1974 PLP 323 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from an order of a learned Single Judge of the Peshawar High Court dismissing a writ petition filed to challenge the validity of an order of the Settlement Authorities regarding the transfer of a water‑mill on Khasra No. 2453 in village Palosai. The petitioner claims that he came into occupation of this mill soon after Partition and spent considerable amounts of money to improve it and make it workable. Nevertheless, be did not seek either its allotment or transfer. Indeed, when in 1960 the water‑mill was transferred to one Muhammad Din he acquiesced in it and accepted the position of a tenant under the said transferee. If ha had any claim as to the transfer of the water‑mill, this by itself was sufficient to show that he had waived his right, If any. Subsequently, when the transferee was not able to pay its full price, the mill was put up to unrestricted public auction on the 26th of May 1965. Again, the petitioner did not bid for it and it was sold to the respondent. Gul Hussain. The petitioner not only did not bid for the mill but actually allowed the same to be confirmed on the 20th of October 1965. On this date the transfer in favour of the first transferee Muhammad Din was also cancelled. It was only after this that on the 29th of November 1965 the petitioner put in an application for the transfer of the mill. This was naturally ignored and a P. T. O. was issued in favour of the auction‑purchaser on the 27th of December 1965. The petitioner again kept quiet until the 12th of October 1966 when he put in a second application as if it was a reminder to his first application for the transfer. The Department informed him by letter of the 15th of December 196 , that the application could not be considered as the property had already been transferred and, therefore, the petitioner should seek such legal remedy as he was entitled to. Even then he did not do anything again, until the 15th of April 1967, when he came to the High Court invoking its writ jurisdiction. The, High Court of Peshawar dismissed the writ holding that the water‑mill was an industrial concern which was disposable under paragraph 15 of, Scheme No. It and, therefore, the petitioner should have applied for it under paragraph 8 of the Scheme within ten days of the publication of the advertisement of the auction. In any event, the application of the petitioner filed in April 1967 was hopelessly barred by laches: We have heard the learned counsel who has endeavoured to argue that a water‑mill is not an industrial concern but a rural building which is transferable under Scheme No. V11 and not under Scheme No.

11. We are unable to accept his contention. The High Court has rightly referred to a notification issued by the Department under which a water‑mill has been treated as an industrial concern. In any event, we are of the clear opinion that the application for the transfer of the water‑mill was hopelessly misconceived, as the petitioner, by failing to apply for its transfer in 1960 and actually accepting a tenancy under the transferee Muhammad Din, abandoned his Tight to the transfer of the property. He had no further claim to this property. His petition was therefore rightly rejected. The petitioner's action throughout has not been one of a person diligently pursuing his rights. The petitioner has only himself to blame for not being able to secure this water‑mill. This petition is accordingly dismissed. Leave refused.