P L D 1980 Supreme Court 139 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-These petitions for leave to appeal arise out of the judgment dated 11-7-79 of the Lahore High Court. They are being disposed of together. The case relates to the disposal under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, of Bungalow No. S-69-R-23 Warris Road, Lahore. It was divided into four units. Mst. Walyat Begum and Mst. Ghulam Sakina (C. Ps. Nos. 897 and 898/79) got Units Nos. I and IV respectively while Nos. IJ and III were transferred to Siraj-ul-Haq, predecessor-in-interest of respondents Nos. 1 to

6. The transferees failed to make the payment of the transfer price despite demand notices. Therefore, as claimed by the petitioner, all the transfer of the entire property was cancelled by the order of a Deputy Settlement Commissioner dated 20-10-1967. An appeal was filed on behalf of Siraj-ul-Haq by his son Sikandar Shaheen. It was dismissed in default on 6-3-1968. During the pendency of this appeal, the Chief Settlement Commissioner, on an application filed by Sirajul Haq to prevent the auction of the property, ordered on 24-2-1968 that the property shall not be deleted from the auction list, but allowed 15 days for the payment of the price, during which period the auction was not to be confirmed. It appears that Sirajul Haq was not satisfied with the temporary relief granted by the Chief Settlement Commissioner. He filed revision against the order dated 6-3-1968 of dismissal of his appeal. It was dismissed on 16-10-1968. Mr. M. A. Hadi Khan, predecessor-in-interest of the petitioners was the successful bidder in the auction on 28-2-68. Sirajul Haq having died his heirs filed Writ Petition No. 165-R of 1969. A stay order was issued thereon on 20-2-1969 against M. A. Hadi Khan, on the condition that after deduction of the deferred available amount, in the compensation book of Sirajul Haq the balance be deposited within a month. This order was not complied with. However, the writ petition was dismissed on 9-6-1969 for non-prosecution. The auction was confirmed on 18-3-1970 and P. T. D. was issued to M. A. Hadi Khan on 30-6-1970. He succeeded in ejecting all the occupants who filed writ petitions which were allowed. The appeal of M. A. Hadi Khan to this Court against successors of Sirajul Haq through special leave (C. A. No. 8 of 1973), is pending in this Court and is being disposed of separately. As M. A. Hadi Khan had claimed purchase of the entire Bungalow in the auction. Heirs of Mst. Walayat Begum and Mst. Ghulam Sakina filed Writ Petition No. 605-R-71 and 664-R-71 and Sirajul Haq's heirs filed Writ Petition No. 1836-R-74 to challenge the said auction. They were allowed on 11-7-1979, therefore, these petitions for leave to appeal. The High Court in an elaborate judgment after discussion of all the essential aspects of the case as analysed by Mr. A. R. Sheikh held: that the units of property transferred to Mst. Walayat Begum and Ghulam Sakina were never resumed nor were they put to auction and Hadi Khan was not the auction purchaser in that behalf; that the compensation book of Sirajul Haq, transferee of units II and III, was not issued till March, 1974, and because, according to law, the payment of the evaluated price of property transferred under the Displaced Persons (Compensation and Rehabilitation) Act is essentially linked with the issuance of compensation book, no fault regarding non-payment of the price could be attributed to the transferee till the issuance of the compensation book; that the notices served on the transferees) were not in accordance with law; that the dismissal of the revision petition filed by Sirajul Haq was not based on appreciation of the case with open mind; that the filing of the writ petition did not suffer from laches as the cause of action was not complete till the issuance of the compensation book in 1974; and that the dismissal of the first writ petition filed by Sirajul Haq for nonprosecution did not bar the filing of the fresh petition. Learned counsel in Civil Petition No. 671/79 contended: (1) that the dismissal of the earlier writ petition resulted in final affirmation of the orders of the Settlement Authorities and the matter had become a past and close transaction, particularly, when the Settlement laws stood repealed in 1974, by Ordinance No. XV of 1974, and later on by Act IV of 1975, effective from 1-4-1974 and 28-1-1975 respectively, therefore, there was no power with and justification for the High Court to have re-opened the matter in exercise of writ jurisdiction; (2) that even on the assumption that the cause of action ultimately matured in March, 1974, on the issuance of the compensation book, the second writ petition having been filed in December, 1974, it suffered from laches; (3) that the dismissal of the first writ petition would operate as res judicata and that filling of the 2nd writ the- same cause on -act on was not permissible that Sikandar Shaheen was not an authorised agent of Sirajul Haq, therefore, the Settlement appeal filed by the former on behalf of the latter was incompetent and further that it was intentionally got dismissed for default so as to gain