P L D 1976 Lahore 132 (PLP)

The brief facts of the case are that 1000 produce index units of Abdul Ghani respondent were transferred from Tehsil Sialkot to village Koth Kewal Ram, Tehsil Daska, District Sialkot, where on 6-8-1964 he was allotted land measuring 169 kanals 16 marlas, satisfying his entire units so transferred to this".4a._e. He sold away his entire land on 2-9-1966 for a sum of Rs. 25,000.00 to Ibrahim and others through a registered sale deed. In 1966, Gulab Din deceased respondent also got transferred his 284 produce index units to this village where he was confirmed allotment of land measuring 93 kanals 14 marlas equivalent to 232 produce index units on 15-10-1966. This allotment was not challenged by anyone within the prescribed limitation. After the expiry of period of limitation for appeal/ revision he sold away this land to the present petitioner Noor Hassan for a consideration of Rs. 18,000.00 vide mutation dated 2-6-1967. He claims to be in possession of the property since then. According to Abdul Ghani respondent, the classification of the land allotted to him on 6-8-1964 was wrong is banjar qadim land was shown as chahi. He, therefore, submitted an application for the correction of the kind of soil allotted to him. By order dated 6-5-1967, the Additional Settlement Commissioner ordered the necessary correction. The result of this correction was that the land earlier allotted to him on 6-8-1964 was shown for 313.38 produce index units instead of 1000 produce index units shown earlier. This made his 686.62 produce index units as surplus, for fresh allotment. After obtaining this order, Abdul Ghani respondent filed an appeal on 18-7-1967 against the allotment order dated 15-10-1966 made in favour of Gulab Din deceased respondent. The Additional Settlement Commissioner vide order dated 27-11-1968 (Annex. A) dismissed the appeal. It is an admitted fact that this appeal was hopelessly barred by limitation. Abdul Ghani filed another revision petition before the Settlement Commissioner who by his order dated 14-6-1969 (Annex. R/1) accepted the same and remanded the case to the Additional Settlement Commissioner (Land) for fresh decision in the light of the observations made by him. The Additional Settlement Commis sioner by his order dated 29-9-1969 (Annex. B) again rejected the appeal mainly on the ground that Abdul Ghani sold the land earlier allotted to hem on 2-9-1966 for Its. 25,000.00 showing it as chahi. According to the Additional Settlement Commissioner, this respondent had already been benefited by this alleged wrong classification of soil as he sold the same as chahi and not as banjar quadim. Abdul Ghani respondent again filed a revision petition before the Settlement Commissioner who vide order dated 10-6-1970 (Annex. B) accepted the same and again remanded the case to the Additional Settlement Commissioner. After the remand, the Additional Settlement Commissioner by his order dated 18-3-1971 (Annex. C) accepted the appeal and ordered the cancellation of allotment made in favour of Gulab Din deceased respondent on 15-10-1966 and allotted the same to Abdul Ghani respondent against his surplus units. Noor Hasan petitioner feeling aggrieved with the said order challenged the same in revision before the Settlement Commissioner who by the impugned order dated 13-5-1972 (Annex. D) dismissed the same. Hence this writ petition.

