1984 PLP 471 (SCMR)

S. A. NUSRAT, J.‑--This appeal is from the judgment of the Peshawar High Court, dated 23‑5‑1974 whereby a constitution petition brought by Attaullah Khan (hereinafter referred to as the respondent) was accepted in the back ground of the following facts :‑ The dispute relates to evacuee property bearing No. 766/C/24/16 to 38/16‑A situated near Grain Market, Bannu City. The said property was put to auction on 17‑1L1961 when the bid for Rs. 63,369 offered by one Hamidullsh Khan was accepted. The amount of bid was equivalent to the reserve price. Hamidullah Khan having failed to pay the sale price, the auction in his favour was ultimately cancelled on 19‑4‑1967. The property was thereafter put to auction on 31‑3‑1968 when Hamidullah Khan alone offered the highest bid of Rs. 37,000 which was not accepted. Thereafter the property was put to auction a number of time, the last being on 8‑1‑1973, but no body offered any bid. Thereupon on 31‑1‑1973 the respondent submitted an application to the Additional Settlement Commissioner seeking transfer of the property to him for the reserve price on negotiation basis. The application was accepted and the learned Additional Settlement Commis sioner by his order dated 3‑2‑1973 transferred the property to him on the reserve price. The appellant, who has been in occupation of a small portion of the property, was served with a notice for payment of rent by the respondent whereupon he filed an appeal before the Settlement Commissioner on 4‑7‑1973 challenging the order of the Additional Settlement Commissioner dated 3‑2‑1973 passed in favour of the respondent. The appeal was allowed by the learned Settlement Commissioner, who by his order dated 26‑9‑1973, after setting aside the order dated 3‑2‑1973, directed that the property be, transferred to the appellant as he was in possession of a portion of the property and was prepared to pay reserve price in lump sum which offer should be accepted. The property was thus transferred to the appellant on the basis of the offer so made by him. This order of the learned Settlement Commissioner was in turn challenged by the respondent through a writ petition in the Peshawar High Court which was accepted as per impugned Judgment whereby the order of the Settlement Commissioner was set aside and the order of transfer earlier made in favour of the respondent by the Additional Settlement Commissioner was restored. The learned High Court after having referred to the file of the department, which had been specifically summoned during the course .of the hearing of the writ petition, came to the conclusion that there existed no application of the appellant on the record seeking transfer of the property to him either under Settlement Scheme No. VIII or on negotiation basis for the reserve price. In this view of the matter it was held that the appellant had no locus stand! to file appeal in the Court of the Settlement Commissioner challenging the order of the transfer made in favour of the respondent. It was further held that the property was rightly transferred on negotiation basis to the respondent on 3‑2‑1972 by the Additional Settlement Commissioner which thereafter was no longer available for transfer to the appellant when he filed his appeal before the Settlement Commissioner on 4‑7‑1973. Leave to appeal was granted in the matter to examine the contention as, to the entitlement of the appellant for the transfer of the property in the light of the Memorandum No. 4498‑P‑I/Reh. 60, dated 9th/ 10th March, 1960 issued by the Chief Settlement Commissioner regarding disposal of unattractive evacuee properties as also the contention that the learned High Court had fallen into an error in thinking that the property had to be disposed of under Settlement Scheme No. VIII and that the appellant had made no application offering to purchase the property before an offer in this behalf was made by the respondent. The finding of the learned High Court with regard to the non‑existence of any application of the appellant for the transfer of the property "through private negotiation on reserve price of Rs. 63,360" finds support from the order of the learned Settlement Commissioner dated 26‑9‑1973, passed on the appeal of the appellant himself, wherein such allegation made by him was rejected with a categorical finding that no such application of the appellant was available on the file. The finding of the learned High Court as well as the learned Settlement Commissioner in this respect are findings of fact and are based on examination of the record which was available to them. The learned counsel for the appellant, however, invited our attention to a copy of the letter dated 25‑11‑1972 which was addressed by the Deputy Settlement Commissioner, Bannu to the