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Petitioner: Syed MAHMUD ALAM VS Respondent: Syed MEHDI HUSSAIN AND 2 Other
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Sardar Muhammad Iqbal Title: Syed MAHMUD ALAM vs Syed MEHDI HUSSAIN AND 2 Other Case No.: Writ Petition No. 309-R of 1966 Date of Judgment:1968-10-08 Reported As: PLD 1970 Lahore 6 Result: Q.
JUDGMENT
JUDGMENT MUHAMMAD AFZAL ZULLAH, J.-This order will dispose of the reference made in Writ Petition No. 309/11 of 1966 and Writ Petitions Nos. 319/11 of 1967, 320/11 of 1967 and 386/11 of 1967. The reference has been made by a learned Single Judge of this Court (as he then was) Sajjad Ahmad, J. To answer the following question :- "Whether the relevant authority acting under the Land Settlement Act in an appeal filed under section 18 of that Act could condone the delay in the filing of the appeal, in the absence of any express provision in the Act itself to allow such extension and section 5 of the Limitation Act not having been made applicable." The facts in Writ Petition No. 309/11 of 1966, out of which this reference arose, are narrated in the next paragraph. 2. Syed Mahmood Alam, the petitioner was confirmed land in mauza Bhule Dasanawal, Tehsil Ferozewala, District Sheikhupura, by an order, dated the 28th of January 1964. Syed Mehdi Hussain, respondent No. 1, challenged that order by means of an appeal which was accepted and the allotment in favour of the petitioner was set aside by the order of the Deputy Settlement Commissioner, dated the 27th of November 1964 ; on the ground that the respondent was a sitting allottee in the village while the petitioner had got his units transferred to that village subsequently, and thus could not claim the superior right over the respondent. The petitioner had raised the objection of bar of limitation as, according to him, the appeal was filed long after the prescribed time. This objection was considered and decided by the Deputy Settlement Commissioner in the following words :-
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"As the appellant was not present at the time when allotment was proposed or later on confirmed to the respondent, he, therefore, had no knowledge of these proceedings until he later on came to know of this allotment and preferred an appeal. I, therefore, feel that there is sufficient cause for not preferring the appeal in time." The petitioner filed a revision against the appellate order. In the memorandum of revision, the fact 'Shat a time-barred appeal was accepted is no doubt mentioned in paragraphs Nos. 1 and 3-B which narrated the facts ; but the question of limitation is not mentioned as a ground in paragraph No. 4, which exclusively dealt with the grounds on which the revision petition was moved It is, however, stated in the affidavit filed by the petitioner with the writ petition that the petitioner had urged the point of limitation before the Settlement Commissioner in revision. The Settlement Commissioner, vide his order, dated the 17th of February 1966, confirmed the appellate order. He, however, did not specifically deal with the question of the appeal being barred by limitation. The writ petition came up for hearing before our learned brother Sajjad- Ahmad, J., who after having narrated the facts considered the question of limitation as one of general importance ; and has made the reference in the form quoted above. The facts about Writ Petition No. 386/R of 1967 are that the petitioner in that case claimed to be the sitting allottee of village Haveli in Tehsil Dipalpur, District Sahiwal. On 24th July 1964, some land in that village was confirmed to a person who, according to the petitioner, had no preferential right over the petitioner. The petitioner filed time-barred appeal claiming in the grounds thereof that the allotment in dispute was intentionally kept as a secret, with the connivance of the Patwari who was himself interested in the land ; because the real uncle of the Patwari, namely, Nazeer Hussain, ostensibly, purchased the same land from the allottee. The appeal was dismissed as time-barred because, according to the appellate authority, section 5 of Limitation Act was not applicable. Same grounds were urged before the Settlement and Rehabilitation Commis--sioner in revision who dismissed the same holding that section 5 of the Limitation Act was not applicable. Neither the appellate nor the revisional authority went into the petitioner's plea that he had no knowledge of the allotment in dispute and that the same was a clandestine affair based on fraud committed by the Patwari. None of the two authorities considered the merits of the case. Aggrieved by the orders of the Settlement authorities he then filed the writ petition in the High Court. All these writ petitions involved the same question of law. Therefore, they were admitted to hearing and were ordered to be heard along with Writ Petition No. 309/R of 1966 in which, as stated earlier, the reference had already been made to consider the question of limitation in appeals filed under section 18 of the Displaced Persons (Land Settlement) Act, 1958. 3. The question posed in the reference, at the first sight, appears to be a simple one whether or not section 5 of the Limitation Act is applicable to appeals filed under section 18 of the Displaced Persons (Land Settlement) Act, 1958. But in the light of the facts narrated above relating to the four writ petitions in which the above question has arisen, there are three subsidiary questions which have also to be considered. They are :- (i)What is the effect on the question of limitation, if the order under appeal is a nullity as being without jurisdiction or is tainted with fraud? (ii) What is the effect of an order, for the purpose of limitation in appeal, when the same was not passed in presence of the aggrieved person and he had no notice of the same? (iii) In case the appeal is time-barred, whether the revisional authority has any power to interfere in the same matter, despite the fact that the appeal before the lower forum was barred by limitation 4. It is an admitted position that section 5 of the Limitation Act has not been specifically made applicable to appeals filed under section 18 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter called the Act). All the provisions of that Act have been carefully noted. Chapter I deals with the commencement, definitions and information relating 'to certain land to be furnished.
