P L D 1965 (W (PLP)

The petitioners are the heirs of Muhammad Yahya who was a displaced person from Delhi. They were allotted a garden of 9 acres situated in Kot Khawaja Saeed, Tehsil Lahore, by order of the Garden Allotment Committee dated 5th November 1953. On 28th April 1958, they received a notice from the Additional Rehabilitation Commissioner, and Secretary (Administration) to the Rehabilitation Commissioner West Pakistan, requiring them to show cause as to why the allotment should not be cancelled as the garden had not been maintained in a proper condition. Ultimately their allotment was cancelled by late Ch. Nabi Ahmad, the Additional Rehabilitation Commissioner by his order dated 29th June 1959, on the alleged contravention of condition No. 1 of the allotment, namely, that the garden had not been properly maintained. The petitioners filed a review application wherein they alleged that they had not only maintained the garden properly but had actually spent large amounts on the improvement of the same. At the time of hearing it was contended on behalf of the Rehabilitation Department that since the petitioners did not own any garden in Delhi they were not entitled to the restoration of the allotment. It was urged by the petitioners that due to a mistake on the part of Revenue Staff in India the entry as regards the garden abandoned by them in Delhi was not contained in special Jamabandi, but that they had the registered deed showing that a garden of 37.1 bighas was purchased by Muhammad Yahya on 22nd June 1942, in village Malikpur within the Municipal limits of Delhi. An extract from Jamabandi of the year 1949‑50 was also produced. However, Mr. Abdul Majid Khan, Additional Rehabilitation Commissioner, who had in the meantime, succeeded late Ch. Nabi Ahmad, dismissed the review petition on the ground that he had no power to review the order of his predecessor. The petitioner thereupon filed a revision petition in the Court of Chief Settlement and Rehabilitation Commissioner who passed the following order on 19th November 1961:‑ "I have heard Mr. Ghulam Mujtaba, Advocate, for the petitioner. He has produced before me a copy of Fard Jamabandi for village Malikpur Chhacai (Delhi Urban) in this Jamabandi Survey Nos. 610/334 and 338 are shown as Nehri garden (Bagh‑i‑nehri) on the khata of Muhammad Yahya son of Muhammad Umar, the father of the petitioner, Muhammad Usman. He has produced before me a certified copy of the order of the Custodian dated the 4th January 1954, in which these survey numbers are shown to be on the khata of Muhammad Yahya son of Muhammad Umar. He has also shown me the purchase deed dated 22nd June 1942, which shows that Muhammad Yahya son of Muhammad Umar purchased one garden comprising Khasras Nos. 606/331, 610/334, 338/8, 604/330, 608/333 situated in village Malikpur Chhacai within the Urban area of Delhi, from Faiz‑ul‑Hassan son of Syed Badar‑ud‑Din. These pieces of evidence are adequate to refer this case to border comparison. The papers referred to above should be sent to the O'. S. D., C. R. O., who should arrange a border comparison as early as possible. Till the border comparison takes place and further orders are issued in this case, the possession of Muhammad Usman, petitioner should not be disturbed."

2. In pursuance of this order of the Chief Settlement and Rehabilitation Commissioner a comparison was held at the border and it was found that the petitioners' father had left a garden of 37.1 bighas in Delhi Urban area.

3. In the meantime the petitioners file their claim under the Claims Registration Act, 1956, under Schedule IV with respect to this garden. The claim was verified on 5th August 1960, by a review petition which was dismissed on 7th November 1960, he Deputy Claims Commissioner, Karach". The petitioners filed. The petitioners filed UR‑I forms in accordance with para. 9 of the Supplementary Scheme No. 2 on 25th August 1960. Someone in the office of O. S. D. noted on the form Zaid-ul-Mayad & Dakhil Duftar . This order does not bear the signature of any officer. The petitioners submitted another UR‑1 Form on 14th December 1960, which was within 15 days of the grant of copy in respect of the verification order passed by action has been taken on this UR‑1 form.

