1980 PLP 683 (SCMR)

Abdul Majid Khan, Advocate Supreme Court and Sh. A. Karim, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing : 24th January; 1980. NASIM HASAN SHAH, J.‑The dispute relates to Property No. 290‑B‑III Pakpattan, Sahiwal, which comprised two shops, a residential house at the back and a choubara on the top. The said property was in possession of the petitioners who being locals filed L. H. form for the transfer of only a residential portion including the chaubara, in their possession. Their L. H. form was, however, rejected by the Deputy Settlement Commis sioner vide his order dated 4th December, 1959. This order may be quoted here in extenso: ‑ "Unit No. 290/B‑Ill Montgomery are two shops along with chaubara situated in the main Pakpattan Bazar. It, is a commercial area. These shops are in possession of a local as well as the house attached to it. This cannot be separated as such it will go in auction along with the residential portions. L. H. form submitted by Abdul Majid, Fazal Karim are hereby rejected." Thereafter, the property was auctioned in favour of respondents on 9th February, 1960 and the said auction was confirmed by the Additional Settlement Commissioner on the same day. On 23rd April, 1963, some 3 years after the rejection of their L. H. forms, the petitioners filed an appeal against the order dated 4th December 1959 whereby their L. H. form was rejected. This appeal was dismissed by the Additional Settlement Commissioner on the twin grounds that as the transfer of the property in favour of the respondents was confirmed by an co‑ordinate authority, namely, Additional Settlement Commissioner he could not interfere with such an order and, secondly, the appeal was barred by limitation. This order was passed on 15th June, 1973. However the revision filed by the petitioner against the last‑mentioned order partially succeeded and the petitioner was held entitled to the transfer of the residential portion by the order of the Settlement Commissioner dated 7th December, 1963. In this order, however, the question of limitation' was not adverted to. 'The petitioners unfortunately for themselves were not content with this order as the chaubara was not included in the portion transferred to them and filed a writ petition (W. P. No. 492‑R/65) seeking modification therein to the extent that chaubara may also be transferred in their favour. While this writ petition was still pending, the respondents also filed a cross writ petition (W. P. No. 874‑R/71) seeking quashment of the order of the Settlement Commissioner in toto. Both the writ petitions were heard together and disposed of by the learned Judge of the High Court on 11th January, 1973. The learned Judge relying upon this Court's judgment in Ata Ulluh Malik v. Custodian, Evacuee Property etc. P L D 1964 S G 236 and Syed Azmat Ali v. Chief Settlement Commissioner P L D 1964 S C 260 set aside the order of the Settlement Commissioner dated 7th December, 1973 holding that the omission to consider the question relating to limitation and its condonation vitiated revisional order. Accordingly, he remitted the case to the Settlement Commissioner for a fresh decision in accordance with law vide his judgment and order dated 11th January, 1973. The petitioners challenged this order in this Court, (vide C. P. S. L. A. No. 83 of 1973) which, however, was dismissed on 5th October, 1973 with the observation that the order of the learned Single Judge of the High Court was unexceptional. Accordingly, the case went back to the Settlement Commissioner for decision in accordance with the remand order passed by the High Court. The learned Settlement Commissioner by his order dated 13th March, 1974 dismissed the revision petition of the petitioners on the footing that there was no good ground for differing with the decision taken by the Additional Settlement Commissioner in his order dated 15th June, 1973. Herein it was held that the appeal was liable to be dismissed on the ground of limitation. As for the submission that the Settlement Commis sioner should exercise his suo moto jurisdiction to overcome the hurdle of limitation, it was held that the Deputy Settlement Commissioner had while rejecting L.H form of the petitioner on 4th December, 1959, found the property to be a compact unit and no part of it, more particularly the residential portion, was separable from it. Hence it was rightly put in auction as a shop. Aggrieved by this order, the petitioners again moved the High Court by a writ petition (W. P. No. 898‑R/74). The learned Judge of the Lahore High Court, who heard it, observed that he had, after taking into consideration all the facts come to the conclusion that the petitioners had failed to show sufficient cause for condonation of delay and that as this was a matter of discretion he could not interfere with it. He also observed that in so far as the nature of the property was concerned the Settlement Commissioner had confirmed the finding of the Deputy Settle ment Commissioner that the residential portion was inseparable and this finding of fact could not also be interfered with. The writ petition was, accordingly, dismissed on 12th November, 1974. Hence this petition for leave to appeal. Mr. Abdul Majid Khan, in support of this petition, has submitted that the order of the Deputy Settlement Commissioner dated 4th December 1959 rejecting the L. H. form of the petitioners was passed behind their back. It was, therefore, a void order and no question of limitation arose in the matter of challenging it. We find no force in this contention. Firstly, the question whether the appeal of the petitioner was not barred by limitation was not disputed in the first round of litigation even though the matter came right upto this Court and this Court upheld the order of the High Court remanding the case that the question of limitation was a matter requiring considera tion by the Settlement Commissioner which could be condoned only if some good ground existed. Even otherwise, we observe that it was held that one of the petitioners, namely, Abdul Majid was examined in connec tion with the L. H. form filed by him and his co‑petitioner on 23rd November, 1959 and only a few days later on 4th December, 1959, the order of rejection of the form ‑was made. It was in these circumstances reasonable to assume that the petitioners were aware of this order. It is only natural that the petitioners must have made enquiries to ascertain as to what had happened to their L. H. form. Their lack of any action for more than three years before they filed their appeal before the Addi tional Settlement Commissioner indicates that they had become disinterest ed in pursuing their L. H. form. In any case there was no good ground for condoning the long delay in filing the appeal. It was next argued that the Additional Settlement Commissioner had no authority to confirm the auction on 9th February, 1960, as held by a Full Bench decision of the West Pakistan High Court. It was conceded, that after the judgment aforementioned, a Validation Ordinance was promulgated whereby Additional Settlement Commissioners were authorised to confirm auctions made by the Settlement Department and the auctions which were held earlier to the promulgation of the Ordinance were to be referred back to the Additional Settlement Commissioners for confirma tion, in the light of the said law. Here it was submitted that in this particular case, the Additional Settlement Commissioner had not sent this case for confirmation and the auction made in favour of the 'respon dent was, therefore, not valid. The question raised is one of fact and it was conceded before us that it had not been raised at any time before throughout the protracted litigation between the parties, so far. It cannot therefore, be allowed to be agitated for the first time before this Court in the second round of litigation. The result is that there is no force is this petition, which must fail and is hereby dismissed. Appeal dismissed.