ALI ASGHAR SHAH vs BAGH ALI and others

1. ' MUHAMMAD HALEEM, CT-Leave to appeal was granted to consider whether in the context of the fact that no final order on the withdrawal application was recorded by the competent authority and the record of the case was not consigned as a disposed of case, could the Settlement Commissioner exercise his jurisdiction to rectify the omission by reviving the proceedings as if the revision was still pending.

2. ' The dispute relates to house No, 232 in village Khorakha, Tehsil and District Jhelum. Its value was less than Rs, 10,000 on the crucial date. Both the parties were seeking for the transfer of the house, but the Deputy Settlement Commissioner by his order dated 7th of November, 1963, earmarked it as the village Patwarkhata, hence it was not transferred to either of them. Both of them filed appeals before the Additional Settlement Commissioner who transferred it to respondent Bagh Ali and a Permanent Transfer Deed (PTD) was issued in his favour on 19th of March, 1968, who soon thereafter gifted it to Mst. Zohra Begum, the second respondent who has since died.

3. ' Against this order, the appellant filed a revision, but subsequently by a written application sought to withdraw it on 18th of October, 1967. No formal order for its withdrawal was recorded but the revision was kept pending and a notice was issued for its final disposal on 23rd of November, 1968.

4. In response to the notice, the appellant a day before the date of hearing, that is, 22nd of November, 1968, filed another application to withdraw his earlier application dated 18th of October, 1967. On the date of hearing the Settlement Commissioner without noticing the subsequent application disposed of the revision petition holding that upon the notings made on the earlier withdrawal application dated 18th of October, 1967, the revision petition stood withdrawn. Thereafter, the appellant again moved another application before the Settlement Commissioner seeking for the setting aside of the order dated 23rd of November, 1968, on the ground that it was passed without noticing his subsequent application dated 22nd of November, 1968, withdrawing his earlier application, as in its presence the revision petition could not have been taken to have been disposed of as having been withdrawn. The appellant succeeded as the Settlement Commissioner treated the earlier revision petition as not to have been disposed of as withdrawn by order dated 3rd of June, 1970, and ordered notice for the hearing of the revision petition, and finally by order dated 2nd of February, 1972, reviewed his earlier order of withdrawal and remanded the case to the Assistant Settlement Commissioner (Lands) for determining afresh the entitlement of the contesting parties.

5. ' The respondents thereupon challenged these orders in the High Court through Writ Petition No, 263-R of 1972 and succeeded as the High Court held by order dated 24th of March, 1980, that they were passed without lawful authority.

6. ' It would be of advantage to recall the contentions raised before the High Court. The first was that the order dated 23-11-1968 disposing of the revision petition as withdrawn could not be reviewed in the second revision petition, and the second was that before the impugned order dated 2-2-1972, the second respondent was not served with notice as directed by the Settlement Commissioner, and, therefore, the order was without jurisdiction. The High Court accepted these contentions holding as under: "Though there is no reference in the order of the learned Settlement Commissioner dated 23-11- 1968 (Annexure `D') to Ali Asghar Shah's application dated 22-11-1968, but a presumption can fairly be raised that the same was canvassed but did not find favour with him. But assuming for a matter of argument, that the said application dated 22-11-1968 was not canvassed before him and no order was passed thereon by the learned Settlement Commissioner, Rawalpindi, before he passed his impugned order dated 23-11-1968 it cannot be denied that he could neither have reviewed his earlier order dated 18-10-1967 nor revised the same a second time. The order dated 23-11-1968 was not in actual fact the final order passed in revision, but one affirming and ratifying the earlier order dated 18-10-1967 dismissing the revision petition as withdrawn. There can be no doubt that on 18- 10-1967 the petitioner had personally appeared and requested the Court to permit him to withdraw the revision petition. By this conduct respondent No, 1 waived his right to question the lower Court's order both on the legal and factual planes. Since respondent No, 1 by his own conduct waived his right, he cannot be permitted to come afterwards when the Court wants to place a formal order on the file confirming what transpired on 18-10-1967, to attempt to undo what he previously achieved by his own application and conduct. The circumstances under which the learned Settlement Commissioner in 1970 permitted respondent No, 1 to literally reopen the whole case and by dubious arguments first held on 3-6-1970 that order dated 23-11-1968 called for a review and then later finding that the review was not permissible held on 7-10-1971 that respondent No, l's application dated 22-11-1968 deserved consideration and he, therefore, accepted the same and restored the revision petition for hearing and then finally decided the same in favour of the respondent, all clearly show that the actions of the learned Settlement Commissioner were mala fide and that by steps he proceeded to review and/or revise his earlier order, which he legally could not do, and to assist respondent No, 1 in the case. Since respondent No, 1, himself withdrew his revision petition on 18-10-1967 about which there can be no dispute, and waived his right to challenge the lower Court's order both on law and facts, I cannot permit him to deviate from this position, which he has tried to do because of the absence of a formal order of the Court being on the said file. The learned Settlement Commissioner in his order dated 23-11-1968 himself stated that the final order had been passed regarding the withdrawal but somehow it had not remained a part of the file. On 23-11-1968 he could clearly remember what had transpired on 18-10-1967. It appears that the final formal order got separated from the file. An attempt was made to reopen the matter by a fraudulent device in November, 1968. There is no denial of the fact that Mst. Zohran Begum, petitioner No, 2, who is the transferee of the house in dispute, was also not served or heard before the learned Settlement Commissioner passed the impugned order dated 2-2-1972. In view of these cumulative circumstances, I have no hesitation in holding that the impugned order of the learned Settlement Commissioner dated 2-2-1972 was passed without any lawful authority and is of no legal effect."

7. ' In the context of the order granting leave, we have examined the order dated 23-11-1968. It is unequivocally stated therein that the appellant alongwith his counsel appeared on 18th of October, 1967, before the Settlement Commissioner and prayed for withdrawal of the revision petition on the basis of the application dated 18th of October, 1967. Although no formal order of withdrawal was recorded, but it appears that the withdrawal was allowed as there was a noting in red-ink by an official of the Court on the right hand top corner of the application dated 18th of October, 1967. It was, therefore, that the Settlement Commissioner had stated that in all probability an order had been passed but for some reason it was not in the file, and it was, therefore, that the revision was taken to be pending. The issuance of the notice, therefore, was held to be uncalled for as the revision petition stood withdrawn. It was to give effect to this conclusion that the Settlement Commissioner stated in the order: "However, with the object of completing the record, it needs to be stated or shown that the revision petition by Ali Asghar Shah stood dismissed as withdrawn. The file of the said petition would thus be sent back to the Records."

8. The file was consigned to record and there was, therefore, no scope for the Settlement Commissioner to hold in the second order dated 3rd of June, 1970, that the order dated 23-11-1968 was passed without considering the application dated 22nd of November, 1968, seeking to withdraw the earlier application which, as according to the earlier order dated 23-11-1968, stood already withdrawn on 18th of October, 1967. The Settlement Commissioner, accordingly, gave finality to that order while recording this fact in the earlier order. It may also be stated that the appellant went into hibernation and took no action until the notice was issued on the mistaken impression that the revision petition was still pending. This too confirms that the appellant also had taken the withdrawal of the revision to have been complete. The High Court was, accordingly, correct in holding that the subsequent orders of the Settlement Commissioner were illegal and without lawful authority as he could not review his earlier order recording the withdrawal as final.

9. ' Accordingly, the order of the High Court is unexceptionable and the result, therefore, is that the remand order was illegal and without lawful authority as the revision petition itself was incompetent.

10. ' The appeal is hereby dismissed with costs.