4. The petitioners were issued another show‑cause notice as to why the allotment of their garden be not cancelled as they had failed to adjust their claim. The petitioners contested this notice. They pleaded that their UR‑1 form was within time; that it had been established by unimpeachable evidence that they had abandoned 37.1 bighas Urban garden in Delhi, consequently there was no reason to cancel the allotment. However, the O. S. D. with powers of the Additional Settlement Commissioner (Land) by his Order No. 136‑A/12/767 R. (L) Garden, Lahore, dated the 18th September 1961, informed the Additional Deputy Commissioner and Deputy Rehabilitation Commissioner (Land), Lahore, that the allotment order made in the year 1953, in the name of Haji Muhammad Yahya son of Muhammad Umar had been cancelled and that he should take possession of the same and maintain the same pending its allotment to a deserving claimant by the Additional Settlement Commissioner (Land), West Pakistan, Lahore. It was mentioned in the order that the allotment had been cancelled for non‑adjustment of produce index units. It is alleged by the petitioners that on the next day the possession of the garden was taken away with the help' of the police and a military officer and delivered to Khan Ghulam Mohy‑ud‑Din Khan (Nawab of Sadar Garh) respondent No. 3 This order was passed in the absence of the petitioners. A notice was issued to the petitioners on the 20th September 1961, that their allotment had been cancelled. The petitioners by means of this writ petition have prayed that the order of the cancellation of the garden from their names by order dated 18th September 1961, be quashed and the respondent No. 1 be directed to issue the entitlement forms (UR‑V) to the petitioners to which they were entitled under the law on the following grounds:‑ (i) That the revision petition `which was filed before the Chief Settlement and Rehabilitation Commissioner had not yet been finally disposed of, consequently the order dated 18th September 1961, was without jurisdiction. (ii) That the UR‑1 form submitted by the petitioners had not been properly disposed of. (iii) That the UR‑1 form submitted by the petitioners on 25th August 1960. was within the period provided in the first Press Note which was issued on the very day the Supplementary Scheme No. 2 was promulgated. That the subsequent Press Note issued by the Chief Settlement Commissioner curtailing the period for filing the UR‑1 form from 30 days to 15 days had not been published in the newspapers, consequently the petitioners had no knowledge of the same and it could not have a binding effect on the petitioners. It has been, further, urged that even if there was a delay of 2 days in filing the form there were sufficient grounds to condone the delay. (iv) That respondent No. 1 had wilfully ignored the directions of the Central Government to dispose of the petitioners case regarding their UR‑1 Form in accordance with law. (v) That the petitioners entitlement had been established on border comparison which was carried out under the supervision of the O. S. D. and in spite of that lie cancelled the allotment of the petitioners and thus deprived them of their valuable right to retain the garden in dispute in lieu of the garden abandoned by them. (vi) That all these actions of respondents Nos. 1 and 2 were mala fide and were actuated with a desire to somehow or other hand over the garden in dispute to respondent No. 3.

5. These contentions of the petitioners have been controverted by the three respondents. It has been urged on behalf of respondents Nos. 1 and 2 that the petitioners were themselves to blame for the cancellation of this garden as they failed to file the UR‑1 form within the‑ period prescribed in the 2nd Press Note. It is admitted that it had been established that the petitioners had abandoned a garden of 37.1 bighas in Urban area in Delhi. It has, however, been urged that because of the failure of the petitioners to put in their UR‑1 form within the period provided, they were not entitled to receive any (UR‑V) entitlement form consequently the O. S. D. had no alternative but to cancel the allotment.

