P L D 1964 (W (PLP)

2. The facts of the case briefly stated are that Serai No. C. A. 25/594‑603‑1629‑1640, 31, 583‑85, 1612‑14, situated in Mohallah Dhand Berizkan Dabgari, Peshawar City, was purchased by the petitioner in an open auction held on the 22nd of October 1960, by the Auction Committee for a sum of Rs. 20,000 being the highest bid against its reserve price of Rs. 33,120 and a Provisional Transfer Order (copy at Annexure `B') and also Appendix XI (copy at Annexure `C') were issued in favour of the petitioner, but the Additional Settlement and Rehabilitation Commissioner, Peshawar did not approve the auction proceedings and on the 30th of November 1960, he ordered that the property should be re‑auctioned. Accordingly the Serai in dispute was re‑auctioned on the 23rd of January 1962 without any notice to the petitioner in favour of respondent No. 5 for Rs. 18,500 and on the same day the auction was approved by the Additional Settlement and Rehabilitation Commissioner, Peshawar. Later on, however, it appears that it was realized that the bid of respondent No. 5 was much less than the previous highest bid of the petitioner of Rs. 20,000 which was not considered reason able and respondent No. 5 raised the bid to 20,100 which was approved by the Additional Settlement and Rehabilitation Commissioner, Peshawar on 30th January 1962. The petitioner came to know of it when he received intimation regarding cancellation of the Provisional Transfer order in his favour (copy at Annexure `D') and appealed to the Settlement and Rehabilita tion Commissioner, Peshawar. Respondent No. 2 who came to the conclusion that the property in dispute was re‑auctioned in accordance with the order of the Additional Settlement and Rehabilitation Commissioner and that the petitioner neither objected to its inclusion in the auction list nor applied for its deletion from the said list, and that the Provisional Transfer Order issued under a mistake in favour of the petitioner was rightly ordered to be withdrawn and that the property in question was transferred in favour of respondent No. 5 in accordance with the order of the Additional Settle ment and Rehabilitation Commissioner and was later on confirmed in her name. The Settlement and Rehabilitation Commissioner, Peshawar, therefore, inclined to interfere with the order of the Additional Settlement and Rehabilitation Commissioner, Peshawar dated the 23rd of January 1962, and dismissed the appeal. The order of Additional Settlement and Rehabilitation Commissioner, Peshawar dated the 23rd of January 1962, approving the auction of the property in favour of respondent No. 5 in lieu of Rs. 18,500 and the subsequent order dated the 31st of January 1962, whereby the auction in favour of respondent No. 5 was approved for Rs. 20,100 as well as the order of the Settlement and Rehabilitation Commissioner, Peshawar Division, Peshawar dated the 23rd of February 1962, dismissing the appeal of the petitioner were challenged, on various grounds including (a) that the petitioner was not heard before the highest bid offered by him was not accepted, (b) that the order accepting the bid of Rs. 18,500 which was subsequently increased to Rs. .1 0,100 by respondent No. 5 was improper, inasmuch as the property was neither re‑auctioned nor the fact of the auction was notified as required by law, and (c) that according to para. No. 16‑A of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner alone was empowered to accept or refuse to accept a bid and respondent No. 3 was not competent to refuse to accept the highest bid offered by the petitioner. In view of the objection raised touching on the question of the competency of the Additional Settlement and Rehabilitation Commissioner, Peshawar Division, Peshawar to accept or refuse to accept a bid, it is unnecessary to go into other questions raised in the writ petition, which should succeed on the short ground that the Additional Settlement and Rehabilitation Commissioner in this case was not competent to refuse to accept the highest bid offered by the petitioner or to accept a bid other than the highest bid, as such a power could be exercised by the Chief Settlement Commissioner. The matter stands concluded by a Full Bench ruling of this Court reported as Fazal Karim & Brothers v. Chief Settlement and Rehabilitation Commissioner and others (P L D 1964 Pesh. 129). The Full Bench held that "as there has been no valid delegation by the Chief Settlement Commissioner to the Additional Settlement Commissioner of the power of accepting or rejecting a bid the latter's exercise of that power is illegal and ultra vires of the Act." It is thus clear that the orders of the Additional Settlement and Rehabilitation Commissioner refusing to approve the highest bid offered by the petitioner and his subsequent orders approving the re‑auction of the Serai in favour of respondent No. 5 for Rs. 18,500 and subsequently for Rs. 20,100 suffered from lack of jurisdiction and could not be sustained. It may be stated here that on the 4th of March 1963, respondent No. 5 applied to the Additional Settlement and Rehabilitation Commissioner, Peshawar Division for permission to withdraw from the purchase of the property in dispute in her favour and the application was granted. The order of the Additional Settlement and Rehabilitation Commissioner, Peshawar Division, Peshawar which he passed on this application runs:- "The petition has been presented by Mian Zia‑ud‑Din Bar‑at‑Law personally. The reasons given by the applicant are correct and in view of the orders of the High Court, the position of all such auctions approved by the Additional Settlement and Rehabilitation Commissioner, is doubtful. I explained to the petitioner that the Department is committed (as announced by the Chief Settlement and Rehabilitation Commissioner to help out such auction purchasers, in due course, but the petitioner complains that he can no longer undergo any further litigation and expenses. In view of this, the request of the petitioner to withdraw is accepted. Of course, no penalty is imposed on the applicant as the fault is of the Department, Deputy Settlement Commissioner Peshawar."

