NOOR MUHAMMAD ARAIN Versus MUHAMMAD MUBARIK KHAN , Nemo

1. NASIM HASAN SHAH, J: ‑ ‑Thus appeal, by leave of this Court, is directed against the judgment and order of a learned Single Judge of the Lahore High Court dated 3‑3‑1980 passed in Writ Petition No.395‑R of 1974 whereby he set aside the order of the Settlement authorities to‑dispose of an area of 4,413 Sq.Yards through auction which was disposed of as an "excess area" in favour of the appellants.

2. The relevant facts are that respondent No.l is a displaced person from East Punjab. He was allotted Bungalow No.C‑1, Burewala, District Multan on migrating to Pakistan and was ultimately transferred the same on 25‑12‑1959 on the commencement of the settlement operations under the Displaced Persons (Compensation & Rehabilitation) Act, 1958 and the P.T.O. and P.T.D. issued in his favour showed that he was being transferred the "full house" including the outhouses, garages, godowns, servant quarters and the land appurtenant thereto. Indeed, the land appurtenant to the Bungalow is quite extensive because the Bungalow, alongwith the entire open land measures more than 14 Kanals, but the total transfer price of this entire property charged by the department was only Rs.22,000.

3. This happy situation for the respondents has, however, been somewhat disturbed as measurements of this bungalow were again carried out and it was declared that respondent No.l had obtained 4,413 Sq. Yards of land in excess of his entitlement and on this basis the excess area was liable to be disposed of through open public auction. Accordingly, this land was put to auction on 22-6‑1970 and purchased by the appellants.

4. The above action was challenged by the respondent No.1 by filing a revision petition before the Settlement Commissioner.' On its dismissal on 2‑10‑1973 he moved the High Court by a writ petition and this writ petition was accepted by a learned Single Judge of the High Court (vide judgment dated 3‑3‑1980) whereby the order of the Settlement authorities disposing of the "excess land" through auction was set aside. Hence this appeal, by the auction‑purchasers, by leave of this Court.

5. Learned counsel for the parties have been heard.

6. We observe that the learned Judge of the High Court in accepting the writ petition was influenced, inter alia, by the considerations that a P.T.D. transferring the Bungalow had been issued in favour of respondent No.l with the result that the property had gone out ‑of the Compensation Pool;, that the earlier order of transfer passed in his favour transferring the "full house" had been reviewed and modified but without hearing respondent No.l who was being adversely affected by these orders. Hence the order of the Settlement authorities were bad in law.

7. But these considerations unfortunately overlook the fundamental fact that under the law, namely the second proviso of subsection (4) of Section 2 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 where "the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including outhouses and garages, if any, the area so in excess or such part thereof, as the Chief Settlement Commissioner may determine, shall not be treated as part of the house". And this Court has explained that "unless the Chief Settlement Commissioner orders otherwise the whole of the area of the gardens and grounds attached to the house on excess of three times the plinth area of the house included outhouses, garages shall not be treated as a part of the house. So, that subject to any order to the contrary by the Chief Settlement Commissioner the whole of the excess area shall not be treated as a part of the house"; (see Muhammad Bashir v. Settlement & Rehabilitation Commissioner, Lyallpur‑and others PLD 1983 SC 143). Admittedly no order of the Chief Settlement Commissioner transferring the area exceeding three times the plinth area was ever passed in favour of respondent No.l. Hence, the order of the Settlement authorities transferring the "full house" to respondent No.l only implied that the house alongwith outhouses, garages etc. and the land to the. extent three times the plinth area thereof were transferred to the transferee. Accordingly, 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.l. The recital in the P.T.O. and P.T.D. to the effect that the "full house" stood, transferred to respondent No.l has been erroneously considered to have the effect of also transferring the excess area in his favour.

8. As this fundamental aspect of the case was overlooked by the learned Judge in the High Court in coming to the conclusion that the orders of the Settlement authorities putting to auction the excess area had adversely effected the rights of the transferee and P.T.D. holder of the house, his order is not sustainable in law and must be held to have been passed without lawful authority.

9. The result is that the impugned judgment of the High Court must be set aside. The appeal accordingly succeeds and is allowed. But the parties ate left to bear their own costs.

10. A.A./N‑347/S. Appeal accepted.