Find a Lawyer

Writ Petition No.164‑R of 1977, decided on 24th November, 1985.

‑‑‑Constitution of Pakistan (1973), Art.199‑‑Entitlement to transfer under Settlement Scheme No.VIII‑‑Requirement‑‑Constitutional jurisdiction, exercise of‑‑On failure of petitioner to establish submission of his Form under Settlement Scheme No. VI for transfer of plot, Settlement Authority after due consideration of factual position and spot inspection found respondent not only in actual possession of plot, but also found having filed respective Forms prior to petitioner and got plot deleted ‑from auction list after making requisite payment‑‑Settlement Authority rejecting Form of petitioner subsequently filed under Scheme No.VIII, transferred plot to respondent‑‑Order of Settlement Authority based on proper perusal of record, due consideration of factual position and spot inspection, held, was not open to question in constitutional jurisdiction of High Court, especially when nothing was brought on record to show that same was in any, manner discrepant even on factual plane.

Ilahi Bakhsh Vijdani for Petitioner.

Sh. Anwar‑ul‑Haq for Respondent No.2.

Date of hearing: 24th November, 1985.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question order, dated 22‑12‑1976 passed by the Deputy Settlement Commissioner (Plots), Farid Kot House, Lahore.

2. The dispute in this case relates to a part of Plot No.512, Gandhi Park Lahore, measuring 5 Marlas. The petitioner claims to be in possession of the same. He also alleges to have filed B.S. Form under Settlement Scheme No.VI, which according to him, was not disposed of till 21‑9‑1970. This plot was later included in the Auction List. Muhammad Sharif, petitioner made an application for deletion of the plot from the Auction List. Muhammad Hussain, respondent, it has been asserted, also made an application for deletion of the same.

3. There was some litigation between the petitioner and the contesting respondent before the Criminal Courts wherein the respondent alleged that he was forcibly dispossessed by the petitioner. The learned Magistrate had, inter alia, held that the case was of a civil nature and the dispute relating to the same was also pending before the Deputy Settlement Commissioner. He on this basis dismissed the complaint of Muhammad Hussain, respondent.

4. The petitioner also asserts that he filed B.S. Form under Settlement Scheme No.VIII as well on 15th of October, 1971. The respondent had also filed B.S. Form admittedly on 28‑12‑1970 under Settlement Scheme No.VIII. Respondent No. 2, as averred in the impugned order, had also paid a sum of Rs.2,500 on 22‑9‑1970 as 50 of the transfer price when the plot was deleted from the Auction List.

5. Both the parties viz. the petitioner and respondent No. 2 contested for seeking transfer of the plot and the matter finally came up before the. Deputy Settlement Commissioner (Plots) who by his order, dated 22‑12‑1976 transferred the plot to Muhammad Hussain, respondent and rejected the Form of Muhammad Sharif, petitioner.

6. The learned counsel for the petitioner only contended that the petitioner had submitted B.S. Form earlier on 21‑9‑1970 under Settlement Scheme No.VI which was not disposed of and that since he was in possession of the plot in dispute as on the date of order of transfer under para 5 of Settlement Scheme No. VIII he was entitled to the transfer of the plot and transfer thereof in favour of the respondent was illegal. He also in the same context submitted that the petitioner's possession over the plot in dispute is established by the report of the Settlement Department as also from the Survey List filed with this petition as Annexure 'A .

7. On the contrary, the learned counsel for they respondent submitted that the Survey List relied upon by the learned counsel for the petitioner does not relate to the plot in dispute. It pertains to Property No. S‑XXXIII‑3‑S‑4 (F) Gandhi Park, Lahore and the detail given 'of the occupants also shows that he was in possession of a quarter and a shop of the said property. He argued that this Survey List in no manner connects the possession of the petitioner over the plot in dispute.

8. The learned counsel for the respondent next contended that the alleged Form filed by the petitioner under Settlement Scheme No. VI has nowhere been proved to have been filed and in fact it was also never tiled. He submitted that even today the' petitioner will not be able to furnish any proof of having filed any such Form and this assertion is being made for the first time in the writ petition only.

9. The learned counsel for the respondent further contended that the contesting respondent admittedly filed B.S. Form on 28‑12‑1970 when he was in possession of the plot in dispute which fact has been duly taken notice of vide the impugned order and nothing having been placed before this Court to contradict the findings on this question of fact arrived at by the Tribunal of exclusive jurisdiction no exception thereto can be raised. Referring to Annexure 'C' to the writ petition which is Patwari's report, he pointed out that even according to this report Muhammad Hussain was in possession as on 12‑1‑1971 also.

10. The learned counsel for the respondent also contended that deletion of the plot was effected on the request of the contesting respondent who also under directions of the concerned authorities deposited 50 of the price as condition for deletion.

11. Lastly, the learned counsel for respondent No.2 submitted that Muhammad Sharif petitioner had long ago left his residence from Gandhi Park and had shifted to Walton as is apparent from his own application made to his superior, which fact is further supported by the spot inspection made by the Deputy Settlement Commissioner at the residence of Muhammad Sharif at Walton.

12. Having given consideration to the controversy involved I find that the contentions raised on behalf of the petitioner have no force. The petitioner, having not established the submission of his form under Settlement Scheme No.VI and his only form submitted under the Settlement Scheme No.VIII having been rejected by the competent office after due consideration of the factual position and spot inspection; wherever necessary no valid exception can be raised against the impugned, order especially when there is nothing brought on record to show that the order is in any manner discrepant even on factual plane. It has been correctly pointed out by the learned counsel for the contesting respondent that the Survey List relied upon by the petitioner is not related to the plot in dispute.

13. The other facts brought out by the learned counsel for the contesting respondent about deletion of the plot from the Auction List on request of contesting respondent, his having made payment of Rs.2,500 on the 22nd of September, 1970 and his being in actual possession at the time he had filed the Form for seeking its transfer find full support from the impugned order and these facts have been duly discussed by the learned Deputy Settlement Commissioner and the same being based on proper perusal of the record and also by spot inspection are not open to question in the constitutional jurisdiction of this Court.

14. The very basis of the claim of the petitioner that he is in possession of the premises in dispute is negated by the following statement in the impugned order:‑‑

"Muhammad Sharif according to his own application, dated 8‑7‑1961 addressed to the Officer Incharge, Government Medical Stores has stated that he left Gandhi Park and is settled near Walton Training School, Nai Abadi, Lahore in House No.H‑127, Chaudhary Street Lahore Cantt. and the same was confirmed by me on my spot inspection at Walton."

This finding of fact could in no manner be dislodged by the petitioner despite an opportunity having been given to him and contrarily the learned counsel for respondent No.2 throws a challenge to the petitioner to accept the visit of a Bailiff of this Court to ascertain the position of occupation of the plot in dispute and the fact of the petitioner's residence at Walton which was not accepted by the petitioner.

15. In view of the foregoing discussion, I find no merit in this petition which is accordingly dismissed with no order as to costs

H.B.T. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.