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Petitioner: CH. MEHR DIN VS Respondent: NAZIR AHMED
P L D 1968 Lahore 1299
P L D 1968 Lahore 1299
Before Waheeduddin Ahmad, C. J. and Muhammad
Fazle Ghani Khan, J
Ch. MEHR DIN‑Appellant
Versus
NAZIR AHMED AND OTHERS‑Respondents
Letters Patent Appeal No. 785 of 1966, decided on 17th May 1968.
(a) Limitation Act (IX of 1908)----S. S‑Condonation of delay Condonation cannot be presumed upon mere noting in order‑Authority concerned duty bound to apply its mind to cause of delay and exercise discretion on sound judicial principles.
Azmat Ali v. Chief Settlement Commissioner P L D 1964 S C 260 and Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner P L D 1966 S C 276 ref.
(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)-----Sched., para. I, read with Settlement Manual (Old Edn.), p. 92‑Several occupants of house, upon joint agree ment, applying jointly for transfer of portions in their respec tive possession‑Settlement Authorities issuing separate P. T. Os. in respect of respective portions in possession of each‑Held, it could not be urged that such order of transfer was in any way not joint order of transfer.
(c) Interpretation of statutes‑---Instructions cannot act retros pectively so as to take away vested right of parties.
(d) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)----S. 19‑Right of appeal against consent order‑ Words "aggrieved party" used in S. 19 imply that appeal can be filed by an aggrieved person only‑No person in law can be said to be aggrieved by an order passed on basis of his own consent No right of appeal against order of transfer of property passed on basis of consent of parties.
(e) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---Sched., para. I‑Estoppel, principles of-- Person having applied for transfer of I/4th portion of house to his possession and having accepted transfer thereof and obtained neces sary documents and not challenging order of transfer within reasonable time‑Held, clearly estopped from asking transfer of remaining portion in possession of other occupant.
Altaf Hussain v. Shabbir Hussain P L D 1961 Lah. 449 ; Mst. Jehan Ara Begum v. Chief Settlement and Rehabilitation Commissioner P L D 1963 Kar. 726; Abdul Majid Shaida v. Mst. Noor Jehan P L D 1967 S C 221; Amir Din v. Muhammad Siddiq P L D 1966 Lah. 416; Mst. Fazal Bibi v. Ibrahim P L D 1966 Lah. 1065 and Muhammad Hanif v. The Settlement and Rehabi litation Commissioner Petition for Special Leave to Appeal No. 5 of 1962 rel.
Malik Shaukat Ali for Appellant.
M. A. Buttar for Respondent No. 1.
Dates of hearing : 16th and 17th May 1968.
JUDGMENT
MUHAMMAD FAZLE GHANI KHAN, J.‑--This is a Letters Patent Appeal against the order of a learned Single Judge of this Court passed on the 20th of January 1966 in Writ Petition No. 545/11 of 1963 by which he dismissed the writ petition under Article ,98 of the Constitution and maintained the order of the Additional Settlement Commissioner as well as the order of the Settlement Commissioner about the transfer of 1/4th portion of the property, in dispute, in occupation of the appellant, in favour of respondent Nazir Ahmad. The following are the facts:‑-
The appellant is a local. He alongwith Nazir Ahmad respondent No. 1 and Ghulam Haider, Bashir Ahmad and Muhammad Sharif, not before this Court, was in occupation of House No. S. W. IV. 21‑S. 5 situate in Mohalla Ramnagar, Chauburji, Lahore. The three families headed by Ghulam Haider, Bashir Ahmad and Muhammad Sharif occupied one half portion of the house while in the remaining 1/2 Nazir Ahmad respondent No. 1 and the appellant were in occupation of 1/4th portion each. At the advent of Settlement operations Ghulam Haider, Bashir Ahmad and Muhammad Sharif filed Form N.C. H. for the transfer of the half portion in their possession while respondent No. 1 Nazir Ahmad filed his Form N. C. H. for the transfer of 1/4th portion in his name. The appellant filed Form L. H. and requested for the transfer of 1/4th portion in his possession. During the course of transfer proceedings in the Court of Deputy Settlement Commissioner all the occupants of the house in dispute made a statement on the 24th of January 1960, that they should be given the portions in their respective possession. On the same day all of them also made a joint statement that they had agreed to obtain the transfer of this house in their favour jointly and they had no objection if their respective portions were separately transferred in their names. The individual as well as the joint statements were signed by all the occupants of the house including respondent No. 1 and the appellant. Thereafter Ahmad Yar Khan, Rehabilitation Inspector, reported to the Deputy Settlement Commissioner as follows :‑
"The house is already divided into three portions occupied by:‑
Ghulam Haider 2 rooms 24‑12‑47 N. C. H. Bashir Ahmed " 1 small Mohd Sharif room Nazir Ahmad 1 room 24‑12‑47 N. C. H. Ch. Mohr Din 1 room 24‑12‑47 L. H.
