QADEERUDDIN AHMAD, J.-This letters patent appeal is directed against the judgment of an Ex-Chief Justice of this Court, namely Mr. Justice Inamullah Khan dated the 5th of April 1966, by which he dismissed the petition of the present appellant bearing No. 680/63 in terms of Article 98 of the Constitution of 1962.
2. The facts which form the backgound are lengthy and somewhat complicated. According to counsel for the parties 100 acres of agricultural land situated at Sanghar were allotted to Azizul Hakim on the 13th of June 1957 in term of the West Pakistan Rehabilitation and Settlement Scheme of 1956. Subse--quently, the Displaced Persons (Land Settlement) Act, 1958 came into force on the 3rd of September 1958. In December 1958, Azizul Hakim surrendered the land which was allotted to him under Martial Law Regulation No. 49. On the 15th of April 1959 a notification was issued by the Provincial Government under section 4 of the Displaced Persons (Land Settlement) Act, 1958 acquiring "all land as defined In clause (3) of section 2 already allotted under the West Pakistan Rehabilitation Scheme." It was thus available for allotment according to law. On the 2nd of June 1959, the present appellant applied for the allotment of that land and was successful in getting it allotted to him vide order dated the 15th of June 1959. On the 16th of June 1959 his name was entered at Serial No. 45 of R.L. 11 and a Khatoni was issued in his favour. In June 1959, the entry was cancelled by the Rehabilitation Mukhtiarkar without notice to him on the ground that it was already allotted to Azizul Hakim. On the 2nd of July 1959, the officer communicated information of the cancellation to the Deputy Rehabilitation Commissioner. On the 9th of July 1959, an Additional Rehabilitation Commissioner ordered at Lahore that the claim of `the present appellant be satisfied. On the 18th of July 1959 respondent No. 1 applied for the allotment of the surrendered land.
On the 20th of July 1959 Mr. Enver Adil, Additional Rehabilitation Commissioner, ordered as follows:- "I have no objection to the allotment of these survey numbers to the applicant subject to availability and entitle--ment."
The land was accordingly allotted to him and a Khatoni was issued in his favour.
3. The present appellant was not satisfied with the situation; therefore, he went in appeal to the Deputy Rehabilitation Commissioner, who accepted it on the 9th of February 1960 and cancelled the allotment.
Respondent No. I consequently moved the Rehabilitation Commissioner who accepted his plea and setting aside the order of the Deputy Rehabilitation Com--missioner restored the allotment on the 27th of February 1960. The present appellant went in revision to the Chief Settlement Commissioner on the 8th of October 1960, who accepted it and set aside the order of Mr. Enver Adll dated the 27th of April 1960.
4. Respondent No. 1 then filed a writ petition to question the order of the Chief Settlement Commissioner which was accepted on the 13th of December 1962 and the order of the Chief Settlement Commissioner dated the 8th of October 1960 was set aside. It was held that the Chipf Settlement Commis--sioner could neither pass that order under section 11 (4) of the Rehabilitation Act, 1956, nor under section 19 of the Displaced Persons (Land Settlement) Act, 1958. At that time the High Court did not have letters patent jurisdiction; therefore, the appellant went to the Supreme Court on the Ilth of February 1963 and asked for leave to appeal. That application was dismissed on the 29th of March 1963 with the following obser--vations t- "We are of the opinion that under the circumstances of this case the High Court was justified in not proceeding further than it has done. The petitioner had in fact not appeared before the High Court at the time of arguments. If the order of the Settlement and Rehabilitation Commissioner is also void or liable to be attacked, all remedies against it are now open to the petitioner because of the fact that the order of the Chief Settlement Commissioner, by which the order of the Settlement and Rehabilitation Commissioner had been set aside, has itself been quashed."
