1985 PLP 2718 (CLC)

This is a Constitution petition against the order passed in L.P.A. No. 5 of 1969 by a Division Bench of this Court which was passed by consent of the present respondents Nos. 3 to 6 and the Settlement Department which is challenged to be based on collusion between the parties in order to defraud the petitioners of their rights. The petitioners also pray for declaring order of transfer of property No. A. M. 148, dated 14-10-1980 made by the Settlement Authorities in pursuance of the order of the Division Bench in L.P.A. No. 5 of 1969, on 8-9-1979. The petitioner No. 1 claims to be a person in possession of 18 x 19 area of plot of land A.M. 148 Karachi which measures 772 Sq. Yds. On 15-11-1959 the petitioner applied for transfer under Scheme No. VI and on 23-11-1960 petitioner was asked to appear. But thereafter there is nothing on record as to what the petitioner did in pursuing his application for the transfer till 1966 meanwhile the whole plot No. A.M. 148 was transferred to respondents 3 to 6 on cluster basis on 13-10-1961 by Settlement Authorities. Petitioner has filed Annexure 'E' to this petition showing that he had made a representation that his name be included for the transfer of the said property but there is no document which could show that this representation had actually been filed by the petitioner and this Annexure 'E' does not even contain a date. It appears that on 12-2-1964 the Settlement Commissioner, Karachi cancelled the transfer in favour of the respondents Nos. 3 to 6 on the ground that constructions were not permanent. The respondents Nos. 3 to 6 filed a petition in the High Court against that order in 1964 and the same was, dismissed on 15-11-1968. But the respondents 3 to 6 filed L.P.A. No. 5 of 1969 against the order of the Civil Judge which was disposed of on 8-9-1979 by a consent order whereby the order of Settlement Commissioner, dated 12-2-1964 was .set aside and the order of 13-10-1961 in favour of respondents 3 to 6 was restored with the condition that they were directed to pay 15% more price for the said plot. On 16-6-1966 Dost Muhammad petitioner No. 1 and his brother Muhammad Munsif had again applied for transfer of 18 x 19 area out of A.M. 148 and again on 10-10-1966 Dost Muhammad applied for a transfer of a shop on N.C.S. form but the petitioners have not cared to show as to what happened to those applications and what efforts were made by Dost Muhammad or any one of the petitioners to get those applications disposed of. There is however, averment in paragraph 8 of the petition that the respondents Nos. 3 to 6 had made the petitioners to believe that they will get the name of the petitioners included in the transfer order, this allegation? is of course denied by the respondent and it is hardly conceivable that any such representation could have been made by the respondents Nos. 3 to 6 to all the petitioners at a time when the petitioners Nos. 2 and 3 were not even in the picture. However, the present grievance of the petitioners is based upon three applications made by them separately on 26-5-1973 under Scheme No. 8 which applications were before the Settlement Authorities and the petitioners appeared there. The Order Sheet dated 17-10-1973 (Annexure 'L') shows that the petitioners had filed copy of the order of the High Court in Petition No. 763/64, dated 15-11-1968 and on 8-11-1973 an order was made as under:- "Case called out. Applicants absent. It has been reported that the matter is pending before the Supreme Court under L.P.A. No. 5 of 1969 filed by M/s. Suleman and others. The case is therefore, adjourned sine die." Sd/- 8-11-1973 D.S.C. (K) Thereafter, the petitioners did not bother to pursue either their applications under Scheme No. 8 nor did they get themselves impleaded as parties in L.P.A. No. 5 of 1969 in spite of having known that the same was pending. After the order of the High Court in L.P.A. No. 5 of 1969 the transfer order were issued on 7-9-1980, after the respondents Nos. 3 to 6 had paid 50% of price as extra amount. Without making any application in L.P.A. No. 5 of 1969 and without having the consent order passed in the said L.P.A. set aside, the petitioners again moved Settlement Authorities on 2-4-1980 for transfer of the portions in their possession in their favour in A.M.

