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Constitutional Petition No. S‑5 of 1980, decided on 17th October, 1985.

‑‑‑S. 5‑‑Appeal decided on merits‑‑ Condonation of delay‑‑Mere disposal of appeal on merits, held, was not sufficient in law to inference that delay must have been condoned‑‑There must be something in order itself to show that proceedings were out of time and Court had applied its mind to question of limitation before deciding proceedings on merits‑ Order must indicate that delay was condoned and cogent reasons must be given for such condonation.

Syed Nasir‑ud‑din for Petitioners.

Ahmed Saeed Qureshi for Respondents.

Date of hearing: 14th October, 1985.

The petitioners through this petition have prayed for the following reliefs;

(a) "quash the impugned orders Annexures 'C' 'D' and 'E' and allow this Constitutional Petition.

(b) declare that the allotment made in favour, of respondent No.4 is illegal, ultra vires and cancel the same and the allotment in favour of the petitioner is legal, valid and subsisting.

(c) direct respondent Nos. 1 to 3 to restore the allotment of the petitioner which has been illegally cancelled and restore ‑the possession of the land in question as well as the house to the petitioner."

The facts which give rise to this petition are that the predecessor‑in‑interest of the petitioners was granted on full rates inter alia 12 Acres of agricultural land from U . A . No. 234 of Deh Bakhora, Taluka and District Sanghar in the year, 1951. The entire amount of the land was paid and the aforesaid land vested finally and absolutely in the predecessor‑in‑interest of the petitioners. 12 Acres of land which are in dispute out of 73 Acres of land was granted to the predecessor‑in‑interest of the petitioners in all on full rates in Deh Bakhora. The predecessor‑in‑interest of respondents Nos. 4(a) to (d) was granted 12 Acres from U.A. No. 234 of Deh Bakhora, Taluka and District Sanghar previously but due to non‑payment of instalments, his grant was cancelled with effect from 1944/45 by the Barrage authorities. It is the case of the petitioners that their predecessor‑in -interest constructed a house thereon, and the above land remained in his cultivating possession from 1951 to 1967. The predecessor‑in‑interest of respondents 4(a) to (d) filed a case for restoration of cancelled land and the same was granted by order, dated 20‑3‑196.7 passed by the Additional Commissioner, Hyderabad. The predecessor‑in‑interest filed appeal before the Member, Board of Revenue and the case was remanded to the Additional Commissioner for passing fresh order. The Member, Board of Revenue held that "the grant of predecessor‑in- interest of respondents Nos.4(a) to (d) was forfeited in 1943 and it was subsequently disposed of to the predecessor‑in‑interest of petitioners in 1951 but the respondent did not file any appeal nor did he apply for the restoration of the forfeited grant within time." On remand, the Additional Commissioner held that the predecessor‑in‑interest of the petitioners had got a preferential claim and the respondent was not entitled to the disputed land. The Additional Commissioner remanded to the Colonisation Officer by his order, dated 28‑7‑1971. The Additional Commissioner Colonisation Officer without adverting to the limitation restored the disputed land to the predecessor‑in‑interest of respondents Nos.4(a) to (d) by his order, dated 5‑6‑1975. The predecessor‑in- interest of the petitioners filed an appeal before the Additional Commissioner which was dismissed by order, dated 21‑4‑1979. The predecessor‑in‑interest of the petitioners filed revision before the Member, Board of Revenue which was also dismissed by order, dated 7‑10‑1979. Hence this petition.

Mr. Syed Nasir‑ud‑Din the learned counsel for the petitioners has contended that the respondent did not condone the limitation and decided the appeal without giving cogent reasons for deciding the same on merits.

Mr. Ahmed Saeed Qureshi, the learned counsel for the respondents Nos.4(a) to (d) has contended that no cogent reasons were given for condonation of delay.

I have perused the impugned orders of the respondents Nos.l, 2 and 3. It appears that the respondent No.2 decided appeal on merits. It is well‑settled law that mere disposal of appeal on merits is not sufficient in law to the inference that the delay must have been condoned. There must be something in the order itself to show that the concerned person was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before deciding the proceedings on merits. It must be borne from the order that the delay must be condoned and cogent reasons must be given for condoning the delay. In this view of the matter, the impugned orders are set‑aside and the case is remanded to the Additional Commissioner, Hyderabad, Hyderabad Division for deciding according to law after affording opportunity to the parties. There will be no order as to costs.

H. B. T. Order accordingly.

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