' This writ petition calls in question the validity of the order dated 28th June, 1980, of the Administrator (Residual Property)/Settlement Commissioner, Lahore Division, Lahore.
2. This case relates to property No, 125-D, Model Town, Lahore. It has according to the records of the Settlement Department, which has been perused by me with the assistance of the learned counsel for the parties, an area of 4 kanals. It appears that the original evacuee owner did not construct the main building till 1947 and only three outhouses were constructed on the plot, in question. One outhouse was transferred in favour of Sultan Ahmad son of Fateh Muhammad under Settlement Scheme No, i, while the remaining two houses were transferred to Mst. Hafeez Begum, the mother of Petitioner Mustafa Khan. The excess area measuring three kanals two ,narlas and 164 sq. Ft. Was ordered to be disposed of through auction by order dated 19th July, 1962 of the learned Additional Settlement Commissioner, Lahore. Mst. Hafeez Begum, the mother of the petitioner filed revision petition against the aforesaid order before the Settlement Commissioner, seeking therein, the transfer of the remaining excess area of the plot, but the same was rejected on 1st March, 1967. Mst.
Hafeez Begum did not challenge the order in question, before any competent forum and, therfore, it attained finality:
3. After a lapse of about 13 years, the petitioner moved an application dated 1st March, 1980 (page 231 of the Settlement record) before the Chief Settlement Commissioner, Lahore, praying therein transfer of the excess land in his favour under Settlement Scheme No, VIII. It was also stated in the application that the petitioner earlier filed Form No, 2975 under Settlement Scheme No, VIII in 1971, but no action was taken on it. On this application, the Settlement Commissioner/ Administrator (R.
P.) called for report from the Deputy Settlement Commissioner and after perusing the report rejected the application by order dated 5th March, 1980 (page 234 of the Settlement record) which reads thus :- "As per record, the excess land has already been ordered to be auctioned. The land may be included in the forthcoming auction. May inform the applicant."
The aforesaid decision was communicated to the petitioner by the Deputy Settlement Commissioner-V, Lahore, vide memorandum No, 62- DSC/V/LHR/80 (page 235 of the Settlement Record).
4. Being aggrieved with this order, the petitioner addressed a miscellaneous application to the Settlement .Commissioner, Lahore, on 16th April, 1980 (page 261 of the Settlement record) for reviewing the order dated 5th March; 1980 of the Settlement Commissioner/Admi nistrator (R. P.).
This application was actually presented before the Secretary, Settlement and Rehabilitation, Board of Revenue, Lahore, who sent for the report of the Settlement Commissioner with the following remarks :- "For report please. The petitioner tells me that on a previous application, the C. S. C. Had desired the undersigned to look into the case."
' The Settlement Commissioner marked the application to the Deputy Settlement Commissioner/Deputy Administrator (R. P.), Lahore. The latter after spot inspection and recording the evidence tendered by the petitioner, submitted a report that the petitioner was entitled to the transfer of an area measuring 1 kanal and 8 marlas as available property on the basis of his possession and permanent construction made by him prior to 1st January, 1976. He also sought approval of the Administrator (R. P.) for the conversion of form filed by the petitioner under Settlement Scheme No, VIII into R. P. Form vide his report dated 19th June, 1980, copy of which was furnished to the Settlement Commissioner/Administrator (R. P.) vide endorsement dated 21st June, 1980 (Annexure "B"). It may be stated that the Deputy Administrator also dealt with the claim of Mst.
Bibi respondent No, 3 for transfer of a portion of the plot and rejected her R. P. Form vide the same report. Being aggrieved with this order, respondent No, 3 filed revision petition dated 21st June, 1980, before the Administrator (R. P.), Lahore. The Administrator inspected the spot and also issued notice to Mustafa Khan, petitioner by order dated 24th June, 1980. Thereafter, after hearing the learned counsel for the petitioner and perusing the report, the Administrator passed the following order in vernacular :- {{URDU TEXT}} Sd/- Illegible A, D. (R. P.)
28th June, 1980."
' This was followed by a detailed order dated 28th June, 1980, (Annexure "A"). As regards the entitlement of the petitioner, the learned Administrator (R. P.) held that the Form filed by the petitioner under Settlement Scheme No, VIII stood already rejected and, therefore, no question of conversion arose under the R. P. Scheme. He further observed that the petitioner recently constructed his annexe and that it did not fulfil the requirements as envisaged by the R. P. Scheme.
