1989 PLP 1589 (SCMR)

Z.AFFAR HUSSAIN MIRZA, J.‑‑This petition by the Evacuee Trust Property Board, Lahore is for leave to appeal from the judgment of the Chief Justice of Lahore High Court, Lahore, dated 11‑10‑1978 accepting the constitutional petition of the respondents. The dispute in this case relates to property No.SW.96 consisting of a residential unit and shops. On 2‑1‑1960 the residential unit was transferred to Mst. Farkhanda Akhtar respondent No.l as a claimant on C.H. Form. On 18‑1‑1960 two shops were transferred to Ch. Mansab Ali and Shaukat Hussain respondents Nos. 2 and 3 claimants in possession. On 6‑11‑1960 the third shop was transferred to Muhammad Hanif, respondent No.4 in auction. On 13‑7‑1966 the petitioner made a reference to the Chief Settlement Commissioner seeking a declaration that the entire property was evacuee trust property. The Settlement Commissioner also made a reference to the Chief Settlement Commissioner for determining the status of the property. Both these matters were consolidated by the Chief Settlement Commissioner. By order, dated 27‑9‑1971 the Settlement Commissioner, Lahore, after holding the necessary enquiry, determined and declared the status of the property as not being evacuee trust property. Being aggrieved the petitioner preferred appeals before the Lahore High Court impleading the respondents Nos. 1 to 4 as parties. On 24‑2‑1972 the counsel for the petitioner requested the Court for deletion of the names of the petitioner on the basis of Settlement Commissioner's Circular letter, dated 17‑6‑1971 whereby instructions were issued to implement the decision of the Central Government that all urban evacuee trust properties utilized prior to 30‑6‑1968 by the Settlement Commissioners should remain intact with transferees. The Court accepted the request of the petitioner and substituted the Settlement Commissioner in place of the said respondents. As the High Court found that on 27‑9‑1971, the date of the Settlement Commissioner's order under appeal, the Settlement Commissioner did not have the authority to pass the order, his powers having been withdrawn earlier, the appeals filed by the petitioner were allowed and the case was remanded for a fresh decision by the Chief Settlement Commissioner. Thereafter, the case came up before the Chairman, Evacuee Trust Property Board. As respondents Nos. 1 to 4 were once again impleaded as parties in the remanded proceedings, they moved the Chairman for deletion of their names. By order, dated 8‑11‑1975 the learned Chairman expressed the view that he was prepared to accept the plea of the respondents but "would also like to direct the Settlement authorities to stay proceedings regarding the issuance of any P.T.D. until the decision is arrived at regarding the nature and status of this property". It was, however, directed by the learned Chairman that when the case with regard to adjudication of the nature of property proceeds, notice should be issued to the respondents. The aforesaid order was then challenged in a Constitutional petition by the said respondents in the Lahore High Court at Lahore. It was contended before the learned Chief Justice who decided the constitutional petition that since the respondents were not parties to the proceedings from which the settlement appeal was taken to the High Court, the remand order did not affect them or their interest and that they could not be made parties to the proceedings as a result of the remand. The learned Chief Justice observed: "The reference made by the Evacuee Property Trust Board which ultimately went before the High Court in Settlement Appeal was clearly for the purpose of finding out whether the property was trust property or not so that in accordance with the policy letter referred to above, if it was found to be trust property the Evacuee Property Trust Board could lay claim to such part of the sale consideration as may have been received by the Settlement Department. It was not with a view to challenging the order issued by the Government as far back as 17th June, 1971. In view of the aforesaid letter, therefore even if the property in dispute is found to be evacuee trust property, it would simply enable the Evacuee Property Trust Board to recover the price from the Settlement Department but would not, in any way, affect the transfer already made m favour of the persons by the Settlement Department." As regards the stay of proceedings for the issuance of P.T.D he heared Chief Justice expressed his opinion as under: Learned counsel for the respondent has not been able to explain. as to under what law can a Chairman of the Evacuee Trust Board direct the Settlement Department not to issue a Permanent Transfer Deed in case of a property which has by a P.T.O. already been transferred to a claimant. Looked at from this angle also the impugned order is without authority." On this view of the case the learned Chief Justice held that the impugned order before him, to the extent that it made the respondents parties to the litigation, was without lawful authority and was void. The petition was accepted in these terms by the judgment, dated 11‑10‑1978. Hence, this petition for leave to appeal. An