' FAKHRUDDIN G. EBRAIIIM, J.-The facts giving rise to this petition are that the plot in question was under a temporary lease with Khanji Bhai, the father of the petitioner, from Hyderabad Municipality since 3-7-1949. After the death of Khanji Bhai in July 1960, the petitioner's name was entered as lessee of this plot. On 19-5-1962 Mst. Phapul, the respondent No, 2 moved an application before the Chief Officer, Hyderabad Municipality in which she alleged that though the plot was under lease in favour of Khanji Bhai, on the plot the lady's husband Lakhano was carrying on business in partnership with Khanji Bhai which partnership had been dissolved and under the terms and conditions of dissolution the plot came to the share of Lakhano. She also alleged that some consideration had been paid in this connection by Lakhano to Khanji Bhai. The prayer in this application was that since Lakhano was in possession of the land including the structure for a long time in his own right its lease may be granted to Lakhano or his wife Mst. Phapul. No order appears to have been made on this application but on 17-3-1968 this plot was sold to the petitioner by the Municipality for a price of Rs, 5,471.23 and the record of rights was also mutated in favour of the petitioner. On 18-1-1966 the petitioner was informed of the change of the city survey number of the plot which had been sold to him.
2. It would appear that in the year 1966 the respondents Nos, 2 and 3 who are the heirs of deceased Lakhano filed an appeal under section 119 of the Municipal Administration Ordinance, 1960 questioning the sale of the subject land in favour of the petitioner. This appeal was heard by the Appellate Authority. The Commissioner, Hyderabad Division, who by his order dated 15-4-1967 remanded the case to the Chairman, Hyderabad Municipality, to ascertain the facts and circumstances how the plot in question came to be sold to the petitioner, for according to him the Municipality, who appears to have been represented before him, was unable to inform him when the sale in favour of the petitioner had been finalised, at what price and under whose authority. It is also stated in the order that the respondents Nos, 2 and 3 were in occupation of the land for a long time and it should be ascertained whether any notice was given to them before the land was sold to the.Petitioner. The operative part of the order reads as follows :- "The case is accordingly remanded to the Chairman for examining all these points and thereafter deciding as to who is the right claimant. The mere fact that the alleged sale is an old one should not stand in the way of undoing any injustice if it is so proved now."
' The petitioner was not heard before the aforesaid order was made but on remand he did appear before the Chairman, Hyderabad Municipal Committee who by his order dated 29-7-1969 maintained the sale in favour of the petitioner. The respondents Nos, 2 and 3 went in appeal which was allowed. The operative part of the order reads as follows :- "In the present case it was a duty of the Municipal Committee to have actually verified on the spot that who was the actual occupant of the plots since the year 1958 for entitlement under the Colonies Scheme.
' There are two points to be considered :
(I) Whether Municipal Committee shall transfer the land to the original lessee ?
(ii) Whether the Municipal Committee shall transfer it to the actual occupant to whom the original lessee had sublet the plot ?
' While leasing out any land, the Municipal Committee lays down the condition that the lessee shall not sublet or sub-lease the land. In sub-letting the premises to the appellant, the original lessee violated this condition. Lease, in his favour, was liable to be terminated by the Municipal Committee and then the Municipal Committee could transfer the land to any one it wanted to.
' Under the Colonies Scheme, however, the Municipal Committee transfers land to the lessee if he has been in occupation of the land for a specified period. I understand it was meant to facilitate acquisition of ownership by the occupant lessee ; it was not meant to put anyone else in a position to make profit from the land which he got on lease from the Municipal Committee. On the face of it, the occupant has a greater claim than the formal lessee who does not use the leased land.
According to rules 4 and 5 of the Hyderabad Municipality Land Management and Land Sales Rules, the lease is liable to be terminated, which the Municipal Committee should do, and then allot the land to the appellant.
' The appeal is, therefore, tipheld.",.
3. Mr. A. M. Khoja, the 'learned counsel for the petitioner urged that the appeal filed by respondents Nos, 2 and 3 against the sale made in favour of the petitioner on 17-7-:963 was obviously barred by time and with that will fall not only the order dated 15-4-1967 made by the Commissioner but also the subsequent orders both of the Chairman, Hyderabad Municipality dated 29-7-1969, as well as the order in appeal made by the Commissioner dated 29-4-1970 notwithstanding the fact that the interim order is in his favour. The learned counsel invited our attention to rule 3 of the West Pakistan Municipal Committees (Appeals) Rules, 1960 which provides a limitation of 30 days for appeals to the Commissioner against orders made by the Municipal Committee, its Chairman or Vice- Chairman. No doubt sub-rule of this rule empowers the Appellate Authority to condone the delay in not preferring the appeal within the prescribed period if sufficient cause I shown but the learned counsel argued that not only the respondents Nos, 2 and 3 had not made any application for condoning the delay but the order dated 15-4-1967 by the Commissioner does not even indicate that the Commissioner was aware of the fact that any question of limitation did arise. This order, therefore, cannot be sustained in law. Under similary circumstances the Supreme Court of Pakistan in a case reported in Ahsan Ali and others v. District Judge and others (1) set aside an order which was made in a time barred appeal and remanded the case back to the Appellate Authority for hearing the appeal afresh in accordance with law after giving the parties adequate opportunity of representing the respective cases. With the disappearance of the order dated 15-4-1967 will disappear the two orders made in pursuance thereof, namely, the order of the Chairman dated 29- 7-1969 and of the Commissioner dated 29-4-1970. It will, therefore, follow that nothing stated on merits in these two orders will have the effect of prejudiding the parties.
4. The result, therefore, is that the Appeal No, 56 of 1967 filed by respondents Nos, 2 and 3 before the Commissioner will be heard afresh when among other things the question of limitation will also be examined. There will be no order as to costs as the petitioner did not raise the question of limitation in this petition specifically but we have allowed him to raise it because it was a pure question of law.
(1) PLD 1969 SC 167