148. The Settlement Department informed that on 24-9-1980 the property had been transferred to the respondents Nos. 3 to 6 by virtue of Order in L.P.A. No. 5 of 1969. The petitioners in spite of this knowledge that there was an order of the High Court in respect of the property still moved a Revision Application before Settlement Commissioner but they were informed by D.S.C. on 21-2-1981 that the property had been transferred in pursuance of order of High Court in L.P.A. No. 5 of 1979. The petition was filed on 6-6-1981. It appears to me that the petition is barred by laches, in different attitude of the petitioners in pursuing their remedies and by gross negligence in failing to get the order in L.P.A. No. 5 of 1969 set aside either by moving a review application or by moving the highest Court. The petitioners knew on 8-11-1973 that L.P.A. No. 5 of 1969 has been filed by respondent Suleman and others and yet they never bothered to get themselves impleaded as a party in these proceedings in spite of the fact that they knew that the High Court was seized of the matter. It appears to me that the petitioners have allowed the disposal of L.P.A. No. 5 of 1969 on 8-9-1979 by consent of parties by adopting an indifferentattitude in respect of the same and by ignoring the same altogether. They are therefore, themselves to blame for what happened on 8-9-1979. And therefore, the petitioners were informed on 24-9-1980 by the Settlement Department that property had been transferred to respondents Nos. 3 to 6 under orders of the High Court passed in L.P.A. No. 5 of 1969 but they waited for full nine months before filing this petition, and on the other hand they filed an application before Settlement Commissioner which was completely fruitless and futile.,The petitioners have, -therefore, been guilty of laches and negligence. Moreover, the petitioners have allowed the respondents Nos. 3 to 6 to acquire the property after paying 50% more price of the same and, therefore, by their gross negligence they are now estopped from challenging the orders which have been passed by the High Court and the Settlement Authorities in favour of respondents Nos. 3 to

6. The petitioners have shown no reason for this indifference and negligence on their part except that they had been assured by the respondents Nos. 3 to 6 that they would get the property transferred in their names. This is neither here nor there and does not explain the laches or indifference and negligence of the petitioner. Mr. Masood Hussain Khan learned counsel for the petitioners had submitted that the applications for transfer of the petitioners, made under Scheme No. 8, were pending and, therefore, the property could not be disposed of by Settlement Authorities or by the High Court without decision of those applications. I am not sure that the applications filed by the petitioners under Scheme No. 8 were competently filed. Scheme No. 8 was framed in respect of available property and available property was that in respect of which allotment had not been made by a Settlement Authority. In this case this property had been allotted to the respondents Nos. 3 to 6 in 1961 and, therefore, this was not an available property and mere fact that the allotment have been cancelled in 1964 by the Settlement Commissioner would not make it a property available because the respondents Nos. 3 to 6 had filed a petition against the cancellation of the allotment and had further pursued b their rights.by filing L.P.A. No. 5 in 1969, against the order, dismissing their writ Petition, which had been admitted for hearing and which was eventually decided in their favour on 8-9-1979. In this view of the matter Property No. A.M. 148 was not an available property as proceedings in respect of allotment of the same were pending before the competent Court. Consequently the application of the petitioner under Scheme No. 8 were not really competently made. The learned counsel then contended that the paragraph 13 of Scheme No. 6 allowed only the transfer of the property constructed by the unauthorised occupants and, therefore, only the constructed property could be transferred in favour of the respondents Nos. 3 to

6. Counsel relied upon P L D 1965 S C 618 where it was held that para. 13 of Scheme No. 6 allows for only the transfer of the constructed portion by the unauthorised persons but the same ruling also stipulates that some of the open area could be transferred to those persons. In this case we do not know as to how much was the open area which could be transferred to respondents Nos. 3 to 6 apart from constructed area and' since the petitioners had been negligent in pursuing their remedy and had not competently moved for the transfer of the property in their favour at the relevant time and the matter had been under litigation from 1961 till 1979 without the petitioners ever bothering to get themselves impleaded as parties, therefore, it is not open to the petitioners to object to the transfer made in favour of respondents Nos. 3 to

6. This petition is, therefore, found to be without merit and is hereby dismissed. Moreover, I cannot review the order of U.B. made on 8-9-1979 in L.P.A. 5/69. Section 12 of C.P.C. has now provided that if a party challenges an order of the Court on the basis of fraud then separate suit cannot be filed, and only the Court which passed the order is competent to consider whether the proceedings before it, were vitiated by fraud. H.B.T.? Writ refused.