1979 PLP 249 (SCMR)

DORAB PATEL, J.‑The facts relevant to this petition for leave are that the petitioner is a displaced. person from Jammu & Kashmir and bad submitted an application under Settlement Scheme No. VII, for the transfer of an evacuee building site in Havelian. This application remained pending and meanwhile the fourth respondent who was a very influential person got transferred to himself that building site for which the petitioner had applied. As soon as the petitioner learnt of this transfer in the fourth respondent's favour he challenged it in an appeal before the second respondent, who however, dismissed it on the ground of limitation on 16‑2‑1973. And on the further ground, that the petitioner had failed to prove that the fourth respondent was not in possession of the property in dispute at the relevant date, namely, 1‑1‑1961. The petitioner challenged this order in a revision before the third respondent, but the third respondent agreed with the second respondent's finding that the petitioner had failed to prove that the fourth respondent .was not in possession of the property at the relevant date and he also held that the petitioner had never applied for the said property therefore he dismissed the Revision on 12‑1‑1978. Aggrieved by this order, the petitioner filed a writ petition in. the Lahore High Court and in paragraph 2 of his writ petition he stated: "That the subject‑matter of this writ petition is an evacuee building site comprising Khasra No. 1049 (Min), measuring. 605 Sq: Yards, situate in the extended area of Havelian, Tehsil Abbottabad District Hazara." Now, it would appear that one Mst. Resham Jan had also applied for a property which had been allotted to the fourth respondent and this property was adjacent to that for which the petitioner had unsuccessfully applied. As like the petitioner, Mst. Resham Jan bad been unsuccessful in the Settlement Department, she too had filed a writ petition against the fourth respondent and the Settlement Department for the enforcement of her rights and as these petition raised at least some common questions of law, they were heard together and were dismissed by the Chief Justice of the Peshawar High Court on 2‑4‑1978. Therefore, the petitioner has filed this petition for leave against the order by which the Chief Justice dismissed his writ petition. The impugned order merely states that the writ petition was dismissed for the reasons given in the judgment by which Mst. Resham Jan's petition had been dismissed, therefore, Mr. Ansari criticised the Chief Justice for not writing a separate order in the instant case because according to learned counsel the questions raised by the petitioner in his writ petition were different from those raised by Mst. Resham Jan in her writ petition. In view of this submission, we have examined the judgment of the Chief Justice dismissing the writ petition of Mst. Resham Jan. It was easily available, because like the petitioner, this lady too bad filed a petition for leave against the judgment of the Chief Justice of the Peshawar High Court C. P. S. L. A. No. 57‑R of 1978. ' But leave was refused, inter alia, on the ground that the, property in dispute was in the extended area of Havelian, therefore, "the petitioner would have no claim to it as a claimant displaced person from the State of Jammu &. Kashmir". These observations are important because although Mst. Resham Jan's writ petition raised other questions of law, the common question of fact and law in both the writ petitions was that both the petitioner in the instant case and Mst. Resham Jan claimed properties: situated in the extended area of Havelian and were not in possession of the properties claimed by them, therefore, the contention of the fourth respondent in the High Court was that on these admitted facts, the petitioners had no locus standi to challenge the transfers in his favour. And this contention was accepted by the High Court and upheld by this Court, the C. P. S. L. A. 57‑R of 1978. In these circumstances, the learned counsel for the caveator rightly submitted that this Court's order in C. P. S. L. A. No. 57‑R/1978, by which leave was refused to Resham Jan against the dismissal of her writ petition was fatal to the petitioner in the instant cafe. When we referred Mr. Ansari to this aspect of the case, he was reluctantly compelled to admit that the petitioner had admitted in his writ petition that the property in dispute was situated in the extended area of Havellian and that in the circumstances, if the averment in the pleadings be title, the petitioner was barred from challenging the impugned order. However, learned counsel submitted that the petitioner's admission in this respect which was contained in paragraph 2 of his writ petition which we quoted earlier, was an admission which had been made inadvertently, therefore, he feebly submitted that the petitioner should be permitted to repudiate his mistake. We regret our inability to accept the submission which is contrary to the settled law. The petitioner cannot be permitted to press his petition on a point of far which is inconsistent with the admissions expressly made by him in his writ petition in the High Court, therefore, we would respectfully follow the view of our learned brother in C. P. S. L. A. No. 57‑R of 1978 and dismiss the petition in the instant case. Learned counsel then submitted that even though the petitioner could not advance any claim to the property in dispute under Settlement Scheme No. VII, leave should be granted to examine the validity of the transfer in favour of respondent. No. 4 as that transfer was illegal. Further, according to learned counsel, the fact that the petitioner had no locus standi to file his writ petition was not material to view of this Court's judgment in Mian Fazal Din V. Lahore Improvement Trust Lahore and another (P L D 1969 S C 223). We have examined this judgment which is distinguishable on the facts and does not in any way support learned counsel's submission. The petition is without merit and is dismissed. Petition dismissed.