2. On the factual side, the admitted position is that on 6-8-1964 allotment of land was confirmed in favour of Abdul Ghani respondent and all his produce index units 'transferred to this village were shown as fully satisfied as the land allotted to him was shown equivalent to 1000 produce index units transferred to village Kotli Kewal Ram. At the time of confirmation of land in favour of Gulab Din deceased, predecessor-in-interest of the present petitioner on 15-10-1966, no produce index units of Abdul Ghani respondent or any other claimant were pending in this village. The allotting Authority gave a note that no produce index units of any other claimant were pending in this village prior to the allotment of said Gulab Din. It is further an admitted fact that this order dated 15-10-1965 was not challenged in appeal or revision within the prescribed limitation and therefore, attained finality. After the expiry of the said period of limitation, the present petitioner purchased the land from the said Gulab Din and mutation in his favour was attested on 2-6-1967. It was after securing the rectifica tion order dated 6-5-1967 that Abdul Ghani respondent filed an appeal on 18-7-1967 against the earlier order of allotment dated 15-10-1966 made in favour of Gulab Din deceased. Thus, it is an admitted fact that Abdul Ghani respondent challenged the allotment of said Gulab Din after ratting the necessary correction of the kind of soil in his own allotment on 6-5-1957. In these circumstances, the question which falls for consideration is whether the order of correction or rectification of the kind of soil dated 6-5-196? could be given effect to retrospectively from the date of earlier allotment made in favour of Abdul Ghani respondent on 6-8-1964 and adversely affecting the rights of Galab .din deceased respondent and his vendee the present petitioner. It may be observed here, that so far as the entitlement of Abdul Ghani respondent on blue basis of the earlier order is concerned, is not in dispute. Tine dispute is only with regard to the allotment to be made on the basis of the said order of correction of kind of soil dated 6-5-1967. It is vehemently argued by the learned counsel for Abdul Ghani respondent that since the mistake in the kind of soil was committed by the Department and when later on this mistake was pointed out the Department rectified the same, the said correction would be deemed from the same date on which the mistake was committed. In other words, according to him, it should he deemed that on the date of allotment, namely, 6-8-1964, the surplus units of the respondent were pending in the village and consequently he will have preference over Gulab Din respondent whose units were transferred to this village much later. Perhaps, this contention of the respondent could be accepted if in the meantime some other person had not acquired right in the land in dispute. It is not denied that in between the allotment of Abdul Ghaai respondent made on 6-8-1964 and the order of correcting the kind of soil dated 6-5-1967 the land in dispute was finally confirmed in favour of Gulab Din deceased on 15-10-1966 who sold it further to the present petitioner. It is an admitted fact that at the time of allotment made in favour of Gulab Din deceased respondent, no objection whatever was raised either be Abdul Ghani respondent or anybody else. On the other hand, there is a note in the Register R. L. II that no other prior claims or units were pending in the village at that time. It is also not denied that the allotment of said Gulab Din was not challenged in appeal or revision within the period of limitation. Noor Hasan, the present petitioner, claims to have purchased the land in dispute from said Gulab Din only when the period of limitation for appeal and revision had already expired and the land had permanently settled on the allottee. It is in this factual background that we have to see whether the order dated 6-5-1967 correcting the kind of soil allotted to Abdul Ghani respondent, can be given effect to retrospectively and thereby deprive Gulab Din deceased and his vendee ` Noor Hasan petitioner of their valuable rights. In other words, the present petitioner is being deprived of valuable landed property without any fault on his part. The respondent has offered no explanation why he could not get the necessary correction immediately after his allotment made on 6-8-1964. He slept over this matter for about three years. During this period other persons acquired valuable rights in the property. It seems that the respondent has not been vigilant to safeguard his interest. On the other hand, it is an admitted fact that on 15-10-1966 when the land was confirmed in favour of Gulab Din deceased respondent, there was no defect in his entitlement or otherwise any hurdle in the way of his allotment, as admittedly the land was available for allotment at the relevant time and there was no other person with better claim than Gulab Din deceased. No fraud or misrepresentation has been alleged against said Gulab Din. His allotment was perfectly valid. Similarly, there was no defect whatever in the title of said Gulab Din deceased when the land was alienated and mutated in favour of the present petitioner. Neither Abdul Ghani respondent, nor anybody else pointed out at that time that the land could not be confirmed in favour of Gulab Din deceased, because Abdul Ghani respondent was anticipating correction in the kind of soil allotted to him and thereby entitling him to more allotment. Thus, I find no irregularity or illegality in the allotment made in favour of Gulab Din deceased or the alienation made by him in favour of the present petitioner at the relevant time. After hearing the counsel for the parties and going through the relevant material available on the record, I am clearly' of the view that the order dated 6-5-1967 correcting the kind of soil, cannot be given effect to retrospectively from the earlier order of allotment made on 6-8-1964 and thereby deprive the subsequent allottee and his vendee oft the valuable right validly acquired. It may be clarified that if between the period 6-8-1964 and 6-5-1967 no other person had acquired any right in the village, perhaps there could be no objection to give effect to the order dated 6-5-1967 retrospectively. However, in the instant case, it is an admitted fact that before the order of correction dated 6-5-1967 could be implemented, Gulab Din deceased respondent and his vendee Noor Hassan petitioner had already acquired valuable rights in the land in dispute and they cannot be made victim without any fault on their part. Thus, the order of rectification dated 6-5-1967 could be given effect to from 6-8-1964 provided there is no other person who has validly acquired any right in the meantime.

