' These two appeals against the order dated 26-3-1973 and 11-7-1974 of Commissioner, Multan restoring the resumed lots to the respondents, which were disposed of by my predecessor on 8-9- 1975 will be decided afresh in pursuance of a remand order passed by the High Court on 14-11-1975 on the writ petition filed by the appellants.
2. Brief facts are that Lots Nos, 6 and 7 situated in Chak No, 601/ T. D. A. Were purchased by the respondents, in auction, is the year 1961. They defaulted in payment of price and therefore the Collector, after serving a notice upon them in the manner provided under section 56 of the Thal Development Act, 1949, resumed the Lots vide his order dated 1-6-1976. This order remained unchallenged for about six years when two miscellaneous applications were moved by the respondents for restoration of the Lots, on 4-6.1973 and 15-1-1974, before the Commissioner, Multan.
The Commissioner treated the applications as appeals and decided the same, on merits, restoring the Lots to the respondent by his orders passed separately on 26-3-1973 and 11-2-1974, without considering the question as to whether the appeals were barred by time. The Petitioners who bad, in the meantime obtained the Lots in dispute on temporary cultivation, challenged these orders in appeal before the Member (Colonies), Board of Revenue, who rejected the same, on merits, on 10- 10-1974. Aggrieved by this order the petitioners filed two writ petitions before the High Court and both the appeals were remanded to the Member (Colonies) Board of Revenue on 25-10.1974 with the direction that he should first decide the question of limitation. The Member (Colonies), Board of Revenue reheard the appeals and rejected them again on merits without touching upon the question of limitation, vide his order dated 8.9-1975. Being dissatisfied with this order, the petitioners again invoked the writ jurisdiction of the High Court who once again remanded the appeals on 14-11-1975 with the following observation: ........................ The learned Member, Board of Revenue has not touched the question of limitation which he was bound to decide on account of the remand order passed by this Court following the dictum of their Lordships of the Supreme Court in Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore PLD 1964 SC 260. The learned Member Board of Revenue should keep in mind the observations of their Lordships on page 265 and should decide the case in accordance therewith. It is entirely for him to pass any order which he likes on merits, but that he can only do if he first decides the question of limitation.
3. The main question thus falling for determination is whether it was competent to the Commissioner or the Member, Board of Revenue to admit these appeals which were barred by time by more than six years and decide the same on merits without getting over the bar of limitation, and whether there was any provision of law under which the delay in filing these appeals could be condoned. The limitation for such cases has been prescribed under the That Development Authority (Colonization) (Appeal and Revision, Rules, 1973, issued under section 50 of the That Development Act, 1949. Rule 5 of these rules provides that the period of limitation for an appeal shall be sixty days where the appeal lies to the Commissioner and ninety days where it lies to the Board of Revenue. Rule 7 provides that subject to the provisions of these rules, the procedure laid down in the Land Revenue, Act, 1967 may be followed in the proceedings under these rules.
Section 167 of the Land Revenue Act, 1967 makes the provisions of the Limitation Act, 1908 applicable to appeals, reviews, or revisions, in the matter of computation of the period of limitation.
This means that Part III of the Limitation Act which deals with computation of period of limitation shall apply to appeals under the Thal Development (Colonization) (Appeal and Revision) Rules, 1973. Part III, however, does not contain section 5 under which delay can be excused. Even section 29 of the Limitation Act which prescribes as to what portion of the Act shall apply to local and special laws in the absence of any directions in those laws themselves, does not extent the application of section 5 to the proceedings under these laws. It follows that section 5 is not applicable to computation of a period for appeals under the Land Revenue Act and, a fortiori, under the That Development Authority (Colonization) (Appeal and Revision) Rules, 1973. In this view of the matter the appellants could not take the benefit of section 5 nor they could invoke the aid of any other section contained in Part III of the Limitation Act. Therefore these appeals which were filed after more than six years of the impugned orders without showing any ground on which exemption from limitation could be claimed, were to be dismissed on the point of limitation.
4. Another objection against the vires of the impugned orders dated 26-2-1974 and 11-2.1974 is that they were passed by the Commissioner in exercise of the powers which were delegated to him under 1973 Rules, long after the respondents had forfeited their remedy and the petitioners acquired vested rights, under the old rules. In this connection it may be observed that the lots in dispute were resumed by the Collector on account of default in payment of price, after due observance of formalities prescribed by law, by his order dated 1-6.1967 which was never challenged in appeal or revision before the Chairman of Authority or the Board of Revenue under the T. D. A. (Colonization) (Appeal and Revision) Rules, 1960, which were in force at the relevant time. The Commissioner had no powers, under the said rules, to hear appeal against the order of the Collector and it was only in the year 1971 that he was delegated the powers to restore Lots vide Notification No, Thal/HVC/XVIII-35/1430-36, dated 24-9-1971 and also to hear appeals against the order of Collector under the T. D. A. (Colonization) (Appeal and Revision) Rules, 1973 published under Notification No, 4612-72/369, dated 25-4-1973. No doubt that the Commissioner could exercise these powers In pending cases but it was not open to him to use them retrospectively in the matters which had already Closed and completed so as to impair any existing right or obligation acquired under the old rules. As the impugned orders tend to affect the by-gone transactions prejudicially they cannot be considered to have been passed within the lawful authority of the Commissioner and are therefore illegal.
3. There is also little scope for an argument that the respondents, subsequent to passing of the impugned orders, have purchased the proprietary rights by depositing full price and have thereby ceased to be governed by the conditions published under Notification No, 331/54-Th dated 15.3- 1954 and the provisions of Colonization of Government Lands (Punjab) Act, 1912, because the orders on the basis of which these rights are claimed were passed without lawful authority and therefore all subsequent acts flowing from them will be of no legal consequence.
6. In the result I hold that these appeals were badly barred by time and should rot have been admitted without first deciding the question of limitation in accordance with the dictum of their Lordships of the Supreme Could in Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore (1). Consequently the appeals are accepted and the impugned orders set aside. The parties are left to bear their own costs.