1975 PLP 522 (SCMR)

MUHAMMAD GUL, J.‑This petition is from the order of the Lahore High Court dated 3‑10‑1972 remanding the case for fresh decision by the Settlement Authorities after enquiry into the matter in "accordance with law" in the circumstances set out below. The dispute concerns evacuee property bearing No. S‑19‑R‑31 (ii) the Mall Lahore. The two contestants for its transfer are the petitioner herein a local, who alleged that the property had been duly transferred to him under Scheme No. VI on the basis of his possession since Independence and construction of pucca structure over it in which he is running a work shop, and respondent 1, a claimant displaced person who alleges to be in its possession since before November 1957, and who had filed a C S form for its transfer which according to him still remains un-disposed of. Respondent 1 was the writ petitioner in the High Court, who having failed before the Settlement Authorities to secure the transfer of the property in his favour, moved the High Court in its writ jurisdiction. The case set up by him was that on 1‑9‑1959 he duly filed a C.S. form in the office of D. S. C. at Lahore for the transfer of the property on the basis of his possession. The form was received vide receipt No. 1‑C. S./267. Not receiving any intimation as to the disposal of his form, he represented in writing a number of times enquiring about the fate of his form. Ultimately on a direction by the Chief Settlement Commissioner the D. S. C. entrusted the matter to the Settlement Inspector who reported on 30‑4‑1965 that a C. S. form was received on 1‑9‑1959 which was entered in the Receipt Register at Serial No. 1259. The Settlement Inspector also made enquiries on the spot and found the respondent 1 herein had been in actual possession of the property since 1957. However, since the original C. S. form was not traceable in his office, the D. S. C. allowed respondent 1 to file a duplicate C. S. form, which he, however, later rejected on the ground that the property in dispute stood already transferred to the petitioner herein by an order dated 7‑5‑1962 made by his predecessor and that it was beyond his com petence to review the order of his predecessor. The D. S. C. order rejecting the duplicate form filed by respondent was maintained in appeal and revision by the Additional Settlement Commissioner and Settlement Commissioner. During proceedings before the Settlement Authorities, it transpired that the petitioner succeeded to securing the transfer of the property in dispute under Scheme No. VI on the premise that the same was an open plot over which he had filed a permanent structure which was being used as workshop. In that behalf, the petitioner also relied upon a report made by the Settlement Inspector dated 2‑5‑1962 according to which the petitioner was in possession of plot measuring about one kanal over which he carried on business under the trade name of Republic Motors as a tenant under the original evacuee owner and since the over fled the country, he had raised pucca structure over it. The Inspector submitted the report "for necessary orders". On the report of the Settlement Inspector the D. S. C. on 7‑5.1962 made the following order :‑ "I agree with the proposal." On the basis of the above order the petitioner was informed that the plot is offered to him under Scheme No. VI on the prevailing market price plus 50 % to be calculated later. Later, on a complaint that the above transfer in favour of the petitioner was obtained by fraud sled misrepresentation", the mater was entrusted the Special Police who registered the case under section 5 of the Prevention of Corruption Act, 1947 (Act II of 1947) and section 120‑B, P. P. C. against the D. S. C. concerned and the petitioner. The trial, however, ended in acquittal of both the accused by the learned Special Judge who found that on the evidence produced the charge of criminal conspiracy and the abuse of the official position by the D. S. C. was not proved. By means of the impugned order a learned Single Judge in the High Court after what appears to be long drawn out proceedings in the Court, felt obliged to remand the case to the Settlement Authorities for a rest3 decision after proper enquiry into the matter for the factual position bearing on the case was nebulous which obviated a proper decision in the case. The learned Judge referred to two entirely contradictory reports by the two Settlement Inspectors one of which dated 30‑4‑1965 gave unqualified support to the claim of respondent 1 for the transfer of the property under Scheme No. 1 and the other dated 2‑5‑1962 similarly supported the claim of petitioner herein. Learned counsel for the petitioner argued with some emphasis that the Settlement Authorities had at one stage definitely found the petitioner to be entitled to the transfer of the property under Scheme No. VI and that finding being based on evidence produced before the Settlement Authorities it was not within the competence of the High Court in writ jurisdiction to set aside that finding. We, however, consider that in view of the nebulous factual position the learned Judge was amply justified to remand the case for a fresh enquiry. No illegality was committed and it is not a fit case for interference by this Court. The petition is hereby dismissed. Petition dismissed