferred in accordance with law was not liable to interference by the High Court. It is, however, clarified that the last mentioned direction contained in the aforesaid order of the Deputy Settlement Commissioner (that the excess area be disposed of in accordance with law) means that this excess area has been transferred to respondent No.l, Col. K . M . Sana in accordance with the order of this Court dated 15‑‑1‑1966.

21. This appeal is accepted in the above terms, leaving the parties to bear their own costs.

22. M.Y.H./C‑23/S Appeal allowed.