time; (5) that the late issuance of compensation book was not due to the carelessness of the Department but it was on account of the conduct of Sirajul Haq who had himself desired that the compensation book should not be issued and further that it was 'on account of the conduct of Sirajul Haq that the transfer in his favour was cancelled; and lastly (6) that although the High Court has the power to do so in a proper case, in the circumstances of this case, there was no justification for it to set aside the findings of fact by the Settlement Authorities culminating in revisional order dated 16-10-1968 which, as contended, was based on legal evidence. Learned counsel has, in support of his contention relating to ]aches cited Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultana (1), Hidayat Ali v. Sh. Muhammad Rafique, Chief Settlement and Rahabilitation Commissioner, Lahore (2), John Ojoho Aqbeyeqhe v. Fester Makene Ikomi and another (3), and R. v. Herrod (4). He also cited Mirza Muhammad Yaqub v. The Chief Settlement Commissioner, Lahore and another (5), and Abdul Ghafoor v. Settlement and Rehabilitation Commissioner, Karachi and 3 others (6), to contend that matter being res judicata should not have been re-opened by the High Court. (1)PLD1976SC410 (2)1968SCMR103 (3) P L D 1953 P C 19 (4) (1976) 1 All E R 273 (C A) (5) P L D 1965 S C 254 (6) 1971 S C M R 602 Learned counsel for the petitioners in the other two petitions contended that the mention of the number and other particulars of the Bungalow was sufficient proof of the fact that the entire property including the units transferred to Mst. Walayat Begum and Ghulam Sakina were also put to auction. He further contended that Sirajul Haq was acting for himself as also general attorney for the two ladies. Therefore, the proceedings including departmental notices with regard to payment of the price would be deemed to have related to all the transferees. He also pointed out that Sirajul Haq had in one of the applications used the word "aur" which signifies that he was also acting as agent for others and as no objection was taken to his conduct, therefore, it should have been presumed that the principals namely Mst. Walyat Begum and Ghulam Sakina must have accepted all acts of Sirajul Haq, as their agent. Lastly he pointed out that a separate departmental notice for payment of the transfer price was sent to Mst. Sakina on 15-1-1970. We have carefully examined the proceedings in connection with the transfer of property to Sirajul Haq and its subsequent resumption. The notice to Ghulam Sakina has also been seen. The crucial document which clinches the matter with regard to the title of the property which wasp resumed on account of non-payment of the transfer price is the order passed by the Deputy Settlement Commissioner on 20th October, 1967. It specifically relates to the property transferred to Sirajul Haq. The notice mentioned therein was issued to Sirajul Haq alone. Not only this, the language use in the order clearly shows that it did not relate to the transfers made in favour of Mst. Walyat Begum and Ghulam Sakina. No doubt the number of the property mentioned therein is S-69-R-23, but it cannot be said that the transfer to Sirajul Haq did not bear this number. The further fact that the sub-units i. e. Nos. II and III of the property transferred to Sirajul Haq were not specifically mentioned in this order is of no significance because the said numbering was not given affect in the Municipal record. The general power of attorney relied upon by the learned counsel was executed much before the Settlement and Rehabilitation operations. It did not in fact or la relate to the proceedings which took place with regard to the property in dispute before the Settlement and Rehabilitation Authorities. Accordingly, B there was no question of the principals having accepted the acts of their agent. The careful examination of the auction list and the proceedings in that. behalf also support the above suppositions. After consideration of all th. factors pointed out by the learned counsel we are satisfied that the findings in the impugned judgment that the transfers of the property to cost. Walayat Begum and Ghulam Sakina were never cancelled nor were they resumed or auctioned and consequently M. A. Hadi Khan was neither the auction purchaser nor the transferee in that behalf are unexceptionable. In this view of the matter we find no force in Civil Petitions Nos, 897 and 898 of 1979 and they are accordingly dismissed. Reverting to the arguments in Civil Petition No. 671 of 1979, it needs to be stated that the first three points raised by the learned counsel are inter-linked. It is true that the Displaced Persons (Compensation an Rehabilitation) Act was repealed in 1974, but provisions were made in the repealing law for the continuance of certain pending proceedings. However? that related to the jurisdiction of the Settlement Authorities. It could not and, in fact did not effect the constitutional jurisdiction of the High Court to entertain and decide the controversies otherwise within its jurisdiction. As ha already been noted, the compensation book was issued in March, 1974. The case could