1985 PLP 1331 (SCMR)

S. A. NUSRAT, J.‑‑The appeal by special leave has been brought to challenge the judgment of a Letters Patent Bench of the Sind High Court, dated 25‑4‑1978. 2. The brief facts of the cases, shortly stated, are that the appellant is a claimant displaced person from Hyderabad (Deccan) and after verification of her claim for Jagirdari land was allotted 45 acres of land on 13‑2‑1960 in Sukkur District. After payment of requisite Settlement fee, a clearance certificate was issued to her by Mukhtarkar on 27‑9‑1960 and the Khata was changed from the name of evacuee owner to her name. In or about 1968, after the lapse of about eight years, after Ahmad Alvi, the third respondent (since deceased) filed an application before the Deputy Rehabilitation and Additional Settlement Commissioner (Land) that the appellant's allotment should be cancelled as it was dated 13‑2‑1960 whilst his allotment was prior being dated 30‑12‑1959. The application was allowed ex parte and the allotment in favour of the appellant was cancelled by an order, dated 27‑6‑1968. This order was challenged by the appellant in an appeal before the Settlement Commissioner who on 20‑12‑1968 remanded the case for hearing and fresh disposal. The case was accordingly reheard by the Deputy Rehabilitation and Additional Settlement Commissioner (Land), who by his order dated 29‑4‑1969 cancelled the allotment of the appellant thus maintaining his previous decision. The appellant thereupon filed an appeal which was dismissed by the Settlement Commissioner on 6‑6‑1969. She then filed writ petition in the Karachi Bench of the West Pakistan High Court but as the same was dismissed in limine on 12‑1‑1970 she filed a Letters Patent Appeal which was dismissed by a learned Division Bench of the Sind High Court as per impugned judgment. 3. Leave to appeal was granted to examine the contention that the relief sought by the third respondent was against the order of allotment dated 13‑2‑1960 in the appellant's favour, therefore, he should have challenged it in appeal or revision under sections 18 and 19 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act), but as he did not, the further submission was that the appeal was time‑barred and in this connection reliance was placed on the fact that the Settlement authorities had not condoned this respondent's delay in challenging the appellant's order of allotment. 4. We heard Mr. Abdul Majid Khan, learned counsel for the appellant and Mr. Akhtar Mahmood for the respondent and have gone through the impugned judgment of the learned High Court as well as the judgment of the learned Single Judge dismissing the writ petition. 5. It was not disputed by the learned counsel for the appellant that in fact the order of allotment in favour of the third respondent was prior in time while that of the appellant was subsequent. This issue even otherwise stands concluded by concurrent findings of fact arrived at all stages of the proceedings. It was also not disputed that the order of allotment in favour of the appellant was passed without first cancelling the allotment of the third respondent and giving any notice or hearing to him. It was, however, contended that even so that Settlement Authorities were not empowered to cancel the allotment of land in favour of the appellant on appeal filed by the third respondent after the lapse of about eight years without condoning the delay. It was further contended that the finding of the learned Letters Patent Bench of the High Court holding that the Settlement Authorities were competent to cancel the allotment under section 11 of the Displaced Persons (Land Settlement) Act, 1958 was not in accordance with law. Reliance in this connection was placed on the case of Muhammad Ali v . Fazal Hussain and others 1975 S C M R 61. 6. As regards the first contention noted above, the learned High Court found that the miscellaneous application of the third respondent was entertained under section 11 of the Act, which power was delegated by the Chief Settlement Commissioner to all Deputy Commissioners, Additional Settlement Commissioners, as no period of limitation was prescribed for exercise (sic) limitation did not arise in the matter. The judgment referred to by the learned counsel is not relevant because in that case the scope of the power exercisable by the Settlement Authorities under section 11 of the Act was neither invoked nor examined. According to the facts of that case, the High Court had set aside the order impugned before it which was passed by a Deputy Commissioner/ Additional Settlement Commissioner in exercise of the power of the Chief Settlement Commissioner under section 11 of the Act on the ground that the allotment orders having been earlier challenged on the same grounds on the judicial side had attained finality, and therefore, after such final adjudication made by the competent Settlement Authorities in appeal and revision, the same matter .could not be re‑opened under sections 10 and 11 of the Act, and the effect of the decisions on the judicial side could not be washed away in this indirect manner. While dismissing the petition for leave to appeal against such finding of the High Court it was observed by this Court that in the facts of the case recourse to provisions of sections 10 and 11 of the act was not only uncalled for but was also misconceived. 7. The view expressed by the learned High Court in the instant case finds support from the judgment of this Court in the case of Muhammad Latif and Co. v. Chief Settlement and Rehabilitation Commissioner P L D 1974 S C 130 wherein it has been laid down that jurisdiction exercisable under section 11 of the Act is not assimilable to revisional jurisdiction under section 19(1) of the Act, is not subject to any period of limitation, the section gives analogous but wider power than provided in section 10 of the Act to the Settlement Authorities to terminate an allotment or a lease made under a Scheme or under the Act, and the exercise of such power under this section is not hedged by any condition except that an allotment or lease can be cancelled or terminated for reasons to be stated in writing. The words "subject to the other provisions of this Act" occurring in the section merely connote that the Chief Settlement Commissioner's orders under section 11 are, subject to revisional jurisdiction of the High Court under section 21 of the Act. 8. The learned High Court has also found that there was nothing on the record to show that the third respondent was aware of the allotment made in favour of the appellant and the allotment in his favour in respect of the land which stood already allotted to the third respondent was, therefore, a nullity in the eye of law. In the circumstances, the second order of allotment which was passed behind the back of the third respondent and without cancelling his allotment was of no avail and it is futile to argue that the Settlement Authorities were powerless to correct such a patent error which would have resulted in perpetuating an injustice allowing two inconsistent orders to remain in the field. The exercise of the power under section 11 of the Act in the circumstances, was eminently justified because this power, as held by this Court in the case of Muhammad Latif is not circumscribed by any limitations and is exercisable independently of the powers of appeal and revision provided in sections 18 and 19 of the Act. For the reasons mentioned above, the findings of the learned High Court are unexceptionable and the appeal merits no consideration which is dismissed accordingly with no order as to costs. M.I. Appeal dismissed.