1988 PLP 346 (SCMR)

Ch. Khalilur Rehman, Senior Advocate Supreme Court instructed by S. Inayat Hussain, Advocate-on-Record (absent) for Respondents. Respondents Nos.l to 3: Ex parte. Date of hearing: 2nd December, 1987. JUDMGENT MUHAMMAD HALEEM, C.J.--Murad Ali, predecessor-in-interest of the appellants was allotted an unregistered industrial concern, namely a Flour Mill in 1950 which apparently was misdescribed as located in No.56 of block No.8, Mian Chunnu, whereas, in fact, it was in No.62 cf block No.8. Both the numbers in the same block belonged to two different evacuees. Later Murad Ali applied for its transfer under Para. 15(3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and he was found entitled for its transfer by the Additional Settlement Commissioner who by order, dated 21-2-1962 transferred it to him on payment of Rs.11,

600. Out of this total amount, Rs. 9,000 were its assessed value calculated at the rental value of Rs.150 multiplied by 60 in addition to Rs.2,200 as the price of the electric motor and Rs.400 as excess charges. This amount alongwith the settlement fee was adjusted from his compensation book on 8th of June, 1962. Again a successor of the Additional Settlement Commissioner by order, dated 23-4-1970 reviewed the rental from Rs.150 to Rs.180, and, accordingly, sent a demand notice for the enhanced amount. However, as this review was made without notice to him and without the order being served on him, he filed an appeal against this order on 10-8-1970 before the Settlement Commissioner on gaining knowledge about it. During the pendency of this appeal, the Deputy Settlement Commissioner issued a notice on 2-5-1970 purporting to be under Part II of the Schedule and para. 35 of the Settlement Scheme No.VIII to Murad Ali for payment of Rs.4,604, but as this notice was also not served, the Deputy Settlement Commissioner by order, dated 17-6-1970 resumed the industrial concern for non-payment of the amount. Thereupon the legal representatives filed an appeal before the Additional Settlement Commissioner, who by order, dated 20-4-1971 directed the legal representatives to deposit Rs.1,800 within 30 days from the date of- the order. This amount was not also paid, but as the order was conditional the property became available for auction and it was, accordingly, auctioned on 8-10-1971 in favour of the respondent who gave the highest bid of Rs.30,

500. The confirmation, however, was stayed at the behest of the legal representatives by order, dated 29-10-1971. The possession of the industrial concern was, however, delivered to the auction-purchaser in 1972. The legal representatives thereafter filed a belated revision on 6-12-1973 against the order of the Additional Settlement Commissioner dated 20-4-1971. Both the revision and the appeal filed against the order dated 23-4-1970 were consolidated and heard together by the Settlement Commissioner who by order, dated 15-12-1973 dismissed the revision and the appeal and directed the confirmation of the auction. The legal representatives thereupon challenged this order in writ petition No.412-R of 1974, which too was dismissed by the Lahore High Court on 18-12-1974. Leave to appeal was granted to consider whether the appellants, who are the legal representatives of Murad Ali, were entitled to the benefit of the proviso added to para. 2 of the Settlement Scheme No. VIII on 30-10-1973, which provided that in case where 25% of the transfer price had already been paid, no resumption proceedings will be initiated but transfer order as provided under paragraph 11 will be issued. The learned counsel for the appellants contends firstly that there was no disposal of the appeal by the Settlement Commissioner, but this contention is without substance as on the face of the order, the Settlement Commissioner had applied his mind to the question of limitation in both the matters and had, accordingly, rejected them, and it was, therefore, that he had passed the consequential order for the confirmation of the auction. Secondly, the learned counsel relied on a decision in Civil Appeal No.52 of 1983 decided on 28th of October, 1986, to contend that the property could not be resumed unless and until notice in terms of para. 2 of the Settlement Scheme No. VIII was issued, but the facts in that case are distinguishable. A reference to the order, dated 20-4-1970 passed by the Additional Settlement Commissioner eminently shows that it was a consent order. In this context I would reproduce so much of it as is relevant for the purposes of this case: "In order to sort out the confusion I sent for the Assistant AU, Accounts Officer, Office of the Deputy Settlement Commissioner, Multan, who has dealt with the case. The calculations worked out by him had been laid before the learned counsel for the appellants who felt satisfied after elucidation by the Assistant Accounts Officer. Since the amount outstanding against the appellants has been admitted to be payable by them, treating the present appeal as an application for restoration of transfer, which is within time, I accept it and allow 30 days from today for clearance of the payable amount. In the event of failure the impugned order shall remain operative." The balance due for payment was admitted by the counsel on being satisfied from the calculations of the Assistant Accounts Officer, Multan. Relief was, accordingly, given against resumption on its payment within the specified time failing which the order of resumption was to revive. Obviously, therefore, the requirement of para. 2 of Settlement Scheme No. VIII was a surplusage. This being so, the order conclusively determined the dispute. The revision and the appeal were not only beyond time but were innocuous on the well-settled principle that no proceedings lie against a consent order. As the addition to the proviso was prospective, it could not affect an order which had attained finality, and, for that matter, the dispute had become a past and closed transaction. Accordingly, as the appellants had wilfully committed a default in the payment of the balance of the price, the order of resumption became automatically operative and the property became available for transfer which was rightly auctioned and confirmed to which no exception can be taken. For the reasons given above, the appeal has no merit and is dismissed, but with no order as to costs. M.I./R-31/S Appeal dismissed.