P L D 1983 Supreme Court 96 (PLP)

SHAFI-UR-REHMAN, J.-Leave to appeal was granted to Muhammad Hanif Khan, a claimant displaced person, to examine whether the transfer in his favour had not become a past and closed transaction which could not be subsequently successfully challenged by the respondent, a local, and whether having accepted the appellant as his landlord the latter was not barred in law, from disputing his title. The respondent Ch. Muzaffar Hussain was a local in occupation of the disputed property which is a House No. 25, Block 13, Sargodha. He had been allotted this house out of the 10 per cent quota reserved for accommodating the locals. On the enforcement of Settlement Scheme No. 1 he applied on N. H. Form for the transfer of this house. His claim form remained unattended as according to the instructions of the Chief Settlement Commissioner (published at pages 79 and 90 of old edition of Settlement Manual) then in the field the alternative higher assessment of the property had to be taken for valuing the property and on that basis its value came to be more than R. 10,

000. The property was placed in the earmarking and notified as such. The appellant emerged successful in the earmarking and he was transferred this property. He obtained a P. T. O. on 8-1-1960. He, thereafter, served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act on the respondent who replied to it and in course of time ejectment proceedings were instituted by the petitioners and an order of ejectment of the respondent was passed by the Rent Controller. After the Chief Settlement Commissioner had withdrawn the two instructions which governed for a short period the disposal of evacuee houses to locals, the respondent became entitled to its transfer as the value of the property was reduced to below rupees ten thousand and the additional conditions required to be satisfied by the locals also stood withdrawn (published at page 625 of the New Settlement Manual). On 15-9-1961 the respondent applied to the Deputy Settlement Commissioner for transfer of the house. He ultimately moved the Additional Settlement Commissioner for review of the orders passed in earmarking and the application is dated 26th March, 1962. After obtaining the report from the Deputy Settlement Commissioner a recommendation was made to the Settlement Commissioner for permitting the review of the orders passed in favour of the petitioner with regard to the transfer of the house. On 9-8-1962 the Settlement Commissioner refused the review on the ground that in the meantime the powers of review had been taken away. The respondent thereupon filed a constitutional petition in the High Court challenging the refusal of the Settlement Commissioner to permit review of the order whereby the property had .been placed in the earmarking and transferred to the appellant. The constitutional petition was allowed by a learned Judge of the High, Court on the ground that the respondent could not object to the placing of the property in the earmarking because though he was entitled under the Schedule and Settlement Scheme No. I framed under Displaced Persons (Compensation and Rehabilitation) Act, the instruction of the Chief Settlement Commissioner then in the field disentitled him. It was also found that the respondent had filed an application on the 16th September, 1961 seeking review of the orders as was required by the subsequent instructions (Page 625 of the New Settlement Manual) of the Chief Settlement Commissioner whereby the earlier instructions were rescinded. As this application had been filed before the amendment of the law by Ordinance No. 11 of 1962 and Ordinance No. XIII of 1962 enforced on 13-1-1962 and 17-3-1972 respectively, the proceeding on this application remained protected and unaffected. The appellant thereafter filed a Letters Patent Appeal and challenged the decision of the learned Single Judge but the same was confirmed and the appeal dismissed. The learned counsel for the appellant has contended that in view of the instructions that held the field at the time when the respondent applied for the transfer of the property . he was not eligible for it. He, therefore, did not pursue the L. H. Form filed by him and instead allowed the house to be placed in the earmarking list and to be disposed of in favour of the appellant. He also attorned to the appellant on receipt of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. It was only subsequently when he wanted that the property should be renovated and when that was not done, that he withheld the rent and an eviction .order was passed. It was at that stage that he thought of reviving his L. H. Form which on one view became possible as the Chief Settlement Commissioner issued instructions dated 27-7-1961 and 9-8-1961 to be found at page 625 of the New Settlement Manual. Though a review of such cases had been permitted, such a review could not be allowed 'to take place because the transfer in favour of the appellant had become a past and closed transaction and the respondent was estopped from claiming any relief as be had attorned and accepted the appellant as his landlord. The learned counsel has cited in support decisions of this Court in Hafiz Ahmed Shafi v. Kalu and others (1967 Law Notes S C (NUC) 17) which he considers almost identical on facts and in Syed Mir Ahmed Shah v. Abdur Rahman and others (1970 S C M R 652). There are two preliminary objections raised by the learned counsel for the respondent with regard to the competence of this appeal. It is stated .that Muhammad Hanif Khan, the appellant, has become insane and is consequently not in a position to pursue his appeal and even his whereabouts are not known. There is an application