ABDUR RAHIM vs ABDUR RASHEED AND 3 Other
This matter arises from a dispute regarding the transfer of an evacuee property in Lyallpur. The core legal question concerns the finality of an order placing an evacuee property on the ear-marking list upon the petitioner's refusal to take it, and the maintainability of a time-barred appeal and subsequent constitutional petition against its subsequent transfer to another occupant. The Supreme Court held that the initial order placing the property on the ear-marking list upon the petitioner's refusal became final and extinguished the petitioner's entitlement, rendering any subsequent challenge futile, and that the delay in filing the appeal was rightly not condoned. The Court laid down the principle that failure to challenge an adverse settlement order within time extinguishes the party's locus standi, and that a belated challenge initiated only when ejectment is threatened is an afterthought that warrants no interference under constitutional jurisdiction.
- Does an unchallengeable order placing an evacuee property on the ear-marking list extinguish a claimant's entitlement?
- Whether a time-barred appeal against the transfer of property without sufficient ground for condoning delay is maintainable?
- Can a party who fails to challenge a settlement order in time maintain a constitutional petition against the subsequent transfer of the property?
- Section 5, Limitation Act 1908
- Section 30, Displaced Persons (Compensation and Rehabilitation) Act 1958
- Article 98, Constitution of the Islamic Republic of Pakistan 1962
1. HAMOODUR RAHMAN, C. J.-The dispute in this case relates to an evacuee property being No. P-151 in Street No. 15, Doughlaspura, Lyallpur.
2. On the 29th December 1959, the Deputy Settlement Commis--sioner, Lyallpur, divided the property into four sub-units, viz., three shops and one house. The three shops were transferred to their respective occupants, Ali Muhammad,, Ismail and Abdus Sattar, but so far as the house was concerned although the petitioner was found entitled to its transfer yet the house was placed on the-ear-marking list as the petitioner had, it was said, declined to take it.
3. The order of the Deputy Settlement Commissioner records as follows :- "Abdur Rahim is entitled to the transfer of the house which he does not want to take. Nobody else is willing to take the house. The house be kept for earmarking."
4. Nobody challenged this order either by appeal or revision or review. But in 1960 the respondent No. 1 who was also in occupation of a part of the house applied for the transfer thereof to him. The Deputy Settlement Commissioner on the 2nd February 1960 granted his request on the ground that on the last occasion when the house was put in the ear-marking list, Abdur Rashid was not present but other occupants had refused to take the property. This really implied that the other occupants, which included the present petitioner, were present at the time the previous order was made and had personally declared their unwillingness to take the house.
5. Even this order of the 2nd February 1960, in favour of the respondent Abdur Rashid was not challenged until the 8th October 1962, when the petitioner filed a time-barred appeal with an application under section 5 of the Limitation Act for the condonation of the delay. In this application under section 5 of the Limitation Act it was nowhere stated that the order of the 29th of December 1959, placing the house on the ear-marking list was made in the absence of the petitioner or that the petitioner was not aware of the said order.
6. If the petitioner was aware of this order and he took no steps to challenge it the position now is that the order placing the property on the ear-marking list, upon the refusal of the petitioner to take it, has become final and extinguished the entitlement of the petitioner. He has no further locus standi in the matter. It. Is futile for him, therefore, to now try to challenge the order transferring the property to respondent No. 1. Even his appeal, as has been held by the Settlement Authorities, was barred by limitation and there was no sufficient ground for condoning the delay. The transferee must have given him notice under, section 30 of the Displaced Persons (Compensation and Rehabilita--tion) Act, 1958, and he must have come to know at least then that the property had been transferred to respondent No. 1. He did not take any step then but waited until actually proceedings for his ejectment had been threatened to challenge the order transferring the property to respondent No. 1. This was clearly an afterthought.
7. Apart from this, it appears, that on 16-1-60 the petitioner's son Muhammad Sharif actually executed an agreement surrender--ing his claim to this house in favour of the respondent Abdur Rashid. This fact too must have been known to the petitioner.
8. We see no reason, therefore, to interfere with the order of the High Court dismissing his petition under Article 98 of the Constitution. This petition is accordingly dismissed.