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Before Zaffar Hussain Mirza and Saleem Akhtar, JJ
MUHAMMAD NAWAB
AND ANOTHER‑‑‑Appellants
versus
ABDUL GHAFOOR
AND 11 OTHERS‑Respondents
Letters Patent Appeal No. 175 of 1971, decided on 3rd November 1980.
Art. 199‑Transfer of property‑Consent order‑Contention that once P. T. D. issued, Settlement Authorities becomes funetus officio, no directions can be issued to them particularly when not in conformity with mandatory provisions of law and High Court having no jurisdic tion to order transfer of property, same cannot be conferred by consent of parties‑Held, parties entering into agreement, bound to honour same and after consent order being passed, cannot raise issue challenging competency of Court to pass such an order.‑‑[Agreement].
Mst. Ghafooran Nisa v. The Chief Settlement Commissioner P L D 1975 Lab. 89; Chaudhary Altaf Hussain and others v. Chief Settlement Commissioner and others P L D 1965 S C 68 and Fazal Din v. Wall Muhammad and 5 others 1970 S C M R 180 ref.
‑‑‑ Art. 199‑‑Rule of procedure‑Court, while exercising its jurisdiction, held, must apply rules of procedure advancing cause of justice unless expressly prohibited.
Muhammad Aslam v. Member, Board of Revenue/Chief Settlement Commis sioner P L D 1980 S C 45 ref.
Ismail Munshi for Appellants.
Mushtaq Memon for Respondents.
Date of hearing : 3rd November, 1980.
SALEEM AKHTAR, J.‑‑This Letters Patent Appeal is directed against a consent order passed by the learned Single Judge disposing of the Constitution petition filed by the respondents Nos. 1 to 10.
The premises bearing No. D/960/1‑2, Gharibabad, Sukkur being evacuee property was partly in possession of the appellant No. 1, while the quarters on a portion of Survey No. D/960/1, measuring 225 square yards were in occupation of the respondents Nos. I to 10. The appellant No. 1 applied for the allotment of the entire property as an Industrial concern, which was transferred to him and P. T. O. was issued on 5‑11‑1959. He later surrendered part of it in favour of appellant No. 2 and as such he has been joined as party in this appeal. The respondents Nos. I to 10 moved the Deputy Settlement Commissioner against the transfer, who by his order dated 6‑1‑1961 held that as the respondents Nos. 1 to 10 had not applied in time on proper C. H. or N. C. H. Forms and as the portion in possession of the respondents Nos. 1 to 10 was an integral part of the premises it could not be transferred to them. The contesting respondents preferred an appeal therefore the Additional Settlement The commissioner, Hyderabad and Khairpur Division, who .by his order dated 12th December, 1962, observed as follows :‑
"At the time of site inspection all the occupants alleged that the forms filed by them were misplaced with the result that they have been deprived of the small tenements which are in their occupation. Since the occupants are very poor people some of whom are even claimants I recommend that the tenements in their occupation may be transferred to them on. the average auction price. A copy of this order will be submitted to the learned Settlement Commissioner for his approval."
The appellant No. I filed revision against this order, which was dismissed by the Settlement Commissioner as barred by time, but the Additional Settlement Commissioner was directed to dispose of the disputed property on merits. The Additional Settlement Commissioner took up the matter, and without disposing of the property in clear terms directed the appellant No. 1 to pay the assessed market value. Both the parties filed revision against this order before the Settlement Commissioner, who. by his order dated 30th November, 1964 allowed the revision filed by the appellant No. 1 and up held the transfer in his favour. The revision filed by the contesting respon dent was dismissed. Thereafter, on 25th June, 1965 P. T. D. in respect of the entire property was issued in favour of the appellant No. 1. The respondent No. 1 represented by his legal heirs respondents I‑A to I‑G and respondents Nos. 2 to 10 filed Constitution Petition No. 762 of 1965 challenging the order dated 30th November, 1964. The learned Single Judge disposed of the petition by the following consent order :‑
"The petition is disposed of according to the following consent order :‑‑ .
(1) Plot No. D/960/2 shall remain transferred to Mohammad Nawab.
(2) Out of Plot No. D/960/I, the area measuring 398 square yards in occupation of Muhammad Nawab shall remain transferred to him. The remaining area of 225 square yards, on which tenements stand, shall be transferred to the petitioners in accordance with the tenements held by each of them.
(3) The orders impugned before me are amended in accordance with the above provisions and the Settlement Department shall .give effect to the order of the High Court forthwith and issue necessary transfer documents, incorporating the above provisions, to the petitioners and to Muhammad Nawab."
The appellants have filed the present appeal challenging the impugned order. However, at the time of admission the learned counsel for the appellants did not press the ground that the impugned order was not a consent order. The order admitting the appeal was passed on 2nd February, 1972, which reads, as follows :‑
"The learned counsel does not press the ground as to his consent to
the order but urges that the parties cannot consent to the transfer of land which otherwise cannot be transferred under the provisions of the Settlement Act and the jurisdiction to transfer entirely rests with the Department which has to be exercised in accordance with the provisions of the Act. This contention requires consideration.
