1980 PLP 53 (CLC)

4. The respondent No. I made an application dated 10th May, 1973 under sections 10;11 of the Displaced Persons (Land Settlement) Act, 1958, praying cancellation of allotment of the appellant. It came up before a delegate of the Chief Settlement Commissioner. who dismissed the same on 12th October, 1973, for the reason that he could not review the order dated 20th August, 1968 passed by his predecessor.

5. A revision petition taker, by respondent No. 1 succeeded before another delegate of the Chief Settlement Commissioner, vide order dated 29th January, 1974 (Exh. P. 9) who set aside the two orders referred to above and restored the allotment in favour of the respondent.

6. Aggrieved of that order, the appellant filed k civil suit but his plaint was rejected on 3rd of January, 1977, for the reason that no jurisdiction lay with the civil Court, to go into the legality of the order passed by a delegate of the Chef Settlement Commissioner, under the Displaced Persons (Land Settlement) Act. An appeal against that order having failed before the District Judge on 13th June, 1977, on the same ground, the petitioner has now filed the present appeal.

7. It is contended by the learned counsel for the appellant that the delegate of the Chief Settlement Commissioner had no jurisdiction under section 30(2) as amended by Ordinance I cal 1972 and section 19 as amended in 1973 to ,;et aside or interfere with the order of a delegate of the Chief Settlement Commissioner passed on 20th August. 1968. According to him, a revision would lie against the order dated 12th October, 1973 only. It is further submitted that as the Settlement Commissioner had also set aside the order dated 20th August, 1968, it amounted to review of that order which is void and without jurisdiction for, no power of review existed. In the light of the above, it is urged that the civil Court, on the law laid down by the Supreme Court in Muhammad Tufail v. Abdui Ghafoor (P L D 1958 S C (Pak.) 201) did have the jurisdiction and power to interfere.

8. The learned counsel for the respondent has submitted that the order dated 20th August, 1968 had been passed ex pane without effecting legal service on the respondent though his Karachi address did appear in the register R. L.

11. In this view of the matter, it is pleaded that the order dated 20th August, 1968 was void and inoperative and could be set aside. In the alternative the subsequent order, according to him, could be considered as an order setting aside the ex parte order.

9. A perusal of Annex. P/4 shows that it had been passed by a delegate of the Chief Settlement Commissioner, No appeal or revision lay against such an order at the relevant time. A provision of appeal and revision was made, by incorporating section 30(3) in the Displaced Persons (Land Settlement) Act, 1958, vide Ordinance I of 1972. It was stipulated that the appeals and revisions shall lie in the same manner and to the same extent as provided in Chapter VI of that Act. In that Chapter, an appeal could be filed within 60 days, whit; the period of suo motu revision was 90 days, The order dated 20th August, 1968 had been passed above 5 years back. Thus the order dated 20th August, 1968 had attained finality and could not be reopened.

10. The learned counsel then relied o section 19 of the Displaced Persons (Land Settlement) Act as amended by Act LV of 1973. That provision is not retrospective in its application and the inference. that it was not intended to be so, can be gathered by comparison of its language with the wording of Ordinance I of 1972 where it was so specifically provided. The other possible mode of dealing with the situation was to set aside the ex parte order dated 20th August, 1968 on the ground that the respondent, having not been served, at his given address, in accordance with law and he having no knowledge of that order, the delay was condonable. Even that procedure was not adopted. There is no finding that the service in the village was no valid service or as to when the respondent came to know of the order. Further, there is no finding that there was some sufficient cause which prevented the respondent from coming to that Court within the prescribed time. In any case, the Settlement Commissioner in the subsequent order noted that the order dated 20th August, 1968 had been passed ex parte but he did not go beyond it to find out if the previous service was valid and if the respondent had made that application within the prescribed period after having known of the same.

