1976 PLP 344 (SCMR)

MUHAMMAD AKRAM, J.‑This is a petition under Article 185 (3) of the Constitution of the Islamic Republic of Pakistan for special leave to appeal from 'the judgment of a learned Single Judge of the Labors High Court at Lahore, dismissing a writ petition filed by the petitioner ., against respondent No.

1. It appears that on the 23rd February. 1961, the respondents applied for the transfer of a plot measuring 5 marlas 6 sarsais bearing Khasra No. 8706/5204, situated in Amarpara, Rawalpindi. After the necessary completion of toe papers, the Deputy Settlement Commissioner, Rawalpindi City, on the 26th September, 1964, reserved the plot in the carne of the petitioner on average auction price plus 50%, and accordingly ordered the appendix to issue in her name. But in the meantime on the 4th November 1961, demolished house bearing No, M/541, Amarpura, Rawalpindi had been put to auction in favour of respondent No. 1 as the highest bidder and the auction was in due course confirmed in his favour by the Additi3nal Settlement Rehabilitation Commissioner on the 22nd December 1961. A P. T. and P. T. D. for the property was also issued in his name. The respondent filed an appeal against the petitioner complaining that the house thus transferred to him was wrongly reserved in the name of the petitioner as plot bearing Khasra No. 8706/5204. On the 10th May 1968, the Additional Rehabilitation and Settlement Commissioner accepted the appeal in the respondent and remanded the case to toe Deputy Settlement commissioner with the direction to inspect the site and ascertain it plot bearing Khasra No.8706/5204 was separate from vie property bearing No. M/541 transferred to the respondent or not. After the remand the Deputy Settlement Commissioner, Rawalpindi inspected the site and found that the property bearing Khasra No. 8706/5104 was actually not a plot but a house as per Municipality Taxation is Rehabilitation Records and was auctioned as a demolished house to the respondent in 1951. In spite of this, it was got reserved by the petitioner by representing it to be a plot. to the opinion of the Deputy Settlement Commissioner, the property having already been disposed of through auction to favour of the respondent, could not have been transferred again to the petitioner under the reservation scheme particularly as it was not a plot according to the record before him. This order was, affirmed in appeal dismissed by the Additional Settlement and Rehabilitation Commissioner Rawalpindi on the 10th of May 1969 and upheld in revision rejects by the Settlement & Rehabilitation Commissioner, Rawalpindi Division, Rawalpindi on the 13th January 1970. Dissatisfied, the petitioner challenged the legality of these orders passed by the Settlement Authorities by means of a petition bled under Article 98 of tat late Constitution of the Islamic Republic of Pakistan 1902. but as already stated above, the writ petition was dismissed by a learned Single Judge of the Lahore High Court on the 26th October 1975). He was of toe opinion that the Settlement authorities had concurred in finding that the property to dispute was a residential house transferred to the respondent in auction and not a plot. Although the petitioner bad applied for its reservation on the 23rd of February 1961, out she took no steps whatever for tine petition of the property when it was advertised for auction. The mere tact that the property was reserved in the name of the petitioner in the year 1961 did not confer in her any valuable right. In these circumstances, in the opinion of the high Court, the petitioner was not entitled to any preference over toe respondent to the matter of the transfer of this property to her. We have heard the learned counsel for the petitioner in this petition before us. After the remand the Settlement authorities have concurred to holding that the property to in dispute was a dilapidated souse transferred to the respondent in open auction and not a plot. The petitioner applied for the transfer of the property to her by misrepresenting that it was a plot bearing Khasra No. 8706\5204 and secured the order for its reservation in her name on the 22nd September 1964, after it had already been put to auction which was duly confirmed in favour of the respondent on the 22nd December 1961. At no stage did she move for the deletion of the property from the auction list. In these circumstances, the petitioner did not come to the High Court pith clean hands and the equities were nit in her favour. At the hearing before us, for the first time, the learned counsel relied on Ahsan Ali and others v. District Judge and others (P L D 1969 S C 169) to contend that the appeal fried by the respondent before the Additional settlement & Rehabilitation Commissioner against the reservation of the plot in her name was hopelessly barred by time, but that the Additional Settlement & Rehabilitation Commissioner, on the 20th May 1968 accepted Me appeal without even adverting to the question of limitation in the appeal and without having condoned the delay. Therefore, according to the learned counsel the order of remand dated 20th May, 1968 passed in appeal was without jurisdiction and lawful authority but we find that this objection was not even raised at any stage before any of the Settlement authorities nor even before the High Court in the writ petition. The plea raises mixed questions of law and facts and cannot, therefore be allowed to raised for the first time before us in these 8 proceedings. Moreover, the remand order by the Additional Settlement and Rehabilitation Commissioner was passed as far back as the 20th May 968 but the petitioner did not even challenge its validity before Settlement Commissioner In fact she herself participated in the proceeding taken in pursuance to the remand order. She is, therefore, estopped by her conduct to raise this plea belatedly before us for the first tire. For the foregoing reasons there is no force in this petition which is accordingly rejected. Petition rejected.