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Writ Petition No. 1196 of 1969, decided on 19th June, 1982.

---S. 13 read with Constitution of Pakistan (1973), Art. 199‑Ejectment, challenge to‑Writ jurisdiction‑Contention that property in dispute occupied by petitioner fell within a Scheme and ceased to be evacuee property on its being acquired by Improvement Trust/Development Authority and as such its transfer and allotment to person who filed ejectment application against him could not be sustainable in law‑Development Authority denying that property in dispute fell within Scheme‑Writ petition having been filed 6 years after issuance of P. T. O. in favour of landlord deemed to be counterblast to eviction application‑Landlord in his eviction application stating petitioner to be his tenant but such allegation not controverted by petitioner- Petitioners having contested eviction proceedings cannot be believed to have been unaware of transfer proceedings and deemed to have acquiesced in order of transfer especially when such transfer not challenged by way of appeal, revision, or review‑Transfer having become final could not be challenged in collateral proceedings Petitioners also guilty of taking inconsistent pleas first by filing an application under Settlement Scheme No. VIII for its transfer and thereafter stating such property to be not evacuee property Petitioners being tenants by virtue of a rent note and such fact having not been denied estopped from challenging title of their landlord Petitioners also guilty of inaction and excessive laches hence not entitled to relief in equitable and discretionary jurisdiction‑Petition, held, without force‑‑[Muhammad Sadiq v. Chief Settlement Commissioner P L D 1.963 Lah. 499 held not applicable].

Muhammad Sadiq v. Chief Settlement Commissioner. P L D 1963 Lah. 499 held not applicable.

Muhammad Rashid Chughtai for Petitioners.

Farooq Zaman for Respondent No. 1.

A. R. Shaukat for Respondent No. 2.

Shahzad Jehangir for Respondent No. 3.

Date of hearing : 19th June, 1982.

This Constitutional petition has been filed by the occupant of a property seeking the relief that the ejectment application filed by respondent No. 3 in the Court of learned Rent Controller on the basis of provisional transfer order issued by the Settlement Department are ineffective, illegal and without lawful authority.

2. The brief facts of the case are that the petitioners claim to be the occupants of property No. E/2598, Chowk Rang Mahal, Shah Alam Gate, Lahore. It is their case that the property in question was covered by the Shahalam Gate Development Scheme and as such, it was acquired for the purposes of the said scheme and that it ceased to be evacuee property on its being acquired in this manner. It is complained that despite this position, the Chief Settlement Commissioner treated this property as evacuee property in the compensation pool. Consequently, some of the similarly affected persons (not the present petitioners) filed a writ petition in the High Court wherein the question of properties acquired under the said Scheme had been considered and it was held that such properties could not be treated as evacuee property nor transferred under the provisions of Displaced Persons (Compensation & Rehabilitation) Act. This writ petition was decided and is reported as Muhammad Sadiq v. Chief Settlement Commissioner (P L D 1963 Lah. 499). It is also the case of the petitioners that respondent No. 3 had been issued a P. T. O. with respect to a property which falls within the said Scheme and accordingly it is argued that the act of the Settlement authorities in the relevant respect was devoid of jurisdiction.

3. This writ petition was admitted to regular hearing by a Division Bench of this Court on 30‑7‑1969.

4. In this case, Mr. Farooq Zaman, Advocate appeared on behalf of the Lahore Improvement Trust now Lahore Development Authority and he was given time to ascertain the correct position whether or not the property in question formed a part of the Shahalam Gate Scheme. Several adjournments were granted as the matter was to be probed. Now finally the position which has emerged clear is that according to the L. D. A., the property in question does not fall within the said Scheme.