objection has been taken that the present petition is barred by 695 days. The petitioner has submitted an application for condonation of delay in which it has been stated that although the Constitutional petition was decided on 11‑10‑1978, the decision was orally announced but the judgment was not written until September, 1980. It is further stated that Mr. Wahiduddin Malik learned Advocate who appeared for the petitioner before the High Court, had applied for a copy of the judgment which was delivered to the petitioner on 25‑9‑1980 but soon thereafter the said learned Advocate expired suddenly. It has been urged that sometime was taken for obtaining certified copies of the documents from the High Court record. An alternate plea has been taken to the effect that the petition is within time if the time is computed from 25‑9‑1980. Learned counsel for the caveator has, on the other hand, urged that the petition is clearly time‑barred and no sufficient explanation for the delay has been furnished. The petitioner has placed reliance on letter, dated 14‑9‑1980 addressed by the High Court to the Chairman, Evacuee Trust Property Board, Lahore forwarding a copy of the judgment for immediate compliance which, according to the learned counsel, was the fast time the petitioner came to know that the judgment has been written and this letter was received by the petitioner on 20‑9‑1980. We find that the certifed copy of the impugned Judgment attached with the petition, clearly shows that the application for copy was submitted on 17‑10‑1978 and the copy was prepared on 14‑9‑198,

0. The petition was submitted in this Court on 4‑11‑1980. Accordingly, it appears that the present petition has been filed well within the period of limitation. In support of the petition the learned counsel contended that the so called policy decision of the Government did not have the effect of validating a transfer of a property which the Federal Government had no power under the statute to so transfer. It was pointed out by the learned counsel that for the first time in Act XIII of 1975 a provision was made in section 10 whereby a power was given to validate a transfer of an evacuee trust property utilized bona fide in respect of which Permanent Transfer Deed was issued prior to June, 1968. On this premise it was urged that the present case did not fall in this category so that no question of validation of transfer arose in the present case. Learned counsel for the caveator/respondent, on the other hand, referred us to the order passed by Khan Muqqarrab Khan, Settlement and Rehabilitation Commissioner with powers of the Chief Settlement Commissioner, Lahore dated 27‑9‑1971 from which the appeal was taken to the High Court by the petitioner. In this order the learned Settlement Commissioner referred to his own previous order dated 19‑6‑1971 by which he had himself held that the respondents were no longer necessary parties to the proceedings before him in view, of the Settlement Commissioner's policy letter dated 17‑6‑1971. It was directed by him that their names be struck off and their transfer shall not be cancelled. Learned counsel further referred to the order passed by the learned Single Judge on 24‑2‑1972 in the settlement appeal proceedings on the statement of Malik Azam Rasool, Advocate for the petitioner, directing that the names of the respondents be deleted and instead the Settlement Authority be impleaded. After hearing the learned counsel we feel that on a statement made on behalf of the petitioner itself the respondents were dropped as parties from the proceedings pending before the Settlement Commissioner and subsequently before the High Court in appeal with the result that in the remanded proceedings they cannot once again be impleaded as parties. Indeed when the learned Single Judge of the Lahore High Court in Settlement Appeal No.40 of 1971 ordered remand of the proceedings to the Chief Settlement Commissioner for a fresh decision, the respondents were not parties to the said appeal, having been earlier dropped out of the proceedings. It is well‑settled that the remand proceedings are governed by the remand order which, if not challenged before a higher forum, attains finality. The petitioner is accordingly bound by the remand order so that the remanded proceedings would continue between the petitioner and the parties who were parties before the High Court on 17‑4‑1972. The petitioner having itself invited the Court to adopt the course of action whereby the respondents' names were dropped, cannot now make a grievance against the said course of action and, therefore, it is not necessary for us to examine the other questions of law sought to be raised by the learned counsel for the petitioner. This petition is, therefore, devoid of any force. Additionally the petition was filed against respondents Nos.2 and 3 who are dead and no step has been taken to implead their legal representatives. The petition is, therefore, not g properly constituted so far as these two respondents are concerned and deserves to be dismissed on that account against them. In the result, this petition fails and is accordingly, dismissed. Petition dismissed. M.A.K./E‑12/S