NASIM HASAN SHAH, J.--This appeal under clause 10 of the Letters Patent calls in question the judgment of a learned Single Judge whereby the writ petition of the present appellants bearing No, 2103/R-62 was dismissed by his order dated 4-10-65.
2. The facts constituting the background of this appeal are that the property in dispute commonly known as Dinga Singh Building, bearing No, S-37/R-161, Beadon Road, Lahore, is assessed at monthly rental of Rs, 638.50 per mensem and, therefore, was treated as a big mansion.
Respondents Nos, 1 to 3 who have been transferred this property, through private negotiations, at first offered a bid of 50 times the annual rental value of the property to the Chief Settlement Commissioner in connection with its transfer. A similar offer was then made by the appellants also.
However, on 17-8.64, respondents Nos, 1 to 3 raised their offer to 55 years' annual rent and this offer was accepted by Mr. I. A. Khan, Settlement Commissioner (Industries) on 22-8-60 and the acceptance of the offer was duly intimated by him by a memo. issued on 24-8-60 (Annexure 'F' to the writ petition). The validity of this memorandum is inter alia impugned in the present proceedings. The next day, on 25-8-60, the appellants submitted a fresh offer raising their bid to 60 years' annual rental value of the property. No action was taken on the said offer, presumably because the earlier offer of the respondents already stood accepted. The transfer of the disputed mansion in favour of the respondents was accordingly challenged by two writ petitions, namely, W.
P. No, 46l/R-60 and W. P. No, 462/R-60, the latter one was presented by the present appellants. In the course of the proceedings of the said writ petitions, it was stated in the written statements filed on behalf of the Department that the Chief Settlement and Rehabilitation Commissioner had decided to suo motu review the acceptance order made in favour of the respondents Nos, 2 to 4 (presently respondents Nos, 1 to 3), in view of the higher bid offered by the petitioners. On account of this statement, the present appellants, inter alia, withdrew, their writ petition with permission to file a fresh petition, if necessary. The request was accepted and both the writ petitions were ordered to be dismissed as withdrawn.
3. When the matter went back before the Chief Settlement and Rehabilitation Commissioner he did not, however, himself dispose of the matter but on 16-3-62 made the following order "In view of my heavy pre-occupation with other more important work, I have little time to hear cases of this nature. I, therefore, transfer this case pending before me under section 32-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to Sh. Muhammad Rafique, Settlement Commissioner with delegated powers of Chief Settlement Commissioner for disposal according to law under section 20(2) of the said Act."
The said learned delegate of the Chief Settlement Commissioner heard the parties but decided not to interfere with the earlier order passed by Mr. I. A. Khan dated 24-8-60 and disposed of the case accordingly vide his order dated 11-8-62.
4. Dissatisfied with the order passed by Sheikh Muhammad Rafiq, the appellants filed a petition under Article 98 of the 1962-Constitution wherein the main contention raised by them was that section 10(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as the Act, empowered only the Chief Settlement Commissioner acting by himself to transfer the property out of the compensation pool in any such manner as may be approved by the Central Government and this power could not be exercised by his delegate. The learned Single Judge was of the view that Sheikh Muhammad Rafiq was delegated the powers of Chief Settlement and Rehabilitation Commissioner and was transferred the case regarding the disposal of the aforesaid big mansion under the provisions of section 32-A of the Act and that as he was acting as Chief Settlement Commissioner he could dispose of the property and approve of the bid at 55 years' rent of the premises offered by respondents Nos, 1 to 3. The learned Single Judge also did not accept the argument that it was only the Chief Settlement Commissioner who could himself transfer the property out of the compensation pool and that this power could not be exercised by his delegate. He also observed that although the particular notification by which the power was delegated to the Settlement Commissioner was not brought on the record, it could be presumed that this power must have been delegated to him. He also held that in any case the transfer stood validated by virtue of the provisions of Ordinance HI of 1963. Accordingly the writ petition was dismissed by the learned Single Judge by his order dated 4-10-65. The present Letters Patent Appeal has been instituted to question the validity of the said order. The appeal was filed on 11-11-65 i e. 38 days after the passing of the impugned order of the learned Single Judge.