not be treated as a past and close transaction till then. Whether or not the late issuance of compensation book would operate against the claimant/transferee would be presently dealt with when considering the argument of the learned counsel in this behalf We do not agree with him that even on the assumption that cause of action ultimately matured March, 1974, the second writ petition filed in December, 1974, suffer from laches. The assumed bar in this behalf cannot be equated with that of statutory limitation. It depends upon the circumstances of each case. The learned Single Judge in the High Court, after noticing that the transfer and/or his successors-in-interest did not abandon their rights in the property in dispute at any stage nor did they accept the correctness of the orders passed by the Settlement Authorities held that "throughout this period the have been fighting for their rights in one way or the other". Refusal of the High Court, in its discretion, to dismiss the writ petition on ground of acquiescence or laches does not appear to be arbitrary or even improper. The rulings cited by the learned counsel in this behalf do not, in any way, change the above-noted position, in so far as the facts and circumstances of this case are concerned. On point of res judicata it cannot be ignored that the first writ that the first writ petition was not decided on merits. It hay been held by the learned Judge in the High court that the dismissal thereof for non-prosecution did not for this reason alone bar a fresh writ petition. The ancillary argument of the learned counsel in this-behalf that the dismissal of the earlier writ petition was on account of non-deposit of the amount ordered by the High Court, is not borne out from the contents of the order dated 9-6-1969, whereby that writ petition was dismissed. The deposit was directed by the High Court as a condition for grant of stay order. It was not intended to operate as a condition for the hearing of the writ petition on merits. Learned counsel laid stress on the point that the appeal filed by Sikandar Shaheen son of Sirajul Haq against the order dated 20th October, 1967, whereby the transfer in favour of Sirajul Haq was cancelled, was incompetent because Sikandar Shaheen had not filed with the said appeal a power cf attorney duly executed by Sirajul Haq in his favour. Sirajul Hail did not at any stage challenge the authority of his son to file the appeal nor the appellate forum had dismissed the appeal on such a legal/preliminary objection. It remained pending for nearly five months before it was dismissed in default. It is not certain that if the appeal would have been heard and decided after due contest, the point raised from the petitioners side with regard to the competency of the appeal would have necessarily been decided in favour of the petitioners. The other argument of the learned counsel that Sirajul Haq himself intentionally got the appeal dismissed in default so as to gain time, is without any factual basis. In fact the Chief Settlement Commissioner had, by his order dated 24th of February, 1968, allowed further time to Sirajul Haq to make the payment. Sirajul Haq was keenly pursuing his case, therefore, it would not be correct to say that either the appeal was filed without his authority or that he intentionally got the appeal dismissed in default. Learned counsel has taken us through the relevant provisions of law and the instructions issued from time to time relating to the preparation of compensation book, its co-relation with the evaluation and payment of price for transferred evacuee properties and the responsibilities of the claimant/transferee as also the Department in this behalf. The argument raised by the learned counsel in connection with the issuance of compensation book and conduct of Sirajul Haq involved mixed questions of facts and law. The learned Single Judge in the High Court took note of the so-called misconduct of Sirajul Haq and came to the conclusion that the relevant departmenal functionaries had failed to perform their duty. Sirajul Haq, on the contrary, it has been found as a fact, had done all that was necessary so as to assist the Settlement Authorities in doing the needful. Learned counsel for the petitioners laid considerable stress on two circumstances which, according to him, show that Sirajul Haq's actions were mala fide in so far as the issuance of the compensation book and settlement of the case is concerned, in order to gain time. In a letter dated 14th March, 1964, addressed to the Deputy Settlement Commissioner he had requested that the matter should be kept pending till the final decision of the writ petition which was then intended to be filed in connection' with the verification of the claim; and secondly, at an earlier stage, according to the report of the Assistant Settlement and Rehabilitation Commissioner, the transferees had refused to record their statements unless their claims which were then pending were decided and on their request a recommendation was made to the Deputy Settlement Commissioner that the case might be kept pending. The Deputy Settlement Commissioner had accepted the recommendation and had kept the