6. By means of the Press Note issued on the 29th August 1959, the claimants were directed that they should file the UR‑1 within one month of the verification of their claim forms minus the period spent in obtaining the copies. However, on the 23rd of April 1960, the Chief Settlement and Rehabilitation Commissioner issued another Press Note whereby the period of one month was curtailed to 15 days. This Press Note, no doubt, was broadcast on the Radio Pakistan on the 23rd April 1960, but the respondents have failed to show that the Press Note was ever published in any newspaper. The curtailment of the period of limitation is not such an act that the public be made to suffer without making adequate arrangement for its publication. It is admitted by the learned counsel for the respondents Nos. 1 and 2 that a copy of the Press Note was sent to the Public Relations Officer for favour of wide ‑publicity through Radio and Press. The reason is absolutely clear that the Chief Settlement and Rehabilitation Commissioner wanted that the parties who might be affected by the curtailment of the period should be informed of this order. The respondents have failed to prove that this Press Note ever appeared in any Newspaper, so it is a misnomer to call it a Press Note. This is only an order passed by the Settlement Commissioner in his office which was broadcast only once on the Radio on the 23rd of April 1960. It is too much to presume that the petitioners out of whom five were panda nashin ladies could have known the curtailment of the period of limitation. Before a party could be affected by a delegated legislation it is incumbent upon the authority issuing the legislation to adopt ways and means to have this legislation known to the public. The Chief Settlement Commissioner was alive of this situation and he, therefore, wanted the same to be notified through press but it is established that it was never done. The Chief Settlement Commissioner has been condoning the delay in filing UR‑1 forms. There is no express provision in the Scheme authorising him to pass such orders. For argument sake if it be held that since under para. 9 of the Scheme the Chief Settlement and Rehabilitation Commissioner was empowered to issue successive press notes extending or curtailing the period of limitation and thus he will be deemed to have the power to condone the delay in filing the forms, the power will have to be exercised in a judicial manner. The learned counsel for the petitioners stated that the Chief Settlement and Rehabilitation Commissioner had, in several cases, condoned the delay in filing the forms. He cited five specific cases. It is clear 'that the petitioners could not ascertain the exact number of cases in, which the delay had been condoned and I have no doubt that there must have been several other cases. A report has been sent from the office of the Chief Settlement and Rehabilitation Commissioner admitting that the delay in the cases that were mentioned by the learned counsel for the petitioners had been condoned. The delay in the case of Khan Iftikhar Husain Khan of Mamdot was condoned in view of the fact that neither the verification order was passed by the Claims Organization in the presence of the claimant nor was he informed of the verification order. The delay in the cases of Mufti Mushtaq Ahmad, Mst. Riazun Nisa Begum and Salamtullah Khan, was condoned in view of a general order issued by the Chief Settlement and Rehabilitation Commissioner that the belated forms filed earlier than 31st June 1960, should be accepted as within limitation, this indicates that a large number of claim forms were thus declared as within time. In the case of Major Fazal Aleem the reason of condonation was not available but it was done under the orders of the Central Government In the case of the unfortunate petitioners I am pained to see that the Chief Settlement Commissioner in his note dated 14th May 1963; has clearly remarked that in the present case he did not consider that the delay of two days should be condoned Although it is clear that the second Press Note curtailing th period of limitation had not been notified in the press, that out of the six petitioners, five were panda nashin ladies and the lived in Karachi. They have stated that the delay of two days was caused because the claim was verified at Karachi and their Attorney had to come to Lahore to file the form, and that the subsequent Press Note was not in the knowledge of the petitioners. The forms filed were not dealt with in a judicial manner, so much so, that the order on the forms submitted by the petitioners is not signed by any officer. The contention of the learned counsel for the respondents is that since the period of limitation had been fixed by the Chief Settlement and Rehabilitation Commissioner the O. S. D. could have even refused to entertain the form which was filed after the limitation. Section 5 of the Limitation Act has been made applicable to all the proceedings under the Rehabilitation Act. The condonation of delay by the Chie Settlement and Rehabilitation Commissioner in some of the cases would show that he had such a power. The proper thing to' do would be that the officer receiving the claim forms should pass a judicial order declaring the claim form to be barred by limitation so that the party affected by the order might ' file an appeal or revision against the order rejecting the form on the basis of limitation. According to the present arrangement there is no course open to a party whose claim is declared to be barred by limitation. Valuable rights of property of the refugees should not thus be destroyed. The reason advanced by the petitioners in the present case that they had no knowledge of the curtailment of be period of limitation cannot be said the be frivolous. The petitioners sent applications to the Central Government and as is clear from their letter, the Central Government was satisfied that two days delay in filing the forms had been properly explained but in spite of that no orders were passed on the forms. The Central Government has remarked in their letter that in the instant case the provisions of Limitation Act relating to condonation of delay appeared attracted and as it was only a case of condonation of two days' delay the case be considered from this aspect and disposed of vide Press Note dated 23rd April 1960. It is surprising that in this case in spite of the directions of the Central Government the Chief Settlement and Rehabilitation Commissioner did not consider it proper to extend the period of limitation. It has not been contended by the learned counsel for the respondent No. I that the Central Government had no power to condone the delay. I consider that the wish of the Central: Government that the delay in the case of the petitioners should be condoned amounted to an order which it was not possible for the Chief Settlement and Rehabilitation Commissioner to disobey. In the present case I am clearly of the view that the form filed by the petitioners was within limitation because the second Press Note curtailing the period of limitation had not been notified in the press and the petitioners had no knowledge of the same. The se‑and Press Note could not be effective unless it had been duly published. The Chief Settlement and Rehabilitation Commissioner had passed an order in revision petition that the allotment in the name of the petitioners should stand and their possession should not be disturbed till their claim was compared at the border and a report submitted to him for passing final orders. I have been shown two reminders which were issued from the office of the Chief Settlement Commissioner to the O. S. D. asking for the return of the file with the result of the comparison at the border. This file I am informed has been misplaced in the officer of the O. S. D. and thus no final orders have yet been passed in that revision petition. It is surprising that the Chief Settlement and Rehabilitation Commissioner even after he came to know that the file of the revision was lost, did not care to have it re‑constructed and pass final orders which on the face of it, could not have been passed against the petitioners as they were successful in establishing it at the border comparison that they had abandoned an urban garden in Delhi of 37.1 bighas. I am sorry to note that in spite of unimpeachable evidence proving that the petitioners who are refugees had abandoned urban garden in Delhi, the learned Chief Settlement and Rehabilitation Commissioner is not willing to either condone the delay or to pass final orders in the revision petition which will be deemed to be still pending. The disappearance of the file from the office of the O. S. D. should have given a cause to the Chief' Settlement and Rehabilitation Commissioner to take proceedings against person or persons responsible for its disappearance. It seems clear to me that somebody in the office of the O. S. D. is very intimately interested in respondent No.

