1998 PLP 2406 (SCMR)

MAMOON KAZI, J.

On the application of the appellant made in 1980, a building site. Plot No.BV-S-III-144, measuring about 4 Kanals, situated at Changer Mohallah, Sheikhupura was transferred to the appellant vide order passed by the Deputy Settlement Commissioner/Administration, Sheikhupura after an enquiry was conducted into the appellant's claim. The first respondent's claim was rejected as the appellant was found to be in possession of the said property before 1-1-1976 whereas the respondent made his belated claim vide R.P. Form dated 10-3-1981. The appeal filed by the said respondent before the Administrator. (R.P.) Lahore was dismissed as, according to him, the respondent had miserably failed to establish his claim before the lower forum. Aggrieved by the said order, the appellant filed a Const. petition before the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was allowed by the learned Judge in chambers, holding that the appellant had failed to fulfill one of the conditions for transfer of the property under the relevant scheme by failing to show that the construction on the said plot had also been raised by him. Consequently, the case was remanded to the respondent No.3 for a fresh disposal. Leave to appeal was granted by this Court to consider whether the High Court had misread the order of the Deputy Administrator (respondent No.3) which had been duly affirmed in revision by the Administrator (respondent No.2). Mr. Mehmood Qureshi, learned counsel for the appellant has argued before us that the learned Judge in chambers was clearly in error while upsetting the findings of fact arrived at by the two notified officers in the exercise of the constitutional jurisdiction. The judgment of the learned judge in chambers has, however, been fully supported by Mr. M. Munir Peracha, learned counsel for the respondent No.

1. He has invited our attention to the relevant Scheme for the Management and Disposal of Available Urban Properties, published in the Punjab Gazette, Extraordinary, dated 31-1-1977, paragraph-6 of which refers to transfer of houses, shops and building sites. Clause (2) of the said paragraph provides as under:-- "(2) An available building site on which a ,person in possession has raised a permanent construction and applies for its transfer, it may be transferred to him on the transfer price." , While seeking support from the said clause, the learned counsel has argued that although, in the instant case the orders passed by the respondents No.2 and 3 indicated that the appellant was in possession of the said plot, but no finding appears to have been given by either of the said respondents to indicate whether the construction on the plot was also raised by the appellant. According to the learned counsel, unless both the conditions were satisfied, the petitioner was not entitled to lay his claim over the said plot. Support was sought by Mr. Peracha from an earlier judgment of this Court in Muhammad Ashraf Khan v. Administrator (R.P/Settlement Commissioner (1987 SCMR 1358). This judgment has also been relied upon by the learned judge in chambers in the impugned judgment. No doubt, Mr. M. Munir Peracha's contention has lot of force because, as it was earlier observed by this Court in the said judgment, only possession coupled with construction raised on the building site can entitle a person to claim its transfer under the said Scheme. But what appears to have escaped the counsel's notice is that the respondent No.1 who filed his petition before the High Court, himself had no better claim than that of the appellant as he, according to the findings arrived at by the notified officers in their respective orders, was only a tenant of the appellant. No doubt, he had also applied for transfer of the same property, but his claim was rejected, being a belated one and the appellant was found to be in possession before 1-1-1976. It is pertinent to point out that the appellant had claimed to be in possession of the plot since 1964 and he had also claimed to have constructed two rooms thereon incurring his own expenses. The said claim was accepted by the respondent No.3 and on appeal, the order passed by the said respondent was further confirmed by the respondent No.2. Therefore, incur opinion, interference by the learned Judge in chambers with the findings of fact arrived at by the two subordinate authorities, was not called for. Even if, there was no -!per finding given by the said authorities in regard to raising of construction by the appellant, nevertheless, the same can be spelt out from the order of the respondent No.3. In the result, the appeal is allowed and the judgment of the learned judge in chambers dated 28-11-1992 is set aside. A.A./M-199/S Appeal accepted.