ZAFFAR HUSSAIN MIRZA, J.-This Letters Patent Appeal is from an order of at learned Single Judge of this Court dazed 29-8-155 whereby the Constitutional Petition No. 431/66 filed by Barkat Bhai, the predecessor in---interest of the present appellant was dismissed in limine.
2. The controversy in this case relates to Property No. A/2728 situated at Siro Ghat. Hyderabad which consists of a commercial portion on the ground floor and residential tenements on the first floor. The circumstances in which the present controversy arose, as set out in the memo of appeal, are that Barkat Bhai being a displaced person (claimant) was allotted shop bearing No. A/2728 in which he was carrying on his bnsiness. The said 21101) was on the ground floor and had been partitioned by the said Barkat Bhai with his brother Abbas Bhai for commercial convenience. On the first floor tenement the major portion was in possession of Mst. Sahira Khatoon also a displaced person, for residential purpose and the rest of the portion was in possession of one Vazir A.I. Barkat Bhai and Abbas bhai applied separately for transfer of the shop and Vasir A.I and Mst. Sabira being claimants also applied, similarly for the transfer of the respective residential portions in their possession. All tire aforesaid persons were dally transferee---respective portions of the property applied for. Later on however, Mst. Sahira surrendered her interest in favour of Barkat Bhai. And Abbas Bhai also withdrew in his favour. It seems Vazir A.I subsequently expired and was succeeded by his legal representatives Manzoor A.I, his two brothers and, his mother who are respondents 3
(a) to (d) herein.
3. Accordingly Barkat Bbai and the aforesaid respondents 3 (a) to (d; were left in the field so foe as this property is concerned. Barkat Bhai then applied to the Additional Settlement Commissioner, Hyderabad and Khairpur Divisions for the transfer of the whole building to him as a single commercial unit on the plea that it was situated ire a predominantly Commercial Area of Hyderabad. By his order dated 30-12-1959 the Additional Settlement Commissioner remanded the case to the Assistant Settlement Commissioner, hyderabad who by his order dated 8-1-1960 treated the entire building to be a shop and directed it to lie transferred to Barkat Bhai as a single unit. As a result the transfer orders in favour of the other occupants of the property stood cancelled.
4. Aggrieved by the aforesaid order, respondents 3 (a) to (d) took an appeal before the Deputy Settlement Commissioner, Hyderabad which was dismissed by order dated 11-5-1960. The said respondents then preferred a revision before the Additional Settlement Commissioner, Hyderabad who by his order dated 23-6-1960 set aside the prior orders and transferred the entire residential portion to respondents Nos. 3 (a) to (d) and allowed Barkat Bhai to retain the transfer of the commercial portion of the building.
5. Barkat Bhai then challenged the aforesaid order in revision before the Settlement Commissioner, Hyderabad, who by his order dated 30-6-1961 allowed the revision and set aside the order of the Additional Settlement Com--missioner. In consequence, the entire, property was transferred in favour of Barkat Bhai as a single unit. Respondents Nos. 3 (a) to (d) then challenged this order before the Chief Settlement Commissioner in revision who by his order dated 3-12-1961 remanded the case to the Settlement Commissioner for further enquiry and fresh decision. However, when the case was reheard by the Settlement Commissioner, he passed order dated 6-3-62 holding that there was no scope for rehearing in view of his earlier orders. The last mentioned order ass challenged by the aforesaid respondents in Constitutional Jurisdiction of this High Court in Writ Petition No. 509 of 1962.
