ABDUL RAHIM Versus MUHAMMAD HUSSAIN

The dispute in this constitution petition pertains to a portion of property No. BXXIII‑3S‑9, Gujranwala. This property was divided into 4 parts, out of which 3 were disposed of to different occupants. It is the 4th part which is the subject‑matter of controversy raised in this petition. This plot was allotted to Muhammad Hussain by the Rehabilitation Authorities on 19‑1‑1957. Mst. Bashiran, the wife of Muhammad Hussain aforesaid applied for the transfer of the plot as a shop but the transfer was refused as the property was not a shop and was included in the auction pool for disposal. The plot was auctioned on 3‑8‑1962 and was purchased by one Muhammad Umar but due to his failure to pay the transfer price the auction was cancelled. Abdul Rahim petitioner filed a belated LH form seeking condonation of delay whereupon a report was called for from Mr. Muhammad Asif Rana, the then Deputy Settlement Commissioner. He submitted his report saying that "though the name of Abdul Rahim does not exist in the survey register but he was found in the possession of property at the time of survey". However, he submitted an affidavit to this office to the effect that he is in occupation of this part of the property long before 1958. The contention of the applicant contained in the affidavit is duly attested by the Chairman of Union Council Khan Ghulam Dastgir Khan who is also Vice‑Chairman of the Municipal Committee, Gujranwala. In view of this authentic attestation his possession seems to be before 1958.

2. From the above‑quoted portion of the report it is apparent that the opinion regarding possession was based on the contents of the affidavit which was attested by the Chairman, Union Council and Vice‑Chairman of Municipal Committee. The DSC had not recorded his own finding with regard to possession. It appears from the record that after this report delay in submission of form was condoned. The matter was then considered by the Settlement Commissioner Agha Babar Shah and vide order dated 7‑10‑1970 he placed the property in auction for disposal. With this order the LH form submitted by the petitioner as well as Muhammad Hussain, respondent stood rejected. The request of both the parties was also not accepted by the Additional Settlement Commissioner as the appeals filed by them against the order dated 7‑10‑1970 were rejected vide order dated 19‑1‑1971. Thereafter, the petitioner as well as Muhammad Hussain respondent submitted BS forms requesting the transfer of the plot in question. Agha Babar Shah, DSC vide order dated 30‑3‑1971 held that Muhammad Hussain, respondent being allottee in possession is entitled to the transfer of the plot. He, therefore, transferred the plot to Muhammad Hussain respondent and rejected the BS form of the petitioner. The proceedings in suo motu revision were also initiated against Muhammad Hussain respondent. These appeals and the suo motu revision were disposed of by Mr. Muhammad Arif Rana, the then Settlement and Rehabilitation Commissioner vide order dated 13‑5‑1974. The appeals as well as suo motu revision were dismissed as the learned Settlement Commissioner was of the opinion that Abdul Rahim petitioner was not proved to be in possession of the plot in dispute from any record whatsoever and that the DSC has rightly transferred the plot in favour of Muhammad Hussain who is proved to be in possession by the documentary evidence produced by him and the record maintained by the Department. This order is now under challenge in the present constitution petition.

3. Learned counsel for the petitioner has argued that Mr. Muhammad Arif Rana, Settlement Commissioner having submitted a report in connection with the LH Form in the capacity of DSC, was not legally competent to hear and decide the appeal and the suo motu revision. This argument was sought to be based on the principle that `no one can be a judge in his own cause'. I am afraid this principle does not apply to the situation m hand. Muhammad Rana cannot be considered to be a judge in his own cause when he decided the appeal and the suo motu revision in the capacity of Settlement Commissioner. He was admittedly not interested in any manner in the transfer of the plot one way or the other. The mere fact that he had submitted a report when posted as Deputy Settlement Commissioner cannot disqualify him to determine the matter judicially in the capacity of Settlement Commissioner. The report called for was with respect to condonation of delay in submitting LH Form. At that time he did not determine any question in judicial capacity. His remarks about the possession were also based on the contents of the affidavit submitted by the petitioner. He did not determine the matter in judicial capacity. Thus mere submission of the report to my mind does not disqualify Mr. Muhammad Arif Rana to exercise powers of Settlement Commissioner and to determine the matter judicially pending before him. It may also be added that the finding recorded by the learned Settlement Commissioner on the question of possession has not been otherwise challenged before me as besides the affidavit referred to in the report nothing was referred to by the learned counsel for the petitioner to establish the possession of the petitioner over the plot in dispute. The Settlement Commissioner has thus committed no jurisdictional error in not relying on the said affidavit and in preferring and relying on the, record maintained by the Department and the documents produced by the respondent. The petitioner having not established his possession over the disputed plot was obviously not entitled to claim the transfer of the plot on the BS form. The objection that Mr. Muhammad Arif Rana, DSC, had submitted report earlier was, admittedly, not raised at the time of hearing of the appeals etc. The petitioner having joined the proceedings in the hope that the said officer may follow the report already submitted cannot now turn round to I object to the hearing of the appeals by the Settlement Commissioner. In these circumstances, the petitioner cannot be allowed to raise this objection at this stage. The matter does not end here because it has to be established that requisite construction was also put up on the plot for claiming its transfer on the basis of the BS form. The petitioner, it appears, failed to establish on record this fact as well. Even before me no such pica was raised. The petitioner was thus rightly held not entitled to the transfer of the plot in question.

4. For the reasons given above this petition fails and is dismissed with no order as to costs.

M.Y.H./2774/L

Petition dismissed.