1985 PLP 2052 (CLC)

This constitutional petition is directed against the order, dated 3rd May, 1976 passed by respondent No.1 rejecting miscellaneous application moved by the petitioner before Settlement Authorities. The facts in short leading to present petition are as follows:- The petitioner who is a local applied for transfer of a shop premises situated in 'F' Ward, Hyderabad bearing No. F/50-1315/4 on N.C.S. Form, under Settlement Scheme No. 1 which was framed under the provisions of Displaced Persons (Compensation & Rehabilitation) Act, 1958. Respondent No. 3 who is in possession of adjoining shop bearing No. F/50-1315/3 also applied for its transfer on C.S. Form while one Ibrahim Hassan who was in possession of another adjoining shop No. F/50-1315/5 in the same building also applied on C.S. Form for its transfer. The N.C.S. Form of the petitioner was rejected by the Deputy Settlement Commissioner concerned on 15-11-1959 on the ground that the petitioner being a local was disentitled to the transfer of a commercial premises under the provisions of Displaced Persons (Compensation & Rehabilitation) Act, 1958. However, while considering the C.S. application of respondent No. 3 the Deputy Settlement Commissioner transferred Shop No. F/50-1315/4 to him alongwith Shop No. F/50-1315/3 as one commercial unit vide P.T.O. dated 4-12-1959 and later on permanent transfer deed was also issued on 13-11-1963. The petitioner neither challenged the order of rejection of his N.C.S. form nor agitated against the transfer of his shop to respondent No. 3 alongwith Shop No. 1315/3 as one unit until 1966. However, when Settlement Scheme No. VIII was enforced the petitioner filed a fresh as for transfer of Shop No. F/50-1315/4 on L.S. Form. This application was rejected by the Deputy Settlement Commissioner concerned on the ground that the property applied for was not available for transfer. The petitioner then filed two appeals, one against the order, rejecting his L.S. Form under Settlement Scheme No. VIII and the other challenging the transfer of two shops as one unit in favour of respondent No.

3. The appeal filed against the order of Deputy Settlement Commissioner rejecting the form of petitioner under Settlement Scheme No. VIII was rejected by the Additional Settlement Commissioner on 6-4_1967 on the ground that the property was not available for transfer under Settlement Scheme No. VIII, while the appeal challenging the transfer of two shops to respondent No.3 as one unit was rejected 14-4_1967 on the ground that the transfer order was challenged after-about 8 years, and the appeal was hopelessly time-barred. Agains the above orders the petitioner submitted a "revision petition in Mayt 1970 which was disposed of by the Settlement Commissioner by his order, dated 15-6-1971 which is as follows:- "The revision petition has been filed on 23-5-1970 against the order, dated 14-4-1967, of the learned Additional Settlement Commissioner and badly suffers from laches. The appeal itself was time-barred by about 8 years and was rejected by the learned Additional Settlement Commissioner on this ground, besides the reason that the petitioner had even no locus stand' to come up in appeal. No ground to interfere on such a belated revision petition for which no good reason has been assigned, Dismissed." After rejection of his revision petition by the Settlement Commis sioner, the petitioner claims to have filed a second revision on 4-11-1972 before the Chief Settlement Commissioner which according to petitioner remained undisposed and therefore after repeal of Evacuee Laws in 1974 he made a representation to the Member, Board of Revenue in December, 1975 which was forwarded to respondent No. 1 who dismissed the same on 3-5-1976. The ground for rejection of representation of petitioner are given in the order of respondent No. 1 as follows:- "

