' This writ petition has been directed against the Transfer Order dated 5th December, 1973 `Annexure K' of the Deputy Settlement Commissioner, Faisalabad transferring therein Atta Chakki, known as Nathoo Ram Flour Mills, bearing property No, P. 115, situate as Water Works Bazar, Gojra, Tehsil Toba Tek Singh, District Lyallpur in favour of respondent No, 1, as well as, the order dated 5th May, 1975, of the Chief Settlement Commissioner, extracts of which are reproduced in the order dated 15th September, 1975 of the Deputy Settlement Commissioner. Lyallpur, `Annexure H' whereby the former refused to reopen the case regarding recovery of Rs, 3,800 from respondent No, 1.
2. The relevant facts giving rise to this writ petition are that initially the property, in dispute, was transferred to Mangha (now deceased), the father of the peritioner, as an unregistered Industrial concern under para. 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and accordingly, a Provisional Transfer Order was issued on 12th September, 1960, at a transfer price of Rs, 22,753. On failure to pay the transfer price, the property was resumed and was included in the auction list but nobody gave bid. In consequence, on 19th January, 1969 respondent No, 1 entered into negotiation with the Settlement Department under Settlement Scheme No, VIII for the purchase of the property and eventually on 3rd February, 1969, the property was transferred on negotiation basis at a transfer price of Rs, 23,000 in favour of respondent No, 1 and a Permanent Transfer Deed dated 7th February, 1969 was issued accordingly.
The petitioner unsuccessfully challenged the order in question, in appeal and revision before the Settlement Authorities. Ultimately, however on 25th March, 1971, the learned Single Judge of this Court was pleased to accept the petition (Writ Petition No, 976/R-69), declaring therein that the impugned cancellation of the transfer of the property as well as its transfer to Allah Ditta respondent No, I was without lawful authority and of no legal effect. Letters Patent Appeal No, 125 of 1971 against the same order was also dismissed by a Division Bench of this Court on 10th December, 1971.
3. Subsequently again on failure to pay the dues, the property, in question was resumed for non- payment of transfer price by the Deputy Settlement Commissioner, Lyallpur, by his order dated 7th July, 1973 `Annexure A' and an intimation to the same effect was communicated to the petitioner on 11th July, 1973. Thereafter, the property in question, was transferred in favour of respondent No, 1 on negotiation basis at a price of Rs, 23,000 The payment of full transfer price by the respondent No, 1 has not been disputed.
4. The petitioner challenged the transfer of the property in favour of the respondent No, 1 and in consequence thereof, the Settlement Commissioner, Sargodha, by his order dated 10th January, 1974. `Annexure C' partly allowed the revision petition of the petitioner and observed that the petitioner should clear the transfer price within fifteen days of the Transfer Order fading which the property shall stand transferred to respondent No,
1. Neither party challenged the order, in question, and the same had thus attained finality. Be that as it may, a miscellaneous application was moved on 3rd April, 1974 (Annexure D) by the petitioner before the Settlement Commissioner, seeking therein extension in the payment of transfer price. The Settlement Commissioner by an ex parte order dated 3rd April, 1974 `Annexure D' accepted the application and allowed the petitioner to make payment of Rs, 10,000 on the same day and to pay the balance within one month thereof.
5. It is contended by the learned counsel for the petitioner that in implementation of the aforesaid order, the petitioner paid Rs, 10,000 on 5th April, 1974, although in terms of the order in question, the said amount ought to have been deposited on 3rd April, 1974. He further submitted that a part payment amounting to Rs, 5.970 was paid on 27th April, 1975 and the remaining payment amounting to Rs, 6,783 was adjusted against the Compensation Book of Mehnga deceased. The petitioner, however, made another miscellaneous application dated 30th April, 1975 Annexure 'G' to the Chief Settlement Commissioner praying therein that a sum of Rs, 3,800 may be recovered from respondent No, 1 from the amount deposited by him with the Settlement Department at the time of passing the initial Transfer Order and the same be paid to the petitioner. The application of the petitioner was disallowed by the Deputy Settlement Commissioner vide his order dated 15th September, 1975 `Annexure H' in view of the earlier order passed by the Chief Settlement Commissioner dated 5th May, 1975 which has been produced in Annexure 'H' and reads :- "It is stated that the opposite party has made an application to the D.S.C. D.S.C. May see the application. According to the petitioner he has made full payment and obtained the T.O. If this be so, there will apparently be no reason to reopen the case."
6. The learned counsel for the petitioner submitted that since the order dated 7th July, 1973, of the Deputy Settlement Commissioner, Annexure 'A' resuming the property, in question, on account of nonpayment of transfer price was void ab initio, inasmuch as, the same was passed without notice to the petitioner, therefore, all subsequent orders whether passed in favour of the petitioner or against him are also nonexistent in the eye of law. It was further contended that the transfer price was not determined in accordance with the relevant provisions of settlement scheme No, 1 which inter alia envisaged the recovery of the transfer price in 36 instalments and for each instalment a separate notice ought to have been issued by the Deputy Settlement Commissioner and failure to do so! Has resulted in great miscarriage of justice.
7. The contentions raised by the learned counsel for the petitioner are devoid of any force. The order dated 10th January, 1974 of the Settlement Commissioner `Annexure C' had attained finality whereunder the petitioner was given a last chance to deposit the transfer price within fifteen days from the receipt of that judgment failing which the property stood transferred in favour of respondent No, 1 who had already made full payment of the transfer price long ago. The petitioner admittedly failed to comply, with the said order and, therefore, on this score alone the transfer of disputed property in favour of respondent No,. 1 does not suffer from any legal infirmity. The subsequent ex parte order of the Settlement Commissioner dated 3rd April, 1974 allowing the petitioner to deposit B Rs, 1,000 on 3rd April, 1974 and the remaining within one month thereafter, was of no legal effect, inasmuch as, the Settlement Commissioner became functus officio after passing the order dated 10th January, 1974 and the same could not be reopened by means of a miscalleneous application and without notice to the respondent No,
1. The petitioner, however, made default in compliance of this order as well. In any case, the petitioner cannot be permitted to challenge the order dated 10th January, 1974 of the Settlement Commissioner which was passed at his own instance after hearing both the parties. This being so, the defect, if any, in the order of resumption stood cured by the aforementioned subsequent order of the Settlement Commissioner.
This order has not even been impugned in the writ petition.
8. The petitioner is, therefore, estopped by his own conduct to challenge the order of transfer made in favour of respondent No, 1 and the Writ Petition also suffers from laches.
9. Ch. Qadir Bakhsh, learned counsel for the respondent has also referred to page 633 of the file of the Settlement Department which was examined in Court in the presence of learned counsel for the parties. The record of the Settlement Department clearly shows that the price was determined by the Deputy Settlement Commissioner after recording the statement of the petitioner and in consequence thereof the order was passed in his presence.
10. In S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1), it was held that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches. I, however, do not find any legal infirmity in the impugned order.
11. In view of the above, the writ petition is hereby dismissed with costs.
(1)1978 SCM R 367