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Civil Appeal No. 110 of 1973, decided on 5th November, 1985.

(Against the judgment and order, dated 23‑1‑1973 of the Lahore High Court, Lahore in Writ Petition No 676‑R of 1965)

‑‑‑Arts. 185(3) & 199‑‑Limitation Act (IX of 1908), S.5‑‑Leave to appeal granted to examine whether High Court was not in error in accepting writ petition on sole ground that Additional Settlement Commissioner has entertained a time‑barred appeal without expressly condoning delay notwithstanding appellant's application under S.5 of Limitation Act‑‑Even so, whether it was not more appropriately a case where proceedings should have been remanded to Additional Settlement Commissioner to decide whether in circumstances of case he could condone delay.

‑‑‑Art. 199‑‑Limitation Act (IX of 1908), S.5‑‑High Court accepting writ petition on sole ground that Settlement Authorities had entertained a time‑barred appeal without expressly condoning delay despite appellant's application under S.5 of Limitation Act‑‑Order impugned‑ Held: Question of limitation, if arising in a case, had certainly to be decided either expressly or by necessary implication‑‑In this case it was not done‑‑There may be a good reason for not applying strict law of limitation in case of appellant because order of which he was making a grievance was passed without notice to him in his absence‑‑It was directed by authority passing the order that he should be informed of it‑‑However, that is a matter which, in view of decision on jurisdictional aspect, becomes inconsequential.

Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner P L D 1964 SC 260 and Hassan Ali and others v. District, Judge and others P L D 1969 SC 167 ref.

‑‑‑Schedule, para. 4 & S. 10 read with provisions of Settlement Scheme No. V‑‑Disposal of property by earmarking‑‑Controversy arising because of difference in number of property given in Municipal Assessment record and earmarking list and other documents subsequently prepared‑ Held: As disposal of property under Settlement law had taken place neither on basis of possession nor on basis of any claim attaching to property, but by drawing of lots, such controversy could not be carried beyond earmarking list published under authority of Settlement Department, application form and transfer documents prepared thereafter It is clear that property described in earmarking list published under authority of law was complete and sufficient to identify property‑‑It may not be same as in municipal assessment register‑‑Where identity of property, its boundaries and limits were fully established from these documents, Settlement Authorities had no jurisdiction in law to unsettle them by reference to pre‑independence property numbers‑‑High Court's view that assumption of jurisdiction by Settlement Authorities on basis of municipal assessment record was wholly unjustified for unsettling established entitlement of parties, upheld.

A.R. Shaukat, Senior Advocate instructed by Tanveer Ahmad, Advocate‑on‑Record (absent) for Appellant.

Respondents Nos. 1 and 2: Ex parte.

Moulvi Sirajul Haq, Advocate Supreme Court with M.A. Siddiqui, Advocate‑on‑Record (absent) for Respondent. No. 3.

Date of hearing 5th November, 1985.

Leave to appeal was granted to examine whether the learned Single Judge in his judgment, dated 23‑1‑1973 was not in error in accepting the writ petition on the sole ground that the Additional Settlement Commissioner had entertained a time‑barred appeal without expressly condoning the delay notwithstanding the appellant's application under section 5 of the Limitation Act 1908. Even so, whether it was not more appropriately a case where proceedings should have been remanded to the Additional Settlement Commissioner to decide whether in the circumstances of the case he could condone the delay.

2. A composite property having three shops and a residential unit situate in Kot Daska, District Sialkot is the subject‑matter of dispute between the parties. It comprised three shops which bore the pre‑independence Municipal Survey Nos. 2310, 2311 and 2312. The residential unit had the No. 2313. All the shops individually and the residential unit separately came to be disposed of. The two shops Nos. 2310 and 2311 are outside this litigation. A list of 'C' category house was published as required under para. 4 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 read with provisions of Settlement Scheme No. V for disposal by earmarking. In this list, the two properties just mentioned were advertised as hereunder:‑

S.No. Pro‑ Evacuee Situation. Name of Annual

perty owner occup‑

rent.

