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Constitutional Petition No. S-29 of 1977, decided on 29th November, 1984.

---S. 2--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.19--Constitution of Pakistan (1973), Art.199--Consti tutional petition--Revision--Dismissal for non-prosecution--Application for restoration--Repeal of settlement laws--"Pending proceedings"- Petitioner's revision was dismissed for non-prosecution--Petitioner filing restoration application after one year--Revision petition was restored but was finally dismissed by Settlement Authority--Petitioner concealing material fact in constitutional petition that revision application was dismissed after its restoration--Held: Except for "pending proceedings" no further proceedings could be taken, initiated or entertained by petitioner or Settlement Authority--Restoration application filed after one year, therefore, was not maintainable--Constitutional petition dismissed in circumstances.

1981 S C M R 899 ref.

---Art. 199--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.19--Revisional jurisdiction--Petitioner filing revision himself and proceeding with matter before Settlement Authority--Trying to get out of situation by challenging very jurisdiction, when order passed against him--Petitioner, held, could not challenge jurisdiction which he had invoked himself.

Gulab M. Rang for Petitioner.

Maroof Ali Khan for Respondents.

Dates of hearing: 28th and 29th November, 1984

The petitioner claiming to be in possession of the property bearing No.II-B-274-275 Mehrabpur, district Nawabshah, from the time of his father claimed its transfer by challenging the proposed sale of the said property to Qamar Zaman treating it as a part of the property bearing No.II-B/273/277. The appeal was preferred by the petitioner's brother and the Additional Settlement Commissioner set aside the auction of the property holding the disputed property to be an independent unit and ordered its disposal through public auction. In the mean time the Settlement Scheme No. VIII was promulgated and the petitioner and his brother applied for transfer of the property. The Deputy Settlement Commissioner, Nawabshah by order, dated 26-4-1967 transferred the same to them, and Appendix IX was also issued in their favour. The petitioner on the basis of this transfer let it out on rent to respondents Nos. 4 and 5 who executed separate rent agreements dated 17-5-1968 and 1-9-1968. Qamar Zaman Khan. challenged the transfer by preferring an appeal in the year 1969 before the Additional Settlement Commissioner, who by order, dated 14-1-1969 cancelled the transfer in favour of the petitioner and put the property to public auction. The petitioner filed an appeal against this order, but it was dismissed on 21-7-1969. The respondents Nos.4 and 5 being in physical possession of the plot applied for transfer under Scheme No.VIII and on 6-12-1973 the property was transferred to them. The petitioner filed revision against that order which was dismissed on 29-6-1974 for non-prosecution. This revision application was restored and was finally dismissed by the impugned order, dated 9-12-1975. The petitioner has challenged the orders of 14-1-1969 and 9-12-1975 by this petition. The respondent No.4 filed counter-affidavit, who denied that the petitioner was in possession of the premises. It was further stated that the appeal was filed by Suleman and not the petitioner and at no stage, the petitioner had challenged the order passed by the Settlement Authorities. He further stated that the rent agreement was obtained by the petitioner on misrepresentation that he is the transferee and owner of the property and that no sooner they came to know about the cancellation, they stopped to recognise him as the landlord.

Mr. Maroof Ali Khan has raised preliminary objection that the petitioner has not come with clean hands as he has suppressed the facts, that the revision application was dismissed on 29-6-1974 for non- prosecution, and the restoration application was filed on 5-5-1975 and after it was restored, the impugned order was passed on 9-12-1975. It has been contended that these facts have not been disclosed by the petitioner intentionally as this would have rendered the entire proceedings as illegal. It is correct that this fact has not been disclosed in the petition at all. The petitioner has only stated about the filing of the Revision Application and its dismissal by order, dated 9-12-1975.

Mr. Maroof Ali Khan, the learned counsel has contended that after the repeal of the Settlement Laws from the 1st July, 1974 except for the pending proceedings, no further proceeding could be taken, initiated or entertained by the petitioner or the Settlement Authorities. In his counter-affidavit, the respondent No.4 has filed a copy of the order dismissing the Revision Applciation, and also application for a restoration of Revision Application, dated 5-5-1975. These documents have not been denied by the respondent in the rejoinder. It, therefore, seems clear that the petitioner has cancealed material facts, which would have come in his way in this petition. The learned counsel for the respondent has referred to 1981 S C M R 899 in support of his contention that the Settlement Authorities had no jurisdiction to restore the Revision Application. It is an admitted position that after the dismissal of the Revision Application it was no longer alive and could not be treated as a pending proceeding. The restoration application filed on 5-5-1975 almost about a year of the dismissal was not maintainable, at that time. These grounds by itself are sufficient for dismissal of this petition.

Mr. Gulab M. Rang the learned counsel for the petitioner contended that he has challenged the transfer order, 5-12-1973 on the ground that as application under Martial Law Regulation 86 was pending, the property could not have been disposed of without deciding that application. In this regard the learned counsel has referred to the photo copy of the application filed by him and the averments made in the petition. On the other hand Mr Maroof Ali Khan has referred to the order dated 6-12-1973 which it based on a report of the Settlement Department in which it is stated that no Form is pending regarding transfer of this property. Therefore, according to the Department no application was pending in respect of transfer of this property or under any other provision of law.

Mr. Maroof Ali Khan, the learned counsel has referred to various orders passed in the matter and contended that the petition is belated as the impugned order has been challenged after about one year. He further pointed out to the conduct of the petitioner, that when the transfer was made only Muhammad Suleman had challenged but the petitioner did not challenge it in 1969. The contention seems to be correct.

Mr. Gulab M. Rang then contended that the Settlement Commissioner had no jurisdiction to deal with the Revision Application, and therefore, the order is without jurisdiction. The petitioner had filed the revision himself and proceeded with the matter, but when the order has been passed against him he is trying to get out of the situation by challenging the very jurisdiction which he had invoked. In these circumstances, and admitted facts stated above, as the order passed by the Settlement Commissioner will not operate any injustice against any one, I refuse to interfere, with it. The petition is dismissed.

M.A.K. Petition dismissed.

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