The validity of the order of the Settlement Commissioner, Gujranwala, dated 11-6-74 (Annexure G) is questioned in this Constitutional petition.
2. The brief resume of this petition is that the petitioner Fateh Muhammad is the successor-in- interest of Ch. Sultan-ul-Malik while the respondent Abdul Sattar is the transferee of the plot in dispute. The plot in dispute alongnvith other land measuring 3 kanals in khasra No.3019/1141 in Mauza Gakhar, tehsil Wazirabad, District Gujranwala, was confirmed in favour of Abdul Sattar son of Abdul Wahid, respondent No. 1, vide R.L. 11 No.1 (Annexure B). On 30th of April 1966, the entitlement of respondent No. 1 was reduced to only 7 marlas of land. The remaining land measuring 2 kanals 13 marlas was confirmed in favour of one Nizam Din by virtue of R.L.II No.3; dated 30-4-1966.
Respondent No.1 purchased the aforesaid land through a Registered Sale Deed.
3. The petitioner submitted Form under Settlement Scheme No.1 for the transfer of the plot to him on the basis that he was in possession of the plot. This Form remained with the Settlement Department without any action: Meanwhile the Deputy Commissioner initiated a move for the acquisition of property in dispute under the Reservation Scheme to the Settlement Authorities. The Deputy Settlement Commissioner, Gujranwala, by his report dated 4-10-1963 referred the matter to the Additional Settlement Commissioner with recommendation to the effect that Fateh Muhammad, petitioner, was in possession of the plot No. F.309, measuring 12 kanals to the extent of land 206 x 74 and 206 x 16. It was recommended that this was a vacant site and it could not be disposed of and, therefore, it was desirable that it should be reserved in favour of Fateh Muhammad. This recommendation was turned down by the Additional Settlement Commissioner by his order dated 31-10-03.
4. Having failed in this effort, Fateh Muhammad, petitioner, made an attempt tit get it transferred from the Settlement Authorities by filing another application under Settlement Scheme No. VI. The Deputy Settlement Commissioner, vide his order dated 15-3-1971 dismissed the request of the petitioner. The relevant portion of the order of the Deputy Settlement Commissioner, Gujranwala dated 15-3-1971 is being reproduced as below:-- "According to the Revenue Record, the plot measuring 3 kanals was for the use of agricultural use in the year 1946-47 and has been transferred by the land authorities as agricultural land to Abdul Sattar and Mst. Fazal Bior etc. Against their claim for the land left by them in East Punjab. I do not feel myself in a position to interfere with the decision taken by the Revenue Authorities. The land has, therefore, rightly been disposed of by the land authorities in the light of the instructions of the learned Chief Settlement Commissioner referred to above.
5. Feeling aggrieved by this order, the petitioner filed an appeal before the Settlement Commissioner, who by his order dated 25-6-1974, dismissed the appeal. Hence this writ petition.
6. Learned counsel for the petitioner in support of this writ petition has made the following submissions:
(i) That the Settlement Authorities did not at all advert to his Form filed for transfer of the plot in dispute under the Settlement Scheme No. 1 and Settlement Scheme No. VI.
(ii) That the Settlement Authorities had committed error of law by not adverting to the Survey List Rent of Urban Properties (Annexure A) and Annexure C, the order of allotment of the plot in dispute in his favour. These two documents conclusively indicated the nature of the property at the time of partition. It is very clear from these two documents that the plot in dispute was a vacant plot within the urban limits and was to be dealt with under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and it was not to be dealt with under the provisions of the Displaced Persons (Land Settlement) Act.
(iii) That it was a potential building site and was therefore to be dealt with under Settlement Scheme No. VI. Issued under Section 16 (1) (b & c) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
(iv) That the plot in dispute was a vacant plot within the urban limits and the confirmation of the said plot in favour of respondent No. 1 through R.L.II was clearly without any jurisdiction, without any legal authority and was, therefore, void ab initio.
Learned counsel for the petitioner placed reliance on Nafeesa Bani and others v. Chief Settlement Commissioner West Pakistan, Lahore and another (PLD 1980 Lahore 480) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331).
