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Civil Petition for Special Leave to Appeal No. 77 of 1969 decided on 16th December 1969.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 17th December 1958, in L. P. A. No. 268 of 1968).
Sched., Part I and Constitution of Pakistan (1962), Art. 98‑Writ petition against order of Settlement Commissioner‑High Court setting aside order as disputed question of fact Whether High Court justified and competent to do so Special Leave to Appeal granted by Supreme Court to consider question.
Gul Muhammad Khan, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 16th December 1969.
‑The property in dispute is bungalow on plot No. 8‑F, Gulberg. The said plot is situated on part of land contained in Khasra Nos. 834 and 840 in the Revenue Estate of village Ichhra, District Lahore. In 1955, the said property was purchased by deceased Shamsuddin Ahmad, predecessor‑in‑interest of respondents Nos. 1 to 4, from the Lahore Improvement Trust, for the sum of Rs. 36,500. The bungalow in question was requisitioned by the Provincial Government in September 1959 and allotted to the peti tioner. The petitioner filed an N. C. H. Form for the transfer of the said bungalow and on the 19th May 1960, the Deputy Settlement Commissioner, transferred it to him.
Deceased Shamsuddin Ahmad challenged this order before the Settlement Commissioner on the ground that he had already purchased it from the Lahore Improvement Trust, the property in dispute was non‑evacuee property and the subsequent transfer was illegal. The matter was considered by the Settlement Authorities and ultimately Syed Ijaz Hussain Shah, the then Settlement Commissioner, in revision, held that the property in dispute has not been acquired by the Improvement Trust and it had disposed of a property which did not vest in it. He, therefore, restored the disputed property in favour of the petitioner by his order dated the 31st May, 1963.
The respondents Nos. 1 to 4 challenged this order is Writ Petition No. 2054 of 1964. A learned Single Judge of the High Court by order dated the 18th September 1968, set aside the order of the Settlement Commissioner on the ground that it was based on assumption of facts which do not exist an the record and being a judgment based on no evidence is without lawful authority. This view was also upheld by a Letters Patent Bench of the West Pakistan High Court, Lahore, in Letters Patent Appeal No. 287 of 1968, which was dismissed in limine on the 17th December 1968. It was held that there was enough material to show that the area in dispute was iucluded in the Scheme framed by the undivided Government of Punjab in February 1947, it was duly acquired by the Lahore Improvement Trust under the sanction accorded by the Central Government and was not in the compensation pool. The petitioner seeks permission for special leave to appeal from this order.
Mr. Gul Muhammad Khan, learned counsel for the peti tioner, has contended that the property in dispute was not acquired by the Lahore Improvement Trust. He further contended that the High Court has gone into disputed question of facts and has decided the dispute between the parties on merits itself. This according to the learned counsel, the High Court was not competent to do. The learned counsel further contended that at best the High Court could have remanded the case to Settlement Authorities for deciding the dispute between the parties. The point raised by the learned counsel for the petitioner, deserves consideration. We would, therefore, grant leave to the petitioner. Security in the sum of Rs. 1,000. Status quo will be maintained during the pendency of the appeal.
Leave granted.
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