1. The background .Of the case which has given rise to the filing of this constitutional petition is as follows:- The petitioner was transferred by the Settlement Authorities evacuee Plot No. C/2015 situated in Mardan, and in order to pay its price he entered into an agreement of association with Nawabzada Col. Monir Khan (respondent No. 5 in this case) whereby he agreed that the amount due to him in his Compensation Book No. 108831/DX-46 may be utilized by petitioner. It is conceded that this agreement of association was accepted by the Authorities, the price of the plot was adjusted in favour of petitioner from the compensation book of Col. Monir Khan and subsequently be was issued permanent transfer deed of the plot. It is not disputed that in due course, Col. Monir Khan, who is admittedly a claimant displaced person, obtained for himself an evacuee bungalow situated in Abbottabad, and that there was due from the evacuee owner --of the bungalow in question an amount of Rs. 12,500 on account of Government dues. Faced with this situation, the Deputy Settlement Commissioner, in order to recover these dues, wrote to the Settlement Commissioner (Policy), West Pakistan, Lahore that the previous agreement of association entered into petitioner and Col. Monir Khan should be rescinded in order to enable the Department to recover the said dues from the latter's compensation book. This request of the Deputy Settlement Com--missioner was accordingly allowed by the Settlement Commissioner (Policy), he thus recovered from Col. Monir Khan the Government dues of Rs. 12,500 from his compensation book and later called upon the petitioner to pay to the Government the balance of purchase price of the plot, for which he had been issued permanent transfer deed, after the Department had accepted the agreement of association entered into between him and Col. Monir Khan. Being aggrieved of this order the petitioner went in, appeal before the Additional Settlement Commissioner, but it was dismissed. He later filed a revision application against this order but the Settlement Commissioner rejected it holding that under subsection (3) of section 20 of No. XXVIII of 1958, he had no jurisdiction in the matter.
2. The learned counsel for petitioner has, against the order of Settlement = Commissioner, raised two contentions:---
(1) That it was without jurisdiction, for before cancelling the previous, agreement of association entered into between him and Col. Monir Khan the Deputy Settlement Commissioner had neither heard the petitioner nor issued him show-cause notice, and
(2) that after the lapse of about five years of the execution of the agreement of association, Col. Monir Khan could not have re-opened the matter with the Department.
3. As regards his first contention, the learned counsel conceded however, that although he was not heard by the Deputy Settlement Commissioner he was nonetheless heard by the Additional Settlement Commissioner in appeal, which he had filed before him. In these circumstances, the first grievance of the petitioner is obviously misconceived.
4. As concerns the second objection, it too has no force. The order of Settlement Commissioner (Policy), West Pakistan, Lahore (Annex. D) would show that he had, in support of his opinion that the previous agreement of association entered into between the petitioner and Col. Monir Khan .Should be cancelled, referred to subsections (2) and (3) of section 12 of the Act in which arrears of rcpt or any dues in respect of any evacuee ,property allotted to any person are said to be public dues. And in order to recover these dues this is what has been laid down in the two provisos to subsection (2) and subsection (3) of section 12 of the Act:-- "Provided that all public dues of the nature described in sub-clause (a) of clause (10) of section 2 shall be deducted from the amount of compensation payable from the rent pool, and those of the nature described in the other sub-clauses thereof shall be deducted from the amount of compensation payable under the compensation pool : Provided further that in cases where the amount of public dues of the nature described in sub- clause (a) of clause (10) of section 2 exceeds, the amount of the compensation payable from the rent pool, then,-
(a) if such public dues are not in. Excess of the verified claim under Schedule VI to the Registration of Claims (Displaced Persons) Act (III of 1956), they shall be set off against such claim, and
(b) if such dues are in excess of such claim, the amount so in excess shall be recovered from the compensation payable to the claimant from the compensation pool.
5. Explanation.-For the purpose of assessing the amount of the verified claim under this subsection, the Chief Settlement Commissioner shall take into account the period up to and including the thirty-first day of December 1958, and, unless the verified claim under Schedule VI to the Registration of Claims (Displaced Persons) Act, 1956, is in respect of that period, calculate such amount on the basis of the verified claim.