5. There is another factual aspect of the matter which may also be adverted to. The property in question was transferred on 26‑11‑1962 by the Settlement Department in favour of Mst. Saddat Begum who entered into an agreement of association on 7‑1‑1963 with respondent No. 3. This agreement of association was allowed on 9‑1‑1963 and consequently, a P. T. O. dated 14‑1‑1963 was issued in favour of respondent No. 3 which is Annexure 'B'. At the very outset I have called upon the learned counsel for the petitioner to explain his clients inaction from 1962‑ till 1969 when the present writ petition was filed in the High Court. The answer is that the petitioners have been pursuing the matter with the Lahore Improvement Trust and the Settlement Department through repeated" applications and even now their form under Settlement Scheme No. VIII is pending. I have pointed out to the learned counsel that the answer falls short of the requirement. The question to be examined is as to what action his clients took to assail the transfer under the Displaced Persons (Compensation & Rehabilitation) Act, 1958. The answer is that no appeal, revision or review was filed under the provisions of the said Act because they were not aware of these proceedings. I noticed that there is not a word in the whole body of the writ petition giving any explanation in paras. 1 to 10 which deal with the factual aspect of the case. Similarly, there is no such averment made in the grounds of the petition. The matter, therefore, rests at a mere assertion unsubstantiated by the evidence nor is supported by affidavit. It is to be noticed that the ejectment proceedings were instituted by respondent No. 3 against the present petitioners before a Rent Controller at Lahore. The petitioners filed Annex C' a copy of the eviction application which is his own copy and not a certified copy. It does not give the date of the institution of this application. However, the learned counsel submits that it can be indirectly inferred from the contents of this application that it was filed somewhere in 1966 because the arrears of rent had been claimed from 1‑8‑1964 to 1‑4‑1966. The learned counsel states that after the institution of the eviction application, his client filed a Form under Settlement Scheme No. VIII. I have asked the learned counsel to substantiate this fact with reference to any averment made in the writ petition. He has gone through the Memorandum of his own writ petition to find that there is no such averment made therein. The learned counsel further elaborates that accord ing to him it was wholly unnecessary to deal with this aspect of the matter in the writ petition. The learned counsel further submits that technically speaking he did not file any revision or review but all the same he has been pursuing the matter on the administrative side. There are two further contentions raised by the learned counsel for the petitioners. The first is that the position taken up by the L. D. A. is factually incorrect for the reasons firstly; that it is unbelievable that the area of property in question could have been left out of the Scheme and mere omission of the said khasra number in the Notification should not have been construed against him because the surrounding land is already under the Scheme; and secondly, he does not accept the position taken by the L. D. A. The learned counsel at this stage wants me to give him more time to make a further factual enquiry. I am not inclined to do so. The case is pending since 15 years. The onus is on a person who approaches this Court in constitutional jurisdiction to fully substantiate his pleas and properly document his petition. He cannot raise side winds nor belatedly ask for more time for a fresh exercise, to fish out a case after instituting the proceedings. It appears clear to me that this request is designed to achieve perpetuation of possession by a tenant in an effort to catch the straw like a drowning man. There is no question of male fide or ulterior motive on the part of the L. D. A. Indeed the position may have been different, had the L. D. A. put a claim to this piece of land. The L. D. A. would not forego its valuable right to its property involving serious con sequences in addition to financial repercussions. There is ample material placed on the record by respondent No. 3 to show that the stand of the Lahore Improvement Trust as far back as 1967 was also to the same effect that the property in dispute was not acquired by the Trust for Shahalam Gate Scheme.

6. After considering all the facts and circumstances of the case, I am firmly of the view that the property in dispute was never acquired by the Lahore Improvement Trust and that the pleabf the petitioners to the contrary is devoid of merit.

7. After having given my anxious thought to the whole matter, I have reached the conclusion that the writ petition is liable to be dismissed for following reasons

(a) It is admitted position of the case that the petitioners filed this writ petition long after the eviction application had been filed against them by respondent No. 3 in the Court of a Rent Controller. According to petitioners themselves, eviction application was filed in 1966. A P. T. O. was issued in early 1963. Writ petition, therefore, was a counterblast to the eviction g application having been belatedly filed in the year 1969. The petition therefore, lacks bona fides.

