V.R. MALL Versus MUHAMMAD YOUSAF

House No. 249, Ward 8/M, Multan, was occupied by V. R. Mall petitioner and one Mahmood Ali Shah. The value of this property was more than Rs. 20,000 yet V. R. Mall who is a local submitted a form LH which was rejected. On further proceedings the Settlement Commissioner rejected the claim of Mahmood Ali Shah but remanded the case of the petitioner and Faizan Ali to the Deputy Settlement Commissioner. He, however. by his order dated 19th April 1966, held that neither the petitioner nor Faizan Ali Shah wore entitled to the transfer of the property.

2. Fazal Din and Habibud Din had been transferred another property under Settlement Scheme No. VI but the same was taken away from them on an appeal filed by one Ghulam Nabi an occupant thereof. On being deprived of that property they made an application dated 15th September 1966, to the Deputy Settlement Commissioner to transfer to them another property in lieu of the one taken away from them. The Deputy Settlement Commissioner on 16th September 1966, recommended to the Additional Settlement Commissioner that the property in dispute in this writ petition be transferred to them. This recommendation was, however, sent back by the Additional Settlement Commissioner to the Deputy Settlement Commis sioner to examine if any occupant had submitted a form. The Deputy Settlement Commissioner in turn reported on 19th September 1966, that all the forms submitted under Settlement Scheme No. I had been rejected and that there was no form under Settlement Scheme No. VI or No. VIII pending at the relevant time. It may be added here with advantage that Settlement Scheme No. VIII had been amended on the 12th September 1966, so as to make eligible even the locals with regard to the house of any value. Acting on this amendment V. R. Mall also filed a form on 29th October 1966, but the same was not taken into consideration and the Additional Settlement Commissioner transferred the property in question to Fazal Din and Habibud Din on 14th December 1966. Fazal Din and Ha.bibud Din then surrendered all their rights in the property in question to Sh. Muhammad Yusuf respondent No. 1 on 31st December 1966. A P. T. D. was also granted on 24th December 1968.

3. It is claimed by respondent No. I that he "sent a notice dated 24th November 1968, under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to all the occupants except the petitioner who was not in possession and had already left the premises. Walayat Shah etc. surrendered the possession on 4th February 1969, to the new transferee. The petitioner, however, trespassed to take possession on which a case was registered against him under section 448, P. P. C. on 10th February 1969.

4. The petitioner then made an application dated 4th March 1969, to the Deputy Settlement Commissioner impleading Mahmood Shah as a party and requesting that his form submitted under Settlement Scheme No. VIII be disposed of. This application was, however, rejected by the Deputy Settlement Commissioner on 25th March 1969, on the ground that the property having been already transferred the same was not available. Consequently, the petitioner filed an appeal but be did not implead respondent No. 1 as a party. This appeal was rejected on I st May 1969, on the ground that the same was not competent. The petitioner then filed a revision petition before the Settlement Commissioner but there also respondent No. 1 was not impleaded.

5. On 15th May 1969, the petitioner filed another appeal against the predecessor‑in‑interest of respondent No. 1 who had been transferred the property on 14th December 1966. The petitioner also submitted an application under section 5 of the Limitation Act seeking condonation of the delay. The appeal and the revision petition came up for hearing before the Settlement Commissioner who on 16th December 1970, accepted the same and remanded the case to the Deputy Settlement Commissioner to dispose of the form submitted by the petitioner. This order was challenged by respondent No. 1 in W. P. 68‑R‑71 under which the order of the Settlement Commissioner was set aside and he was directed to dispose of the question of limitation first. In pursuance to this order of the High Court the Settlement Commissioner entered upon the proceedings and by his order dated 23rd April 1973 dismissed the appeal as barred by time and refused to exercise jurisdiction in revision. It is this order which is being challenged in the present writ petition.

6. The contention of the petitioner is that the Settlement Commissioner acted unlawfully in holding that his appeal was barred by time and in refusing to consider the revision petition. The contention is based on the argu ment that the form of petitioner had been filed about 1 months earlier than the order of the Additional Settlement Commissioner by which the property was transferred in favour of the predecessor‑in‑interest of respondent No. 1. The omission on the part of the Deputy Settlement Commissioner to decide the petitioner's form before disposing of the property is claimed to have rendered the order of the Additional Settlement Commissioner a nullity and that there is no period of limitation prescribed within which such orders could be challenged.

