1985 PLP 352 (SCMR)

Ch. Khalilur Rahman, Senior Advocate Supreme Court with Ishaq M. Khan, Advocate Supreme Court with Shahzad Jehangir, Advocate Supreme Court instructed by Tanvir Ahmed Khan Advocate-on-Record for Respondents. Date of hearing: 5th April, 1983. S.A. NUSRAT, J.-- The appellants have by this appeal, by leave of this Court, challenged the judgment of a Letters Patent Bench of the erstwhile High Court of West Pakistan, Lahore, dated 2-4-1970 which was passed in the background of the following facts:-

2. The property commonly known as Dinga Singh Building bearing No.S-37/R-161 Beadon Road, Lahore was declared a 'Big Mansion' by the Chief Settlement Commissioner, Lahore on the basis of its rental value as prevalent in 1946. The building has been in occupation of the appellants and the respondents Nos.l and 2 who are claimants, respondent No.3, a local, and several other persons. The respondents Nos.l to 3 by a joint application dated 2-5-1960 applied to the Chief Settlement and Rehabilitation Commissioner, Lahore for the transfer of the building in their favour on the basis of 50 years gross annual rent, as assessed by the City Corporation of Lahore in 1946. The said application, however, remained pending as at the relevant time the Chief Settlement Commissioner was not empowered to transfer such properties through negotiations. Later the Central Government in exercise of its powers under clause (b) of section 10 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 (hereinafter referred to as the Act), by a Notification No.151-Secy/R.W.60, dated 30th of May, 1960 authorised the Chief Settlement Commissioner to transfer Big Mansions by negotiation "to any person who offered at least 50 years gross annual rent of such mansion for 1946". The appellants thereupon made an application to the Chief Settlement Commissioner on 2-6-1960 and offered to purchase the disputed property at the price of 50 times of its gross annual rental value as prevailing in the year 1946. The respondents Nos. l to 3 by an application dated 17-8-1960 raised their offer to 55 years annual rental value which was accepted by Mr. I.A. Khan, Settlement Commissioner, Lahore on 22-8-1960 and the intimation of such acceptance was conveyed to the respondents by a memo. Dated 24-8-1960. The appellants, having learnt of the same made a further offer on 25-8-1960 raising their bid from 55 years rental to 60 years gross annual rent of the property. This subsequent offer of the appellants was, however, not considered, presumably, as the property had already been transferred to the respondents. The transfer of the disputed building in favour of the respondents was challenged by the appellants by means of a Writ Petition in the High Court of West Pakistan. In the said Writ Petition, a report was submitted on behalf of the Chief Settlement Commissioner that he had decided to suo motu review the acceptance order passed in favour of the respondents Nos.1 to 3 in view the higher bid offered by the appellants. On account of such statement the appellants' petition was dismissed as withdrawn with permission to file a fresh petition, if necessary.

3. When the matter came to be put up before the Chief Settlement and Rehabilitation Commissioner, he passed an order dated 16-3-1962 transferring the case under section 32-A of the Act to Sh. M. Rafiq, Settlement Commissioner with delegated powers of Chief Settlement Commissioner for disposal according to law under section 20(2) of the said Act on the ground of his pre-occupation with other most important work. The case was, therefore, heard by the said delegatee of the Chief Settlement Commissioner, who decided not to interfere with the earlier order passed by Mr. I . A .Khan dated 22-8-1960 and disposed of the case accordingly by a short order dated 11-8-1962.

4. Dissatisfied with the above order, the appellants filed a petition under Article 98 of the 1962 Constitution in the High Court of West Pakistan, Lahore, which was dismissed by a learned single Judge on 4-10-1965. The appellants thereupon filed a Letters Patent Appeal which was dismissed by a learned Division Bench of the West Pakistan High Court on the ground of limitation as well as on merits as per impugned judgment dated 2-4-1970. .

5. Leave to appeal was granted from the impugned judgment of the High Court to examine the contention whether the summary disposal of the matter by Mr. Shaikh Muhammad Rafiq was in conformity with the assurance given on behalf of the Chief Settlement Commissioner in the appellants earlier Writ Petition No.462-R of 1960 that in view of their higher offer the case would be reviewed by him suo motu and further as to whether Mr. Shaikh Muhammad Rafiq, who was invested with the powers of Chief Settlement Commissioner, was not competent to deal with the matter i.e. suo motu review of the order approving the offer made by respondents Nos. l to 3 and lastly whether the decision of the High Court was right in holding that the appellants' Letter Patent Appeal was time-barred.

6. We heard the learned counsel for the parties as well as learned counsel for the Settlement Department at some length.

7. The foremost question requiring consideration is with regard to the finding of the High Court that the Letters Patent Appeal filed by the appellants was time barred and was liable to be dismissed accordingly. Admittedly the appeal was filed beyond the prescribed period of 20 days and, in the circumstances, an application under section 5 of the Limitation Act was presented for condonation of delay. The explanation for delay furnished by the appellants was duly examined and in the ultimate analysis it was held that no sufficient ground was made out for the condonation of delay. It was observed that a valuable right in the meanwhile had been created in favour of the respondents which could not be lightly interfered with by accepting the time-barred appeal of the appellants. The finding of the learned High Court in this regard, which we have examined, is unexceptionable and we are, therefore, not inclined to differ from the same. The appeal in the circumstances merits dismissal on this short ground alone.

8. As to the merits of the case no argument was addressed on behalf of the appellants on the question of jurisdiction of Shaikh Muhammad Rafiq who had ultimately passed the order dated 11-8-1962. Even otherwise the contention raised in this behalf has no merits because by a Notification No.1313/Admn-Relt/62, dated 26th April, 1962 the Chief Settlement Commissioner had in point of fact, delegated review powers in favour of Shaikh Muhammad Rafiq. According to the last paragraph of the notification the officers invested with the powers of review were authorised to dispose of the "review cases as may be entrusted to them from time to time". Relying on the said notification the learned High Court further found that the order reviewed by Sheikh Muhammad Rafiq was not an order passed by the Chief Settlement Commissioner but an order pas6ed by an officer exercising some of the powers of the Chief Settlement Commissioner, who had ceased to hold office and in consequence there was no bar to Shaikh Muhammad Rafiq in reviewing the order.

9. As respect the contention regarding summary disposal of the case it was stated by Shaikh Muhammad Rafiq in his report submitted in the High Court pursuant to Court's order dated 8-10-1962 that the factual position of the case was that in compliance with the undertaking given in the appellants' earlier Writ Petition "the Chief Settlement Commissioner had summoned the parties and heard them, examined the record and inspected the building in presence of the parties. Seeing no ground in the case of the petitioners/ (appellants) he had upheld the order already passed in favour of the respondents Nos.l to 3". It was further stated that the actual position of the case was that at the time of acceptance of the offer of 55 years rent, there was no higher offer before the department and so the department was justified in accepting it and when a decision for accepting the higher offer has been conveyed, it was difficult for the department to withdraw offer and to hurt the confidence of the public. The petitioners should have placed their higher offer much earlier. The above comments were considered by the learned High Court and the above explanation was found to be reasonable. It was, therefore, held and rightly so, that Shaikh Muhammad Rafiq had not acted arbitrarily in rejecting the appellants' higher offer. The observations of the learned Bench of the High Court that none of the parties was vested with any statutory right to obtain transfer of the big Mansion in question and both parties were practically in the position of bidders for the property is indeed unexceptionable.

10. As a result of the above discussion we find no merit in this appeal which is accordingly dismissed with no orders as to cost. M. Z. M. Appeal dismissed.