1. ' By this writ petition order dated 14-10-1978 passed by the learned Custodian from the order of Rehabilitation Commissioner is challenged.
2. ' The impugned order confirmed the order dated 24-8-1976 passed by the Rehabilitation Commissioner against the decision of the Deputy Rehabilitation Commissioner which was made by the latter during the ejectment proceedings against the petitioner as well as on an appeal filed by the petitioner against the impugned allotment. The allotment in the name of respondent was made on 24-11-1962 by the Assistant Commissioner wielding the powers of Assistant Rehabilitation Commissioner.
3. ' It was the site allotted and not the superstructure of the shop which. Was raised over the site allotted, by the respondent himself.
4. ' The allegations of the petitioner are that he has been in possession of the shop in dispute since 1962, and that it was not within his knowledge till he came to know in the year 1971, that the shop in question stood allotted to the respondent and that it was then that an appeal was filed before the Deputy Rehabilitation Commissioner who accepted his appeal thereby allotting the shop in question to him by his order dated 30-1-1975.
5. ' The order of the Deputy Rehabilitation Commissioner was set aside by the Rehabilitation Commissioner for its being time-barred as an appeal before the Deputy Rehabilitation Commissioner was filed against the allotment in question after the lapse of a period of nine years whereas the impugned allotment was very well within the knowledge of the petitioner even in the year 1962, and the order of allotment in favour of the respondent was allowed thereof to remain intact.
6. ' The impugned order of the Assistant Rehabilitation Commissioner and the Custodian are assailed on the following grounds:-
(1) That the Naib-Tehsildar had no power to entertain application for allotment and then to submit a report to the Assistant Rehabilitation Commissioner for the allotment and that on the report of the NaibTehsildar, Assistant Rehabilitation Commissioner had even no power to allot the land in question as he was not himself duly empowered to do as Assistant Rehabilitation Commissioner and moreover empowering him as such was not notified in the official Gazette as required by law and so his act of allotment of the shop in dispute in favour of the respondent was without jurisdiction. This aspect of the case it is alleged was ignored by the Rehabilitation Commissioner and the Custodian both.
(2) That the respondent had never been in possession of the shop in question and it was wrongly stated by him while securing the allotment that he was in possession of the same and that no notice was issued to the petitioner being a possessor prior to the order of the allotment so as to show why the shop should not be allotted to the respondent and thus the principle of natural justice was violated by the Assistant Rehabilitation Commissioner.
7. ' It was further alleged that Rehabilitation Commissioner was also not validly appointed and there was no notification even published in the official Gazette with regard to his appointment as such, if any. According to the petitioner, that being the position, the impugned orders of the Rehabilitation Authorities and the Custodian are illegal and so the order of the allotment made by the Deputy Rehabilitation Commissioner in favour of the respondent should be restored.
8. ' All the allegations of the petitioner were resisted and refuted by the respondent. Annexures RA.
9. And RB. Were also produced in defence to belie the claim set forth by the petitioner.
10. ' The learned counsel for the parties were heard and the perusal of the record was also made.
11. ' Certified copy, Annexure RA, of , the `Khasra Girdawari' shows that respondent Muhammad Azam Khan had in possession of the shop in question long before 1963, till 1962, and then it was in the year 1963, that possession over the shop in dispute is shown that of the petitioner. Document Exh. RB, a certified copy of the plaint reveals that a declaratory suit was brought before the Deputy Custodian by the petitioner in the year 1971, contending therein that the site in dispute was allotted to the respondent, the possession of which was delivered to him by the respondent on payment of rent which he was regularly paying to the respondent and therefore the latter should be refrained from dispossessing him from the shop in question. Evidently, the possession of the shop in dispute was handed over to the petitioner on rent by the respondent and the petitioner as such assumed the position of a tenant and it was quite within his knowledge that the impugned allotment stood in the name of the respondent towards the end of the year, 1962, or in 1963. Most probably it was in the year 1963, that the petitioner held the possession of the shop as a tenant of the respondent and this is the case of the respondent. This is all evident from Exh. RB and the impugned order of the learned Custodian.
