1976 PLP 130 (SCMR)

ANWARUL. HAQ, ,J.‑‑‑The dispute in this case a house situate in Mohallah Chitian Hatian, Rawalpindi. It was in the occupation of one Sabir Ali, son of respondent Mst. Hussain Bibi. He had applied for its transfer but his application was rejected, His appeal was also dismissed, but revision before the Settlement Commissioner was still pending, when the house was disposed of by auction on 11-3-70 in favour of the present petitioner for a price of Rs. 8,

500. As the petitioner failed to pay the stipulated prince the auction from his name was cancelled by the Deputy Settlement Commissioner by his order dated 6-3-73. Thereafter, the property was transferred to the respondent on 17-3-73 on the basis of an application having been made by her on 7-3-73 under Settlement Scheme No VIII. The present petitioner filed an appeal which jaws, however treated as a revision petition and accepted by the Settlement Commissioner by his order dated the 17 of November 1973. He remanded the case to the Deputy Settlement Commissioner with the direction that the auction proceedings be submitted to the Additional Settlement Commis sioner for confirmation as required by the relevant instructions, This direction was complied with and the auction proceedings in favour of the petitioner were confirmed by the Additional Settlement Commissioner by his order dated the 30th of November 1173. Aggrieved by dais order, the respondent Mst. Hussain Bibi filed a writ petition which was accepted by a learned Judge of the Lahore High Court by his order dated the 20th of April 1975, bolding that the suction sale in favour of the present petitioner did not create any right for the reason that it was not confirmed by the Additional Settlement Commissioner as required by law. He further hell that the property was available under Settlement Scheme No. VIII when the necessary application for its transfer was made by Mst. Hussain Bibi on 7‑3‑73, and it should, therefore, have been transferred to her as a person in possession. Leave to appeal is sought on the ground that the High Court was in error in thinking that the property was available for disposal under Settle ment Scheme No. VIII on 7‑3‑73, simply for the reason that the auction sale in favour of the present petitioner had not been confirmed by the Additional Settlement. Commissioner by ‑that date. It is submitted that the cancellation of the auction by the Deputy Settlement Commissioner, by his order dated the 6th of March 1973, was illegal as there was no obligation on the petitioner to pay the balance of the pi ice until such time as the auction had been confirmed in his favour In support of these submissions, reliance placed on H. M. Saya & Co. v, Wazir Ali Industries Ltd. (P L D 1969 S, C 65) and Sher Muhammad v. Settlement and Rehabilitation Commissioner, Peshawar.( 1 97 4 S C M R 506). After hearing the learned counsel at some length, we are of the view that this is not at all a fit case for the grant of leave to appeal. It will be seen, in the first place, that the revision petition of the respondent's son Sabir Ali against the inclusion of the property in the suction list was still pending before the Settlement Commissioner whets the property was disposed of in favour of the petitioner on 11‑3‑

70. Sabir Ali's revision petition was not rejected by the Settlement Commissioner until 4‑3‑71, and it follows, therefore that until that date the property was not available for disposal by auction. On this short ground alone it has to be held that the auction in favour of the petitioner on 11‑3‑70, was without lawful authority. The relevant instructions regarding cite auction of evacuee properties require that if the auction proceedings are rcpt presided over by the Additional Settlement Commissioner, then the acceptance of the bid would require the approval of this Officer, in the present case, of is conceded that the suction was conducted by the Deputy Settlement Commissioner, and, therefore, the suction did not between elective until its approval by the Additional Settlement Commissioner on the 30th of November 1.973. Much ore that dace the respondent had applied for the transfer of the property before Settlement Scheme No. VIII on the basis of her possession It would be seen, therefore, that this was a case where the property in fact could not have been put to auction due to the pendency of Sabir Ali's s revision not have been put to auction due to the pendency of Sabir petition before the Settlement Commissioner, and in any case the auction, in favour of the petitioner was not approved by the Additional Settlement Commissioner until the 30th of November 1973. In these circumstances the High Court was right in holding that the respondent Mat. Hussain Bib' had a prior right to the transfer of property in Settlement Scheme No. VIII as she was in possession. This was an eminently just and proper order to make in the circumstances of the case. The two judgments relied upon by the learned counsel are not relevant to the facts of this case. In the first mentioned cast it was held that the question of payment of balance of purchase money could arise only when intimation of acceptance of the offer is given to the auction purchaser. In the second case it was observed that when a strop has already been disposed of in auction, it does not become available for transfer until confirmation is refused. It will be seen that the observations in both these cases have relevance only when an auction has been properly held. In the present case, we have found that the property was not available for auction owing to the pendency of the revision petition of the respondent's spin Sabir Ali. No right could, therefore, accrue in favour of the petitioner, on the basis of an auction held during the pendency of the said revision petition. The petition accordingly fails and, is hereby dismissed.