1998CLC733 (PLP)

2. The petitioner claims that the house was built by her out of her own funds for her residential purposes over the aforesaid plot which she had purchased in the year, 1993. She denied that the funds of the Government were utilized for its construction or that the house was to be used as a Community Centre. Hence this writ petition.

3. The report was called from the Deputy Commissioner (respondent No. l) which was accordingly submitted. This petition was admitted to regular hearing on 15‑5‑1997.

4. In the report the following stance was taken by respondent No. 1:‑‑‑ "The building has been constructed with Government funds, so the Government has right to take its possession at any time. On 29‑3‑1997, Director‑General, LG&RD MBD visited the site. Since the Community Centre was constructed with Government money, therefore, it was decided to take over its possession and respondent No.2 was directed to take over possession of the said Community Centre. Tehsildar Phalia respondent No.3 was directed by respondent No.2 to do needful and he took over the possession on the same day." Respondent No. l has placed on record copy of Register 'Haqdaran‑e‑Zamin', 1992‑93 upon which the Patwari has appended the following note:‑‑‑ He has also placed on record copy of Notification, dated 8‑5‑1996 relating to allocation of funds under SPLD, 1995‑96 in PP‑98 (revised) in order to show that Rs.1,00,000 was allocated for the construction of Community Centre of Ch. Mattlay Khan Sahi Phalia. Copy of the affidavit of Mattlay Khan has also been placed on record in support of this stance taken by respondent No.

1. In these circumstances under the verbal order of the Deputy Commissioner (respondent: No. l) possession of the house in question was taken over by the A.C. and Tehsildar (respondents Nos.2 and 3).

5. The petitioner has denied these allegations. She also placed on record copy of Register Haqdaran‑e‑Zamin for the year 1992‑93 which is prior in time and does not contain the note as has been appended to the copy of the Register Haqdaran‑e‑Zamin for the year 1992‑93, placed on record by the respondent No. 1, although both relate to the same period and to the same property. Therefore, the allegation made in the rejoinder by the petitioner that "The Revenue Record appears to have been tampered with after the filing of writ petition" does not appear to be without substance. The notification on which reliance was placed to show that the amount was taken, was issued on 8‑5‑1996 and obviously some time thereafter, the amount allocated for the scheme was withdrawn. It is stated in paragraph No.4 of the writ petition that:‑‑‑ "The petitioner started construction over the site in the month of January, 1996 and completed the ground floor by December, 1996 and thereafter, started living in the lower portion of the house. The petitioner also constructed two rooms in the upper storey of the house. No body ever challenged the ownership and construction over the site during the past 3/4 years after purchase and delivery of possession to the petitioner. The petitioner has spent about Rs.6,00,000 for above stated construction at the site besides the sale price of the site underneath the house. Copy of the building plan is attached as Annexure‑C. "

6. Similarly the affidavit of Mattlay Khan (copy at Annexure‑C of the report), the execution whereof is' denied, does not show that the house in question was constructed over this particular piece of land and that the same was built with the Government funds as Community Centre. This affidavit comprises of only two paragraphs on facts which are reproduced below:‑‑‑

7. The admitted position is that land bearing Khasra No.2226, measuring 10 Marlas, situate in Phalia Amir was purchased by the petitioner from its previous owner Piran Ditta vide Mutation No.4754, dated 21‑8‑1993. The respondents had not even alleged that the petitioner had given consent for constructing Community Centre over this piece of land and has received the aforesaid amount of Rs.l lac out of the Government funds. The allegations are that Muhammad Aslam, Exh.EPA, had given an amount of Rs.l lac Mattlay Khan, father of the petitioner, for constructing Community Centre. Therefore, it had to be established that the Community Centre was constructed over this particular piece of land with Government funds and with the consent of the petitioner. The record which was produced before me by the respondents does not establish that the Community Centre, if any, was built on this particular piece of land owned by the petitioner with Rs. l lac given out of the Government funds, an alleged.

8. The respondents failed to show me any provision of law which empowered them to take possession of the house in question forcibly, especially on the verbal order issued by respondent No. 1, which has no legal existence or recognition. Besides, such a drastic action could not be taken without show cause notice and affording proper opportunity of hearing to the petitioner, as the impugned action of the respondents adversely affected the property‑rights of the petitioner and deprived her of possession and peaceful enjoyment of her property. In any case, it could not be done by the respondents without establishing their claim over the property in dispute and without having recourse to due process of law. None of these basic requirements of law and equity were complied with.

9. For the foregoing reasons, this writ petition is accepted with cost. The action of the respondents whereby the possession of the house in question was taken over from the petitioner is declared to be without lawful authority and of no legal effect. The respondents are directed to deliver the possession of the house to the petitioner within one week. A.A./M‑490/L Petition accepted.