The dispute in this Constitutional petition relates to a shop No. 429 on Market Road, Nawabshah.
The material facts, according to the petitioner, are as follows: The petitioner has been in possession of the said shop since 1947 and paid rent to the Custodian, vide copies of receipts. Annexures A to A-7 of the petition. However, the petitioner had allowed the third respondent to occupy a portion of the said shop in 1959. Therefore, taking advantage of this situation, after the Displaced Persons (Compensation and Rehabilitation) Act (hereafter called the said Act) came into force, the respondent had filed a C. S. Form. On the ground of his possession, the petitioner also had filed a C.S. Form and, in the events that happened, both the petitioner and the third respondent had obtained PTOs for the said shop. The result was that litigation started between them before the Assistant Settlement Commis--sioner, Nawabshah. However, the litigation was settled on the intervention of the Elders of the-Teli community who gave an award in January, 1960 (Annexure C to the petition) according to which the third respondent was to renounce the petitioner's title to the said shop became the petitioner's tenant for the said shop for a period of three years on a monthly rent of Rs. 10 renounced his own rights to it under his C.S. Form and receive Rs. 500 as compensation for renouncing his rights. The third respondent accepted this award which was decreed by an order o! The Additional Settlement Commissioner, Nnawabshah dated 26-1-1960 It is relevant to point out here that in this order, the Assistant Settlement Commissioner has expressly stated that the third respondent had agreed to 'withdraw his C.S. Form in favour of the petitioner.
Thereafter, the third respondent started paying him rent, but as after three years he tried to eject the third respondent, the third respondent went back on his agreement and filed a miscellaneous application before the Deputy Settlement Commissioner challenging the transfer of the said shop in favour of the petitioner. This application was rejected by the Deputy Settlement Commissioner by his order dated 21-1-1964 largely on the ground that the third respondent was bound by the compromise from which he had obtained benefits. Aggrieved by this order, the third respondent filed an appeal before the second respondent. The second respondent held that the agreement for the disposal of the said shop, on which the petitioner, relied, was contrary to equitable principles and "amounted to imposition of sanctions not warranted by law". The second respondent further held, on the basis of a site inspection by him, that the third respondent was in possession of the said shop, therefore by his order of i3-4-1964 he allowed the third respondent's appeal Aggrieved by this order, the petitioner filed a revision before the first respondent. This respondent held that the said shop was in the possession of the third res--pondent therefore by his order dated 31-9-1964 he dismissed the petitioner's revision application. Aggrieved by this order, the petitioner filed a constitutional petition to challenge the orders of the first two respondents, which has now come up for hearing before me.
2: Mr. Raza, learned counsel for the petitioner advanced two arguments in support of the petition.
His first argument was that the third respondent was bound by the award and agreement of January, 1960, and estopped from challenging them as he had taken benefits under them. Learned counsel's second argument was that the award had emerged in the order of the Assistant Settlement Commissioner dated 26-1-1960 and that, as no appeal had been filed against it within the period prescribed under section 19 of the said Act, the order of the Assistant Settlement Commissioner had become final with' the result that the subsequent orders of the first two respondents, were illegal and without jurisdiction. The first two ,respondents are not .Contesting the petition, but Mr. Sohail appeared on behalf of the third respondent and his submissions were three- fold. According to Mr. Sohail, the award given by the Elders of the Teli Community was not binding on the third respondent. Learned counsel's second argument was that the, first two respondents were entitled, in the exercise of their discretion, to condone the third respondent's delay in challenging the Assistant Settlement Com-- missioner's order of 26-1-1960, and as they had done so, the exercise of their discretion could not be challenged in this constitutional petition.. Mr. Sohail's third argument was that, as the petition, had been filed more than one year after the date of the first respondent's order dismissing the, petitioners' revision application, the petition was barred by laches.
3. 1 do not need to consider the arguments of the learned counsel on the question whether the award given by the Elders of the Teli Com--munity was valid and binding on the third respondent either by it's own force or as an agreement. As rightly submitted by Mr. Raza, it had merged in the order of the Assistant Settlement Commissioner dated 26-1-1960; therefore the obvious point for determination is whether the third respondent could challenge that order after a delay of three years and Mr. Raza's submission was that he could not I was initially impress--ed by Mr. Raza's argument, which was supported by section 19 of the said Act. But Mr. Sohail drew my attention to the fact that the section itself states that the provisions of section 5 of the Limitation Act are applicable to it therefore Mr. Sohail invited me to hold that, in the events that had happened, the first two respondents had, in the exercise of their discretion, condoned the third respondent's delay in filing the appeal, and that I should .Not interfere with the exercise of that discretion.
4. I agree with Mr. Sohail that the first two respondents, were entitled to condone delay, in the exercise of their discretion, and as their discretion has apparently been exercised in the third respondent's favour, the burden of proving that the discretion was exercised perversely falls on the petitioner. The difficulty in the petitioner's way however is that he has not cared to file the copies of the pleadings before the Settlement Authorities, nor has the record been summoned, therefore the question whether the third respondent had made out a case for condoning his delay has to be decided by the pleadings in this Court. Here .I have to point out that in his counter-affidavit the third respondent has admitted that the award of the Teli community was in the petitioner's favour, but he has submitted that he was illiterate, that .The petitioner was a very influential person in the Teli community, that the petitioner stood in a fiduciary relationship to him and that the petitioner had influenced the persons giving the award on account of his position in the Community.