5. We may mention in explanation of the above obser--vations that the learned Single Judge, who decided the writ petition, merely quashed the order of the Chief Settlement Commissioner dated the 8th of October 1960 and did not consider the validity or otherwise of the earlier order of the Rehabilitation Commissioner dated the 27th of February 1960. But the appellant took advantage of the observations of the Supreme Court and filed Writ Petition No. 680/63, in which he questioned the order of the 27th of February 1960. The learned Single Judge, who heard this petition, happened to be the same who had heard and granted the earlier petition with respect to the order of the Chief Settlement Commissioner. After hearing the parties he dismissed the petition on the 5th of April 1960 as mentioned above. The jurisdiction of this Court to hear the letters patent appeal was restored on the 4th of April 1963, with the result that the appellant has preferred this appeal.
6. Mr. Ali Ahmed Fazeel appearing for the appellant has advanced the following arguments:
(1) Mr. Enver Adil, who made the order of the 27th of February 1960, had no authority to do so because the property in dispute had been acquired by the Government in terms of section 4 of the Displaced Persons (Land Settlement) Act, 1958; therefore, it had to be placed in a pool in terms of section 5 (1) (a) of the said Act and transferred by the Chief Settlement Commissioner in terms of section 12 of that Act. This procedure involved appeals and revisions which were to be heard in terms of sections 18 and 19 of that Act. In so far as appeals are concerned, Deputy Settlement Commissioners, Additional Settlement Commissioners, Settlement Commis--sioners and the Chief Settlement Commissioner were the authorities who could hear them as provided by section 18 of the said Act. But in so far as revision goes, counsel contended, that a Settlement Commissioner, who was specially empowered in this behalf by the Chief Settlement Commissioner, could only hear it in terms of subsection (2) of section 19 of the Act. This subsection is as follows: "(2) A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may of his own motion within nine months, or on application made in that behalf within 60 days, call for the record of any case or proceeding under this Act, in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order for the purpose of satisfying himself as to the correctness, legality or propriety of such order and may pass such order in relation thereto as he thinks fit."
On the basis of the above provisions Mr. Fazeel argued that Mr. Enver Adil could not make the order of the 27th of February 1960, because he was not a Settlement Commissioner specially empowered in that behalf by the Chief Settlement Commissioner. Counsel referred to the notification of the 12th of February 1960 which was issued by the Central Government vide Gazette of Pakistan, Extraordinary of that date bearing Reference No. S. R. O. 105 (K) under subsection (1) of section 9 of the Displaced Persons (Land Settlement) Act, 1958 and contended that it did not fulfil the requirements of subsection (2) of section 19 of the said Act. Inasmuch as Mr. Enver Adil was not "specially empowered" by the Chief Settlement Commis--sioner for hearing revision application under section 9 of the Act.
2. Mr. Enver Adil was the officer who had .Made the earlier order of the 20th of July 1959, in pursuance of which land was allotted to respondent No. 1 and then himself heard the revision application which was accepted by him on the 27th of February 1960. He could not do so.
3. Counsel criticised the findings of the learned Single Judge that the appellant was guilty of negligence and laches in filing the writ petition. The observations of the learned Single Judge are as follows: "A preliminary objection has been taken by the learned Advocate for the respondent that the petition suffers from laches and delay. In this connection it was submitted that their Lordships of the Supreme Court dismissed the application for leave to appeal on 29th March 1963. The petitioner obtained a certified copy of the said order dated the 19th of April 1963. There is no explanation whatsoever as to why the petitioner filed the petition in this Court on 27th August 1963. In this connection it was submitted that the respondent has been in possession of the property since 1959 up-to-date. He has spent a considerable amount of money on improvement of the land. In these circumstances it is submitted by the learned Advocate for the respondent that the petitioner should have expeditiously challenged the order of the Settlement and Rehabilitation Commissioner and not "waited for about 5 months for the filing of the present writ petition. There is force in this contention. In this connection I would also like to note that it was open to the petitioner to urge before this Court in the writ petition filed by the respondent challenging the order of the Chief Settlement Commissioner that this Court should not exercise its extraordinary jurisdiction in favour of the respondent as the order passed by the Settlement and Rehabilitation Commissioner on 27th February 1960, was itself without jurisdiction. This was not done. In the circumstances I would hold that the petition suffers from laches and delay."