(b) According to petitioners's own Annexure C' which is a copy of the eviction application it has been clearly averred by respondent No. 3 therein that petitioner No. 2 was a tenant of respondent No. 3 by virtue of a rent note dated 9‑3‑1963. The petitioners have not stated anything in the whole body of the writ petition to controvert this aspect of the matter. Petitioners have been contesting the eviction proceedings, therefore, it cannot be believed that they remained unaware of the transfer proceedings till after three years of the institution of the eviction application. The petitioners, therefore, must be taken to have acquiesced in the order of transfer in favour of respondent No. 3 by not challenging it by way of appeal, revision or review. They allowed it to become final. They cannot be allowed to attack the validity of transfer in a collateral proceedings for eviction before the Rent Controller.

(c) Petitioners themselves are guilty of blowing hot and cold by taking inconsistent pleas. This cannot be permitted. On the one hand the petitioners stand is that the property in question was not an evacuee property and thus could not have been transferred under the Displaced Persons Compen sation Act whereas on the other hand it is their own case that after the filing of the eviction application, they themselves filed a form under Settlement. Scheme No. VIII which is still pending disposal. The plea of the petitioners, therefore, that the property in dispute was not an evacuee property and could not have been transferred is not a plea based on good faith.

(d) That, at any rate, the writ petition in substance is directed to assail the validity of the eviction proceedings instituted by respondent No. 3 before a Rent Controller. The petitioners tried to short‑circuit the entire legal procedure by rushing up to this Court to have those proceedings adjudged as without jurisdiction. Respondent No. 3 has filed the eviction proceedings on the strength of P. T. O. issued by the Settlement Authorities. The existence of P. T. O. is beyond dispute. Eviction proceedings, therefore, cannot be said to be without jurisdiction.

(e) That the petitioners being tenants by virtue of rent note dated 9‑3‑1963 and this aspect of the matter not having been denied before me, a tenant is estopped from challenging the title of his landlord.

(f) That from 1962 till 19119 when this writ petition was filed, the petitioners appear to be guilty of inaction and excessive laches and their conduct in the circumstances would amount to acquiescence, abandonment and waiver and thus on account of their own conduct, they are disentitled to relief in equitable and discretionary constitutional jurisdiction. The petitioners have not given any explanation whatsoever for this indolence except the oral assertions which cannot be entertained.

(g) That the eviction application having been filed, it was for the Rent Controller to consider whatever pleas were raised before him by the parties including the legal questions. The petitioners have not even filed a copy of their written statement‑to take this Court into confidence so as to apprise me of the true state of things. A petitioner approaching the High Court in constitutional jurisdictions is under an obligation to place the certified copies of all those documents which are material for the decision or on which he wants to base his case. If a petitioner considers it desirable then in the interest of justice a request could have been made for summoning the record. None of these things appear to have been done in the present case. Writ petition is also liable to be dismissed on this ground.

(h) Learned counsel for the Settlement Department has also opposed this writ petition and fully supported the transfer of the property as an evacuee property. This stand is corroborated by the Lahore Improvement Trust. The petitioners, on their part failed to show that the property was not in the compensation pool or could not have been transferred.

(i) The petitioners did not claim to be the applicants for the transfer of the property in dispute when its transfer took place in 1962. The mere plea that after filing of the eviction application in the year 1966, they filed a form under Settlement Scheme No. VIII would be of no avail. The petitioners, therefore, lack locus standi to assail the transfer made in the year 1962‑63 when the petitioners were neither applicants nor contesting for transfer. The mere subsequent submission of an application under Settlement Scheme No. VIII in the year 1966 would not give them a valid cause of action or locus standi in the matter.

(i) I have already held in connected writ petition No. 685/R/1981 decided today that transfer in favour of respondent No. 3 still subsists and also called order of retransfer during the subsistance of previous transfer obtained by one Muhammad Hussain in the year, 1974 was devoid of total legal effect.

For all these reasons, I find no force in this writ petition and the same is hereby dismissed with costs.

S. A. H. Petition dismissed.

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