As they have decided to get their own portions and given joint statement for this effect, so the portion of each should be given to him. All have paid the rent."
The above report was accepted by the Assistant Settlement Commissioner with the power of Deputy Settlement Commissioner on the 27th of January 1960 who passed the following order:--
"I agree as proposed prepage. P.T.O.'s and necessary Appendices be issued accordingly."
This order was acted upon by all parties and each of them obtained necessary documents for their respective possession and cleared all the Government dues long before the present litigation commenced.
Sometimes in the middle of 1961 there was some dispute between the appellant and respondent No. 1 about the use of the roof of the house and for this purpose the parties approached the Deputy Settlement Commissioner for demarcation. The matter was entrusted to Settlement Inspector, Mr. Saeed Malik, who reported to the Deputy Settlement Commissioner on the 2nd of August 1961 that the parties had agreed to obtain the property as per their joint statement according to their respective possession, therefore, no question of demarcation arose and as such their application for demarcation be rejected. This recommendation was accepted by the Deputy Settlement Commis sioner on the 9th of August 1961 who directed that the parties should be informed of this fact. The appellant felt aggrieved by this order of the Deputy Settlement Commissioner and approached the Additional Settlement Commissioner in appeal requesting him for the demarcation of the two portions but the learned officer by his order dated the 28th of August 1961 rejected his appeal with the remarks that the property in suit was transferred jointly on the basis of an agreement between the parties and it was for the parties to demarcate their portions themselves. However, the learned Additional Settlement Commissioner by his order directed that the Deputy Settlement Commissioner may be asked to depute one of his Inspectors to help the parties in demarcating the area and the Deputy Settlement Commissioner concerned should do so if it could be amicably done. It appears that respondent Nazir Ahmad approached the Deputy Settlement Commissioner and requested that the demarcation proceedings be stayed as they were likely to prejudice the result of the appeal filed by him but the learned officer refused to grant this request on the 16th of November 1961 and directed that the demarcation proceedings may continue but no actual demarcation of the respective portions will be done by the Deputy Settlement Commissioner.
After the request of the parties for demarcation by the Depart ment was rejected by the Deputy Settlement Commissioner on the 9th of August 1961 vide Annexure "K" and the appeal of the appellant was dismissed by the Additional Settlement Commissioner on the 28th of August 1961 (Annexure `L'), respondent No. 1 Nazir Ahmad filed a time barred appeal in the Court of Mr. S. M. Azhar, Additional Settlement Commissioner, Lahore, on the 24th of September 1961 impugning the order of the Deputy Settlement Commissioner dated 27th of January 1960 by which he had transferred the entire property in favour of various parties according to their agreement. Respondent No. 1, in order to cover the long and inordinate delay of more than a year and eight months filed an affidavit that he had no knowledge of the above order of the Deputy Settlement Commissioner and he came to know of it when his counsel Sh. Muhammad Ashraf inspected the file. When this appeal was filed by respondent No. 1 demarcation proceedings had already commenced before the Deputy Settlement Commissioner pursuant to the order of Mr. S. M. Azhar dated the 28th of August 1961 and were finalised by the Settlement Inspector on the spot on the 5th of February 1962. The Settlement Inspector prepared a site plan showing the demarcation of the respective portions of the parties and the papers were filed by the Deputy Settlement Commissioner on the 7th of February 1962. It may be pointed out that in these demarcation proceedings respondent No. 1 fully participated and subscribed his signatures along with others to the documents which were prepared by the Settlement Inspector on the spot. It may be mentioned at this stage that respondent No. 1 filed another appeal before Additional Settlement Commissioner against the order of Deputy Settlement Commissioner deputing Settlement Inspector. This appeal as well as the belated appeal both came up for hearing before Mr. S. M. Azhar, Additional Settlement Commissioner, Lahore, on the 16th of August 1962. The learned officer set aside the consent order of the Deputy Settlement Commissioner dated 27th of January 1960 and transferred 1/4th portion of the appellant also to respondent No. 1. This gave rise to a revision petition on the part of the appellant which was rejected by Syed Ejaz Hussain Shah on the 21st of January 1963, and having failed before the learned Single Judge in writ petition, the appellant has now come up in Letters Patent Appeal.