3. In the circumstances the order of the Additional Settle ment and Rehabilitation Commissioner dated the 30th of November 1960 ordering the re‑auction of the property and his subsequent orders dated the 23rd of January 1962, approving the auction of the property in favour of respondent No. 5 in lieu of Rs. 18,500 and the order dated the 31st of January 1962, whereby the auction in favour of respondent No. 5 was approved for Rs. 20,100 as well as the order of the. Settlement and Rehabilitation Commissioner, Peshawar Division, Peshawar dated the 23rd of February 1962, dismissing the appeal of the petitioner are hereby quashed.

4. The next question that arises for consideration is whether the case should be remitted to the Additional Settlement and Rehabilitation Commissioner, Peshawar or the Chief Settlement and Rehabilitation Commissioner for considering the highest bid offered by the petitioner: Learned counsel who appeared on behalf of the Department contended that the Central Government had after the decision of the Full Bench allocated the work relating to disposal by auction of houses, shops, building sites and Industrial concerns (not allotted by the Industrial Rehabili tation Board) to the Additional Settlement and Rehabilitation Commissioners of the area and as such he was competent to dispose of the matter. Mr. Pir Bakhsh Khan learned counsel for the petitioner, however, contended that the letter of the Deputy Secretary, Government of Pakistan, Rehabilitation and Works Division, Karachi, dated the 17th May 1963, whereby this work has been allocated to the Additional Settlement and Rehabilitation Commissioners of the area by the issue of an order under subsection (1) of section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by the Central Government is invalid, and in this regard he referred to the decision of the Full Bench in which the effect of Memorandum No. 839‑PI‑Reh.‑60, reproduced at page 103 of the Manual of Settlement Law and Procedure issued by the Government of Pakistan (hereinafter to be referred to as "the Manual") was considered by the Full Bench, who came to the conclusion "that as there has been no valid delegation by the Chief Settlement Commissioner to the Additional Settlement Commissioner of the power of accepting or rejecting a bid the latter's exercise of that power is illegal and ultra vires of the Act". The Full Bench also referred to the provisions of section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and proceeded to observe as under:- "A perusal of the provision of the Act show that although section 9 provided for the appointment of such number of Settlement Commissioners, Additional Settlement Commis sioners, Deputy Settlement Commissioners and Assistant Settle ment Commissioners as may be necessary for the perfor mance of duties and functions assigned to them by or under the Act, the only functions specifically assigned by the Act itself are those of appeal, revision, and review contained in sections 19, 20 and

21. Prima facie therefore, any other function vested in the Chief Settlement Commissioner can only be conferred on Settlement, Additional, Deputy or Assistant Settlement Commissioners by delegation. The relevant section of the Act is 31, subsection (2) of which provides:- "(2) Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner, may by notification in the official Gazette, delegate all, or any of his powers under this Act to any Settlement Commissioner, or an Additional Deputy or Assistant Commissioner, subject to such conditions, if any, as may be specified in the notification."

5. The letter of the Central Government whereby the work of accepting or rejecting a bid has been allocated to the Additional Settlement Commissioners of the area by the issue of an order under subsection (1) of section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is reproduced below for facility of reference:‑ "In view of the recent decision of the Full Bench Peshawar, holding acceptance of bids offered at the auction of certain shops by the Additional Settlement Commissioners to be incompetent for want of delegation of the power to them, a situation has arisen which calls for finalization of past auction. For the Chief Settlement Commissioner to call for the records of all such cases from all over West Pakistan and to record his formal approval in every individual case will be impracticable. The alternative is to distribute such work and to allocate this work to the Additional Settlement Commissioners of the area by the issue of an order under subsection (1) of section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Central Government has therefore been pleased to direct that:‑ (a) In the cases referred to above the Additional Settlement Commissioners of the area may accept the bids now; (b) They may similarly accept the bids in past auction in the cases of auctioned houses, building sites and industrial concerns (not allotted by the Industrial Rehabilitation Board) as well, if need be; (c) In future, all work relating to disposal by auction of houses, shops, building sites and industrial concern (not allotted by the Industrial Rehabilitation Board) is allocated to the Additional Settlement Commissioner of the area."

6. I am clear in my mind that the order made by the Central Government under subsection (1) of section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as contained in letter No. F 13(5)/63‑SP, dated the 17th May 1963, is defective and does not solve the difficulty. When the Act has assigned particular function to the Chief Settlement Commissioner alone, the Central Government in my opinion was not competent to allocate that function to any other subordinate authority by general or special order for, that will be in derogation of the Ac itself. In view of the provisions of section 31(2) of the Ac XXVIII of 1958 I am of the opinion that the Chief Settlement Commissioner should have delegated his powers in this regard to any Settlement Commissioner or Additional, Deputy Assistant Settlement Commissioner by notification in the official Gazette.

7. For all these reasons the writ petition is accepted. The impugned orders are set aside and the case is remitted to the Chief Settlement and Rehabilitation Commissioner with the direction that he should consider the highest bid offered by the petitioner for the property in dispute and then proceed to decide the case of the disposal of this property afresh in accordance with law. There shall be no order as to costs. S. Q. Petition accepted.