7. The learned counsel for respondent No. 1 on the other hand submitted that in fact the property in question had been reserved by the Deputy Settlement Commissioner on 16th September 1966, in favour of the predecessor‑in‑interest of respondent No. 1 when he recommended to the Additional Settlement Commissioner to transfer this property to them. Under the instructions obtaining at the relevant time, therefore, the property in question should have been transferred in lieu of the one already taken away and could not be considered to be available for its disposal under Settlement Scheme No. VIII. The other submission is that, the petitioner, even according to his own application dated 11th February 1969, placed on record as Annex.. R. 7, knew the factum of transfer of the property in question in favour of the predecessor‑in‑interest of res pondent No. 1. He, therefore, was obliged under the law to file an appeal within the time provided by law if he really felt aggrieved against the order of transfer. The omission on the part of the petitioner to file the appeal within time from the date of knowledge has been termed as waiver of his right on his part and he could not turn round long after the period of limitation had run out to claim the condonation of delay on the ground that the order was a nullity.

8. I have considered the arguments of the two sides and have come to the conclusion that this writ petition has no force and must fail. The transfer of the property by the Additional Settlement Commissioner on the 14th December 1966, in favour of the predecessor‑in‑interest of respondent No. 1 cannot be considered to be a nullity in the eye of law. The recommend ations by the Deputy Settlement Commissioner for the transfer of this property had been made on the 16th September 1966, which were about 1J months earlier than the date when the petitioner submitted his form. The Deputy Settlement Commissioner, therefore, was right in reporting that no form under Settlement Scheme No. VI or No. VIII was pending. Even otherwise, the property in question could not be considered to be available under Settlement Scheme No. VIII as proceedings for its transfer had already been put into gear much earlier than the right to file a form accrued to the petitioner. The right to ask for and the power to transfer, another, property in lieu of the one not found transferable for any reason, was approved by the Supreme Court in Ghulam Fatima v. Settlement Commissioner and others P L D 1968 S C 141. The relevant portion of the judgment is as under:‑

" . . . . . A case that falls under the Press Note of the 7th April 1960, is clearly one which comes into being after the provisions of paragraph 4 and Settlement Scheme No. V have been finally exhausted, for there is nothing in these provisions to indicate, and it would be indeed unreasonable to find, that an applicant, who has been successful in a lottery, and has failed to secure the property drawn in his favour for reasons entirely outside the context of the said provisions, should go through the process of earmarking and drawing of lots again. When such a person has been successful at a drawing of lots, for his purposes the provisions of paragraph 4 and the Settlement Scheme No. V have been finally exhausted. Therefore, any provision for making satis faction of such a defeated lottery winner must be found in provisions made not under section 10 (a) in its original form, but under section 10 (b), and such special provisions are clearly contained in the Press Notes of the 7th April 1960, and the 28th July 1960. It was open to the Central Government to lay down any condition for the transfer of houses under section 10 (b) and it is clear that in the Press Note of the 7th April 1960, such a special condition was laid down, namely, that a defeated lottery winner could have a house of his choice that was available in any earmarking lists or otherwise, provided that he chose a house of value equal to his verified claim. In the later Press Note of the 28th July 1960, this condition was relaxed and a defeated lottery winner became entitled to a house of his choice available in any existing earmarking or auction list or otherwise, provided that the value of the house was not more than double of his verified claim."

Thus it is clear that Fazal Din etc. had right to the transfer of the property and this right accrued much earlier in their case than in the case of the petitioner.

Before passing his order the Additional Settlement Commissioner called for a report from the Deputy Settlement Commissioner on this very aspect to know if any form had been submitted by other persons under any Scheme. He was then rightly informed by the Deputy Settlement Commissioner that no form was pending. The Additional Settlement Commissioner, therefore, acted in accordance with law and the order passed by him is not only with due care and diligence but with jurisdiction. A void order on the other hand is one which would render the proceedings coram non judice such as the one passed mala fide, without jurisdiction or in violation of mandatory provisions of law. The precise proposition of law as to when an order is void was considered by their Lordships of the Supreme Court in the case of Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies PLD1964SC97 and held as follows :‑

"An order can under this section be attacked on three grounds and it is the assumption of the third ground that an exercise of jurisdiction maybe illegal or irregular and yet the order passed may not be void and without jurisdiction. By merely showing therefore that an order passed was in violation of some provision of law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of some statutory provision or principle of natural justice as would render the proceedings coram non judice."

In Muhammad Ayub Khuhro v. Pakistan and others PLD1960SC237 their Lordships of the Supreme Court laid down the following test about the same proposition:‑

"In order to find a correct answer to this question which may govern the present case it is necessary to bear in mind the distinction between an incorrect decision and a void decision. A judgment is incorrect if it is wrong in law or fact; it is void if it is pronounced by an incompetent Tribunal."

Another case on the point is Mansab Ali v. Amir and others P L D 1971 S C 124 where the Supreme Court observed as follows:‑

"It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction."

The order of the Additional Settlement Commissioner, however, cannot be brought under any of the above categories and, therefore, the argument on that score is not applicable. The order of the Additional Settlement Commissioner can at the most be said to be erroneous or irregular but such orders are not without lawful authority as held in Muhammad Hussain Munir v. Sikandar etc. P L D 1974 S C 139

9. Even otherwise it cannot be said that in case of a void order the affected person is at liberty in all cases to choose his own time to get the same removed or set aside. It is true that void orders are nullity in the eye of law and must be ignored by a Court before whom they are brought as held is Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies. In that case, a judgment of the High Court refusing to set aside an order, which was held to be a nullity, was set aside with the following observation :‑

"When questioned as to why the illegal order of 22nd April 1960, should not have been set aside in the exercise of revisional powers all that learned counsel for the respondents urged was that the limita tion for filing an application for revision had expired when the learned Single Judge decided the case, and the revision before him was not directed against the order of 22nd April 1960, but against the order of the trial Court setting aside the ex parte decrees. This contention is wholly devoid of force. The Limitation Act does not provide for any period of limitation for an application in revision. The only article which could be applicable was the residuary Article 181 which provides a limitation of three years for an applica tion, but even that article will not stand in the way of the exercise of revisional power for these powers can be exercised suo motu."

The above passage shows that the question of limitation would have arisen in that case also but for the revisional powers of the High Court for which no limitation applies. Further it is for the Court to ignore or set aside an order which is nullity and not for the individuals themselves. But if a person presumes that an order is a nullity and ignores the same he, does so at his own risk. Subsequently, if he comes to a Court he shall have to show that the right he is claiming and which was hit by that's presumed void order is not lost due to any provisions of the Limitation Act. An order obtained with fraud or without the knowledge of another interested party may be covered by section 18 of the Limitation Act which reads as under:‑

"18. Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application‑

(a) against the person guilty of the fraud or accessory thereto ; or

(b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production."

The point was considered in a very exhaustive judgment of a Division Bench of this Court in Syed Mahmood Alam v. Syed Mehdi Hussain etc. P L D 1970 Lah.

6. At pages 27 and 28 their Lordships held as follows :‑

"The principle, that whenever an act or an order is tainted with fraud, of course, in such a way that the fraud substantially affects the rights of a party bearing on the question of limitation, has been embodied in section 18 of the Limitation Act. That section provides that where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right had been fraudulently concealed from him, the time for instituting the suit or making the application under certain conditions shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production. This provision has been made applicable to proceeding under special and local laws, by virtue of clause (a) of subsection (2) of section 29. Whenever such conditions, as mentioned above, are found to exist, the party who is the victim of fraud cannot be penalised by ordinary bar of limitation. Therefore, in an appeal under section 18 of the Displaced Persons (Land Settlement) Act, the appellant is entitled to press into service the provisions of section 18 of the Limitation Act, against an objection about the bar of limitation.

Therefore, if in a given case, a person is able to establish that he had the right of hearing; and in spite of that the order was passed or action was taken against him without his knowledge, he will be entitled to plead, while filing an appeal which, prima facie, is time -barred, that the time will start running against him only from the date of his knowledge about the order."

The appeal was, thus barred by time even from the date of knowledge, and had been rightly rejected by the Settlement Commissioner.

10. No applicant, not even a claimant has a vested right in property included in the compensation pool as held by the Supreme Court in Mian Rafi‑ud‑Din and others v. The Chief Settlement Commissioner and others P L D 1971 S C 252. The relevant passage reads as under :‑

"Again as was pointed out in the case of Syed Abdur Rashid v. Pakistan and others P L D 1962 S C 42, there was no question of displaced persons coming to Pakistan from territories which now constitute India being entitled as of right to get properties in Pakistan in lieu of properties left by them in India. The evacuee laws were designed purely to alleviate the hardship and misery of as large a number of displaced persons as possible who had been uprooted as a result of the setting up of the two Dominions of India and Pakistan by rehabilitating them and in this sense too it was `fallacious to conceive of a claim . . . . . . as being in the nature of a right or interest in property'. It was rather a question `of purely granting a benefit or a privilege' and it was, therefore, within the competence of the authorities to determine as to who were the persons best fitted for the grant of such benefit.