7. We take up the last argument first because It can be .Disposed of briefly. Mr. Abdul Hafeez Pirzada has supported the finding of the learned Single Judge by saying that the Supreme Court had noted in its order of the 29th of March 1963 that the present appellant had not even appeared before the Court to contest Writ Petition No. 9 of 1961. Moreover, the appellant objected to the validity of the order of Mr. Enver Adil dated the 27th of February 1960 for the first time when he applied for leave to appeal to the Supreme Court in 1963. During the entire period in between these two dates he had never questioned the jurisdiction of the officer. Mr. Fazeel's criticism was that the present appellant was a respondent in Writ Petition No. 9 of 1961 and therefore, it was not incumbent upon him to . Bject to the jurisdiction of Mr. Enver Adil in those proceedings. He also stated that after the rejection of the present appellant's petition for leave to appeal to the Supreme Court on the 29th of March 1963, he applied for a copy of that order which was received by him on the 10th of April 1963 and then the High Court was closed for summer vacation from the 25th of May 1963 to the 9th of August 1963. Can the 27th of August 1963, the petition from which this appeal has arisen was filed. On these facts counsel argued that the entire time taken from the date of the order of the Supreme Court to the institution of the petition which has been decided by the learned Single Judge was about five months, which is not a long period in matters of this nature. We are inclined to agree with the view taken by the learned Single Judge, but do not think it necessary to discuss the question in detail because we have heard the parties on merits and propose to give our decision in that respect.
8. The second argument of Mr. Fazeel does not find any place in the order of the learned Single Judge from which this appeal has been preferred and Mr. A. H. Pirzada pointed out that it was neither urged nor could be urged during the pro--ceedings before the learned Single Judge because the petition of the present appellant was admitted to regular hearing for the consideration of the one point only as follows: "The only point that would require consideration in this--petition is that the Settlement Commissioner Mr. Enver Adil who passed the impugned order against the petitioner had no jurisdiction under the Displaced Persons (Land Settle ment) Act, 1958."
In the body of the order of the learned Single Judge also it, was observed that: "the real question that requires consideration in this petitioa--is as to whether the proceeding between the parties that initiated in 1959 before the Rehabilitation Authorities was under the Rehabilitation Act ;,f 1956 read with the Rehabili--tation Settlement Scheme made thereunder or under the Land. Settlement Act, 1958."
We may also observe that this objection was not raised at. The time of the hearing of the revision application by Mr. Enver Adil nor was it raised before the Chief Settlement Commissioner, when the present appellant filed the second revision application. In these circumstances we disallow the-- objection.
9. As indicated above, the real contention of the present. Appellant in these proceedings is whether Mr. Enver Adil could allot the land to the respondent as a Deputy Rehabilitation Commissioner or not? Mr. Fazeel's contention has been that he could not because the land had been acquired before the. Allotment in terms of section 4 of the Displaced Persons (Land Settlement) Act, 1958 vide Notification dated the 15th of April 1959; therefore, in terms of section 5 of the Displaced Parsons (Land Settlement) Act, 1958, the acquired land became a part of the pool which was constituted under clause (a) of sub---section (1) of section 5 of the Act and could be transferred out of that pool under section 12 of the Act only. If this argument is accepted as correct, then the consequence would be that. Mr. Enver Adil could only make the order of the 27th of February 1960 in terms of section 19 of the Displaced Persons (Land Settlement) Act, 1958 only. A reference to subsection (2) of that section shows that the power was subject to special empowerment in that behalf by the Chief Settlement Com--missioner; therefore, Mr. Fazeelargued that such special: empowerment having not been made, Mr. Enver Adil was not. Competent to make the order of the 27th of February 1960.
