1988 PLP 1424 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This petition for special leave to appeal has been filed to call in question the dismissal by a learned Single Judge of the Lahore High Court of a writ petition regarding the disposal of a property known as Dawn Hotel, Murree, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The contest was between the petitioner and Abdul Nziz (now deceased), predecessor‑ in‑interest of respondent No.3‑‑both displaced persons, latter from Jammu and Kashmir. According to the findings of fact in the impugned orders, Abdul Aziz was allottee since 1949. The petitioner also got an allotment in 1952 but could not secure the possession‑‑in fact, he, as found by the Settlement Commissioner, remained indifferent in this behalf because of his interest in other properties. Abdul Aziz was in actual physical possession on 2U‑12‑1958, the target date for transfer, and so remained in possession till 1960 when, on requisitioning under ‑L.R. 71 (1959), the Police Department occupied the premises. Both parties had filed forms for transfer in 1959. The petitioner made some interpolation in his form later on. However, the property could not be transferred to any one because of possession of police. On de‑requisitioning, the possession was handed over to the petitioner by the Deputy Commissioner in 19ti

5. Abdul Aziz challenged this so‑called restoration of possession to the petitioner up to the Supreme Court but failed. The Settlement Authorities dealt with the case in several rounds of litigation. This is the third time that the case has come up to the Supreme Court. The order now impugned in this petition was passed by the High Court affirming the findings on facts and transfer of property by the Settlement Commissioner in favour of Abdul Aziz. It has also been held that the petitioner, by producing a copy of his C.S. Form in the High Court which contained interpolations, disentitled himself to any relief on account of unclean hands. Learned counsel has contended that the findings, that on account of interpolation in the copy of the C.S. Form submitted by the petitioner with the writ petition the petitioner approached the High Court with unclean hands and was thus not entitled to a relief, are unwarranted; that this Court had thrice held that the petitioner was allottee in possession, therefore, the High Court was not justified in treating Abdul Aziz's allotment or his possession, enough for rejecting petitioner's claim for transfer; that Abdul Aziz had applied only for a shop with Property No.120/1‑‑it had no concern with the property in dispute, therefore, he was not entitled to the transfer thereof; that Abdul Aziz was not a displaced person from Jammu and Kashmir, therefore, there was no basis for giving him any preference over the petitioner; and lastly, that the Chief Settlement Commissioner, had transferred the case of Abdul Aziz only, for hearing by the Settlement Commissioner, Lahore, who decided it. The case of the petitioner remained pending with Settlement Commissioner, Rawalpindi, and has not been legally decided so far. Although learned counsel for respondent No.3 asserted that there are several interpolations in the C.S. Form of the petitioner, arguments were addressed only on the one in column No.5 thereof which relates to the insertion of the words "Government possession (police)". The form was submitted in 1959. The property was requisitioned for police subsequently. Thus, the aforementioned entry could be only through an interpolation. Not only this, one of the copies obtained by the contesting respondents earlier to the interpolation in question also, showed that there was no such entry. Learned counsel tried to explain it away by stating that the police was in possession of the property even at the time of the submission of form by the petitioner‑‑the regularisation only of the possession through a requisition order, took place subsequently. The position taken by the learned counsel stands contradicted by the stand taken in ground (f) of the petition for special leave to appeal, wherein an attempt has been made to show that "presumably, it may be the respondent who may have manoeuvred this interpolation in order to damage the case of the petitioner and in the meantime got some change in the record only to prejudice the case of the petitioner". Even this plea is not sustainable because if the petitioner would not have been the author of the relevant entry and it would have been made by or through an adversary, the copy would not have been used by the petitioner. Same would apply to other interpolations mentioned in the orders of the Settlement Commissioner and the High Court. We are unable to agree with the learned counsel that then finding of fact in this behalf suffers from any infirmity. Nothing hash" been said with regard to the effect of the aforenoted conduct of the petitioner. It has of even been urged that such a person can be considered to have come to the High Court with clean hands or that despite that, he would be entitled to relief. We accordingly are of the view that the approach of the High Court in this behalf is unexceptionable. Learned counsel for the petitioner has read the three orders dated 23‑12‑1965, 10‑1‑1966 and 28‑2‑1966 passed by this Court in the case relating to the transfer of possession to the petitioner in 1965, in order to show that it was conclusively held that the petitioner wad an, allottee in possession at the relevant time, therefore, he was entitled to the transfer. On careful examination of the three orders relied upon, we have not been able to agree with the learned counsel that this Court had given conclusive finding on the questions of prior allotment and possession in favour of the petitioner. The controversy then, related only to the validity of order of restoration of possession by the Deputy Commissioner under M.L.R.

71. It was in that context that certain observations were made regarding the position of the parties on the questions of allotment and possession. No final finding of fact on these questions was rendered with a view to determine the rights of the parties for the purpose of transfer of the property. After hearing the learned counsel at length, we find that the conclusions by the Settlement Commissioner affirmed by the High Court that Abdul Aziz was allottee since 1949, that he was in possession on 20‑12‑1958, the relevant date, and he lost possession only on account of requisition under M.L.R. 71 in 1960, are supported by sufficient material. They do not now require any correction on~ any ground of law or principle. Same would apply to the findings that Abdul Aziz was a displaced person from Jammu and Kashmir and that his application on K.C.S. form related to the property in dispute. Reliance of the learned counsel in this behalf on two documents at pages 101 and 102 of the paper book (which, as admitted, were not made part of the record of the High Court) in order to show that Abdul Aziz was riot a displaced person from Jammu and Kashmir would not invalidate the said finding which was reached after taking into account a certificate issued by the President of Azad Jammu and Kashmir. No legal exception can be taken in this behalf. The mere fact that when mentioning the name 'Dawn Hotel' at two places, Abdul Aziz failed to give its property number/s correctly, will not make any difference. The argument of the learned counsel that property No.120/1 is a different one and stood transferred to another party is contradicted by the petitioner's own stand in his C.S. Form because the same number is mentioned as one of the property numbers of the Dawn Hotel. Similarly, the reference by the learned counsel to the proposal for allotment in favour of Abdul Aziz on 5‑10‑1949 so as to show that it related to Shop No.120/1, for the above reason, is of no avail to the petitioner. Moreover, there is material referred in the order of the Settlement Commissioner showing that after the said proposal matured into an allotment order dated 10‑10‑1949, the property in dispute, namely, the Dawn Hotel, was in possession of Abdul Aziz as early as 11‑4‑1953. An overseer of P.W.D. B & ‑R (Rehabilitation) had then sent a notice with regard to the condition of the Dawn Hotel and requiring the person in possession, namely, Abdul Aziz, to take certain measure, otherwise action would be taken against him. This fact also is mentioned in the form of Abdul Aziz. It is not denied that the petitioner was a party to the proceedings before the Settlement Commissioner who passed the order on 12‑1‑1977. There is no complaint that he was not afforded opportunity of hearing nor can it be said that the entire case with regard to the transfer of the property in dispute, as directed by the High Court in the earlier remand order, was not re‑examined with reference to the context between two parties, namely, the petitioner and Abdul Aziz. There is not even an assertion that the petitioner has suffered any prejudice in this behalf. The argument that the petitioner's application, despite the fresh decision by a Settlement Commissioner who was otherwise competent to deal with the matter, remained undecided, in this behalf is also without any force. This petition fails and is accordingly dismissed. M.I. /W‑24/5 Petition dismissed