1986 PLP 843 (CLC)

Still dissatisfied the respondents filed a Constitutional Petition in this Court (Writ Petition No. 927/11 of 1970). This writ petition was accepted by Judgment, dated 26‑5‑1976 and the case was remanded with the direction to dispose of Form L.S. of respondent No.

1. On remand the Deputy Settlement Commissioner, Gujrat decided the matter afresh and by his order, dated 22‑10‑1976 transferred the shop to respondent No.

1. Hence the present Constitutional petition.

3. The learned counsel for the petitioners contended:‑ Firstly, that copy of allotment order relied upon in the impugned order does not relate to the shop in dispute. He produced photostat of the said allotment order and contended that no number of the shop having been given in the allotment order it cannot be said that this zelated to the shop in dispute; Secondly, that the possession of respondent had not been established and reliance placed in this regard on survey report of 1953 was of no consequence as possession had to be established on the target date of 1958, and Lastly, that the statement of respondent No. 1 made before the Deputy Settlement Commissioner itself shows that one Muhammad Aslam was in fact in occupation of the shop where he was running a Ration Depot and thus respondent No. 1 cannot be held to be in occupation/ possession thereof.

4. On the contrary, the learned counsel for the contesting respondent submitted that the points now being agitated on behalf the petitioner relate to disputed questions of fact which have be, decided by the competent forums and, therefore, these cannot be agitate in the Constitutional jurisdiction of this Court, especially when nothing has been placed on record to show that the findings given are in any manner contrary to record or erroneous. The learned counsel for the respondent next contended that statement of respondent in no manner shows that he was not in possessive of the shop. It was urged that the said statement contrarily clear proves that respondent No. 1 was accommodate in the shop just f one year as a licensee and that respondent No. 1 had remained possession thereof of all along.

5. Having considered the controversy, I am of the view that t contentions raised on behalf of the petitioners have no force. It h been correctly pointed out that all the contentions raised on behalf the petitioners are essentially controversies of fact and cannot legitimate be agitated in the Constitutional jurisdiction of this Court especial when no fault as to misreading or non‑reading of the record has be urged. A copy of the allotment order today produced by the learn counsel for the petitioners when read in conjunction with the surve list for rent of urban property for the year 1952‑53, survey copy which is Annexure 'K' to this petition, clearly establishes that t allotment order relates to the shop in dispute. The same copy of t survey also establishes that the contesting respondent was in occupation of the shop in dispute before December, 1958. The first two contention of the learned counsel for the petitioners, therefore, have no force.

6. As regards the last contention, I suffice by observing that t statement of Nazir Ahmad respondent who was also subjected to lengt cross‑examination in no manner shows that he was not in possession the shop. The occupation of Muhammad Aslam has been admitted f one year only and a categorical denial has been made as regar suggestion that he was in occupation for 10 years. The document produced by the petitioners with this petition such as certification the Secretary, Market Committee also showed that Muhammad Asli came into possession of the shop only in 1968 although this certificate has also been disputed on behalf of the respondent.

7. Yet another factor which may be relevant in this connection that a copy of the list of properties to be auctioned was shown to by the learned counsel for the petitioner which is for the auction which was to be held some time in 1969. In this list as well Na; Ahmad respondent No. 1 was shown occupant of the shop in dispul The learned counsel for the petitioners has, however, submitted of this list was erroneously published as the shop had already be auctioned in 1968. Be that as it may, the fact remains that occupation of Nazir Ahmad was reflected in this list of properties as well a must have been incorporated therein with reference to the recored Settlement and Rehabilitation Department.

8. In view of the foregoing discussion, I find that there is merit in this Writ Petition which is accordingly dismissed.

9. There will, however, be no order as to costs. H. B. T Petition dismissed