1985 PLP 1897 (CLC)

Muhammad Siddiq, Mehraj Din and Allah Ditta, residents of Krishan Nagar, Lahore have filed this petition against the Settlement Commissioner, Punjab and Additional Settlement Commissioner (Judicial), Lahore, challenging the validity of their orders, dated 23-12-1976 and 7-6-1973, respectively. The dispute In this petition pertains to a plot bearing Khasras Nos. 4224/39-28 Min, 4226/39 and 4227/39-28, Raj Garh Estate, Krishan Nagar, Lahore. This is second round of litigation between the parties. The first one concluded when I decided Writ Petition No. 801/R of 1973, on 1-7-1975, in which the petitioners had challenged the order of the Settlement Commissioner, dated 25-9-1973, and that of the Additional Settlement Commissioner, dated 7-6-1973. The order of the Settlement Commissioner was set aside by me. The case was remanded with a direction to the Settlement Commissioner to decide the matter afresh after giving opportunity of hearing to the petitioners as well as the Lahore Municipal Corporation (hereinafter to be referred as the L.M.C.). I allowed the parties to raise all the pleas available to them under the law before the Settlement Commissioner. On remand the case was decided against the petitioners. Hence this petition. The petitioners claim to be displaced persons. The property in dispute was initially transferred to them under Settlement Scheme No. VIII by the Deputy Settlement Commissioner vide order, dated 16-12-1972. Against the aforesaid order, the L.M.C. filed appeal before the Additional Settlement Commissioner. The appeal was accepted by order, dated 7-6-1973. The petitioners felt aggrieved. They went in revision before the Settlement Commissioner. That was dismissed on 25-9-1973. The petitioners then filed Writ Petition No. 801/R of 1973, which was decided by me as referred to above. Thus the first round concluded. On 19-1-1978, an application was filed by the Administrator, Lahore Municipal Corporation, Lahore for being impleaded as respondent in this petition. The application was allowed by order dated 3-7-1978 and the applicant was impleaded as respondent No.

3. The first contention raised by the learned counsel for the petitioners was that the L.M.C. had no locus standi to file appeal under section 19 of Act XXVIII of 1958 before the Additional Settlement Commissioner against the order of the Deputy Settlement Commissioner. It was submitted that the L.M.C. was neither an applicant nor an aggrieved party as required by section 19 ibid. In support of this contention learned counsel relied on Sh. Barkat All v. Additional Settlement Commissioner and 2 others 1972 S C M R 293 wherein it was held that the person found not entitled to transfer of the property had no locus standi to challenge transfer in favour of claimant displaced person. Learned counsel further argued that the Settlement Commissioner erred in law in deciding the revision on merits. He should have first adverted to the legal position which was whether the appeal, which was time barred, could be entertained by the Additional Settlement Commissioner. If so, whether the delay had been condoned in accordance with law. It was argued that the Additional Settlement Commissioner erred in law in condoning the delay in filing the appeal before him. It was next submitted that the Settlement Commissioner ought to have visited the spot himself in order to determine two crucial points in the matter of transfer of the property in dispute. Those were the possession and the construction. The last point on which great stress was laid by the learned counsel was that the petitioners fulfilled the essential legal requirements as envisaged by para. 13 of the Schedule to the Act for the transfer of the plot in dispute, which were possession and construction. It was submitted that having fulfilled these two conditions, the petitioners had statutory right for the transfer of the plot in dispute. While explaining the factum of construction, learned counsel for the petitioners argued that the requisite construction had been raised. It was after the submission of the form that the L.M.C. in an arbitrary way and in order to destroy the entitlement of the petitioners demolished the structure unauthorisedly. It was submitted that this would not, in any way, prejudice the case of the petitioners because at the requisite time they were in possession and had raised the construction. Learned counsel attacked the entitlement of the L.M.C. and submitted that it had no right for transfer of the property in preference to the petitioners. He argued that all evacuee property vested in the Government free from any incumberance and that any kind of evacuee interest in the property extinguished by operation of law as envisaged by section 3 of Act XXVIII of 1958. In support of this argument, counsel relied on Abdul Majid and others v. Pakistan and others P L D 1967 Lah.

459. No body appeared on behalf of the Settlement authorities. I heard the learned counsel for the L.M.C. He submitted that the plot in dispute was included in Devi Dayal Scheme, which dates back to 1942. The plot was required for children park. Relying on sections 75 and 76 of the Punjab Local Government Act, 1975, the counsel contended that the property could not be transferred to the petitioners because it vested in the L.M.C. The questions regarding the condonation of delay and competency of appeal were duly considered by the Additional Settlement Commis sioner. He condoned the delay. That was his discretion. These points were adverted to by the Settlement Commissioner in his impugned order. He agreed with the discretion exercised by the Additional Settlement Commissioner. Moreover, I don't think that the petitioners can avail of the technicalities. They have to succeed on the strength of their own case. In the earlier petition (Writ Petition No. 801/R of 1973) they had impleaded the L.M.C. as respondent, but this time they did not do so. This shows that they have not come to the Court with clean hands. On this sole ground, I could have dismissed the petition. Nevertheless I heard the learned counsel for the petitioners at length. Even otherwise, at this stage these points are of not much help to the petitioners because if I were to accept this position, then I shall have to remit the case to the Settlement authorities. The parties have been litigating for more than a decade. It is high time that the matter should now be resolved and settled for good. The main point for consideration in this constitutional petition is the statutory requirement for transfer of the property under Settlement Scheme No. VIII, which is possession and construction. I find that both these points were dealt with in detail and in a very elaborate manner by the Settlement Commissioner in the impugned order. While considering the factum of possession, the Settlement Commissioner examined the relevant dates, looked into the evidence and then came to the conclusion that the petitioners did not succeed in establishing their possession as required by law. He found that the petitioners had been changing their stance. Similarly, the Settlement Commissioner was not convinced about the factum of construction. The mere fact that he did not himself visit the spot would not vitiate his finding on this particular issue. The findings given by the Settlement Commissioner in the impugned order are supported by cogent reasons. He has determined the question of possession and construction in accordance with law. The impugned orders, as such, call for no interference. The writ petition is accordingly dismissed. No costs. M.A.K. Petition dismissed.