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Writ Petition No. 418 of 1960, decided on 4th January 1962.
Time‑barred‑Admitted by Court‑Presumption as to "sufficient cause" for admission‑Evidence Act (1 of 1872), S. 114, illus. (e)‑Limitation Act (IX of 1908), S. 5.
Creature of statute, but nevertheless a substantive right ‑ Express words or necessary intendment necessary for forfeiture of right of appeal retrospectively.
S. 15(3)‑Words "is the subject‑matter of appeal" ‑Mean is the subject‑matter of "possible appeal" and not "pending appeal."
M. Abbas for Petitioner.
Nemo for Rehabilitation Commissioner Hyderabad.
Faizanul Haq for Respondent No. 3.
Dates of hearing : 13th 20th and 24th November 1961.
We are concerned with two survey numbers, 396 and 395 of Deh Thari agricultural land. They were temporarily allotted under the Rehabilitation Act to the respondent. The petitioner, a displaced person, obtained verification of his claim before the respondents. A notice of ejectment under section 7 (2) (c) of the Rehabilitation Act, 1956 was served on respondent, who failed to show cause. The land was allotted to the Petitioner, and he was put into possession on 13‑9‑1958.
The Displaced Persons (Land Settlement) Act, 1958 came into force on 23‑9‑1958. In pursuance of an entitlement certificate issued in July 1959 what is styled a QPAR was issued to the petitioner in respect of the two survey numbers.
On 22‑1‑1960 the A. R. C., Khairpur allotted the respondents (who had now obtained verification of claims as displaced persons) certain other lands in Deh Bozdar to the respondents.
On 16‑2‑1960 respondent 3 made the following representation, which was treated as an appeal, to the D. R. C.
"The D. R. C. Khairpur.
It is submitted that I have permanently rehabilitated myself for the last 12 years in Theri Mirwah. I was allotted as temporary measure the survey Nos. 396/1‑0, 395/1‑12, 399/0‑12, 148/0‑12, 149/1‑3, 150/1‑3, 217/1‑32 and 218/1‑25 of Deh Theri, and Saney Shah Patah Theri. The lands have been cancelled and have been allotted to another Mohajir on permanent basis. I have submitted an application to the Mukhtiarkar of Mirwah. I myself am a claimant and my claim has not been decided as yet. But no consideration was given. Now the units communicated to me contain lands Survey Nos. 297, 299 and 207 in Deh Bozdar at Bozdar and Nos. 282, 283 and 284 have been allotted in name of Tafazzul Hussain my real brother, which are quite water‑logged lands. Sir, myself and Alamsi Tafazzul Hussain are claimants of 4 acres each, and these very lands are the only means of our livelihood, which is water‑logged land, which is quite use less. It is therefore prayed that the lands allotted in Bozdar Deh be cancelled and the lands mentioned above which had been allotted previously be restored and be allotted on perma nent basis against the claim of my real brother Alamsi Tafazzol Hussain. Orders to the effect may kindly be passed for which I shall remain much grateful to you.
(Sd.) Syed Alam Ali
s/o Ali Hasan resident
Dated 16‑2‑1960. of Theri Taluka Mirwah."
Upon this the Deputy Commissioner and D. R. C., passed the following order:
"Order of the Deputy Commissioner & D. R. C., Khairpur.‑ Appellant present, respondents absent though served. Appel lant is temporary allottee of S. Nos. 395, 396 and 399 of Deh Thari and 148, 149, 150, 217, 218 of Deh Saneso. The tempo rary allotment of appellant is accordingly restored to the extent of their entitlements, and if however, there remains any balance, the same should go to the respondents.
(Sd.) Maftoon Ahmad C. S. P.,
Deputy Commissioner and D. R. C.,
Reh./4138 dated 26‑7‑60. Khairpur."
The petitioner's revision petition was dismissed for the same reasons as those given in the appeal. Hence the present Writ Petition.
It is contended that the representation did not constitute an appeal against the petitioner's allotment which had been made before the commencement of the Act.
The petitioner contends firstly that the appeal being time barred the Appellate Authority had no jurisdiction. To this it is replied that the objection not having been raised either in appeal or revision, is now too late. I think this reply must prevail for the reason that section 5 of the Limitation Act applies to such appeal (Rule 10 of the Pakistan Rehabilitation Rules, 1951), therefore had the objection been taken, the present respondent would and could have applied for condonation. Secondly, I can see no reason to suppose that the Authority was not satisfied that the petitioner had sufficient cause: I think the presumption of regularity of official acts should be drawn.
The petitioner next contends that since by virtue of notification dated 15‑4‑1959 under section 10 of the D. P. (Land Settlement) Act of 1958 the land had ceased to be evacuee property, the Rehabilitation Authorities had no longer authority to pass any order of allotment. That argument, however good it may be as against an original order of allotment, does not, I think, hold good as against an Appellate Order. An appeal, though a creature of Statute, is non the less a substantive right, and express words or e necessary intendment are necessary to deprive retrospectively a man of his right of appeal 1905 A C 369 (P C). The petitioner points to section 15(3) of the D. P. (Land Settlement) Act which reads, so far as is material,:
"A displaced person to whom any land has been allotted by a Rehabilitation Authority before the commencement of this Act . . . . should be settled permanently on that land . . . Provided that no order of settlement shall be passed in cases where‑
(a) the land held by the aliottee concerned is the subject matter of an appeal, revision or review before a Rehabilitation Authority ; or
(b) . . . . . . . . . .;
(c) . . . . . . . . . .;
He contends that the words admit of no other meaning than that the land must be the subject‑matter of an appeal instituted before the commencement of the Act. Such words have not been expressly used. On the contrary, the section has safe‑guarded appeal, revision and review without inserting any such words such as "actually pending" or instituted before the commencement of this Act." It would seem absured to safeguard a pending appeal, but to deprive a man aggrieved by an allotment made one or two days before the commencement of the Act of his right of appeal. I think the words : "is the subject‑matter of an appeal" must be construed as meaning is the subject‑matter "of a possible appeal," and not as meaning "of a pending appeal". Similarly, in section 498, Cr. P. Code, the words "Whether there be an appeal or not mean not "whether there be a pending appeal or not, "but" whether an appeal is possible or not".
The petition is therefore dismissed with costs.
K. B. A.
Petition dismissed.
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