1987 PLP 1301 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑- The dispute in this appeal relates to a shop in Eminabad, District Gujranw ala. It was evacuee property and was auctioned in favour of Abdul Hamid Khan on 18‑6‑1960. He paid the usual deposit and claimed to have deposited his Compensation Book for the balance of the sale price due from him. The Deputy Settlement Commissioner issued a notice to Abdul Hamid Khan calling upon him to pay the balance of the sale price within six months. As he neither complied with the demand nor acknowledged it, the Deputy Settlement Commissioner, therefore, resumed the said property. After it had been resumed, Feroz Din, now represented by the appellants, filed NC form and by his order dated 17‑1‑1967 the Deputy Settlement Commissioner transferred the shop in question to him. P.T.D. for the shop was issued to Feroz Din on 7‑2‑1967.

2. After about three months Le on 4‑5‑1967 Abdul Hamid Khan respondent No.3 filed a time barred appeal against the order of the Deputy Settlement Commissioner dated 17‑1‑1967 and also against the order by which the said shop had been resumed from him. After calling for a report the learned Additional Settlement Commissioner allowed the appeal, vide his order dated 30‑11‑1967, on the ground that Abdul Hamid Khan had deposited his Compensation Book for the payment of the balance of transfer price and the amount in this book was sufficient for the discharge of his liabilities. As Feroz Din had died during the pendency of this appeal, the appellants challenged the aforesaid order dated 30‑11‑1967 in review which was dismissed by the learned Settlement Commissioner on 30‑4‑1968. Thereafter the appellants filed a writ petition in the Lahore seat of the West Pakistan High Court.

3. The writ petition came up for hearing before a learned single Judge of the High Court who accepted the plea of Abdul Hamid Khan respondent No.3 that he had deposited his Compensation Book and the learned Judge observed that this had been conceded by the learned counsel for the appellants. It is submitted by the learned counsel for the appellants that the learned High Court Judge had erred in holding that the appellants had made any concession about the alleged deposit of the Compensation Book and on the other hand the appellants had pressed the writ petition inter alia on the ground that Abdul Hamid Khan's appeal was admittedly time barred and that the delay in filing it had been condoned by the Additional Settlement Commissioner. However, the learned High Court Judge was of the view that Additional Settlement Commissioner's order dated 17‑1‑1967 transferring the shop to Feroz Din was a void order because the shop had been illegally resumed from Abdul Hamid Khan respondent No.3, and, accordingly, the learned High Court dismissed the writ petition vide the impugned judgment, dated 30‑7‑1974.

4. Thereafter the appellants filed a petition for Leave to Appeal and leave was granted by this Court per order dated 21‑1‑1979 on the ground that it was not the order of the Deputy Settlement Commissioner, dated 17‑1‑1967 which was void but it was the order of the Additional Settlement Commissioner, dated 30‑11‑1967 which was void because the learned Additional Settlement Commissioner had allowed a time barred appeal without even examining the question of limitation, and, therefore, the learned High Court Judge had erred in dismissing the writ petition. It was submitted by the learned counsel that the order dated 30‑11‑1967 was a void order and that it did not require to be challenged within the stipulated period of limitation. It is contended by the learned counsel for the appellants that the learned High Court fell into an error in deciding the question as to whether, after the issuance of the P.T.D. in favour of the (Late) Feroz Din, the Settlement authorities could legitimately interfere in the matter and restore the property in favour of Abdul Hamid Khan respondent No.3. He submitted that the law on the point as laid down by this Court is very clear and admits of no exceptions and qualifications; the learned High Court Judge has wrongly interpreted he law laid down which is well settled now that after the issuance of P. T. D. the Settlement Authority becomes functus offico, and, therefore, the learned High Court Judge ought to have quashed the orders impugned before him; that it was incorrectly held by the High Court that the order of resumption of the Deputy Settlement Commissioner is void. Admittedly the Deputy Settlement Commissioner had the jurisdiction to resume the property and assuming that the Deputy Settlement Commissioner had wrongly exercised such jurisdiction, this alone, would not render the order void. It was further contended that it has been incorrectly held by the High Court that the Deputy Settlement Commissioner passed an illegal or void order in resuming the property. Abdul Hamid Khan respondent No.3 having been duly served, did not appear to contest resumption and it was only after some months that he got the bright idea of making a plea of having already deposited his Compensation Book and filed a time barred appeal; that it is inconceivable that respondent No.3 having deposited his Compensation Book as far back as 1961 would not attempt, to obtain permanent transfer of the shop in question for full 5/6 years; that the Departmental record does not bear a single application by Abdul Hamid Khan respondent No.3 for issuance of P.T.D. or return of his Compensation Book and neither there is any indication that he ever deposited his Compensation Book; that even the Deputy Settlement Commissioner's report referred to in the order of the Additional Settlement Commissioner is not on the file; that the appellants applied for grant of a certified copy of the report but were informed that such a report was not on the file; and these facts justify the conclusion that the plea of respondent Abdul Hamid Khan was an after thought and if at all the Compensation Book was subsequently inserted in the file in collusion with the concerned staff and that !absence of any entry in CSC‑V Register further substantiates this inference.

5. We have examined the points raised by the learned counsel for the appellants and we find that there is substance in the arguments of the learned counsel. Therefore, we allowed this appeal and remand the case to the notified officer to examine inter alia the question regarding Ii0itation and to give finding whether any Compensation Book existed and constituted as part of the official record. No order as to costs. M.B.A./N‑14/S Case remanded.