The main contention of respondent No. 1 before the Additional Settlement Commissioner was that the disputed portion of the house contained one main entrance, a staircase and one courtyard and was, therefore, indivisible and since the appellant was a local and he was a displaced person he had preference over him. The appellant contested the appeal before the Additional Settlement Commissioner on the ground that the portion in his possession was an independent unit and since he was an allottee in possession and had paid the entire evaluation price of the portion which was less than Rs. 10,000 the order of the Deputy Settlement Commissioner which was passed on the written compromise between the parties was unassailable in law. The appellant also urged that the appeal of respondent No. 1 was barred by time. The learned Additional Settlement Commissioner simply noted the various contentions which were raised before him and accepted the appeal with the following observations :‑--
A reference to the plan Exh. 1, which is admitted to be correct by the parties will show that the disputed portion of the house in suit has one staircase, one courtyard and one of the kitchens which is in possession of Mehr Din is situate in between the portion transferred to Nazir Ahmad.
In view of the above it is not possible to hold that this disputed portion can be sub‑divided into two independent units. I am, therefore, of the opinion that this portion cannot be sub‑divided into two independent units. The appellant is a non‑claimant displaced person while the respondent is a local. In between the two the appellant has a preferential right over the respondent. I, therefore, amend the order of the D. S. C. dated 27th January 1960 so far as it concerns the transfer of the portion in dispute to Nazir Ahmad and Mehar Din and transfer this portion of the house in suit exclusively to Nazir Ahmed. Both the appeals are decided as above.
The D. S. C. concerned will prepare fresh transfer documents accordingly. The price of his portion of the house, if paid, by respondent Mehr Din as alleged by him be refunded to him."
In revision the learned Settlement Commissioner also noted the contentions of the appellant that there was an agreement between the parties on the basis of which the property was transferred to various persons and that the appeal was barred by time. The learned Settlement Commissioner repelled both the contentions of the appellant with the following observations and proceeded to determine the merits of the case in exercise of his suo moto powers of revision :‑
"It is a simple case. The Agreement of a local with a displaced person to acquire a portion of the property could not be operative for he had no entitlement or eligibility for it. The learned counsel for the petitioner laid great stress on the fact that the property had been transferred more than two years ago and the case should not have been re‑opened. Leaving side the fact that the case was re‑opened on a miscellaneous application and detailed order was also passed in this case I feel the transfer of the property in three residential portions with one portion to a local was a gross injustice and it is in this regard that I feel justified in assuming even suo moto powers.
The two portions involved are indivisible. I feel no hesitation in rejecting the petition. Both the portions i. e., the portion in possession of the petitioner and the other in possession of Nazir Ahmad himself are transferred to the latter."