No. ant.

52 2312 Sardari Kot Daska Munir Ahmad

Lal son of Excise Sub‑ Rs.1034

Sant Singh. Inspector.

52‑A 2313 Sardari Lal Office Munir Ahmad Rs.36

son of Market Excise Sub

Sant Singh. Committee Inspector

3. Both the contesting parties participated in the earmarking each indicating on its application form (Form 'E') five properties in the draw of which they were participating. In the case of the appellant the particulars of the property were mentioned as follows:‑

"(1) Registration No. of Form 'E'

(to be filled in by office) 100

(2) Name of applicant Muhammad Gulzar

(3) Son of Ghulam Rasool

(4) Particulars of the house applied for:‑

(a) Survey No. 2313

(b) Full address office Market Committee

Daska Kot.

(c) Name of evacuee owner Sardari Lal son of Sant

Singh.

(d) Annual rent for 1946. Rs.36.

(e) Reference to item No. and List 'C' Daska Circle

page of the list. Serial No. 52‑A page

No. 4"

The respondent No. 3 also listed five properties as was permitted under the Scheme and mentioned the property which she was claiming in Form 'E' in the following words:

"(1) Registration No. of Form‑E

(to be filled in by office) 343

(2) Name of applicant Sardar Begum

(3) Widow of Fazal Muhammad Khan

(4) Particulars of the house applied for:‑

(a) Survey No. 2312

(b) Full address Sardari Lal son of

Sant Singh.

(c) Name of evacuee Munir Ahmad ex‑inspec‑

owner tor.

(d) Annual rent for 1946. 108.

(e) Reference to item No. Page No. 4 Item 62"

page of the list.

4. Both succeeded in respect of the properties sought for by them. Notice of transfer which issued in favour of the appellant in Appendix II of Settlement Scheme No. V calculated the price at Rs.1,440 by multiplying the annual rent of Rs.36 by 40. The property which was mentioned in the notice of transfer was actually the same as filled in by the appellant in form 'E' extracted from it duly signed by the authorities and identical in all respects.

5. The respondent No.3 also received a transfer order of the portion applied for by her calculating the price at the rate of Rs.4,320 multiplying the annual rent of Rs.108 by 40. They both made the payment and obtained the transfer documents.

6. The respondent No.3 on 9‑8‑1960 addressed an application to the Deputy Settlement Commissioner about appellant's claim to the residential portion sought for and obtained by her. She followed it up with another application, dated 29‑9‑1960. A report was submitted by Rehabilitation Inspector, Sialkot, on 15‑8‑1960 by reference to the earmarking list published. He recorded the following conclusion of fact:‑‑

"The record clearly shows that No.2312 is a residential portion and No.2313 is being used as office.

Apparently that No. 2312 is a house which will go to Sardar Begum and the other No. 2313 Baithak will go to Muhammad Gulzar."

7. The Deputy Settlement Commissioner approved of this and directed that the parties be informed. It was against this order that a delayed appeal was filed by the appellant, to the Additional Settlement and Rehabilitation Commissioner. He did not attend to the delay in filing the appeal but by reference to the previous municipal survey numbers and structural features of the property decided the matter as follows:‑

"The respondent was transferred one room out of a house bearing No. 2313. Order erroneously passed cannot be upheld. The appellant is prepared to have this portion of the house on payment of its evaluation price in addition to the price which he has paid for 2313. An application in this respect, dated today the 7th September, 1961 is marked Exh.5. For the reasons stated above, I order that the residential portion of the property in suit bearing 'No. 2313 if he pays its evaluation price, that the P.T.O. issued to the respondent in respect of 2312 which is not .an independent part of the house is cancelled, she is allowed to choose another house in exchange for No.2312. The D.S.C. will take further proceedings accordingly."