made by one of his sons who wants to be granted the permission to sue as his next friend. The other objection of the learned counsel for the respondent is that the respondent. No. 1 had died in 1.978 and the application for bringing on record his legal representatives was filed after a delay of 807 days. In reply the learned counsel for the appellant has informed that, in fact, the eldest son of Hanif Khan who was also present in Court at the hearing and who is also known as Nafees though his name is Muhammad Rafique, he undertaken the responsibility of acting as his next friend and his interest is not in conflict with any other person claiming through the insane Muhammad Hanif. Hence we overrule this objection and allow him to pursue the proceedings. As regards the inordinate delay in filing the applications for bringing o record the legal representatives it has been stated and duly confirmed by the affidavit that the mental state of the appellant and the position of the next friend made it impossible for them to lie promptly aware of the death of the e respondent and as soon as they came to know of it when an objection was raised to that effect they impleaded all the heirs. We find that the delay has been properly explained and accounted for and we permit the impleading of? the legal representatives of the deceased respondent and condone the delay that has taken place in doing so. Coming now to the merits of the case we find that the Chief Settlement Commissioner had issued instructions touching the eligibility of locals which were inconsistent with the statutory provisions on the subject. On realizing.; it and under the directions of the Central Government those instructions were rescinded and at the same time a remedy provided to those adversely affected by those instructions. On a stricter view of the law actions taken under instructions which were in conflict or inconsistent with parent law under which they were framed or issued could not attain legality, finality and efficacy. For this reason it appears, the Central Government directed that the action taken be reviewed wherever the adversely affected party sought a review. It wash an effort to permit formal undoing of a nullity. There could be no question of such transactions becoming past and closed transaction. For becoming past and closed transaction there had to be something more, something else in addition to the action under illegal instruction. It would be a past and closed transaction where a person chose not to apply at all for the transfer of the property, or got an adjudication of his rights with opportunity to challenge it in the appropriate hierarchy but failed to do so, or otherwise accepted and submitted to the change so brought about. Applying these tests we find that in the case of Mir Ahmed Shah the claim form filed by the local had been rejected and he had been informed of its rejection. He filed appeal only when the intervening instructions were rescinded and failed because the property had in the meantime been transferred in earmarking. His constitutional petition failed because of "his failure to pursue his rights in proper time". The decision in Ahmed Shafi's case apparently gives the impression of being very close, on facts and on law, to the case in hand. A closer scrutiny however, reveals a number of distinguishing features. The High Court had in that case held that; (i) the local had filed the form "sometimes after the disposal of the property in the ear-marking" and no question of prior disposal of his form arose; (ii) the value of the property was more than ten thousand rupees; . (iii) the only ground on which locals form. was rejected was "that the property had already been disposed of by drawing of lots" and there was no suggestion in that order "that the Assistant Settlement Commissioner was in any way influenced by these instructions of the.- Chief Settlement Commissioner"; (iv) the local not only accepted the transferee as the landlord but also accepted the assessed rent of the property on the basis of which the property was of value higher than rupees ten thousand. In this background of facts the Settlement Authorities had declined to reopen the case for the benefit of the local and his constitutional petition challenging this refusal had failed before the learned Judge in chambers and in Letters Patent Appeal. This Court declined to grant leave .to appeal on the ground that it was past and closed transaction and that the local was estopped by his conduct. In the case now under consideration the form filed by the respondent was not disposed of at all. It remained unattended, apparently because of the instructions of the Chief Settlement Commissioner. When these instructions were rescinded he sought what the law permitted viz. review of order. He was granted relief in the constitutional petition and the Letters Patent Bench affirmed the decision. The transfer in favour of the appellant could not on the facts of the case be a past and closed transaction because the form of the appellant was never adjudicated upon. .It remained unattended. It was prior in time to disposal by earmarking. So far as the conduct of the respondent after receipt on notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act is concerned, he being a statutory tenant was obliged to recognize the P. T. O. holder for the time being as his landlord and discharge the obligations of a tenant arising out of that very statute. Such a recognition or submission did not affect his right, if any, to challenge in appropriate forums the transfer of the property itself. We find that the appeal has no merit and is dismissed. No order is however, made with regard to costs. s. Q. ??? Appeal dismissed.