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Chapters 11 and III deal with the acquisition of land, constitution and management of various pools created under the Act. Chapter IV deals with the appoint--ment of Settlement authorities and their duties. In this Chapter the powers of the Chief Settlement Commissioner in respect of cancellation of allotment and, disposal of the property have also been dealt with. Chapter V has provided for the allotment of land in the. Compensation Pool, constituted under Chapter III and the permanent settlement of displaced persons. Chapter VI which deals with appeals, revision and review, provides for appeals in section 18, review within the Settlement hierarchy under sections 19 and 20 and a revision to the High Court under section 21. The finality of the orders passed in this Chapter is provided in section 22. Nowhere in this Chapter it is provided or indirectly indicated that the provisions of section 5 of the Limitation Act will be applicable. Chapter VII deals with the matters of procedure and the provisions relating to immunity in respect of actions taken by the Settlement authorities. Chapter VIII has provided for the penalties and cognizance of offences. Chapter IX contains general provisions as to delegation, transfer of cases, fees, appearance before Settlement authorities and making of rules. Under section 34, Displaced Persons (Land Settlement) Rules, 1959 have been framed. No provision in those rules indicates that section 5 of the Limitation Act was intended to be applicable to appeals filed under the Act. Therefore, we have come to the conclusion that the Act neither expressly nor impliedly provides for the application of section 5 of the Limitation Act to appeals filed under section 18 thereof. On this limited question, all the learned counsel appearing for all the parties are agreed. 5. The next question which arises is whether or not section 5 of the Limitation Act is applicable to appeals filed under section 18 of the Act, by its own force. In order to appreciate the correct position, it will be of advantage to reproduce section 5 of the Limitation Act:- "5. Extension of period in certain cases.-Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force, may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.-The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section." It is clear from the wording of this section that standing by itself, it does not show whether or not it will be applicable to the special and local laws. Therefore in order to find out the position in respect thereof, the provisions contained in section 29 of the Limitation Act have to be noted. Section 29 reads as follows:- "29. Savings.-(1) Nothing in this Act shall affect section 25 of the Contract Act, 1872. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law- (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law ; and (b) the remaining provisions of this Act shall not apply. (3) Nothing in this Act shall apply to suits under the Divorce Act. (4) Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend." It is to be noted that section 29 is the only section, and in a separate Chapter, which deals with the saving and repeals. Thus this section will have to be interpreted keeping in view that it is a special
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provision dealing with the subject of "saving", in so far as it relates to special and local laws. No argument was raised nor the position was contested that the Displaced Persons (Land Settlement) Act falls within the category of special/local laws. We have examined this question with particular reference to the provisions in that Act, relating to the allotment of land, falling in the pools to displaced persons and the permanent settlement of such land, and are of the opinion that it is undoubtedly a special law. The plain reading of section 29, particularly the opening part of subsection (2) thereof, shows that section 3 of the Limitation Act has been made applicable to a special/local law, when the period of limitation prescribed in that law is different from the one mentioned in the First Schedule to the Limitation Act. Apart from that, it is provided in clause (a) of subsection (2) that for the purpose of determining the period of limitation under the special and local laws, the provisions of section 4, sections 9 to 18 and section 22 of the Limitation Act have been made directly applicable ; unless any such law expressly excludes the application of these provisions or any of them. All other provisions of the Limitation Act, which include section 5 also, have been specifically excluded from application to special/local laws by virtue of clause (b) of subsection (2). Subsections (1), (3) and (4) also deal with specific exclusions in so far as the application of the Limitation Act is concerned. As indicated earlier, the provisions contained in section 29 are special provisions dealing with the "saving" ; therefore, they will have to be applied to the whole of the Act wherever the question of application of any other provision of the Limitation Act to special/local laws, arises. Thus section 5 of the Limitation Act will have, perforce, to be read as subject to section 29 of that Act. The reading of section 5 itself shows that it is not of universal application to all the laws. The following words contained therein are significant :- "Any appeal or application . . . . . Or any other application to which this section may be made applicable "by or under any enactment" for the time being in force . . . ." The words "by or under any enactment" indicate that section 5 of the Limitation Act is not of general application to all the enactment, but can be made applicable by the provisions of an enactment. This further supports the view