5. A preliminary objection has been raised to the maintainability of this appeal on the ground that the time allowed for such appeals is only 20 days and even after excluding the time spent on obtaining the copy of the order of the learned Single Judge it is out of time and is, therefore, liable to be dismissed as barred by time. An application under section 5 of the Limitation Act for condonation of delay in filing this appeal has, however, been submitted. In excuse of the delay it is stated that the appellants applied for the copy of the order dated 4-10-65 passed by the learned Single Judge on 6-10-65 and it was delivered to them on 13-10-65, accordingly the Letters Patent Appeal should ordinarily have been filed by 2-11-65 and the delay is only of 9 days. This delay, it is submitted should be condoned because a bona fide belief then prevailed that owing to the view taken by the Supreme Court in Messrs Parm Bamboat v. The Collector of Karachi etc. which judgment was reported in the May Issue of the P. L. D., no Letters Patent Appeal was competent against any judgment passed by a Single Judge under Article 98 of the Constitution. It is said that the said construction was being by the Registry of the High Court and it was the established practice of the Registry not to accept any such appeals and the office used to direct the parties1 and their counsel to file appeals against such orders before the Supreme Court directly. It is accordingly submitted that in view of this fluid state of the law existing on 4-10-65 when the order by the learned Single Judge was passed, the appellants under advice of their counsel applied for a copy of the High Court judgment for Supreme Court use and they were also informed that the time limit for filing a Petition for Special Leave to Appeal to the Supreme Court was 60 days. It is further claimed that the appellants approached their attorney and counsel on 10-11-65 for expediting the filing of the Petition for Special Leave to Appeal as the last date of filing an appeal in that Court was fast approaching. In the meantime, on 29-10-65, a judgment had been delivered by the Supreme Court in another case Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner holding that a Letters Patent Appeal in a matter decided by a Single Judge under Article 98 of the Constitution was competent, the appellants were accordingly imparted this information and they immediately directed their counsel to file a Letters Patent Appeal in this Court which was filed, without any further loss of time, the next day. It is, therefore, prayed that the delay that has occurred in filing the appeal may be condoned. Reliance is also placed on a judgment delivered by one of us and reported as Muhammad Shafi v. Firm Haji Fazal Shafi, wherein the delay in that case was condoned owing to the state of law being fluid.
6. Learned counsel for respondent No, 3 as well as respondent No, 2, who himself argued the matter, have vehemently opposed the prayer for condonation of the delay. It is pointed out in the first instance that the appeal is not barred only by 9 days but in fact it is barred by 15 days. In this connection, it is submitted that the copy of the judgment was in fact prepared in one day i,e, it was ready for delivery on 7-10-65 and if its delivery was taken on 13-10-65 the six days delay in receiving delivery of the copy cannot be excluded or be counted as time spent in obtaining the certified copy. As regards the explanation given in excuse of the delay, it is submitted that although it is correct that the Registry of the High Court was construing the judgment of the Supreme Court reported in PLD 1965 SC 300 as laying down that no Letters Patent Appeal lay against the judgment of a Single Judge passed under Article 98 of the Constitution yet this view was entirely erroneous. Sheikh Aftab Hussain, Advocate, took us through the judgment of their Lordships of the Supreme Court in the said case, and we are in agreement with him that the said judgment did not deal with the question of a judgment passed in exercise of this Court's jurisdiction under Article 98 of the 1962-Constitution, and the observations made therein did not yield the result that Letters Patent Appeals against orders passed under Article 98 of the said Constitution by a Single Judge could not be maintained. It is further urged that the only proper and legal Hassan Khan course to be followed by the appellant was to have filed an appeal in this Court and even if the office had raised an objection that Nasim Hasan the appeal was not maintainable the counsel should have met Shah, the objection by replying that the ruling relied upon by the office in support of their objection was not relevant and could have asked for the matter being placed before the Court. It is urged that this course was indeed followed when the appeal was ultimately filed on 11th of November 1965 inasmuch as the office even then returned the appeal to the counsel with the remarks that "in view of the decision of the Supreme Court in PLD 1965 SC 300, a Letters Patent Appeal is not competent against the decision of a Single Judge of the High Court under Article 98 of the Constitution" but this objection was met by the learned counsel who recorded the following note in respect of this objection : "PLD 1965 SC 300 referred by the office is not relevant. That case was referred to the High Court under section 84(2) of the Cantonment Act and not under Article 98 of the Constitution. The office note is incorrect. Moreover, the Supreme Court has in a case decided, recently which is not reported, held that L. P. A. lies to High Court from the order of Single Judge under Article 98 of the Constitution". It is submitted that the course ultimately followed by the appellants in rebutting the view of the office could easily have been followed earlier.