10. But Mr. A. H. Pirzada has struck at the root of the-- argument by saying that, in terms of the Notification dated the 15th of April 1959, which was issued under section 4 of the Displaced Persons (Land Settlement) Act, 1958, only that land was acquired which was already allotted. The Notification had no effect on the land which did not stand allotted on that date.
The land in dispute was unallotted on that date because its' allotment which was made on the 13th of January 1957, in favour R of Azizul Hakim had ceased to be operative by virtue of the surrender of that land by him on the 31st of December 1958. We think that Mr. Pirzada is right in making this argument and that the land was not acquired at the time of the hearing of the appeal under section 4 of the Displaced Persons (Land Settlement) Act, 1958 by virtue of the Notification issued on the 15th of April 1959, under section 4 of the Displaced Persons (Land Settlement) Act, 1958. This being the factual and legal situation, it is not right to say that Mr. Enver Adil could not hear the revision application which was made to him and to decide it on the 27th of February 1960, in terms of subsection (4) of section 11 of the Pakistan Rehabilitation Act, 1956. His power to exercise revisional jurisdiction under that provision has not been questioned before us.
11. Additionally, Mr. F irzada has argued that the revision application which was accepted by Mr. Enver Adil was preferred by the present respondent to question the order which was obtained by the present appellant by filing an appeal to the Deputy Rehabi--litation Commissioner which was accepted by him on the 9th of February 1960. T hat appeal having been heard and decided by a Rehabilitation Officer, it was not necessary for the respondent to go higher up in the same hierarchy by preferring a revision application to Mr. Enver Adil who was Rehabilitation Commis-- sioner. Not only this, but in addition to it, the present appellant went in second revision to the Chief Settlement Commissioner and did not object even there to the jurisdiction of Mr. Enver Adil exercised by him under the Pakistan Rehabilitation Act, 1956. After having invoked the jurisdiction of the Rehabilitation Officers and having failed to object to the jurisdiction of Mr. Enver Adil during the Departmental proceedings, he failed to object to his jurisdiction when the respondent filed Writ Petition No. 9 of 1961 to question the jurisdiction of the Chief Settlement Commissioner which he exercised in hearing the second revision application of the present appellant and allowed it. Writ Petition No. 9 of 1961, filed by the respondent was accepted and it was thereafter only that the appellant thought of questioning the jurisdiction of Mr. Enver Adil when he applied for special leave to appeal to the Supreme Court.
12. Mr. Fazeel has attempted to justify the omission of the present appellant in not objecting to the jurisdiction of Mr. Enver Adil during the proceedings of Writ Petition No. 9 of 1961 by relying on Muhammud Afzal v. Board of Revenue, West Pakistan (1) and Muhammad Tufail v. Abdul Ghafoor (2). Counsel's argument however, does not help the present appellant with respect to his conduct in invoking the jurisdiction of the Rehabilitation Olficars and omitting to object to the jurisdiction of Mr. Enver Adil at any time during the Departmental pro--ceedings. In so far as the omission to object to his jurisdiction during the proceedings of Writ Petition No. 9 of 1961. Is concerned, the appellant's conduct has been rightly criticised by the learned Single Judge on the ground of laches and negligence.
(1) PLD 1967 SC 314(2) PLD 1958 SC (Pak.) 201
13. The total effect of the arguments advanced by Mr. Pirzada that the land was not acquired at the relevant time under) section 4 of the Displaced Persons (Land Settlement) Act, 1958,, that the appellant himself invoked the jurisdiction of the Rehabilitation Officers and did not object the jurisdiction o Mr. Enver Adil at any time during the Departmental proceedings and of the omission of the appellant to question the jurisdiction of Mr. Enver Adil for about three years from the 27th of February 1960 to 29th of March 1963, is that Mr. Fazeel's contention about the jurisdiction of Mr. Enver Adil cannot be accepted.
14. The overall conclusion of the above discussion is that this appeal cannot be accepted. It is dismissed with costs.
K. B. A.