3. It is not denied that the appeal filed by Abdul Ghani respondent against the order of allotment dated 15-10-1966 made in favour of Gulab Din deceased respondent was clearly barred by limitation. On behalf of said Gulab Din, although plea of delay in filing the said appeal was specifically; raised, yet the Additional Settlement Commissioner (Land) after noting the point of delay, gave no finding either condoning the said delay or dismissing the appeal on the point of limitation. He, however, dismissed the appeal on merits. The grievance of the petitioner against this order is that it was the duty of the Additional Settlement Commissioner (Land) to decide the question of limitation first and then proceed with the merits of the case. According to him, this order is bad in law, because the Additional Settlement Commissioner (Land) has neither condoned the delay, nor dismissed the appeal on the ground of such delay. On the other hand, the learned counsel for the contesting respondent contends that since the appeal was disposed of on merits, it should be presumed that the delay was condoned. A perusal of this order shows that question of delay was raised before the Additional Settlement Commissioner (Land) and he has noted this point as one of the contentions raised on behalf of Gulab Din deceased. It is, however, an admitted fact that there is no finding whatever either condoning the said delay or dismissing the appeal on that point alone. Without expressing any opinion on the question of limitation, he dismissed the appeal on merits. In this background, we have to see the effect of the omission on the part of the Additional Settlement Commissioner (Land) for not first deciding the question of limitation but instead disposing of the appeal on merits. Abdul Ghani respondent, who was the appellant before the Additional Settlement Commissioner (Land) has not been able to point out any material on the record to show that the delay in filing the appeal was in fact condoned by the Additional Settlement Commissioner (Land). Even a copy of the application filed under section 5 of the Limitation Act for condonation of said delay has not been placed on the record. According to the petitioner, no such application was sub mitted by the present respondent and consequently there was no order for condoning the delay. It is well settled now that while condoning the delay the Court or Tribunal must come to the conclusion that there exists sufficient cause for condoning such delay. In the instant case, the onus was upon Abdul Ghani respondent, who had filed that appeal, to show that in fact the delay was condoned and that there was sufficient cause as required by law for the condonation of said delay. He has failed to discharge that onus. In these circumstances, it can safely be inferred that the delay in filing the appeal was not condoned. Moreover, it is not denied that in the absence of allegation of fraud or misrepresentation or any other illegality committed in securing the allotment by Gulab Din deceased respondent, section 5 of the Limitation Act will not be applicable to the Displaced Persons (Land Settlement) Act, 1958, and to the present case. Perhaps, realizing this weakness, the learned counsel for Abdul Ghani respondent, has contended that since the appeal was decided on merits, therefore, it should be presumed that the delay was condoned. Since it was the duty of the Additional Settlement Commissioner (Land) to decide the question of limitation first and he failed to do so, his order dated 27-11-1968 is, there fore, clearly bad in the eye-of-law. The mere fact that the result remained in favour of Gulab Din deceased would not cure the defect. Similarly, the question of waiver would also not arise. Reliance in this behalf cans safely be placed on the following observations of their Lordships of the e Supreme Court in Ahsan Ali's case PLD19699C167 . "It is clear, therefore, that whether the plea of limitation was raised or not, it was the duty of the Settlement Court, to notice the point of limitation. A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special or a local law. It has also been held by this Court in several eases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must .have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceedings on merits." In view of the law enunciated by the Supreme Court it was imperative for the Additional Settlement Commissioner (Land) to decide first the question of limitation either by condoning the delay and showing sufficient cause for the same or dismissing the appeal as barred by time. As mentioned above, except mere mention of this point of limitation raised on behalf of Gulab Din respondent, there is no finding or even discussion on the question of limitation in the order of the Additional Settlement Commissioner (Land) dated 27-11-1968. Thus, his order is clearly bad in law. Similarly, the mere disposal of the appeal on merits cannot lead to the inference that the delay was condoned by the Additional Settlement Commissioner (Land).

4. Against the order of the Additional Settlement Commissioner dated 27-11-1968, Abdul Ghani respondent filed a revision petition before Sh. Muhammad Tufail, Settlement Commissioner (Land) who vide order dated 14-6-1969 (Annex. R/1) accepted the same by making certain observa tions and remanded the case to the Additional Settlement Commissioner (Land) for fresh decision in the light of the observations made by him. The learned counsel for Abdul Ghani respondent vehemently contends that the present petitioner did not challenge this order of the Settlement Commissioner (Land) dated 14-6-1969 and, therefore, the finding given in that order has attained finality. According to him, the present impugned orders are only in implementation of the said order dated 14-6-1969 passed by the Settlement Commissioner (Land). Since that order still holds the field, the writ petition according to the respondent is liable to be dismissed on this short ground alone. Let us examine the validity of this order. It is admitted by the learned counsel for the respondent before me that the Settlement Commissioner while accepting the revision petition has not even mentioned the fact that the appeal before the Additional Settlement Commissioner (Land) was barred by limitation. It is, therefore, clear that the Settle ment Commissioner (Land) was not even conscious of this fact and, therefore, disposed of the case on merits. The omission on the part of the Settlement Commissioner (Land) to consider this legal aspect of the case clearly] renders his order as without lawful authority. Again reliance can clearly] placed upon the following observations of their Lordships of the Supreme Court in Azmat Ali's case PLD1964SC260 :- "A further question that arose for consideration was as to whether Khan Farzand Ali Khan himself had acted in the proper exercise of his jurisdiction in dealing with the revision on merits without considering as to whether the order dismissing the appeal on the ground that it was barred by limitation was proper or not. There was nothing in the order of Khan Farzand Ali Khan to show that he was even conscious that any question of limitation arose. In the circumstances, we are unable to appreciate how the High Court thought it fit to restore the order of the Settlement Commissioner which itself was liable to be quashed in the writ jurisdiction." The learned counsel for the respondent is not able to cite any authority to the contrary. He, however, argues that since that order was not challenged earlier by the present petitioner and has not been impugned even in the present Writ Petition, therefore, any defect in that order cannot help the petitioner. We are bound by the law declared by the Supreme Court and to act in aid of the same. The order of the Settlement Commis sioner being clearly contrary to the principle enunciated by the Supreme Court, is liable to be quashed. If the Additional Settlement Commissioner (Land) had dismissed the appeal of Abdul Ghani respondent on the ground of limitation alone, the Settlement Commissioner could not accept the revision petition on merits. His order, therefore, is clearly void and cannot be allowed to remain in the field. The mere omission on the part of the petitioner to impugn this order should not be allowed to stand in the way of justice. The learned counsel for the petitioner during the argument has verbally prayed to allow him to impugn this order of the Settlement Commissioner as well. There is no legal bar to accept such an oral request, especially when the same is in the interest of justice. It is well settled now that law should be administered and interpreted in favour of doing justice and not to perpetuate injustice. This Court in exercise of its jurisdiction under Article 201. of the Constitution has ample power to remove any technical hurdle in the way of doing complete justice. Accordingly, disagreeing with the learned counsel for the contesting respondent, this order of the Settlement Commissioner (Land) dated 14-6-1969 cannot be allowed to remain in the field. It is true that the subsequent impugned orders only implement the direction given by the Settlement Commissioner in his order dated 14-6-1969. If the basic order of the Settle ment Commissioner is without lawful authority, the subsequent orders based upon that order will automatically fall to the ground. Hence the impugned orders along with the order of the Settlement Commissioner dated 14-6-1969 are all liable to be quashed.

