1972 PLP 403 (SCMR)

HAMOODUR RAHMAN, C. J, ‑‑The dispute in this ‑case relates to an evacuee shop situated at Landa Bazar. The, petitioner claims to be in possession thereof from before Partition ; but since he was a local, the Deputy Settlement Commissioner, on 'the 24th of February 1959, ordered its disposal through auction. The auction was held on the 6th of August 1965, and the respondent No., 1 was declared the successful bidder, He duly paid 1/4th of the price in cash at r the conclusion of the auction and the auction was confirmed in his favour on the 16th of July 1566. Before this date, the sail respondent entered into an agree ment of association with another claimant and submitted the latter's compensation book on 27‑6‑66 for adjustment against the price. Thereafter, on the 13th of September 1966, a notification was issued bearing No. 5311‑Pol/66 entitling locals also to claim transference of shops in their occupation. The petitioner there upon filed a L. S. form on the 29th of October 1966, under Scheme No. VIII and also prayed for the cancellation of 'the auction on the ground that the respondent No. 1 had defaulted in making payment of the transfer price in accordance with the pro. visions of paragraphs 20 and 25 of Scheme No. VIII. The Settlement Department which had allowed the association, however, treated the shop as already disposed of and issued the permanent transfer deed in favour of the respondent No. 1 on the‑17th of April 1967. The latter in his turn sold the property to respondent No. 2 on the 12th of July 1967, by a registered sale‑deed. Thereafter, respondent No. 2 served a notice on the petitioner under section 30 of the Displaced 'Persons (Compensation and Rehabilitation) Act, 1958, on the 9th of September 1967, and followed it up by filing an application for ejectment of the petitioner before the Rent Controller on the 30th of October 1968. The ejectment was ordered on the 19th of December 1970. The petitioner went up in appeal, but the appeal was dismissed on the 6th of January 1972. Thereafter, the respondent No. 2 obtained possession of the shop through Court. The petitioner resisted the proceedings before the Rent Controller on a large number of technical grounds, but he never challenged the validity of the auction, the acceptance of the agree ment of association or the confirmation of the au6tion in those proceedings. Nevertheless, having failed in the Rent Control proceedings the petitioner, on the 6th;of July 1971, filed a time‑barred appeal along with an application under section 5 of the Limitation Act against the order of the Additional Settlement Commissioner dated the 16th of July 1966, confirming the auction. The Settle ment Commissioner took the view that, since the petitioner could not have agitated for the transfer of the shop before the issuance of the notification of the 13th of September 1966, the question of limitation did not arise. He also held that the acceptance of an agreement of association filed on the 27th of June 1966, before the confirmation of the auction on the 16th of July 1966, was legally invalid. Therefore, the respondent No. 1 could not be deemed to have made‑‑payment of the balance of 75 % of the auction price in accordance with law. The confirmation of the auction was accordingly set aside and the property in dispute was declared to be still available for transfer under Settlement Scheme No. VIII. The respondents challenged this order in the High Court in the writ jurisdiction. A learned Single Judge of the Lahore High Court accepted the writ petition and set aside the order of the Settlement Commissioner. The learned Judge took the view that the Settlement Commissioner had exceeded his jurisdiction in accepting the appeal filed after a lapse of about five years without applying his mind to the question as to whether there were sufficient grounds for condoning this inordinate delay. The Settlement Commissioner had not, it was said, noticed that the petitioner had failed to pursue his application filed on the 29th of October 1966, for the cancellation of the confirmation of the auction, that he had never raised any objection on this account before the Rent Controller or before the Appellate Authority. Indeed, the appeal before the District Judge as well as the second appeal before the High Court were both dismissed for non‑prosecution. In the circumstances, the question did arise as to whether the petitioner had acquiesced in the order of transfer made in favour of respondent No. 1.‑ The finding of the Settlement Commissioner that the agreement of association had been prematurely accepted was also found to be wrong on the ground that there was no provision in the law prohibiting the acceptance of an agreement of association 4ter the auction but before its confirmation. The only limitation placed was that no agreement of association could be accepted after the 30th of June 1966. In the present case, the agreement, was filed on the 27th of June. 1966, before the bar became 'operative. The petitioner now seeks special leave to appeal, and it has been contended on his behalf that the acceptance of the association was illegal and, therefore, the respondent No. 1 had defaulted in making payment of 75%, of the auction price in terms of‑the conditions of auction. The right, of the purchaser in the property had accordingly become extinguished under these very conditions. We see no substance in anyone of these contentions. It is clear that the appeal had been filed as aid afterthought only after the petitioner had lost in the Rent Control proceedings. The learned Settlement Commissioner was clearly wrong in taking the view that the question of limitation did not arise, because, even if no period of time was fixed by the Statute for making an application for transfer under Scheme No. VIII, the transfer application had to be made within a reasonable time from the date of the notification inviting applications. In the present case; the application was made in 1971, about five years after the notification. This inordinate delay by itself should have put the Settlement Commissioner on enquiry and he should have gone into the question as td whether sufficient cause had been made out for the condonation of such inordinate delay. 'We are of the view that no just exception can be taken to the reasons given in the High Court' judgment for setting aside the order of the Settlement Commissioner. ' This petition is accordingly dismissed. Petition dismissed: