FAZAL ELAHI & CO. Versus ABDUL HALEEM KHAN

ORDER

SHAFIUR RAHMAN, J.- -The petitioners, who have been denied the transfer of a site under Settlement Scheme No. VI, seeks leave to appeal against the judgment of the Lahore High Court dated 19-10-1986 whereby the order of the Notified Authority was substituted by the High Court.

2. There was a long drawn out contest between the parties over the transfer of a site. The matter was remanded to the Notified Authority, the Commissioner, Lahore Division, for deciding the matter afresh keeping in view the directions of the High Court serialized in the remand order. The Commissioner, by an order dated 3-5-1981 considering all aspects of the case and after inspecting the property, held that the petitioners were entitled to the transfer of the site and that the respondents could not be given precedence over them. This order of the Chief Settlement Commissioner was challenged by the respondents and by the impugned judgment the High Court declared it to be without lawful authority. The learned Judge in coming to the conclusion, relied on an order recorded by the D.S.C. on 11-7-1960 in the secrecy of his office without hearing the parties which had, according to the learned Judge, the implication of rejecting the form of the petitioners under Settlement Scheme No. VI. It was, therefore, concluded as hereunder:--

..From these facts it is quite clear that the application of the respondent No. 2 under Settlement Scheme No. VI stood rejected. The order dated 11-7-1960 has never been challenged. Therefore, the application having been rejected and the order of rejection having never been challenged, the matter is concluded and the transfer under Settlement Scheme No. VI could not and cannot be ordered in favour of respondent No.

3. The fact that it was not pleaded that the application stood rejected or that notwithstanding "Record examined" by the Officer passing the impugned order, he had not referred to these proceedings, would only show lack of diligence in examining the original record with care. Deficiency or default cannot lead to disappearance of a fact and would not detract from the reality that the application of the respondent stood rejected when it was approved that no action could be taken thereon and the order having never been challenged had become 'final' under the law. In these circumstances, the property in dispute having been sold in favour of the predecessor-in interest of the petitioners by the Central Government in exercise of its powers some 25 years ago, they are entitled to have it in peace."

3. Mr. Zakiuddin Pal, Advocate, the learned counsel for the petitioners submitted that an order which has been passed without hearing the parties, without notice to them and has not ever been communicated or has seen the light of the day cannot so bind the petitioners as to foreclose and conclude their entitlement in the matter. Besides, according to the learned counsel, that order has not the effect of in fact rejecting the claim of petitioners under Settlement Scheme No. VI. In any case, according to the learned counsel, if that order had been ignored by the Notified Authority, it should have been brought to its notice and the Notified Authority should have been left to adjudicate on it instead of a summary adjudication on a question of fact by the High Court itself.

4. The question raised does require fuller examination as it appears the matter has remained contentious and has been examined more than once at the highest level. Leave to appeal is, therefore, granted.

Security in the sum of Rs.2,500.

M.I./S-70/S Leave granted.