It will be observed that even though mandatory words have been used in some places in the Schedule and the Schemes with regard to the transfer of property, yet the transfer is in implementation of the entitlement under section 15 of the Act and this entitlement is basically to receive payment out of the compensation' and rent pools in the manner prescribed by the Schedule, the schemes and the rules, which only give a preferential position to a claimant. He comes before all others and his claim has to be satisfied first. It is in this sense that it has been said that a claimant displaced person is in the position of a vested beneficiary so far as properties in the compensation pool are concerned, but this is not the same thing as saying that he has a vested right to a particular property in the compensation pool, for, after acquisition the legal title to the property vests in the Central Government and until that is divested no one can be said to have a vested right or title thereto. His is merely a ,general beneficial right which he shares in common with all claimants. The majority decision of this Court in the case of Rehmatullah v. Deputy Settlement Commissioner P L D 1963 S C 633 did not lay down any different principle nor was this view departed from in the subsequent case of Barkat Ali.

The petitioner had only a statutory right to get his application considered under the law which gave him this right. The holder of such a right, however, can lose the same in a number of ways. He may not press it. He may acquiesce in an illegal wrong or even void order depriving him of that right as held in Begum Zainab Tiwana v. Ch. Aziz Ahmad Warraich etc. P L D 1967 Lah. 977 and Malik Muhammad Din v. Babu Fazal Karim and others P L D 1968 Lah. 544. He may not pursue the proceedings and thus waive his right as held in Abdul Majid Shaida v. Mst. Noor Jehan and others P L D 1967 S C 221. This conduct assumes far more importance when the aggrieved person approaches a Court to exercise its discretionary and equitable jurisdiction. It is in such cases that the well known maxim equity helps the vigilant and not the indolent comes into operation. The dis cretion is further controlled if the time limit prescribed under the law for seeking a remedy before a Court is not observed.

11. The facts of the present case would show that the petitioner did not have a right in the property in question but had a right only to get his claim about the transfer of the property in question considered. Therefore, when he came to know that the property in question had already been transferred to the respondent without considering his claim, he ought to have moved promptly and at least within the period provided by law from the date of knowledge, to get that transfer reversed so that his claim was also considered alongwith that of the respondent. This inaction on the part of the petitioner may amount to waiver disentitling him to invoke the F jurisdiction of this Court. The principle laid down by the Supreme Court in Sh. Rashid Ahmad v. Settlement Commissioner, Lahore and others 1970 S C M R 278 and S. Aziz‑ur‑Rehman v. Mst. Habib Bano P L D 1972 S C 52 also support the above proposition. In these cases the applicants under Settlement Scheme No. I was considered to have waived their rights for the transfer of a property under the said Scheme on making an application under Settlement Scheme No. V. I am, therefore, of the view that a person placed in such circumstances as the petitioner, ought to have filed an appeal within the period prescribed by law from the date of knowledge and on his failure to do so without a suffi cient cause it shall be presumed that he was not interested in the property and had waived his right with regard to the same. The Settlement Com missioner in the impugned order has found as a fact that the appeal was barred by time. The petitioner did have the' knowledge of the transfer of the property in question in favour of the predecessor‑in‑interest of respondent No. 1 from 11th February 1969, when he, vide R/7 reported against the respondent to the police. He, however, did not move in the matter till 25th March 1969, when he made an application to the Deputy Settlement Commissioner asking him to dispose of his form. This application was made 41 days after the factum of transfer came to his notice. The second move in the matter was made on 15th May 1969 when he filed an appeal against the order dated 14th December 1966, passed in favour of the respondent. It is stated by the petitioner that he made an application for a certified copy of the order on the 3rd March 1969, which was made available to him on the 9th March 1969. He, however, filed the appeal on 17th May 1969, and the same being barred by time provided in the law the same was refused to be condoned. It was held in Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another P L D 1966 S C 276 that as the Additional Settlement Commissioner was entitled to refuse to condone the delay, his order could not be successfully challenged in the writ jurisdiction. The learned counsel for the petitioner has not been able to advance any cogent reasons showing that the Settlement Commissioner acted illegally or arbitrarily in refusing to condone the delay.

For the reasons stated above, there is no force in this petition and the same is dismissed leaving the parties to bear their own costs.

K. B. A. Petition dismissed.