1969 PLP 306 (SCMR)

Hamid Ali Khan Shirwani, Advocate Supreme Court instructed by S. Wajid Hussain, Senior Attorney for Petitioners. Nemo for Respondents. Date of hearing : 11th April 1969. HAMOODUR RAHMAN, C. J.‑The petitioners claiming that they were allottees in possession of a vacant plot of land bearing Khasra No. 3961 on Nasiruddin Road, Lahore, applied for its transfer under Scheme No. VI, on the ground that they have set up a pakka construction thereon wherein a fuel stall was being carried on. The Additional Settlement Commissioner, on the 3rd February 1962, transferred the plot to one Mst. Afroza Begum without ever summoning the petitioners. The said Mst. Afroza Begum was a Manager of a school being carried on in an adjoining premises. She wanted the plot as a playground for this school. The petitioners coming to know of this order appealed against it to the Settlement and Rehabilitation Commissioner, Lahore. The latter called for a report from the Deputy Settlement Commissioner who after personally inspecting the premises reported that the construction alleged to have been raised did not cover 1/4th area of the plot. Furthermore that the alleged construction is not similar in nature to the other constructions in the locality. This fact also found support from a report of the Patwari, submitted on the 17th August 1960. On these grounds the learned Settlement Commissioner, on the 19th October 1963, dismissed the appeal and ordered the plot to be put to open public auction as in his view Mst. Afroza Begum was also not entitled to the transfer of the plot. The school premises was, it transpired, in the ownership of some person other than the institution itself or Mst. Afroza Begum. This order of the learned Settlement Commissioner clearly recited that he had heard the learned counsel for the parties and perused the record. The petitioners took no steps to challenge this order of the learned Settlement Commissioner but on the 2nd of June 1966, they applied to .the Chief Settlement Commissioner for the transfer of the plot to them under section 10, presumably under subsection (2), for, as already held by the Settlement Commis sioner they were not entitled to its transfer under subsection (1). The subsection (2) of section 10 permits the Central Government to order the transfer‑ "in public interest of any property out of the compensation pool in such manner as it may deem proper". It is obvious that no order for transfer in favour of the petitioners could have been made under this section. Notwith standing this, the Chief Settlement Commissioner, by his Memorandum No. 2599/Plots/S/66, dated the 17th June 1966, forwarded the application to the Deputy Settlement Commissioner (plots), for enquiry and report as to whether the construction covered 1/4th of the total area and whether the construction was raised with or without prior approval of the Department or the Local Body. A copy of this Memorandum was endorsed to the petitioner Mohsan Khan, but it is not known as to what happened thereafter. The petitioners again went to sleep until the 12th June 1968, when they invoked the Constitutional Jurisdiction of the High Court of West Pakistan under Article 98 of the Constitution. A learned Single Judge in Chambers dismissed the petition in limine on the ground of laches. This order was upheld by a Division Bench also in Letters Patent Appeal which too was dismissed in limine. The petitioners now seek special leave to appeal and it is contended that the High Court was wrong in dismissing the petition under Article 98 of the Constitution on this ground as mere delay could not defeat their rights. It is true that mere delay is not by itself a sufficient ground for non‑suiting a party in a proceeding of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiescence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy. The law assists those who are vigilant about their rights and not those who sleep over them. The facts of the present case clearly indicate that the party knew fully well that the adverse order made by the learned Settlement Commissioner was in accordance with the law as it then prevailed and, therefore, did not take any further steps to challenge that order. It was only after the decision of this Court in Mst. Mahmooda Tahsin v. S. Ijaz Hussain Shah, Settlement and Rehabilitation Commissioner and others (PLD1965SC618) that the law was changed. It was there held that insistence of the Department to show a pakka construction was illegal, for, all that was required by paragraph 13 of the Schedule to the Compensation and Rehabilitation Act of 1958 was that there should be a permanent building. The limitations added to the ordinary connotation of a permanent building in Scheme No. VI were, therefore, void as being opposed to the Schedule itself. In the present case it is clear that it is only after this decision which was announced on the 4th June 1965, that the petitioners revived their attempt to have this question re‑opened. But even so, they did not pursue their application of the 2nd June 1966 with any seriousness. In the circumstances we are fully satisfied that the High Court was right in dismissing their application under Article 98 of the Constitution on the ground of laches. The plot in dispute, we are informed, has not yet been auctioned. If that be so then the petitioners have still a chance of bidding for the plot in the auction. This petition is, however, dismissed. Leave refused.