2000 PLP 2163 (YLR)

SYED JAMSHED ALI, J.‑‑‑Order, dated 9‑10‑1997, passed by the learned Single Judge, whereby writ petition filed by respondent No.1 was allowed is subject- matter in this appeal.

2. The case of the said respondent was, that vide mutation No.4754, attested on 21‑8 1993, she purchased land measuring 10 Marlas, on which she constructed residential house. It was further averred that in November, 1997, the Assistant Commissioner and Tehsildar Phalia, took over the possession of the said house in pursuance of the orders of the Director‑General, Local Government and the Deputy Commissioner, Mandi Bahauddin, on the plea that the said house was built by the father of the petitioner as community centre, out of the funds provided by the Punjab Government. This position was taken by the Deputy Commissioner in report and parawise comments submitted by him. The writ petition was allowed and the taking over of possession of the house of the petitioner was declared as without lawful authority, with the direction to deliver possession of the said house to the said respondent.

4. The learned counsel for the appellant has contended that according to Annexure "B" with the I.C.A., the scheme was sanctioned in the name of Ch. Muttalay Khan Sahi, father of the respondent No.

1. He also relied on a note on the Jamabandi, (Annexure "A" with the I.C.A.), for the year 1992‑93 evincing that on land measuring 10 Marlas a community centre had been constructed. Affidavit of Ch. Muttalay Khan Sahi father of the respondent was also relied upon according to which the area on which the community centre was proposed to be constructed, was Shamlat Deh and, therefore, could not be mutated. Affidavit of Muhammad Azam, (Annexure "D") was also relied upon. According to the said affidavit, he had sublet the work of construction of the community centre to the father of respondent No.1 and an amount of Rs.82,480 had been paid to the father of respondent No.1.

5. On the other hand the learned counsel for respondent No.1 submits that there is not an iota of evidence in support of the submission that the community centre was constructed by the Government funds. According to him, the documents being relied upon by the appellant do not constitute evidence in support of his plea that the house of the said respondent was constructed out of the funds provided by the Government for the construction of the community centre.

6. We have considered the submissions of the learned counsel for the parties, except for affidavit Annexure "D", it has not been demonstrated that any amount was placed at the disposal of the father of the respondent No. 1, for the construction of the community centre: Conversely, according to the sanction letter 8‑5‑1996, the funds were placed at the disposal of the concerned M.P.A. and. the expenditure on the scheme was to be incurred, after preparation and approval of the scheme, issuance of Administrative Approval by the competent Authority and completion of all other codal/legal/procedural formalities. The learned counsel for the appellant has not been able to show that the community centre was sanctioned on the disputed piece of land, which undisputedly belongs to respondent No.1. Therefore, merely because the scheme was sanctioned in i the name of the father of the said respondent did not mean that any amount was spent on the construction of the house of respondent No.1. As far as the note on the Jamabandi is concerned, it is a photocopy of the Jamabandi, issued in April, 1997. While, the learned counsel for respondent No.1 has, placed before us another photo copy of the Jamabandi for the same year (1992‑93), issued on 5‑9‑1997 which does not contain any such note, therefore, the note on Annexure "A" i.e. Jamabandi could not possibly be relied upon. The affidavit of father of respondent No.1 does not establish anything at all except this that he had cautioned the Government that the proposed land on which the community centre was to be constructed, was Shamlat Deh and its mutation was not possible. As far as affidavit of the contractor is concerned, it does not establish that the community centre was constructed on the disputed land. In any case, it was for the appellant to demonstrate that the land of respondent No.1 was utilized for the community centre, with her consent. It is nobody's case.

7. We find no merits in this appeal, which is accordingly dismissed. An amount of Rs.82,450 was invested in the profit bearing scheme of the Federal Government, in pursuance of the orders dated 27‑11‑1997, passed by this Court. Respondent No.1 is entitled to the principal as well as the profit thereon. Q.M.H./M.A.K./S‑59/L Appeal dismissed.