8. Revision filed by the respondent No.3 before the Settlement Commissioner was dismissed with the direction that 'the evaluation price of Property No. 2312 should be determined with reference to the relevant record and that if the petitioner pays its evaluation price within a period of 3 months it should be transferred to Mst. Sardar Begum, otherwise it would be put to auction in due course of law'.

9. It was in this background that respondent No.3 invoked the constitutional jurisdiction of the High Court and succeeded. On merits the learned Judge recorded the following conclusion:‑ .

"In the circumstances, we cannot go by the property number alone. We have to see the attending circumstances as well. The numbers of the properties were inadvertently shown to be 2312 for residential portion and 2313 for Baithak by the Settlement Department. Since the Additional Settlement Commissioner and the Settlement Commissioner ignored this material aspect of the case, therefore, their orders cannot be maintained."

10. It was thereafter that it was held that the appeal filed before the Additional Settlement Commissioner was barred by time and the question of its being time‑barred was not attended to by him nor by the Settlement Commissioner in revision and referring to the cases decided by this Court in Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner P L D 1964 SC 260 and Hassan All and others v. District Judge and others P L D 1969 SC 167, it was held that in entertaining such an appeal the authorities had not observed the law with regard to their jurisdiction.

11. The learned counsel for the appellant has reiterated what is contained in the leave granting order and has further tried to demonstrate by reference to the number of the property particularly in the municipal assessment record that what was transferred to the appellant was the residential portion of which he was in possession and the respondent No.3 could not claim anything more than the shop which was actually a Baithak of the residential portion transferred to the appellant. According to the learned counsel, the Settlement authorities had just and fairly determined the issues arising before them and such a determination was not open to interference in the constitutional jurisdiction.

12. From the factual narration of the case, it is clear that a controversy had arisen only because the number of the property in the municipal assessment record happened to be different from that in the earmarking list or the other documents subsequently prepared. As the disposal of the property under the Settlement law has taken place neither on the basis of possession nor on the basis of any claim attaching to the property but by drawing of lots, this or such a controversy could be traceable to and not carried beyond the earmarking list published under the authority of the Settlement Department, the application form and the transfer documents prepared thereafter. 1t is clear that the property described in the earmark list published under the authority of law was complete and sufficient to identify the property. It may not be the same as in the municipal assessment register. The parties were required to refer to this list and not to the municipal assessment register entries of pre‑independence period. What was being offered to them was fully known. Not only the number mentioned but also the occupant of the property who happened to be present in the premises at that time. In form 'E' the appellant mentioned the 'Office Market Committee' while the respondent mentioned the presence of Munir Ahmad, Sub‑Inspector. It is not the case of the appellant that the office of the Market Committee was located in the residential portion or was anywhere else than what he calls the Baithak of the residential portion. Where the identity of the property, its boundaries and limits were fully established from these documents, the Settlement authorities had no jurisdiction in law to unsettle them by reference to pre‑independence property numbers.

13. A bare look at the published list of properties available for earmarking, the entries made in the application form by the parties, description of the property transferred to them, the calculation of the price and notice of transfer, all leave no manner of doubt that the appellant applied for what was the office of Market Committee while respondent No. 3 applied for what was the residence of the Sub Inspector. Therefore, these documents raise no question for determination. None can be so raised on the basis of records of earlier dates. On this view of the matter, the High Court was correct in holding that the assumption of jurisdiction by the Settlement authorities on the basis of municipal assessment record was wholly unjustified fort unsettling established entitlement of the parties.

14. The question of limitation if arising in a case had certainly to be decided either expressly or by necessary implication. In this case, it was not done. There may be a good reason for not applying the strict law of limitation in the case of the appellant because the order E of which he was making a grievance was passed without notice to him in his absence. It was directed by the authority passing the order that he should be informed of it. However, that is a matter which in view of the decision on the jurisdictional aspect becomes in consequential.

15. The appeal is dismissed with no order as to costs.

M.I. Appeal dismissed.

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