that section 29, being a special provision dealing with local and special laws, will override the provisions of section 5 of the Limitation Act. If that is so, the mandate contained in clause (b) of subsection (2) of section 29 of the Limitation Act being in absolute terms, will prevail and the application of section 5 .Of the Limitation Act, shall have to be held as excluded in respect of special and local laws. The Act under consideration being admittedly a special law, the above discussion shows that section 5 of the Limitation Act is not applicable to appeals filed under section 18 of that Act. 6. Agha Taj Muhammad, the learned counsel for the respondents in Writ Petition No. 309/R of 1966, contended that the first part of subsection (2) of section 29 will have to be read independently of the second part, and if they are read separately section 3 of the Limitation Act being applicable to the special and local laws, will make section 5 of the Limitation Act also applicable to the special and local laws. Section 3 reads as follows :- "3. Dismissal of suits, etc., instituted, etc., after period of limitation.-Subject to the provisions contained in sections 4 to 25 (inclusive!, every suit instituted, appeal preferred, application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed although limitation has not been set up as a defence. Explanation.-A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer ; in the case of a pauper, when his application for leave to sue as a pauper is made ; and, in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator." It is clear that this section primarily deals with the main subject of the bar of limitation. The heading of the section is: "Dismissal of suits, etc., instituted, etc., after period of limitation." In other words, section 3 provides the dismissal of suits, etc. If instituted after the period of limitation. When it is
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provided in section 3 that it will be subject to sections 4 to 25 of the Limitation Act, what is intended is that the dismissal, after the period of limitation, is a rule; but for the purpose of determining the period of limitation, sections 4 to 25 will have to be applied. Now looking at the two parts of subsection (2) of section 29, it is clear that the first part deals with the question of dismissal, qua bar of limitation, even if the period of limitation provided in special/local laws is different from the one provided in the First Schedule. This provision is parallel to the main subject dealt in section 3 of the Limitation Act. The other subject in section 3, i.e. The determination of period in respect of special and local laws, is provided in its parallel, i.e. The second part of subsection (2) of section 29 ; which reads "and for the purpose of determining any period of limitation . . . . .". In other words, section 3 provides that for the determination of any period of limitation, sections 4 to 25 will apply, while clause (a) of subsection (2) of section 29, dealing with the same subject (determination of period of limitation), provides that only sections 4, 9 to 18 and 22 will apply. Therefore it is clear that while dealing with the reference to section 3 in subsection (2) of section 29, the provisions of that section will have to be read subject to the remaining provisions contained in clauses (a) and (b) of subsection (2) of section 29. The learned counsel cited Hatim A.I v. Mst. Zulekhabibi and others (PLD 1964 Kar. 399), in order to support his contention that section 5 is applicable to the appeals under discussion. In so far as the question of the application of section 5 of the Limitation Act by virtue of section 3 thereof is concerned, that authority goes against the contention of the learned counsel. However, in that case the provisions of section 5 of the Limitation Act were held to be applicable to appeals filed under the West Pakistan Urban Rent Restriction Ordinance, 1959, in spite of the fact that section 5 was not specifically made applicable to those appeals in that law. The main reason given for that decision is that the period of limitation provided for appeals in that special law was the same as given in the First Schedule to the Limitation Act and further that in that law the hierarchy of subordinate and appellate Courts is almost the same as that mentioned in the First Schedule to the Limitation Act. Therefore, the period of limitation provided in that special law, not being different from the one provided in the First Schedule, section 29(2) was not attracted. Thus the bar contained in clause (b) of subsection (2) of section 29 was not applicable, and in this view of the matter section 5 of the Limitation Act was held to be applicable to the appeals under the West Pakistan Rent Restriction Ordinance. It was also mentioned as a reason for adopting the above view that if there was possibility of there being two views on the question of limitation (qua interpretation of subsection (2) of section 29), the one more favourable to the absence of bar of limitation will have to be adopted. In this case that reasoning is not applicable because the period of limitation provided for appeals under section 18 of the Act is absolutely different from that provided in the First Schedule to the Limitation Act. Moreover, there is no resemblance of the hierarchy of Courts in the Settlement Organisation with any hierarchy of authorities or Courts mentioned in the First Schedule to the Limitation Act. Therefore, we find no justification for applying the reasoning contained in the above-mentioned authority to the present case. It is true that apart from the above-mentioned main reasons given in the said ruling, another alternative reason was also given in paragraph No. 9 of the judgment which reads as follows: "Assuming for the sake of argument that this is not the correct position, even they section 5 of the Limitation Act would be applicable to the appeals filed under the above--mentioned Ordinance. It could at best be argued that it is one of those cases in which no period of limitation is prescribed in the First Schedule of the Limitation Act either directly or by fiction of law with the help of section 29 of the Limitation Act. Then the question will arise whether sections 4 to 25 are independent sections and the words "the period of limitation prescribed" in section 5 of the Limitation Act should be confined to the period of Limitation prescribed under Schedule I to the Limitation Act. The answer to this question depends on the answer of the further question whether section 3 of the Limitation Act