5. After going through the relevant record I feel that the order, dated 23-10-1959 whereby he held that the two shops were one Single Unit, was passed without inspecting the site and application of mind and is tainted with arbitrariness. Nevertheless then matter cannot be reopened at this stage for the following reasons:- (i) P.T.D. had been issued to Mr. Namdar Khan and Ibrahim Hosain for the shop in question as early as in 1963 and therefore in view of the case law laid by the Supreme Court and High Courts Settlement Authorities had no power to reopen this matter. (ii) the orders passed by the Additional Settlement Commissioner rejecting the appeals filed by the applicant in 1967 had become final within the meaning of section 22 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 as the applicant had not challenged these orders in revision' before Settlement Commissioner. (iii) the shop in question was not available for disposal under Scheme No. VIII in 1966 when applicant applied for the transfer of this shop. (iv) The Displaced Persons (Compensation & Rehabilitation) Act, 1958 stands repealed w.e.f. 1-7-1974 by virtue of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, and therefore no fresh proceedings can be taken up now to reopen this matter.' Mr. Ghulam Hyder Baloch, the petitioner, who argued the petition personally, firstly contended that the order transferring the shop to his occupation to respondent No. 3 as one unit alongwith the shop occupied by respondent No. 3 is a void order and therefore when the Settlement Scheme No. VIII was enforced the property was available for transfer and it should have been transferred to the petitioner against his L.S. Form. Regarding laches in presenting the present petition the petitioner contended that there is no delay on his part as he was pursuing the matter before the Settlement Authorities who finally refused to transfer the shop to petitioner on 23-5-1976 and thereafter he promptly filed the present petition. The present petition can be disposed of on the short ground that it suffered from excessive laches. It is an admitted position that the petitioner submitted N.C.S. Form for transfer of the shop in his possession which was rejected by the Settlement Authorities on 15-11-1959 and the same was transferred to respondent No. 3 in December, 1959 as one commercial unit. The petitioner neither took any steps against rejection of his N.C.S. Form nor he challenged the transfer of the shop in his occupation to respondent No. 3 until 1967 which attained finality as in the meantime P T.D. was also issued to respondent No.

3. The petitioner without challenging the transfer of his shop in favour of respondent No. 3 made misconceived attempt in 1966 when he submitted a fresh L.S. Form for transfer of the shop in his favour under Settlement Scheme No. VIII which was rightly rejected by the Settlement Authority. After rejection of his fresh L.S. Form in 1966, the petitioner in 1967 for the first time after 8 years challenged the transfer of his shop to respondent No. 3 in appeal before Additional Settlement Commissioner which was rightly rejected as hopelessly time-barred on 14-4-1967. The petitioner once again slept over the matter and filed a revision petition before the Settlement Commissioner on 23-5-1970 which was rejected on 15-6-1971. After rejection of the revision petition by the Settlement Commissioner the petitioner allegedly preferred a second revision before the Chief Settlement Commissioner knowing fully well that the power of Chief Settlement Commissioner under section 20(2) of the Act was taken away as late as 13-1-1962. The petitioner who is a practising lawyer was well aware that the Settlement Authorities had no jurisdiction in the matter after issuance of permanent transfer deed, in favour of respondent 3 which took place in 1963. There is no explanation for this inordinate long delay in filing this petition to challenge the transfer in favour of respondent No. 3 and in these circumstances no exception could be taken to the order of respondent No.1 impugned in this petition. The petitioner relied on the cases of Abdul Qadir v. Government of West Pakistan P L D 1967 S C 506 and Pakistan v. Sheikh Abdul Hamid P L D 1961 S C 105 to contend that the delay in the present case could not come in the way of petitioner as the orders passed in the case were void. In the above-cited cases, the Court with reference to laches attributed to petitioner in those cases found that the petitioners in the High Court deligently followed the remedy by way of representation to appropriate higher authorities and as such there were no laches on their part. In the present case as I pointed out earlier the question of any representation to the Settlement Authorities did not arise as the matter was dealt with on judicial side by various Settlement Authorities and the effect of omission on the part of petitioner to agitate the matter at propert time was that the order in favour of respondent No.3 attained finality. The learned counsel for respondent No. 3 on the other hand relied on the case Sh. Mansoor Ahmad v. Faizul Hassan and 8 other P L D 1983 S C 167 and S. Sharif Ahmed Hashmi v. The Chairman, Screening Committee, Lahore 1980 S C M R 711 which fully support my above conclusions. In view of the above discussion I hold that the present petition suffers from excessive laches and accordingly dismiss the same but the parties shall bear their respective costs. M.A.K. Petition dismissed