5. There is another circumstance on the equity side which goes against Abdul Ghani respondent. He got his 1000 produce index units transferred to this village. On 6-8-1964 he was allotted land measuring 169 kanals 16 marlas which was originally shown against his 1000 units but now has been shown as equivalent to 313.38 produce index units. Thus, his surplus units pending in this village are shown as 686.62. The allotment made in favour of Gulab Din deceased respondent was against his 232 produce index units (Annex. R/3). If after cancelling the allotment of Gulab Din deceased this land is allowed to remain with Abdul Ghani respondent, still he will be left with 454.62 produce index units. It is an admitted fact that no land is available in this village for fresh allotment. The result is that the respondent will have to take his 454.62 surplus units out of this village. On the other hand, so far as Gulab Din's claim is concerned, he got 284 produce index units transferred to this village and got allotment for 232 produce index units in 1966. Thus, practically all his units have been exhausted. The land allotted to him was sold to Noor Hassan petitioner in 1967. If the initial allotment of Gulab Din deceased is maintained practically all his units transferred to this village will stand satisfied. In any case, the interest of the petitioner being a bona fide vendee of Gulab Din deceased respondent, will be protected.

6. The learned counsel for the contesting respondent has tried to argue that the local Patwari at the time of allotment on 6-8-1964 dishonestly described banjar land as chahi so that his entire units may be exhausted and surplus area may be subsequently allotted to Gulab Din deceased respon dent. I am not inclined to agree with him for the simple reason that allotment in favour of Abdul Ghani respondent was made on 6-8-1964, while the produce index units of said Gulab Din were transferred to this village in 1966 and land was confirmed in his favour on 15-10-1966. If there had been any such intention, the said respondent could not wait for such a long period to get the allotment. Moreover, it is not denied that at the time of allotment in favour of Abdul Ghani respondent, even the produce index units of said Gulab Din had not yet been transferred to this village. It was not the Patwari alone who was responsible for the allot ment, but there were other more responsible officials, who confirmed the allotment. There is no material available on the record to show any connection between the said Patwari and Gulab Din deceased respondent. The respondent has not been able to substantiate this allegation. In the absence of any material available on the record, it is not proper to accept this plea. It is rather probable that the mistake may have been committed in the routine, as at that time there was no immediate beneficiary available. It may also be observed that the order dated 6-5-1967 correcting the kind of soil has not been placed on the record by the respondent. According to the petitioner, the order correcting the kind of soil was secured by Abdul Ghani respondent by under-hand means and in order to conceal the defect in that order he got the whole file containing the said order and the other proceedings, misplaced as the same is not available in the office of the Deputy Commissioner, Sialkot. In the absence of the said order and the relevant material, it is not safe to express any opinion on this point.

7. For the foregoing reasons, the impugned orders coupled with the earlier order of the Settlement Commissioner (Land) dated 14-6-1969 are clearly without lawful authority and of no legal effect and I declare them as such. The Writ Petition is allowed with no order as to costs. S. A. H. Petition allowed.