In the writ petition the appellant reiterated his grounds that the orders of the Settlement authorities were illegal and void as they were in conflict with the instructions contained at pages 70 and 92 of the Settlement Manual (Old Edition) and once the house was transferred on the basis of the consent of the parties it was not open to the Settlement authorities to re‑open the matter after a period of nearly one year and eight months and since the house stood divided into three portions and the portion in possession of the appellant was of less than Rs. 10,000 value the order of transfer passed by the Deputy Settlement Commissioner on the 27th of January 1960 had become final, could not be set aside. He further urged that respondent No. 1 had only asked for 1/4th portion of the property, therefore, he could not in law be given the remain ing 1/4th which was in possession of the appellant. The learned Single Judge repelled all these contentions with the observation that the Settlement Commissioner did not agree with the Deputy Settlement Commissioner so far as the division of the premises into three portions was concerned and he was of the view that this portion was absolutely indivisible and that the Settlement Commissioner had the power to do so on his own motion for the purposes of satisfying himself as to the correctness, legality and propriety of such division and the law did not place any fetters on his powers in exercise of his revisional jurisdiction. There was thus no lack of lawful authority on his part. According to the learned Single Judge since respondent No. 1 was a non‑claimant displaced person as against the appellant was a local the Settle ment Commissioner had no choice in the matter and, therefore, he had rightly ordered the transfer of the property in his favour. In the opinion of the learned Single Judge the principles enunciat ed in some cases that a person cannot get more than what he bad applied for were not attracted to the facts of this case.
The contention that the appeal was barred by time was rejected by the learned Single Judge with the following observa tions:‑--
"Since the learned Settlement Commissioner chose to exercise his power of his own motion, the submission that an appeal does not lie against a consent order need not be gone into. It may, however, be mentioned that there does not seem to be a general principle of law, which lays down that appeals shall not lie against orders passed with the consent of parties and, strictly speaking, the law of estoppel would not be applicable to the facts of the present case on this particular point. The only provision of this sort can be found in section 96 (3) of the Code of Civil Procedure but this part of the Code is not applicable to proceedings under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 because section 23 of the said Act which confers certain powers vested in Civil Court‑ under the Code upon officers of the Settlement Depart ment does not include section 96 (3). There is, therefore, no substance in this argument either.
Since the Settlement Commissioner passed his order in the exercise of revisional jurisdiction of his own motion and said so specifically in it, the mere fact that the appeal against the order of the Deputy Settlement Commissioner was time barred does not affect the validity of the impugned order."
Learned counsel for the appellant has questioned the validity of the above order as well as of the Settlement Authorities on the following grounds :‑
(i) That the agreement of the respondent dated the 24th of January 1960 alongwith others inmates of the property in dispute that he was prepared to take only 1/4th portion in his possession and the other 1/4 should be given to the appellant was binding both upon the Settlement Authorities as well as respondent No. 1.
(ii) That the appeal of respondent No. 1 was barred by time for a period of nearly one year and eight months. The affidavit given by respondent No. 1 for the condonation of delay was false and the Additional Settlement Commissioner could not hear the appeal on merits without condoning the delay.
(iii) That respondent No. 1 having claimed 1/4th portion of the property in dispute could not claim, in law, more than that. After paying the price of 1/4th portion and having accepted the consent order of the Deputy Settlement Commis sioner dated the 27th of January 1960 he was estopped in law to challenge the validity of the order of transfer.
(iv) That the learned Settlement Commissioner rejected the revision petition of the appellant on the grounds erroneous in law and the suo moto power could not be invoked in aid of the dismissal of the revision petition of the appellant.
Mr. Muhammad Anwar Buttar opposed the appeal on behalf of the respondent and submitted, that there was no estoppel against respondent as the agreement of 24th of January 1960 was in utter disregard of various instructions issued by the Chief Settlement Commissioner. He also pointed out that the instruc tions of the Chief Settlement Commissioner which were in force at the relevant time did not make the appellant eligible for the transfer of the portion in his possession, and that the question of divisibility had finally been determined by the Settlement Commis sioner in his discretion and the High Court will not go into that question. On the question of limitation Mr. Muhammad Anwar Buttar urged that the view taken by the Supreme Court in Azmat Ali v. Chief Settlement Commissioner (P L D 1964 S C 260) has been reviewed in a later decision Mumtaz Khan v. C. S. & R. C. (P L D 1966 S C 276) and it should be presumed that the Additional Settlement Commissioner as well as the Settlement Commissioner had impliedly condoned the delay. The agreement of 24th of January 1960 was challenged by Mr. Buttar on the ground that it was not an agreement for the joint transfer of the property in dispute because the parties had obtained separate P. T. Os. and, therefore, the Settlement Authorities were fully competent to have ignored it.