matter pending. First paragraph of application dated 14th of March, 1964, reads as follows: "With reference to your notice No. 3/399, dated 19-2-1964, I have to submit once -again, with great regret that so far, I have not been issued my compensation book in spite of the fact that I have sent three registered applications to you under register Nos. 963/5, dated 21-11-1962, 268/31 dated 21-5-1963, and 365/5, dated 6-3-1964. In the absence of my compensation book I cannot be sure of the exact amount due from me after the deduction of verified claim in respect of my evacuee property abandoned in India. I, therefore, request that I may .kindly be issued my compensation book without any further delay." It was in the background mentioned in the above-quoted statement of fact made by Sirajul Haq; that he requested firstly, that the compensation book should be issued without any further delay, and secondly, that the finalisation of the case with regard to the notice for cancellation of property and resumption thereof should be kept pending. It was in this context that a reference was also made to a possibility that the claimants would be challenging the orders of verification of the claim. Even if it be accepted that despite the mention of the possibility of filing of writ petition in this connection no such writ petition was filed, this would not show either that the issuance of the compensation book was got intentionally delayed by Sirajul Haq or that he was not keen that the case should be finalised. It cannot be denied that, in the circumstances of this case, without the issuance of the compensation book to the claimant/transferee the question of payment of price could not be finally settled. The letter relied upon by the learned counsel itself contains a reference to repeated efforts made by Sirajul Haq for issuance of the compensation book. It has come on the record that in the frustration he moved the President of Pakistan in this behalf and perhaps it was on account of this complaint to the Head of the State that the Settlement machinery started moving and ultimately the compensation book was issued in March. 1974: Reference by the learned counsel to similar statements/applications of Sirajul Haq that his case for transfer of property and/or for cancellation~ of that transfer should not be finalised without the finalisation of the compensation book is of no avail to the petitioners. The treatment of this question by the learned Single Judge does not suffer from any infirmity, legal or otherwise. The argument. that the learned Single Judge when deciding the writ petition on foregoing issues not have given findings of fact contrary to those reached by the Settlement Authorities, has not impressed us. AS, already noted, in order to decide the question whether the transfer could , lawfully be cancelled and whether the property could be resumed or auctioned. it was necessary to ascertain the facts which could have conferred such a, jurisdiction on the Settlement Authorities. In fact it was necessary, for the! petitioners and the Settlement Authorities to establish the jurisdictional fact is before defending the orders impugned in the writ petition filed from the respondents side. It was in that connection that the High Court was obliged to take note of certain irrefuteable realities. In the circumstances of this case we are unable to agree with the learned counsel that the learned Single Judge travelled in any way beyond the jurisdiction conferred by the Constitution. - Before parting with this order it needs to be noticed that the learned counsel invited our attention to the fact that as stated the predecessor-in-, interest of the petitioners had purchased the property in auction by selling his other property and now the settlement operations having nearly reached the concluding stage They would suffer irreparable loss, in case the impugned judgment of the High Court remains in field. He explained, that the auction, purchaser was not aware of nor waste party to any defect or infirmity in the order of the Settlement Authorities whereby the transfer in favour of Sirajul Haq was cancelled and after resumption the property was put to auction. Learned counsel also stated that if he were aware of any such thing, he. would not, have purchased the property in auction. We are no certain about the factual aspect except that the petitioners bad unfortunate laid claim ,,Aver the entice property transferred to Sirajul Haq, Mst. Valayat Begum and Ghulam Sakina, notwithstanding the reality that he had purchase only the portion which was transferred to Sirajul Haq. Be that as it may, the mere fact that the auction purchaser did not make proper enquiries an remained unaware of the defects in the orders passed by the Settlement Authorities cannot be an answer to the respondents case that they could not be deprived of valuable rights in the property except in accordance with law. The concerned functionaries of the Settlement Department clearly acted without lawful authority. The judgment of the High Court does not suffer from any infirmity: The-Petition No. 671 of 1979, also has no force and is accordingly dismissed. s. A. H. Petitions dismissed.