7. Counsel has further urged that a wrong advice given by a counsel is not in law, a good and2 3 sufficient cause for condoning the delay. Reliance is placed on Allah Bakhsh and others v.
Custodian of Evacuee Property, West Pakistan and others particularly on the following remarks : "In the petition for condonation of this inordinate delay, it is stated that he filed the application for a certificate in the High Court under the advice of an experienced senior counsel of the Court. Now under Article 58 of the Constitution of 1962 an appeal against the dismissal of a Writ Petition of 1963 lay to this Court. Hence the wrong advice of a lawyer cannot be regarded a good and sufficient cause for exclusion of the period spent in proceeding with the misconceived application for the certificate."
It is also submitted that though in some cases the mistaken advice of a lawyer has been held to constitute a sufficient ground for condonation of the delay but in these cases it was found that the mistake committed by the lawyer was bona fide that is to say a mistake committed despite the exercise of due care and caution. In the instant case, it is submitted that a cursory perusal of the Supreme Court judgment reported in PLD 1965 SC 300 would have shown that the said judgment did not relate to orders passed by the Single Judge in exercise of his jurisdiction under Article 98 of the Constitution. It is further urged that the plea that the Registry of the High Court would not accept the Letters Patent. Appeal even if it was presented and therefore the error in not filing of appeal should be condoned should not be accepted on the reasoning that if the learned counsel who allegedly gave the advice had acted with due care and caution he could not possibly have accepted the erroneous view of the Registry that in the present case a Letters Patent Appeal was not maintainable. Reliance has been placed by learned counsel on Ahmad Bux etc. v. All Murad, Matlubur Rahman v. University of Karachi etc. and Aon Muhammad v. Rehabilitation Commissioner whereby the view is expressed that if the delay is attributable to negligence and inaction, the delay cannot be condoned. It is also urged that the name of the counsel who allegedly gave the wrong advice to appellants has not been stated in the application nor is there any affidavit or other evidence available on the record to show that such an advice was indeed given by a counsel.
8. We find weight in the objections raised by the respondents and hold that no sufficient cause has been shown in excuse of the delay. Any advice, even if it was given, could have been regarded as a valid excuse for the delay if it could be held to be based on a bona fide mistake but if the mistake has been committed on account of negligence, in not studying the law on the subject and by not exercising due care and caution no ground for condoning the delay exists in law. A valuable right having been created in favour of the respondents it is not liable to be defeated on flimsy grounds.
We hold that the appeal is liable to be dismissed as barred by time.