3. The cancellation order was communicated to the Deputy Rehabilitation Commissioner on 18th. September 1961. The possession of the garden was taken with the police force and a military officer on the 19th September 1961, while the intimation of the cancellation was sent to the petitioners on the 20th September 1961. In spite of the fact that the file containing the order of the Chief Settlement Commissioner had been sent to the O. S. D. and the order of the Chief Settlement and Rehabilitation Commissioner clearly prohibited the cancellation of the allotment of the garden from the name of the petitioners, until comparison at the border and the passing of the final order by the Chief Settlement Commissioner, the allotment was cancelled. The O. S. D. knew of this order of the Chief Settlement and Rehabilitation Commissioner. I have seen that he has been sending replies to the Chief Settlement Commis sioner whenever he was asked to expedite the comparison and send the file to the office of the Chief Settlement and Rehabilitation Commissioner. On the day he passed the order of the cancellation of the allotment, the garden in the name of the petitioners had already been verified to his knowledge. Under these circumstances, before passing the order of the cancellation it was the duty of the O. S: D. to submit the case to the Chief Settlement and Rehabilitation Commissioner. The manner in which the proceedings for cancellation of this garden were being taken against the petitioners on one pretext or the other, the extra ordinary haste with which the possession of the garden was taken away from the petitioners in spite of a valid stay order passed by the Chief Settlement Commissioner which was still in force, the rejection of the petitioners claim as time‑barred in the circumstances already narrated and the refusal of respondent No. 1 to condone the alleged delay of two days, although in other cases delay of several months and even years was condoned, indicate that the petitioners have received an unfair treatment in the disposal of their form and they have been unlawfully deprived of their garden.

7. I would, therefore, issue a writ directing the respondents Nos. 1 and 2 to issue (UR‑V) entitlement survey form to the petitioners in respect of their verified claim and I would also quash the order passed by the respondent No. 2 on 18th September 1961, cancelling the garden from the name of the petitioners. The respondents will pay the costs of the petitioners. K. B. A. Petition accepted.