Accordingly, the area, in dispute, was ordered to be put to auction. Consequently, an area, of 1 kanal, 9 marlas and 195 sq. Ft. Was auctioned. On 28th June, 1980, at a bid of Rs, 1,40,000 in favour of respondent No, 4, wife of the petitioner.
5. Learned counsel for the petitioner contends that in pursuance of the application made by the petitioner, respondent No, 2 treated the form submitted by the petitioner under Settlement Scheme No, VIII as being his application for the transfer of the property, in dispute, under the Scheme for 'Management and Disposal of Available Urban Properties. This was within the competence of respondent No, 2 and, therefore, respondent No, 1 could not set aside the order dated 21st June, 1980 of respondent No, 2, in the exercise of the revisional powers under Pargaraph 31 of the said Scheme without affording an opportunity of being, heard to the petitioner. It is submitted that in the instant case, the impugned order was passed ex parte and without notice to the petitioner and the same is, therefore, coram non judice. The contention of the learned counsel for the petitioner is factually incorrect and devoid of any force as is apparent on the face of record. The impugned order was passed with notice to the petitioner and after hearing the arguments of his counsel as stated in the preceding paragraph. The petitioner ha deliberately made mis-statement in the writ petition and suppressed the material facts. The conduct of the petitioner tantamounts to playing fraud on the Court and on this short ground alone, the petitioner is not entitled to any relief in the exercise of writ jurisdiction. Reference may be made to Pir Saleh Shah and six others v. Custodian of Evacuee Properties, Pakistan and another (I). Additionally, a bare perusal of the order of the Deputy Administrator (R. P.) would show that the rejected form of the petitioner was never converted into R.
P. Form. Respondent No, 2 merely sought approval for conversion which in law could not hay been granted, in that, the Form SS-VIII which having been earlier rejected was non-existent in the eye of law and, therefore, no question arose for its conversion into R. P. Form.
6. It is next contended that the mere fact that the petitioner did did not make any formal application for the transfer of the property, in dispute, was not fatal, in that, during the pendency of the miscellaneous application dated 16th April, 1980, the petitioner made a statement before the Deputy Administrator (R. P.) on 19th June, 1980, expressing therein his desire to seek transfer of the disputed property under the R. P. Scheme. The plea taken by the learned counsel for the petitioner is not sustainable. In terms of sub-paragraph (2) of paragraph 7 of the Scheme; for the Management and Disposal of Available Urban Properties, submission of an application is a condition precedent for vesting jurisdiction in the Deputy Administrator (R. P.) of the area concerned for the transfer of available building site on which a person in possession has raised a permanent construction before 1st January, 1976. In terms of Paragraph 3 of the said Scheme, the application for transfer of available house/ shop/building site is to be made on the form prescribed by the Member, Board of Revenue (Residual Properties). Reference may be made to PLD 1977 (Punjab Statutes) page 71. In the instant case, the petitioner admittedly submitted no application under the said Scheme. This being so, the petitioner is not entitled to claim the transfer of the property, in dispute, on the basis of a rejected form under Scheme No, VIII merely because he made a statement before the Deputy Administrator (R. P.) during the course of hearing in a miscellaneous application seeking' review of the earlier order of the Settlement Commissioner. The applicationer for review was not competent in law and, therefore, the proceedings taken in pursuance thereof were of no legal effect.
7. Learned counsel for the petitioner also contends that the observations of the Administrator to the effect that the petitioner recently
(1) 1971 SCM R 543 ' guilt the annexe are based on no evidence on record and in disregard of The oral and documentary evidence produced before the Deputy settlement Commissioner during the course of hearing of the miscellaneous application. The plea is devoid of any substance, in view of the finding wen in the preceding paragraph. In any event, the matter relates of appreciation of evidence and is concluded by a finding of fact recorded after spot inspection by the Administrator and the same is, therefore, not pen to challenge in the exercise of writ jurisdiction,
8. Furthermore, prior to the filing of the writ petition the disputed area has already been purchased by respondent No, 4, the wife of the petitioner in open auction and the remaining area included in the auction first was stayed due to the pendency of the writ petition filed by Mst. Bibi respondent No, 3 although no stay order was issued in her favour. The petitioner suppressed this fact from the Court. Subsequently, after the admission of the writ petition, he merely impleaded his wife as respondent vide C. M. No, 6183/80 without claiming any relief against her. The petitioner has not approached this Court with clean hands and is estopped by his conduct to claim any relief. Viewed from this point as wll, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner.
' For the foregoing reasons, the writ petition fails and is hereby dismissed with costs.