11. It is now well established that the limitation cannot be implied condoned as held in Ahsan Ali and others v. District Judge and other (P L D 1969 S C 167) and that proceedings beyond the period of limitation are bound to be' dismissed under section 3 of the Limitation Act. It is further well established, that the order passed by any authority without applying mind to the limitation is bad. Reference be made to the case of Azmat Ali (P L D 1964 S C 260). Further the delay of each and every day has got to be explained and condoned as laid down in Ala Ullah Malik v. The Custodian, Evacuee Property, West Pakistan and 5 others (P L D 1964 S C 236).

12. The net result of the above discussion is that the delegate of the Chief Settlement Commissioner who passed the order dated 29th of February,l8 1974 could not have set aside the order dated 20th August, 1968, except by way of review which power was not available and was not inherent as held in Mst. Zainah Khatoon v. Mian Ghulam Shabbir and another (P L D 1965 S C 55). Again he could set aside the ex parte order in proper proceedings but even that was not done. No finding on sufficiency of service or date of knowledge or sufficient cans; for delay was given. The question of limitation or jurisdiction does not seem to be present in his mind while he proceeded to set aside the previous order. The judgments of the Supreme Court referred to in para. 11 above fully apply to this case to hold the impugned order a without jurisdiction and void. The civil Court, therefore, did have the jurisdiction to go into the matter and pass an order in accordance with law.

13. Their Lordships of the Supreme Court dealt with a similar situation in the case of Muhammad Tufail referred to in para. 7 above in the following words :- "Mr. Muhammad Shafi, learned counsel for the appellant, vehemently maintained that no Court can question the order of the Rehabilitation Commissioner Sayed Ijaz Hussain Shah and relied on section

16. Its relevant portion may be quoted :- `No order passed by a Rehabilitation Authority under this Ordinance shall be called in question in any civil Court in any suit, appeal, execution application or other proceedings.' According to this section, the jurisdiction of the civil Court is expressly barred in the case. of an order passed by a Rehabilitation Authority under the Ordinance, i. e., in . strict conformity with the provisions thereof. Where this is not so, the civil Court cannot be deprived of its powers of interference. The protection does not cover an order capriciously made or in flagrant breach of the statute giving the protection. The general principle was enunciated in Secretary of State v. Mask & Co. A I R 1940 P C

105. At page 110, their Lordships observed : `It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". Similarly, in Muhammad Din and others v. Imam Din and another A I R 1948 P C 33, the Privy Council held that "their Lordships have no doubt that the civil Court has power to entertain a suit, in which the question is whether the executive authority has acted ultra vires." Same view was taken in Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (P L D 1965 S C 698).

14. The learned counsel for the respondent also referred to the findings of the Settlement Commissioner in the impugned order to say that it was a case of fraud and so the Settlement Commissioner could go into the same. Ordinarily, I would not have gone into that question, but to show that findings of the Settlement Commissioner are superficial, sketchy and incon clusive. 1 may refer to it. The Settlement Commissioner found entries in register R. L. 11 rubbed of, leaves of jamabandis replaced and entries in `parat sarkar' different. Register R. L. 11 shows Khasra No. 4670 was `Nehri'. The khasra girdawaris could show who was in is possession and who paid the water rates. Faizuddin had sold the land in January, 1973, when he did not own it. The vendees were never impleaded as party and they did not challenge the previous orders. Khasra girdawaris P/6 show possession of petitioner since 1964 to 1973.

15. The next question that arises for determination is, should this case be sent back to the civil Court for fresh consideration or it may be finally decided by this Court. Firstly, the main question involved is a question of law but even a question of fact could be determined by this Court under section 103, C. P. C. It is to be noted that the civil Court got the entire J) evidence and exhibited all the documents being relied upon by the parties. The question involved is only a question of law. In the circumstances, it is not necessary to send this case back. In view of what has been stated above, I am of the view that the civil Court did have the jurisdiction and that the order passed by the Settlement Commissioner on 29th January, 1974 was without jurisdiction and, therefore, is not operative. The appeal is, therefore, allowed and the decree as prayed for is granted in favour of the appellant against the respondents. The parties shall bear their own costs. K. M. A. Appeal allowed.