On 13-11-1963 the case was ordered by the High Court to be remanded to the same Settlement Commissioner for disposal as directed by the Chief Settlement Commissioner or to some other Settle--ment Commissioner. Pursuant to this the :ass Game before the learned Settlement Commissioner, Hyderabad, who by his order dated 17-7-65 allowed the revision and set aside all the previous orders and further directed that the entire first floor may be transferred to respondents 3 (a) to (d). The shop bearing original No. A/2726, which was in the meantime suctioned to one Jan Muhammad was ordered to be transferred to him and the other shop bearing original No. A/2728 was transferred to Barkat Bhai,
6. Baskat Bhai then. Sought to challenge the order of the Settlement Commissioner, Hyderabad by Constitutional Petition No. 431 j 1966 under Article 98 of the Constitution of Pakistan, 1962, out of which the present L. P. A. Has orison. The petition was filed on 30-8-65 and remained under office objection until 18-11-65 when it was returned to the petitioner. The petition was represented in the Court era 27-7-66. When the petition came up for bearing the main contention advanced before the learned Single judge on behalf of the petitioner was that the order of the Chef Settlement Commissioner dated 3-12-61, remanding the case to the Settlement Commissioner for reconsideration was itself without jurisdiction and therefore, all subsequent orders passed persaunt to that being the superstructure founded on a void order fell along with the said order.
The learned Single Judge, however, vitas of the view that the petitioner was not entitled to raise this objection for the first time in that petition as, according to the learned Judge, it ought to have been agitated by the petitioner r1) Writ Petition No.509/1962, which was admittedly not done. The neat contention advanced on behalf of the petitioner was that the order of the Settlement Commissioner dated 17-7-65 Impugned in the petition was passed in second "vision, though the provision relating to second revision contained in the Displaced Persons (Compensation and Rehabilitation) Act, 19.18 (hereinafter referred to as the Act) had been taken away by the amending Ordinance It of 1962. The learned Judge repelled this contention as ;yell on the ground that the second revision must be deemed to be pending with the Chief Settlement Commissioner from a date prior to 3-12-1961 when the order of remand was passed by him. Additionally he was of the view that the Impugned order was passed in consequence of the High Court order in Writ Petition No. 509/1962 whereby it was directed that the revision be reheard by the Settlement Commissioner.
It was noticed that the final order In Writ Petition No. 509/1962 was passed when the amending Ordinance already same into force and therefore, this objection was also available to the petitioner to be raised therein but the petitioner failed to urge the sama. Finally the learned Judge examined the question of lathes and considered the explanation for the inordinate delay in representing the petition after it was returned to the petitioner. The explanation of the petitioner that his brother Abbas Bhai who was pursuing the petition died on 30-11-65 was found by the learned Judge to be devoid of justification as no explanation was forthcoming as also to why the petition was allowed to remain under objection from July 1965 to November 1965. In consequence, the learned Judge dismissed the petition by his order dated 29-8-66. Petitioner Barkat Bhai then filed the present L. P.
A from the aforesaid order of the learned Single Judge- During the pendency of this petition Barkat Bhai died and his two sons (appellants Nos. 2 and 3) have been brought on record as his L. Rs.
7. Mr. Nasim Farooqui, learned counsel appearing for the appellants reiterated his contention that the order of the Chief Settlement, Commissioner dated 3-12-61 remanding the second revision filed by the respondents to the Settlement Commissioner was void and without jurisdiction because the Chief Settlement Commissioner no longer possessed the power of revision at the relevant time. In this behalf we were referred to section 20 of the Act. Subsection (1) of which was omitted by the Ordinance 53 of 1959. With reference to the unamended subsection (1) of this section, counsel contended that the power of revision vesting in the Chief Settlement Commissioner was exercisable both on his own motion as well as on an application made in that behalf by ten aggrieved person. But after the aforesaid amendment the power of the Chief Settlement Commissioner was exercisable only sue mote and therefore, he could not exercise this power by motion of parties. This is, however, not the correct position of law. The Act as originally enacted in 1958 contemplated by its section 9 the appointment of hierarchy of officers for performance of duties and functions assigned to them by or under the Act. With one Settlement Commissioner at the apex over such number of Additional Settlement Commissioners, Deputy Settlement Commissioners, and Assistant Settlement Commissioner as may be necessary. Consistently therefore, section 20 which relates to the power of revision also referred to the Settlement Commissioner and not the Chief Settlement Commissioner as the original scheme of the Act did not contemplate any such office as the Chief Settlement Commissioner. Another important aspect of the revisional power conferred by the Act was that only the Settlement Commissioner was invested with the power of revision and a further revision was provided to the Central Government against the order passed in revision by the Settlement Commissioner. The Act was then amended by the amending Ordinance I of 1959 whereby provision was trade for the appointment of Chief Settlement Commissioner by amendment of section 9 and the original section 20 was substituted with an entirely new section 20, material part of which reads as under : "20. Revision.---(1) The Central Government at any time may call for the record of any case or proceeding under this Act in which the Chief Settlement Commissioner or a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Com--missioner or an Assistant Settlement Commissioner has passed an order for the purpose of satisfying itself as to the correctness, legality and propriety of such order, and may pass such order in relation thereto as it thinks fit.