Although the petitioner has denied the third respondent's allegation as false, he has not expressly denied the allegations of undue influence made by the third respondent against him, nor has he denied the contention of the third respondent that he is illiterate. There were therefore ample grounds on which the first two respondents could condone the delay by the third respondent in challenging the Assistant Settlement Commissioner's order of 26-1-1960. Additionally, I have to point out that from a perusal of the orders of the first two respondents, it does not appear that the petitioner had objected to the application ' filed -by the third respondent on the ground of laches or on the ground of limitation under section by of the said Act. In the circumstances discussed, the first two respondents could, in the exercise of their discretion, have condoned the third respondent's delay in challenging the Assistant Settlement Commissioner order of 26-1-1960, and merely because they have condoned that delay, it cannot be said that their orders are without lawful authority.
5. As the third respondent's appeal, mis-described as an application, was not time-barred, the next question for consideration is whether the petitioner was in possession of the said shop, as claimed by him, or whether its possession was with the third respondent at the relevant date, namely, 20th December, 1958. Mr. Raza submitted that the claim of the petitioner was supported by the copies of the Custodian's receipts (Annexures A to A-7 of the petitioner) whilst Mr. Sohail criticised these receipts on the ground that they either did not show the survey .Number of the shop for which rent had been paid or that the - number shown was 219, therefore they could not be the receipts for the said shop. Mr. Raza however said that the petitioner's case was supported by the statement of account of the Deputy Settlement Commissioner dated 5-11-1959. Both the parties also relied on the claims made by them in their pleadings in this Court. However, the question of possession was within the jurisdic--tion of the Settlement Authorities, and had to be decided by them.
Unfortunately the Assistant Settlement Commissioner did not go into it because the dispute had been settled before him. The Settlement authori--ties had however examined this question when the matter was reopened on the third respondent's application, and Mr. Sohail submitted that the orders of the Deputy Settlement Commissioner dated 21-1-1964 and the second respondent's order dated 13-4-1964 supported the third respondent's claim of possession. It .Is true that the second respondent's order refers to the third respondent as being in possession of the said shop when the site was inspected, but as the said shop was inspected in 1964, as rightly submitted by Mr. Raza, it's possession in 1964 was irrelevant to the question of its possession on 20th December, 1958. Mr. Sohail then referred me, to the last paragraph - in the Additional Settlement Commissioner's order in which the Additional Settlement Commissioner has observed that the third respondent's claim for possession was supported by the petitioner's own admission. But the pleadings before the Settlement Authorities have not been produced before me and, as the petitioner's case throughout has been that, although the third respondent was in possession he was in possession as his tenant in pursuance of the award or agreement, I do not think any admission can be spelt out against the petitioner on the basis of the cursory observations of the Additional Settlement Commissioner's order.
6. Additionally, Mr. Raza submitted that possession under the said Act did not mean mere physical occupation but possession under a claim to possession. Learned counsel's submission is supported by a Division Bench judgment of the West Pakistan High Court in Zafar v. Niazi (PLD 1965 Kar. 52) and I agree with his further submission that the 1st and 2nd respon--dent had not really examined the question whether the third respondent was in possession of the said shop because they had equated his occu--pation with possession. Thus the first respondent had made a passing observation that there was no dispute about possession without examining the nature of his occupation, whilst the second respondent has referred to the agreement or award and rejected it as illegal. But, irrespective of the question whether the agreement or award was illegal, it was relevant to the determination of the question whether the third respondent's occu--pation amounted to possession of the said shop within the meaning of section 2 of the said Act. As the first two respondents have thus not applied their minds to this question, I observed that the proper and fair order would be to refer the case back to them so that they could decide it in accordance with the principles laid down in Zafar's case.
7. Mr. Sohail welcomed the suggestion, but this was without pre--judice to his submission that the petition was barred by laches. The petition was filed about 14 months after the first respondent's order dismissing the petitioner's revision application, therefore, according to Mr. Sohail, it was barred by laches. Mr. Raza admitted that there was decay in filing the petition, but his explanation was that the delay had been caused because his office clerk had misappropriated money with the result that this and many other petitions had not been filed, though they had been ready for presentation in Court Clerks do not normally mis--appropriate funds entrusted to them and advocates are entitled to place confidence in their clerks; therefore Mr. Raza's explanation is reasonable and I hold that the petition is not barred by laches.
7. Reverting to the merits of the case, I have already explained that the first two respondents had accepted the third respondent's claim because of their finding that he was in possession of the said shop. But in coming to this finding they had relied on the petitioner's occupation of the said shop and or the possession at the date of his appeal. As rightly submit--ted by Mr. Raza, they did not examine the nature of his occupation and a thereby ignored 'the principle laid down in Zafar's case. The orders of the said respondents are therefore without lawful authority. But as the question of possession has to be decided by them, the case has to be remanded, to the second respondent for re-hearing.Accordingly, I allow the petition and set aside the order of the second respondent dated 13-4-1964, and the order of the first respondent dated 31-8-1964. The second respondent shall re-bear the appeal of the third respondent and decide it according to law, after giving both parties the opportunity to produce evidence in support of their respective claimq of possession.
The appeal should be disposed of within six months, and the patties will thereafter be free to prosecute their remedies in law, if any. The petition is allowed to the extent stated herein, and I leave the parties to bear their own costs.
M.Y.H.