1983 PLP 168 (SCMR)

M. S. H. QURESHI, J. ‑Muhammad Ismail petitioner, through this petition, seeks leave to appeal from the judgment of the High Court dated 3i‑3‑1976 whereby his writ petition against refusal by the Settlement Authority to transfer in his favour a shop in property No. P. 150, Ward No. 2, Lyallpur, had been dismissed. The shop had been initially allotted in favour of Abdur Rashid (respondent No. 1) and Sabir Ali, the Mamoonzad and real brother, respectively, of the petitioner: When the transfer operations began, only Abdur Rashid filed C. S. form and was transferred the shop on 18‑11‑1959. On coming to know of the transfer, the petitioner brought a declaratory suit on 21‑7‑1966 which was contested by Abdur Rashid and was ultimately dismissed on 27‑2‑1968 as being without jurisdiction. In the meantime, Abdur Rashid had already instituted, on 17‑9‑1966, proceedings for ejectment of the petitioner on the ground of default in payment of rent, in which an ejectment order was passed on 10‑5‑1968. Faced with this situation, the petitioner filed appeal on 21‑8‑1968 to challenge the order of transfer dated 18‑11‑1959. The Additional Settlement Commissioner held that the shop had been at the time of transfer, in possession of the petitioner and not of Abdur Rashid and as such the transfer in favour of the latter was void. He, thereupon, by order dated 15‑10-1968 condoned the delay, accepted the appeal and directed the disposal of the shop according to law. The petitioner, thereafter, filed form under Settlement Scheme No. VIII on 26‑10‑1968. The order of the Additional Settlement Commissioner was, however, reversed on 27‑6‑1969 in revision filed by Abdur Rashid. The view taken by the revising authority was that the petitioner not having filed form was not a person aggrieved by the order of transfer and as such had no locus standi to file the appeal which was consequently incompetent and that the delay in filing it had been wrongly condoned. The petitioner then invoked the constitutional jurisdiction of the High Court but without success. The learned Judge of the High Court repelled the contention that the transfer was void and held that the petitioner had delayed in challenging the transfer order in spite of knowledge, that even after the dismissal of his civil suit he lead taken six months time to file the appeal, that he had pot applied for transfer of the shop until 26‑10‑1968 that in any case, the refusal to condone the delay by the revising authority could not be interfered with in the constitutional jurisdiction.

2. The delay in filing the appeal is of some nine years. Since the parties were closely related, the High Court was not unjustified in holding that "it is inconceivable that the petitioner would not know of the transfer in favour of the respondent". Even otherwise, the petitioner had himself in para. 3 of his writ petition admitted that he came to know of the transfer to 1965, which was some three years before his filing the appeal. There is no sufficient explanation for this delay nor for the delay of some six months in filing the appeal after the dismissal of his suit.

3. But the submission made by learned counsel in this regard is that the order of the transfer being void, the question of limitation did not arise. He argued that as the transfer of the shop had been obtained by the respondent on misrepresentation as to his possession, the transfer was void. It was void also because the Deputy Settlement Commissioner who by virtue of para. 8 (2) of the Settlement Scheme No. 1 was bound to "take into consideration the claims of all other persons who may have applied" had failed to do so and as such his order transferring the shop to a person not in possession thereof and thus not entitled to its transfer, was without jurisdiction. He submitted that the petitioner had been in possession of the shop since 1954 which fact had been, according to him, conceded by the respondent in the petitioner's suit. In this connection, he urged that possession for the purpose of transfer has to be direct and actual and not through a tenant as was held in Muhammad Ashraf etc. v. Muhammad Usman etc. (1973 S C M R 402), Mr. S. A. Mannan, who was present on behalf of the respondent, urged, on the other hand that the shop had throughout remained in the legal possession of the respondent who had only permitted the petitioner to carry on business as his licensee. He further urged that the petitioner `not being in possession within the meaning of the term' as defined in the Act, was not eligible to apply and as such the provision of para. 8 (2) of Scheme No. I was not applicable to his case. He, therefore, submitted that the transfer was not void but was binding unless set aside.

4. A presumption of possession arises in favour of the party hold in the order of allotment unless the contrary was established. The assertion of possession by a person not being the allottee, requires an enquiry as to the circumstances under which the possession was obtained, the nature of such possession and the conduct of the parties in this regard. The High Court has observed that : "The fact that the petitioner halo come to occupy the shop with the permission of the respondent is not only the case of the petitioner himself, but is also substantiated by the fact that after his coming into the shop, the petitioner never asserted his independent right to remain in occupation of the shop. He never asked for allotment of the shop in his own favour, or, cancellation of the allotment in favour of the respondent all through the years. On the other hand, he allowed the respondent to retain the title of possession under the allotment, as the latter continued to pay the rent and other public dues without demur from the petitioner. Even on the advent of the Settlement operations, the petitioner did not come forward to claim transfer on the basis that he was entitled to the transfer being in possession or occupation. The fact that the parties are related would also show that the petitioner did not apply for the transfer of the shop on the understanding that he being not an allottee was not entitled to transfer and let the respondent apply for transfer. When the transfer was made in favour of the respondent, the petitioner even then did not challenge the same for many years." In these circumstances, the mere assertion of the petitioner that he was in occupation of the shop at the relevant time would not per se give rise t an inference that the transfer was void. Due enquiry had to be made and finding recorded that the occupation amounted to "possession" within the meaning of section 2 (6) of the Displaced Persons (Compensation and Rehabilitation Act (XXVIII of 1958). The petitioner, in order to remove the transfer order from his way had, therefore, to take legal remedy under the law and as such if he filed an appeal for the purpose, the same had to within the prescribed time limit. The appeal filed by the petitioner was not only hopelessly time‑barred but it has also not been shown that even an application for condonation of the delay had been flied before the. Additional Settlement Commissioner.

5. Even if the transfer order be void the assumption that a Court must always strike it down regardless of the consequences of such decision is, as held in Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1978 S C M R 367), a total fallacy. In this connection it was further observed in this cited case that there is also ample authority for the proposition that a writ against a void order may be refused if it was meant to enable the petitioner to circumvent the provisions of a statute of limitation or if he was estopped by his conduct from challenging the order or if he had been guilty of laches.

6. For the reasons stated above, we find no merit in this petition, which we accordingly dismiss. Petition dismissed.