9. Having heard learned counsel on the merits of the case, we are of the view that even otherwise the order of the learned Single Judge dismissing the writ petition of the present appellants is not liable to interference. Two contentions have been advanced by Mr. M. B. Zaman, Advocate, in support of this appeal. It is contended in the first place that Mr. I. A. Khan, Settlement Commissioner (Industries) being only a Settlement Commissioner to whom the powers of the Chief Settlement Commissioner exercisable by him under section 10(b) of the Act had not been delegated at any point of time he was not Competent in law either to negotiate or accept the offer for transfer of a big mansion by private treaty with the result that the Memorandum dated 24-8-60 (Annexure 'F') purporting to effect the transfer of the big mansion in question in favour of the respondent was of no effect in law. It is urged in the second place that in any case Sheikh Muhammad Rafiq, Settlement Commissioner exercising revisional powers of the Chief Settlement Commissioner under subsection (2) of section 20 of the Act was not competent to decide the review matter and therefore, the suo motu review which the Chief Settlement Commissioner undertook to perform must be deemed to be still pending. It is also submitted that the view of the learned Single Judge that Ordinance III of 1963 had the effect of validating and protecting the order of transfer is not4 5 6 7 correct in so far as the said Ordinance is intended to validate the orders of transfer passed by the Chief Settlement Commissioner at a point of time when it was doubtful if he had the power of transferring such a property and cannot apply to orders which have not been passed by the Chief Settlement Commissioner at all.
10. The property in question has been admittedly transferred in exercise of powers conferred by section 10(b) of the Act which on the material date read as follows :- "Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the compensation pool-- (a)......................................
(b) in such other manner as may be approved by the Central Government."
The Central Government by its letter dated 30-5-60 indicated the manner in which transfers under the above provisions might be effected. The text of the letter is as follows : "I am directed to say that Central Government has been pleased to decide under clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, that big mansions may be transferred by negotiation to any person who offers at least fifty years gross annual rent of such mansion for 1946."
The objection raised is that Mr. I. A. Khan, who was not the Chief Settlement Commissioner could not validly order the transfer of the big mansion in question. The question of Mr. I. A. Khan's status therefore, requires consideration. In this connection our attention has been drawn to an office order dated 22-1-59 which is to the effect : "Mr. Iftikhar Ahmad Khan, C. S. P. has taken over as Additional Settlement Commissioner (Industries)
He will deal with the Industrial concerns, hotels, mansions, building sites and auction organisation".
(underlining is by us).
It seems that shortly thereafter Mr. I. A. Khan was promoted as Settlement Commissioner (Industries). According to the statement made before us by Sardar Hidayat Ullah Mokal, Settlement Commissioner (Legal) which was based upon written instructions issued to him, Mr. I. A.
Khan during his tenure of office as Settlement Commissioner (Industries) was passing final orders for the disposal of industrial concerns, cinema houses, big mansions etc. on the basis of an alleged authorisation in writing by the then Chief Settlement Commissioner Syed Hasham Raza permitting him to pass final orders in such cases. In the case of Abdul Qayyum v. Chief Settlement Commissioner wherein the records of the Department were produced before their Lordships of the Supreme Court and the notes of the officers dealing with the matter of disposal of big mansions were considered, which relevant noting has been reproduced at pages 368 and 369 of the report, the authorisation made in favour of Mr. I. A. Khan has also been reproduced and is contained in the order passed by Syed Hasham Raza at the foot of the note recorded by the Settlement Commissioner (Industries) Mr. I. A. Khan on 4-5-60 and is to the following effect :- "There is no justification for treating Lahore and Karachi on a different footing now that Karachi has ceased to be the Federal Capital. Settlement Commissioner (Industries) may negotiate on the basis of 50 years rent everywhere."
11. From the facts noted above, the factual situation appears to be that although Mr. I. A. Khan, Settlement Commissioner (Industries) was not delegated powers of the Chief Settlement Commissioner under section 10(b) of the Act by a formal Gazette Notification, he was authorised to negotiate the transfer of big mansions and to dispose them of on the basis of 50 years' rent and that he was in fact passing final orders for their disposal. Mr. M. B. Zaman, learned counsel for the appellants, relying upon the Full Bench judgment of this Court in Fazal Karim and others v. Chief Settlement Commissioner etc. urges that without a proper delegation of powers of the Chief Settlement Commissioner under section 31(2) of the Act which must be effected by Notification in the official Gazette, Mr. I. A. Khan, Settlement Commissioner (Industries) could not exercise the8 9 powers of the Chief Settlement Commissioner and that the purported exercise of that power by him is illegal and ultra vires. In reply Mr. Aftab Hussain has submitted that in the earlier writ petition filed by the appellants, the exercise of jurisdiction by Mr. I. A. Khan to transfer big mansions was not challenged and, therefore, they are precluded from raising this question in the course of the second writ petition. It is, further urged that the effect of the written statement submitted by the Chief Settlement Commissioner in the said petition, wherein he had expressed the desire to suo motu review the order of transfer, in view of the higher offer submitted by the appellants, indicated that the Chief Settlement Commissioner had duly maintained the order of transfer passed by Mr. I.