The contentions of Mr. Shaukat Ali Malik, raised on behalf of the appellant, that there was an agreement between the parties and the property was obtained in accordance with it from the Deputy Settlement Commissioner, as pointed out above, were not disputed by Mr. Buttar. The learned counsel for the respondent was also unable to urge anything against the contentions that the appeal of respondent No. 1 was barred by time for a period of nearly one year and eight months and that respondent No. 1 was in full knowledge of the order of transfer passed by the Deputy Settlement Commissioner and that the present litigation commenced in demarcation proceedings. The serious objection of Mr. Shaukat Ali Malik that respondent No. 1 had filed a false affidavit with his appeal to seek the condonation of delay that he came to know for the first time about the order of the Deputy Settlement Commissioner when his counsel Mr. Muhammad Ashraf Shaikh inspected the file was also not repudiated on behalf of the respondent. The undisputed position of fact which emerges out of the above facts is that the parties, in the first instance, approached the Deputy Settlement Commissioner to obtain a joint transfer of the house and requested him that separate P. T. Os. according to their respective shares in the property, 1/4th each between the present parties and 1/2 to Ghulam Haider etc., should be issued. Thereafter all of them obtained their separate P. T. Os. and paid proportionate price to the department. Obviously, therefore, the appeal of respondent No. 1 before the Additional Settlement Commissioner, filed on the 24th of September 1961, was hopelessly time‑barred and the grounds on which the condonation of delay was sought were also false. The order of the Deputy Settlement Commissioner dated the 27th of January 1960 had by then attained finality in law and could not be re‑opened after a lapse of nearly one year and eight months on any legal and valid grounds. The Additional Settlement Commissioner merely took note of the pleas which were raised on behalf of the appellant, as already noted above, but he failed to adjudicate upon any one of those contentions. He simply confined his order to one point, namely, that it was not possible to hold that the disputed portion should be sub divided into two independent portions and since the appellant was local while the respondent was a displaced person the entire portion should go to the latter.
It is true that the argument advanced by the Additional Settlement Commissioner is sufficiently weighty but if the learned officer would have cared to examine various contentions raised before him, it would not have been necessary for him to concent rate his attention to the question of divisibility of the house and the status of the parties alone. In cases where power under section 5 of the Limitation. Act is exercised it is the duty of the A authority concerned to apply its mind to the cause of delay and l to exercise discretion on sound judicial principles. The question of limitation was not so simple as by its mere noting in the appellate order we could presume implied condonation. It had material bearing on the agreement of the parties and their subse quent conduct. The Additional Settlement Commissioner could not in law proceed to consider the appeal on merits unless the first hurdle of limitation was overcome by him in a judicial manner.
The entire proceedings before the Deputy Settlement Commissioner were based on the agreement of the parties which was in accordance with the instructions of the Chief Settlement Commis sioner dated the 30th of November 1959 printed at page 92 of the Settlement Manual (Old Edition). These instructions were issued on the reconsideration of the instructions which were earlier issued on the 22nd of October 1959 as printed on page 68 of the same book and the Chief Settlement Commissioner on the reconsideration of the matter had directed that "in case, however, persons occupying a building are prepared to take the whole building jointly by mutual agreement, which will result in the settlement of a majority of such persons the whole building may be transferred to them on the basis of such agreement provided they are entitled to the transfer of the portions in their occupa tion . . . . . "These instructions are fully in accord with the scope of the Act which provides against the immediate dislocation of the persons in occupation and the rehabilitation of maximum number of displaced persons and locals. These are not in violation of the object of the Act and in fact were aimed at to amicably settle the property upon the occupants to avoid future litigation. The Chief Settlement Commissioner has called upon his Deputy Settlement Commissioner to encourage the various occupants of the house to get the property jointly in their names. We are, therefore, clearly of the view that it was necessary for the Additional Settlement Commissioner as well as for the Settlement Commissioner to have examined the effect and validity of these instructions before deciding the case on the basis of division and status of the parties.
The joint agreement of all the parties leaves no doubt in our mind that all of them had agreed to take this property jointly and there was no other method…
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