12. The affidavit filed by the petitioner to the effect that he had no knowledge) etc. Of the impugned allotment till 1971, when he went in appeal before the Deputy Rehabilitation Commissioner is patently false. His suit before the Deputy Custodian clearly indicates that shop was delivered to him by the respondent on rent soon after its allotment was obtained by the latter in the month of November, 1962. And so the allotment in question was very much within his knowledge when he took over the possession of the same. False affidavit was given by the petitioner while making this writ petition to this Court. There arises then no question of the infringement of the principle of natural justice. This shows that the petitioner has not come to this Court with clean hands He is the tenant of the respondent as was rightly pointed out by the learned Custodian and this fact of his being a tenant was wrongly denied by him. He resorted to falsies to achieve his object which cannot be achieved as such.
13. ' At the time when allotment was made in favour of the respondent it was reported that the superstructure over the site allotted to the respondent was constructed by him and so the petitioner is also wrong here to say that the superstructure of the shop was built by him.
14. ' The concerned Assistant Commissioner and Secretary to the Government appear to have been duly empowered as Assistant Rehabilitation Commissioner and Rehabilitation Commissioner who had been performing their functions as such. Naib-Tehsildar is not an allotting authority, he was simply supposed to have worked with the Rehabilitation Authorities in their ministerial staff.
15. Furthermore, no plea was taken by the petitioner before the learned Custodian that the Officers who acted as Assistant Rehabilitation Commissioner and Rehabilitation Commissioner were not legally empowered and that there was no publication in the official Gazette to the effect that they were empowered to function under the provisions of Rehabilitation Laws. The empowering of the Assistant Commissioner as Assistant Rehabilitation Commissioner by the Government is contained in Council Order No, 158/57 dated 6-4-1957. No old record or Gazettes pertaining to the points involved are available due to the mess of the things of administration and so it cannot be said on the mere assertion of the petitioner that Assistant Commissioner and Secretary to the Government who were functioning as Assistant Rehabilitation Commissioner and Rehabilitation Commissioner were not duly empowered. Presumption goes in favour of the Officers concerned that they were duly empowered under law to act as Assistant Rehabilitation Commissioner and Rehabilitation Commissioner and that notifications were also accordingly published in the official Gazette to that effect. When this plea was not at all taken by the petitioner before the learned Custodian, he cannot be allowed to agitate it in the writ petition. Thus it would be deemed that the Officers who had dealt with the impugned allotment were the appropriate Rehabilitation Authorities upon whom powers were conferred in accordance with law and all the legal requirements were fulfilled by the Government so as to enable them to function under the provisions of Rehabilitation Law. It was for the petitioner to prove otherwise. Mere assertion is of no value particularly when the affidavit filed by the petitioner is not true to the pertinent points indicated above and the lawful authority of the Rehabilitation Officers concerned was not called in question before the learned Custodian and he submitted himself to their jurisdiction.
16. The petitioner is found to have yielded himself to the allotment made in the name of respondent vide Exh. RB in this regard. He has not come with clean hands to this Court as pointed out earlier and so he is not entitled to any relief from this Court by way of invoking writ jurisdiction.
17. ' The Assistant Rehabilitation Commissioner and the Rehabilitation Commissioner were thus the lawful authorities who had dealt with the matter in due course of law and so is the case with the learned Custodian to whom the revision petition was made by the petitioner because of his being a revising authority under section 12 of the Rehabilitation Act, 1956. The learned Custodian has exercised his jurisdiction as warranted by law and there appears no legal flaw in the impugned order so as to attract the invoking of writ jurisdiction.
18. ' That being so, there is nothing for interference in the impugned orders of the Rehabilitation Authorities and the Custodian and consequently this writ petition is dismissed with costs.