A. Khan but at the same time was prepared to reconsider the matter on account of the higher bid offered by the respondent. It is also submitted that the powers of the Chief Settlement Commissioner under the Act can be exercised by the officers subordinate to the Chief Settlement Commissioner like the Deputy Settlement Commissioners. Additional Settlement Commissioners and Settlement Commissioners and this is done not only by virtue of delegation of powers under section 31 of the Act through Notification in the official Gazette but can also be done under other provisions of the Act as well, namely, under sections 9 and 16 of the Act.
12. We are of the opinion that in view of the decision of the Full Bench of this Court reported in Fazal Karim & Bros. v. Chief Settlement and Rehabilitation Commissioner etc., the contention of Mr. M. B.
Zaman Advocate that Mr. I. A. Khan could properly have exercised the powers of the Chief Settlement Commissioner under section 10(b) of the Act only if he had been delegated the said powers under section 31(2) of the Act by a Gazette Notification is correct. However, for the reasons to be mentioned presently, we are further of the view that the appellants cannot take advantage of this plea at this stage. It is an admitted position that the appellants did not raise the question of defect in jurisdiction as a ground for invalidation of the order of transfer issued on 24-8.60, in their earlier writ petition but challenged it on different grounds. This was doubtless because of the practice adopted by the Department and followed uniformly, to the effect that Mr. I. A. Khan could order the disposal of big mansions and the authorisation in writing given to him by the Chief Settlement Commissioner was deemed to be sufficient authority in law to order the transfer of big mansions on the basis of 50 years' annual rent. Although this view was proven unsustainable in law by this Court's pronouncement in PLD 1964 Pesh. 129 but at the relevant period all concerned, including the parties to the dispute acted on the assumption that Mr. I. A. Khan could validly order the transfer of the mansion in question and as noticed already the objection taken by the appellants earlier related only to the propriety of his action. In regard to the question in issue the Sue remedy Court, in somewhat similar circumstances, have observed in Hamidullah etc. v. Rai Khurshid Ahmad Khan that reliance can properly be placed upon the practice of the Department which is entrusted with the operation of the relevant law. The Departmental Representative stated before us that Mr. I. A. Khan used to pass final orders of transfer himself and in the practice of the Settlement Department he was considered as competent in law to pass such orders. Since his order of 24-8-60 was not challenged on the basis of lack of jurisdiction, when that order was the only order in the field in the earlier writ petition, the challenge to the said order now raised in the course of the second round of the proceedings, cannot be permitted.
13. In support of the second contention that the suo motu review which the Chief Settlement Commissioner had promised to undertake has not been disposed of in accordance with law, it is submitted that Sh. Muhammad Rafiq who has actually disposed of the review was only exercising the delegated powers of the Chief Settlement Commissioner under subsection (2) of section 20 of the Act and was not competent to decide the review matter. Moreover, he did not become the Chief Settlement Commissioner, in the relevant regard, merely because the case was transferred to him under section 32-A of the Act. In this connection our attention has been invited to three recent decisions of this Court. In the first, namely, Muhammad Sharif v. Sh. Muhammad Rafique,10 Settlement and Rehabilitation Commissioner etc. a Division Bench held that as the review power of the Chief Settlement Commissioner had not been delegated to Sheikh Muhammad Rafique through a Gazette Notification, he could not review the order of the Chief Settlement Commissioner, even though the case was transferred to him under section 32-A by the Chief Settlement Commissioner. In the present case a Notification has been placed on the record whereby the review powers of the Chief Settlement Commissioner exercisable under section 21(1) of the Act have been duly delegated in his favour. This Notification, to the extent relevant, is reproduced hereunder :- "Office of the Chief Settlement and Rehabilitation Commissioner, Pakistan, 11-Egerton Road, Lahore. Notification No, 1313/Admn-Reh./62.---In partial modification of the previous Notifications issued from time to time in relation to delegation of my powers under section 20(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, I, Ahsand-ud-Din, C. S. P., Chief Settlement Commissioner, Pakistan, by virtue of the powers vested in me by section 31(2) of the said Act, do hereby delegate my powers under section 21(1) ibid as amended up-to-date to the following Settlement Commissioners in their respective jurisdiction, in respect of such review cases as had been filed before 13-1-62 against orders passed by me under section 20(2) of the said Act. Name of Settlement S. No Commissioner H'Qrs.