Admit. Notice."
Again at the time of hearing C. M. A. 225 of 1973, an application Mad by the appellants, the aforestated order was further clarified in the following terms .‑
"At the initial stage of this case it was argued that the consent order
by means of which the original matter had been disposed of was in fact not a consent order. Subsequently, however, that position was given up and it was argued that the parties could not, in law. consent to the transfer of the land and it is this latter contention which induced two of our learned brethren to admit this matter. That question of course will receive consideration at its proper time but for the purpose of passing interim order we do not think it right to disturb what is in fact a consent order though that may ultimately turn up to be illegal.
For these reasons we dismiss this application."
Realising the limitations, Mr. Ismail Munahi the learned counsel for the appellants submitted that as the property was an industrial concern it had to be disposed of as a whole and could not be transferred as ordered by the learned Single Judge. To establish his contention the learned counsel for the appellants relied upon the case of Mst. Ghqfooran Nisa v. The Chief Settlement Commissioner (1). He further contended that once P. T. D. had been issued the Settlement Authorities become functus ofcto and no direction could be issued to them, particularly when it was not in confirmity with the mandatory provisions of law. On these premises Mr. Ismail Munsh' argued that as the learned Single Judge had. no jurisdiction to order transfer of the property, the same could not be conferred by consent of the parties. He further argued that as the contesting respondents had not filed C. H./N. C. H. Form property could not be transferred to them. It was also pointed out that the contesting respondents filed the petition after undue delay and therefore it should have been dismissed.
The contentions raised by the learned counsel for the appellants relate to the merits of the case and would have been considered if the appellants would not have agreed for a consent order which seems to be a result of private arrangement between the parties. This should not detain us here and suffice it to mention that as held in the case of Chaudhary Altaf Hussain and others v. Chief Settlement Commissioner and others (2) no time limit was fixed for filing C. H./N. C. H. Forms, and therefore, it was open to the contesting respondents to file it. So far question of laches is concerned the appellants had not taken this objection in their counter‑affidavit, therefore, in the circumstances of the case they are not entitled to raise it at this stage.
(1) P L D 1975 Lah. 89 (2) P L D 1965 S C 68
The submission made by the appellants touching upon the merits of the petition, cannot be accepted for the simple reason that appellants having consented to an arrangement with the contesting respondents cannot of 'their own free‑will be allowed to resile from it. The question for consideration is whether in view of the consent of the appellant No. 1 for division and transfer of the property to the contesting respondents the learned Single Judge in exercise of his writ jurisdiction could have passed the impugned order.
The parties entering into an agreement ate bound to honour it and may not be permitted to resile on mere technicalities except in very exceptional circumstances. After the consent order has been passed, the parties are not allowed to raise issue challenging the competency of the Court to pass, such order. Mr. Mushtaq, the learned counsel for the contesting respondents has invited our attention to the case of Fazal Din v. Walt Muhammad an 5 others (1). In this case Petition for Special Leave to Appeal was filed, challenging the order of the learned Single Judge, who had ordered the division of the disputed property in accordance with the compromise. The main ground pressed by the petitioner was that the High Court had no jurisdiction to pass the order. While rejecting the plea the following obser vation was made :‑
"We consider that it does not lie in the mouth of the petitioner to raise this plea. He was a party to the compromise which was filed in the Court and he along with others invoked the jurisdiction of the Court to accept that compromise. In these circumstances, we consider that the petitioner is disqualified to raise the issue in this petition for special leave, that the High Court was not competent to pass the orders on a compromise in writ jurisdiction. We refuse to grant leave."
Relying upon the case of Mohammad Aslam v. Member Board of Revenue/ Chief Settlement Commissioner (2)Mr. Mushtaq, the learned counsel for the contesting respondents has rightly contended that while exercising its jurisdiction the Court has to apply the rules of procedure which advance the] cause of justice unless expressly prohibited. In the present case the contesting respondents were in possession of the quarters, which were separately situated on a part of Plot No. D/960/1. The Additional Settlement Commissioner after inspecting the site had recommended the transfer of these quarters to them. According to the contesting respondents this order was made mainly because the appellant No. 1 had filed a statement before him stating that he had no concern with the property which is in possession of the contesting respondents. It was further stated that in that statement the number of the property was mentioned as D/960/2, but it related to property in dispute. Strangely enough, the appellant No. 1 in his counter affidavit has not denied these allegations. With these facts in view coupled with the consent of the appellant No. I for transfer of the quarter to the contesting respon dents the learned Single Judge was competent to pass the impugned order, which in our view meets the ends of justice and no exception can be taken by the appellants.
For the foregoing reasons there is no merit in this appeal. which
is accordingly dismissed with no order as to costs.
(I) 1970SCMR180 (2) PLD 1980SC45
M. Y. M. Appeal dismissed. ,
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