(2) The Chief Settlement Commissioner at any time may, and shall on being directed by the Central Government, call for the record of any case or proceeding under this Act in which a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner 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."
The perusal of the aforesaid provisions shows that rights from the inception the Chief Settlement Commissioner had the general power of revision over the orders of the subordinate offers without limiting the manner in which it could be invoked. The Chief Settlement Commissioner continued to possess this power of revision until it was withdrawn by the omission of subsection (2) of section 20 by Ordinance II of 1962 dated 13-1-62. Similarly the revisional power formerly possessed by the Additional Settlement Commissioner was also taken away by the said Ordinance. The result wag that before promulgation of Ordinance 11 of 1962 with effect from 13-1-62, the remedy by way of one appeal and 3 revisions before Additional Settlement Commissioner, Settlement Commissioner and Chief Settlement Commissioner was available. But as a result of the aforesaid Ordinance the remedies available under the Act were confined to one appeal and one revision before the Settlement Commissioner under section 20 subsection (3) of the Act' The order in question having been passed by the Chief Settlement Com--missioner on 3-12-61 was therefore, competently passed and it is not correct to say that the mode of exercise of this power was altered in the manner submitted by the counsel. It was however, argued by the learned counsel that in terms of the statutory provisions this power of revision is exerciseably suo motu and not on an application of a party. The contention has not impressed us. Reliance was only placed in this behalf on Abdur Rehman Pasha v. Chief Settlement and Rehabilitation Commissioner PLD 1961 Lah. 12 and Ameer Begum v. Umar Din PLD 1961 Lah. 360 but both these decisions do not lay down the wide proposition canvases by the learned counsel. It was held in these cases that the provision for revision by Chief Settlement Commissioner and Settlement Commissioner is a purely discretionary remedy and an aggrieved party cannot move far redress under the provision "as of right". From this it cannot be inferred that the revisional power is not exercisable on motion by an aggrieved party.
In Abdul Majid Shaida v. Noor Jehan PLD1967SC221 where the question was whether the Chief Settlement Commissioner could fix a period of limitation for revision petitioner, it was observed that the power of Superintendence, given to the Chief Settlement Commissioner, over his subordinates, cannot be invoked as authority for the prescription of a period of limitation for revision petitions in the absence of any provision in the Act or any rule, to that effect. The order of the Chief Settlement Commissioner, fixing a period of limitation could not stand in the way of entertainment of a revision petition, in law. When therefore, the limitation prescribed for filing revisions by the Chief Settlement Commissioner was held to be no's obstacle to the entertainment of a revision petition by a party, it can hardly be argued that the revisional power cannot be invoked at the instance) of a party.