Minister Revenue and Rehabilitation Govern ment of North‑West Frontier Province, Peshawar, in which there is a mention of some application of the appellant dated 28‑10‑1972. By the said letter the Deputy Settlement Commissioner had informed the Revenue Minister that the occupants of the property were being asked to apply for the transfer of respective portions in their possession under Settlement Scheme No. VIII, if they so desired, otherwise the disposal of the property would be conducted through auction in the last week of December, 1972. Further reliance was placed on the reply to the said letter by the Chief Settlement and Rehabilitation Commissioner, Peshawar, dated 2‑1‑1973 whereby the decision of the Revenue Minister was conveyed to the Deputy Settlement Commissioner. that the property may be disposed of strictly according to law. Be that as it may, it is an admitted position that later the property was actually put to auction a number of times, lastly being on 8‑1‑1973 when no bid was offered for the purchase of the same. It was admitted by the learned counsel for the appellant that no application was actually made by his client either under Settlement Scheme No. VIII or for the transfer of the property on negotiation basis for reserve price after 2‑1‑1973, when the matter was closed on the previous application of the appellant, if any, vide letter of the said date of the Chief Settlement Commissioner informing the Deputy Settlement Commissioner that the property may be disposed of according to law. The learned counsel for the appellant, however, contended that the appellant was entitled to the transfer of the property on the basis of his application elated 28‑10‑1972 which contention has no force, as it overlooks the fact that the said application had been finally turned down and disposed as per communication of the Chief Settlement Commissioner dated 2‑t‑1973. The appellant apparently remained content with such disposal of his appli cation as he failed to avail of the advice contained in the letter dated 25‑11‑1972 of the Deputy Settlement Commissioner or the decision of the Revenue Minister as communicated in the letter of the Chief Settlement Commissioner dated 2‑1‑1973. In the circumstances, there was no application of the appellant in the field when the respondent after repeated failure of auctions had come forward with his application dated 31‑1‑1973s seeking transfer of the property to him and secured the order of transfer in his favour from the Additional Settlement Commissioner on 3‑2‑1973. The question of there being any prior application of the appellant, in the circumstances, did not arise in the case and no exception can be taken to the findings of the learned High Court. We are unable to find anything from the order of the learned High Court in support of the contention raised on behalf of the appellant, noted in the leave granting order that the High Court had fallen into an error that the property had to be disposed of under Settlement Scheme No. VIII only. All that the learned High Court found was that the appellant had never applied for the transfer of the property under Settlement Scheme No. VIII and this was obviously in reply to the allegation made in the written statement filed by him in the High. Court that he had made an application for the transfer of the property under Settlement Scheme No. VIII. The learned counsel for the appellant lastly referred to a judgment of this Court in the case of Muhammad Sultan Mir v. Yusuf Hussain Dada (P L 1 1975 S C 222) in which reference was made to a memorandum of the Chief Settlement: Commissioner dated 9th/10th March, 1960 regarding the transfer of evacuee Sarais and Mandis, whereas his own case has been that the property should have been transferred to him on the basis of the notification of the Chief Settlement and Rehabilitation Commissioner dated 7‑1‑1967, which is latter in point of time and specifically relates to unattractive evacuee properties. However without going into the question of the relevancy of the notification referred to above in the cited judgment, the contention of the learned counsel qua the application of the said notification to the case of the respondent deserves no consideration because of the fact that appellant, having no locus standi in the matter, as rightly held by the learned High Court, is not entitled to challenge the transfer made in favour of the respondent which was made not only on negotiation basis but also against reserve price fixed for the disposal of the property which in spite of repeated auctions had failed to fetch such an amount to the benefit of the compensation pool. For the foregoing reasons we find no substance in this appeal which is dismissed with no order as to costs. S. Q Appeal dismissed.