7. Learned counsel for the respondents replied the arguments. Learned counsel for respondent No.1 raised a preliminary objection to the effect that the petitioner suppressed the material facts in this writ petition. As a matter of fact he made an effort to obtain the land through the process of acquisition. His effort was negatived by the Settlement Authorities who refused to reserve the plot for him. Secondly that the nature of the plot was agricultural at the time of allotment in favour of respondent No. l, that the entitlement in favour of respondent No. l was reduced and the land was confirmed in favour of Mst. Fazal Bibi, the successor-in-interest of Nizam Din. The petitioner neither challenged the confirmation in favour of the respondent nor threw challenge to the nature of the property before the competent authorities. The order of confirmation in favour of respondent up to 7 marlas and in favour of Nizam Din upto the remaining land has attained finality. It was further contended that even the initial order of the Deputy Settlement Commissioner has not been challenged in this petition. Lastly, it was submitted by the leaned counsel for the respondent No.1 that the petition has been filed with gross inordinate delay. The order was passed on 11-6-1974 while the petition was filed before this Court on 19-3-1977. The, delay has not been explained in the N r it petition.
8. The arguments of the parties were heard at length and the record was perused with the help of the learned counsel for the parties.
9. I do not subscribe to the submissions made by the learned counsel for the petitioner. Tile argument of the learned counsel that the plot in dispute was an urban plot is hardly tenable. The plot in dispute admittedly alongwith the other land was confirmed as an agricultural land on 8-7-
60. 2 kanals 13 marlas out of the confirmed land was again confirmed as such in favour of Nizam Din on 30--4-1960. Neither the confirmation in favour of respondent No.1 nor confirmation in favour of Nizam Din through R.L.II No.3 was questioned before the Settlement Authorities by the petitioner al all. There is nothing on the record by which it could be concluded that the petitioner had been claiming the plot in dispute as an urban vacant plot. The copy of the form submitted by him under the Settlement Scheme No.1 and the copy of the form submitted by him under the Settlement Scheme No. VI have not been placed on record. The Survey Register and the so-called order of allotment is nowhere helpful. Neither they gave the description of the property nor they arc specific about the nature of the property allotted under the allotment order. The description given in Annexure C is different than the description given in the petition while the relevant khasra girdawari has very specifically, given the nature of the property to be an agricultural land. Therefore, I have no hesitation in holding that the finding of the Deputy settlement Commissioner as well as the Settlement Commissioner in respect of the nature of the property is justified and grounded on the revenue record, therefore the assertions of the petitioner appear to be belated and afterthought.
10. It is significant to mention here that the petitioner had been always vacillating and changing his stand according to the dictate of new Scheme. He filed form under Settlement Scheme No.1 which pertained to Scheme for the transfer of houses and shops to possession. Having failed in it, he filed Form under the settlement Scheme No. VI which pertained to Scheme for the disposal of building sites and even before me contended that it was building site, and ultimately he filed an application under Settlement Scheme No. VII which relates to the available properties on Ist of July, 1974.
Evidently, the three schemes are meant for different types of the properties. Houses and building sites are not the same properties. Building site is defined in Scheme No. VI which is as under.
(2) "Building Site" means any evacuee plot of land acquired under Section 3 of the Act, which was vacant or free from any permanent construction at the time it became evacuee property and is not within a well defined compound of a permanent building and shall include:
(a) a site on which the permanent construction, if any, put up by the evacuee owner does not exceed in area 1/8 of the site;
(b) any site on which a building after it became evacuee property was completely demolished by floods, fire, incendiarism or any natural calamity, whether or not any construction has subsequently been raised on it; While, house is defined under clause IV of Section 2 of the Displaced Persons (Compensation and Rehabilitation) Act.
Clearly the petitioner has been changing the nature of the property to grab the plot in dispute.
Practically the petitioner has no entitlement to the transfer of the plot in dispute in his favour.
11. Strangely enough, the petitioner riled this petition after an inordinate delay of three years without any cogent reasons. The time taken in examination of his complaint before the Hon'ble Minister on 15-8-1975 and the reports of the Deputy Secretary are not sufficient explanation for not filing the petition. The constitutional jurisdiction, is, equitable jurisdiction and cannot be exercised in favour of the persons who come to Court with gross negligence. The Supreme Court of Pakistan in Mohsan 'Khan and another v. The Chief Settlement Commissioner, West Pakistan, Lahore and others (1969 SCMR 306) observed: "It is true that mere delay is not by itself a sufficient ground for non---suiting a party in a proceeding of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiescence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy. The law assists those who are vigilant about their rights and not those who sleep over them".
1970 SCMR 574) the High Court had refused to issue writ when the petition was filed after the expiry of three years. It was held that he acquiesced in the order. In the present case also, the petition suffers from uncondonable delay and amounts to acquiescence on the part of the writ petitioner.
12. In view of whatever has been stated above it is held that the order of the Settlement Commissioner dated 11-6-1976 does not suffer from any jurisdictional or legal error. This petition is without any merit and is hereby dismissed with costs.
H.B.T./F-158/L