(3) The amount, if any, deducted under subsection (2) shall be paid to the persons or authority entitled to receive the same, except the amount of public dues of the nature described in sub- clause (a) of clause (10) of section 2, which shall be credited to the rent pool, and the amount of public dues of the nature described in sub-clause (d) thereof which shall be credited to the compensation pool."
6. The clear language of these two provisos and subsection (3) would show that public dues are as a matter of public policy, recoverable from any evacuee property on absolute priority and the same credited to the com--pensation pool. Acting on this mandate of law, the Deputy Settlement Commissioner was entirely justified to have asked for permission of the Settlement Commissioner (Policy), West Pakistan, Lahore, in regard to the recovery of Rs. 12,500 from the compensation book of Col. Monir Khan, for the bungalow transferred to him in Abbottabad was subject to this liability. It is true that Col. Monir Khan should not have acquiesced in this arrangement. But this would be immaterial. The Department had cancelled the previous agreement of association between the petitioner and Col. Monir Khan strictly in accordance with the requirement of subsection (2) of section 12 of the Act, and this would protect their action for there can be no estoppel against statute.
7. I am also inclined to agree with the learned Settlement Commissioner that in view of these facts, he had no jurisdiction to decide the revision application filed before him by petitioner. Subsection
(3) of section 20 of the Act, under which the said revision application had been filed, reads as under :--- "(3) A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner, may at any time, call for the record of any case or proceeding under this Act in which; an Additional Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, relating to the entitlement of a person to the transfer of a property or to a matter involving title 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."
8. It would be seen that the only question which the Settlement Com--missioner is empowered to determine in revision application under this section would be the one relating t6 the entitlement of a person or a matter involving title to the transfer of any evacuee property. It is conceded before me that in the revision application the petitioner had not made any grievance that his entitlement to the plot was in question. And thus the view taken by the Settlement Commissioner that he had no jurisdiction would appear to be right.
9. The learned counsel for petitioner, however, referred to a judgment of the Lahore Seat of former West Pakistan High Court in the case of Hail Ghulam Hussain v. Hamid Hassan Khan and another (PLD 1969 Lah. 147). But it is distinguishable. In that case, one of the parties to the agreement of association had challenged it on the basis of fraud and forgery. And thus the question raised before the Settlement Commissioner substantially concern-- ed the title of the other party to the property transferred in his favour. It is true that the learned Single Judge, while referring to subsection (3) of section 20 of the Act opined that under it the Settlement Commissioner would have vast power. But with respect, the observation of his Lordship is not supported by any case-law nor has he considered the effect Of thelanguage of that section in which the jurisdiction of the Settlement Commissioner has been limited only to the question of title in regard to an evacuee property. Had his Lordship referred to subsection (2) of that section, he would have noted that in there the jurisdiction conferred on the Chief Settlement Commissioner was altogether unlimited.
10. Whereas under subsection (3) thereof, the jurisdiction of Settlement Commissioner has been confined only to the question of entitlement of a person to the transfer of evacuee property or a matter involving his title thereto. In this view, the observation of his Lordship that under subsection
(3) of section 20 of the Act the Settlement Commissioner would, while sitting in revision, have unlimited jurisdiction, is not supported by the language of that section. And thus would be no authority for the proposition urged by the learned counsel.
11. The learned counsel lastly contended that in view of the long pendency in this Court of this petition his client, who would now wish to file a civil suit against Col. Monir Khan for compensation on account of the breach of his agreement with him, would be faced with the problem of limitation in the trial Court. There can be no denial that this would be so. But it would be open to petitioner to claim in that suit the condonation of all the period for which this petition had been pending in this Court on the ground that in pursuing his remedy he had conducted himself bona fide and diligently. And there can be hardly any doubt that his claim m that respect will be given due consideration by the trial Court according to law.
12. S. A. H.