2016 PLP 91 (MLD)

IBAD-UR-REHMAN LODHI J.:- This judgment shall dispose of the following petitions:-- (1) Writ Petition No. 99-R of 2003 (Abdul Hai (deceased through LRs., etc. v. Settlement Authorities and 16 others) (2) Writ Petition No. 138-R of 2003 (Arshad Naseem and 12 others vs. Khurshid Ali Khan and others) (3) Writ Petition No. 154-R of 2003 (Mst. Kaneez Yasmeen and 11 others vs. Member Board of Revenue and 17 others). as in all these petitions, order dated 26.07.2003, passed by the Notified Officer/Settlement Commissioner, Punjab, has been called-in question, by the petitioners.

2. In all these matters, the question as to whether the property, in question, was declared by the Chief Settlement Commissioner as a "big mansion" before the same was put to auction.

3. Briefly the facts relevant for the purposes of disposal of all these petitions are that, property No.S-31-R-128, known as Surjit Building, Mcleod Road, Lahore, was put to auction on 04.12.1959 and being highest bidder, one Rehmat Ullah was declared as auction purchaser against consideration of Rs.6,13,000/- (rupees six lac and thirteen thousand only). However, subsequently at the request of said auction purchaser, the sale in his favour was cancelled and the property was again put to auction on 08.08.1960 and was purchased by M/S F.R. Sharif, and Mustafa Haider, for the auction price of Rs.5,30,000/- (rupees five lac and thirty thousand only). The auction, this time, was approved by the Settlement Commissioner on 15.08.1960 and confirmed by the Chief Settlement Commissioner on 21.09.1962.

4. The property was in occupation of certain persons, who filed Writ Petition No.1548-R of 1965 before this Court mainly on the plea that, the property, which was auctioned as a "big mansion" was, in fact, never declared as such, as required vide Para-16 of the Schedule to The Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act No.XXVIII of 1958). The writ petition was allowed on 14.09.1971, and it was declared that before auction, there was no declaration by the Chief Settlement Commissioner declaring the property as "big mansion".

5. The findings so arrived at by the learned Single Judge were challenged by means of two separate appeals viz. L.P.A.No.220 and 236 of 1971, which were disposed of by means of a common judgment dated 13.03.2001, in the following manner:- "We are further of the view that as the case stands remanded to the Chief Settlement Commissioner, he will be under an obligation to go into the question whether in fact there was a declaration declaring the property in dispute as big mansion by the Chief Settlement Commissioner. The fate of the case shall depend upon the answer to the afore-mentioned question".

6. In post-remand proceedings, the Notified Officer in Board of Revenue, vide order dated 26.07.2003, has come to the conclusion that, the property auctioned was earlier declared by the Chief Settlement Commissioner as a "big mansion".

7. The basis for reaching at such conclusion by the Notified Officer were nothing, but a document introduced as `Annexure-J' in the file of Writ Petition No.1548-R of 1965, which, in fact, was a copy of some application, stated to have been moved by the writ petitioners, shown to have been submitted to the Settlement Commissioner (Policy) with the powers of Chief Settlement Commissioner, Lahore, on 15.05.1965 through their counsel Mr. A.R. Shaukat, Advocate. The Subject, and Para No. 1, as well as, Para No.10 of which were reproduced in the impugned order and for ready reference, same are given below:-- "Subject: Application regarding the Disposal of the Application moved by the petitioners for the transfer of property No.S-31-R-128 (9-Sirjeet Building) Mcleod Road, Lahore in the joint name of the petitioners. Para-1 That the property cited above was declared to be big mansion by the learned Chief Settlement Commissioner. Taking the property as big mansion it is further stated in Para 10 of the petition reproduced as under:- Para-10 That there is a clear notification to this effect that the big mansion, if possible be transferred to the occupants of the property to avoid the dislocation of the Displaced persons". The Notified Officer, however, has requisitioned the report from the concerned Department, and the Settlement Department in response, has specifically reported that the general file containing the declarations of "big mansions" was not traceable in the said office. The Notified Officer has further pointed out in Para-4(iii) of the impugned order, that property files of "big mansions", which find mention in the auction notices were examined thoroughly, but no declaration as required in view of Para-16 of the Schedule, found available in the said files and as noted earlier, the general file maintained by the Settlement Department meant for the declaration regarding "big mansion" was not available in the Department, and even otherwise, no copy of any such declaration (if made) was placed on the relevant property's file.

8. The requirement of Para-16, as noted herein-above, is clear, which requires a prior declaration by the Chief Settlement Commissioner or an officer authorized by the Central Government in this behalf to the effect that, a building or premises whether residential or commercial, has been declared as a big mansion or Hotel to dispose of the same by unrestricted public auction.

9. Such pre-requisite has not been fulfilled in the present cases, and the Notified Officer has acted only on presumptions and 'Annexure-J' to Writ Petition No.1548-R of 1965 has been equated with a declaration specifically required under Para-16 of the Schedule, which act has no legal sanction. 'Annexure-J' to the mentioned writ petition can, in no manner, be termed or treated as a declaration by the Chief Settlement Commissioner or any Notified Officer by the Central Government in this regard, thus, the act of putting the property in unrestricted public auction, in absence of any required declaration, was unauthorized and illegal. The same had no legal sanction and is liable to be set-aside and, as such, all these writ petitions are allowed, and the auction proceedings, conducted without there being any required declaration, are held as irregular and unauthorized and have no effect or bearing upon the entitlement of the persons in possession of the property, in question, to be considered as entitled to get the property. The order passed by the Notification Officer/Settlement Commissioner, Punjab, on 26-7-2003, is also declared as having been passed without lawful authority and of no legal effect. The same is, therefore, set aside. The occupants of the property, including the present petitioners, may, if so applied, be considered for transfer of the properties in their possession in any capacity, which law permits on the applicable terms and conditions. MH/A-77/L Petition allowed.