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governs sections 4 to 25 of the Limitation Actor not. In my judgment section 3 of the Limitation Act stands by itself and sections 4 to 25 of the Limitation Act are not subject to it and should be independently construed." After discussing some authorities, it is further observed :- "It will be further noticed that section 5 of the Limitation Act is in Part III of the enactment which deals with the computation of period of limitation. Its language is in general terms and there is no limitation or restriction imposed so as to confine it to the period of limitation prescribed by the First Schedule of the Limitation Act. Therefore, the language used in sections 4 to 25 is such that it is open to interpret them in such a manner that they may be given a general application." The above interpretation does not give due effect to clause (b) of section 29(2). With greatest respect, we do not agree with this reasoning of the application of section 5 of the Limitation Act, we have already analysed the provisions of subsection (2) of section 29 in comparison to section 5 of the Limitation Act and are of the opinion that section 5 is subject to the provisions contained in subsection (2) of section 29. We have found that the second part thereof, specifically clause (b), clearly prohibits the application of section 5 of the Limitation Act to special/local laws. Therefore, we are of the view that the authority cited by the learned counsel essentially decided the question of the application of section 5 of the Limitation Act to the particular provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 ; which did not prescribe different period of limitation from the one mentioned in the First Schedule to the Limitation Act and that authority has no general application. The additional/alternative reasoning for the application of section 5 of the Limitation Act to a special law, with greatest respect, we have not been able to agree to it. Therefore, that authority is of no help to the learned counsel. 7. The -conclusion that we have reached about the interpretation of section 29, subsection (2) of the Limitation Act is supported by the legislative intendment also. The present subsection (2) was enacted in 1922. Before that the parallel provision was clause (b) of subsection (1) of section 29, which was in the following terms :- "(1) Nothing in this Act shall- (a) (b) affect or alter any period of limitation specially prescribed for any suit, appeal or application by any special or local law now or hereafter in force in British India." There remained a lot of controversy over the interpretation of this clause uptill 1922, when section 29 was amended and, as stated above, the present subsection (2) was enacted. The Select Com-- mittee gave the following reasons for the change :- "We have carefully considered each section in Parts II and III of the Act for the purpose of deciding whether it should apply to periods of limitation prescribed by special or local laws or not. We think provision should be made that section 4, sections 9 to 18 and section 22 should apply, unless they are expressly excluded by the special or local laws, and that the remaining provisions of the Act should not apply. This will, of course, not preclude amendments of special or local laws with a view to the application of such provisions."-Gazette of India, 1922, Part V, p. 74. It can be safely assumed from the above quotation that except for the sections enumerated in subsection (2), it was the intention of the Legislature that, the remaining provisions of the Limitation Act were excluded from application to special or local laws. This approach to interpretation of statute by reference to legislative intendment has been approved by the Supreme Court in Badrul Haque Khan v. The Election Tribunal, Dacca and others (PLD 1963 SC 704), in the following words "The applicability of a law as long as we follow the English system of jurisprudence must depend upon the intention of the Legislature. In Maxwell it is stated at the very outset that the `fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the intent of them that made it' . . . . ."
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8. The conclusion we have reached about the application of section 5 of the Limitation Act to appeals filed under section 18 of the Displaced Persons (Land Settlement) Act, has the support of some. Decided cases. In Abdul Jabbar Khan and another v. Additional Settlement Commissioner (Land), West Pakistan and another (PLD 1967 Lah. 25), it was held that a revision petition under section 19 of the Land Settlement Act could not be entertained if it was not filed within sixty days, the period of limitation prescribed in that section: It is, however, noted that there is no discussion in that decision whether or not section 5 of the Limitation Act was applicable to the revision under section 19…
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