MUHAMMAD AZAM vs AHMAD HASAN And Another
This petition for leave to appeal arises from a judgment of the Lahore High Court whereby a writ petition filed by the respondents was allowed and the matter was set aside on the ground that the competent authority failed to determine whether the petitioner was in actual possession during the relevant period to entitle him to submit a form under Settlement Scheme No. VIII. The core legal question concerns the legality of the transfer of a shop under Settlement Scheme No. VIII in the absence of a factual finding regarding possession and the appropriate course of action for the High Court when a material question has not been examined by the inferior tribunal. The Supreme Court granted leave to appeal to consider whether the proper course upon finding a failure to examine possession was to remand the matter rather than to simply allow the writ petition outright. The Court held that the contentions raised require detailed consideration and granted leave subject to furnishing security.
- Whether the High Court should remand a matter when the inferior tribunal fails to determine a material question of possession?
- Is the transfer of a shop under Settlement Scheme No. VIII valid if the claimant's possession during the relevant period is not established?
- Settlement Scheme No. VIII
ORDER
ABDUL SHAKURUL SALAM, J.---Respondents' writ petition No. 1339/R/1977 was allowed by a learned single Judge of the Lahore High Court, Lahore vide order dated 23-12-1985 on the ground that "question whether Muhammad Azam (present petitioner), respondent, was entitled to submit a form under Settlement Scheme No. VIII on the basis of the alleged possession was not at all gone into. In case he was not in possession on the date and during the period relevant for the purpose of Settlement Scheme No. VIII the transfer could not have been made or obtained under Settlement Scheme No. VIII."
2. Muhammad Azam seeks leave to appeal against the said order.
3. The learned counsel for the petitioner has contended that the transfer in favour of the petitioner of the shop was perfectly valid because the respondent has only been transferred unregistered factory and not the shop which is an independent unit. In any case, if the question was "whether petitioner was entitled to the submission of the form under Settlement Scheme No. VIII", and question of his possession had not been gone into, the proper course was to remand the case as the Settlement authorities had found in favour of the petitioner and there was nothing on the record to show to the contrary.
4. Contentions raised require consideration.
5. Leave is granted subject to furnishing security for costs in the sum of Rs.5,000, with liberty to the parties to file additional documents, if so required.