8. It was next contended by the learned counsel for the appellants that the Assistant Settlement Commissioner was competent under section 2 (12) of the Act to treat the entire building as one unit and that therefore, no exception could be taken to the order transferring the entire building to Barkat Bhai. The second proviso to section 2 (12) which defines (shop) stipulates that where any building or premises consists of both residential and business units, the Chief Settlement Commissioner may order that the whole of such building or premises, or such part or parts thereof as may be specified in the order shall be deemed to be a shop or a house. It would therefore be observed that it was competent for the Chief Settlement Com--missioner or his delegate, to treat either the entire building as a shop or part of it as a shop and a part as a house. This is purely a question of fact within the jurisdiction of the Settlement Authorities to be decided on the facts and circumstances of a particular case. However, it seems that the Chief Settlement Commissioner issued instruction in this behalf on 22-l0-1959 whereby it was directed that while disposing of a building consisting of one business unit and one residential unit above it, if situated in a pre- dominently Commercial Area, should be treated as a shop and the whole building transferred as a shop. Relying on these instructions the counsel urged that In the present case the building in question being situated in a predominantly Commercial Area, the order treating the entire building as a shop was fully justified. Reliance in this behalf was placed on Abdul Ghani v. Settlement Commissioner PLD 1967 Kar. 292. But the decision in that case proceed upon the peculiar facts of that case inasmuch as there was a concurrent finding by the Settlement Authorities that the building was situated in a predominantly Commercial Area. The position in the instant case, however, is different. While disagreeing with the view taken by the Assistant Settlement Com-- missioner, the Additional Settlement Commissioner came to the conclusion that the building as not situated in a predominantly Commercial Area. He further referred to the Circular dated 30-11-59 according as many claimants and non-claimants were to be accommodated as possible. This order however, was not sustained and ultimately, the order that prevailed was the order of Mr. M. A.
Kazi (now a Judge of this Court) dated 17-7-65 who himself visited the site is order to determine whether the building consists of several independent units, and found that the residential house vas already treated as a single unit. Accordingly he held that the claim of Manzoor A.I and others was valid and proper. The contention presently raised does not seem to have been urged before the learned Settlement Commissioner. At any rate the order of the learned Single Judge does not show that this contention eras urged before him. . Accordingly the appellants are not entitled to urge this point at this stage. Additionally the powers available with the Chief Settlement Commissioner under section 2 (4) proviso and section 2 (12) of the Act are not mutually exclusive, nor are they exhausted by a single exercise of such powers under either subsection as held in Abdul Majid v. Chief Settlement Commissioner. It was further held in this case that one of tie grounds upon which the composite building was treated and transferred in separate units was that the second floor in the possession of the appellant was separate and self-contained portion, which is not open to review by the Court in the constitutional jurisdiction as this ground among others was neither manifestly arbitrary nor unjust nor improper. By parity of reasoning therefore, we are satisfied that the impugned order suffers from no such patent illegality or disregard of say rule of natural justice as to call for interference by this Court in constitutional jurisdiction.
9. It was lastly contended by the learned counsel for the appellants that the learned Single Judge fell into an error in dismissing the writ petition in limine. We are not impressed by this contention.
Laches is now a well established ground for refusal to interfere in the constitutional jurisdiction which provides a discretionary and extraordinary remedy. For authority) cases reported in 1970 SCMR 537, 1972 SCMR 201 and 1972 SCMR 89 may be referred to. It has been held that where the delay is accompanied by such circumstances as indicate clear negligence on the part of the appellant to pursue his remedy with due diligence, then that would be a very good ground for denying extraordinary remedy. It is also well established that the law assists those who are vigilant about their rights and P not those who sleep over them. In view of this clear rule, the learned Single Judge was fully justified in going into the question of ]aches and negligence on the part of the petitioner in the writ petition. We have carefully examined the reasons assigned by the learned Judge for rejecting the explanation of the petitioner in this behalf. The delay in complying with the objections after the petition was first filed in July 1965 until November 1965, when It was returned to the petitioner and the further delay in representing the petition in July 1966 were weighty considerations, in the absence of a reasonable explanation, for holding that the petitioner was guilty of laches in pursuing his remedy. The illness of the brother of the petitioner and his eventual death were hardly satisfactory grounds for the delay. We are therefore of the view that the learned Judge was folly justified in throwing out the petitions on this ground.
10. For the foregoing reasons, we find no merit in this appeal and dismiss the same with costs.
I. MAHMUD, J.-I agree.