1. -------------- ------------------
2. -------------- ------------------
3. Sh. Muhammad RaqueLahore
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2. These officers will also dispose of such review cases as may be entrusted to them from time to time. Sd.) IHSAN-UD-DIN Dated Lahore the Chief Settl. & Rehab.
Comm.
26th April 1962. Lahore."
Thus, in the presence of the above Notification, the above ruling is not strictly relevant. The other two judgments are by the then learned Chief Justice, namely. Dr. Husain Bibi v. S. Ghulam Samdani11 etc. wherein it was held that an order passed by the Chief Settlement Commissioner can only be reviewed by him and not by the Settlement Commissioner exercising the delegated powers of the Chief Settlement Commissioner and Muhammad Sardar Khan v. Chief Settlement Commissioner where the same principle was reiterated. During the course of the judgment the following significant observation was also made, "had it been a case of review of an order of a delegatee of the Chief Settlement Commissioner who had ceased to hold office I might have taken a different view". The above observation is similar to the view expressed by their Lordships of the Supreme Court in the case of Sh. Fazal Ahmad v. Raja Ziaullalz Khan etc.. The instant case falls in this latter category. Sh. Muhammad Rafiq was exercising the delegated powers of review and the order reviewed by him is not an order passed by the Chief Settlement Commissioner himself, but an order passed by an officer exercising some of the powers of the Chief Settlement Commissioner who had ceased to hold office. In consequence there was no bar to Sh. Muhammad Rafiq reviewing his order.
14. In the report submitted by Sh. Muhammad Rafiq, an explanation is given as to why despite the higher offer of the appellants their bid was not entertained. In this connection it has been stated that "at the time of acceptance of the offer of 55 years' rent, there was no higher offer before the department and so the department was justified in accepting it and when a decision for accepting the higher offer has been conveyed, it was difficult for the department to withdraw that offer and to hurt the confidence of the public .When the highest offer is accepted, it is not possible for the department to withdraw that acceptance, even if another highest offer is received." This appears to be a reasonable view and negatives the assertion of the appellants that Sh. Muhammad Rafiq had acted arbitrarily in rejecting their highest offer. It may be observed that none of the parties was vested with any statutory right to obtain transfer of the big mansion in question and both parties were practically in the position of bidders for the property. The question as to whose bid should be accepted lay in the discretion of the Settlement Authorities and we are satisfied that in the circumstances of the case, no illegality was committed in the exercise of that discretion. The orders made in the Department are not, therefore, liable to be interfered with.
15. The result is that this appeal is liable to be dismissed on the ground of limitation as well as on the merits. We order accordingly. Parties, however, are left to bear their own costs. PLD 1965 SC 300 PLD 1966 SC 276 PLD 1964 Pesh. 182 1968 SCMR 117 1968 SCMR 415 1968 SCMR 537(1) PLD 1966 Lah. 319 PLD 1968 SC 362 PLD 1964 Pesh. 129 PLD 1958 SC (Pak.) 516 PLD 1968 Lah. 263 PLD 1969 Lah. 575 PLD 1969 Lah. 659 PLD 1964 SC 293 12 13 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14