P L D 1966 (W (PLP)

"I do not think this case of disposal by written tenders resulted in a lower price than the possible highest bid in auction. It was irregular to accept the highest bid in writing rather than in an auction. But that has not led to any financial loss for the compensation pool which is intended for the benefit of claimants as a class. It is not desirable to disturb the adjustment of price already made through compen sation books. I, therefore, allow the transfer to stand and vacate the `show -cause' notice served on the transferees." The petitioner's grievance is that this order was also passed behind his back. His case is that he moved the Enforcement Police to investigate the irregular transfer and no notice was issued to him by the Settlement Commissioner for the hearing of the above suo motu revision proceedings. The petitioner has challenged the transfer of the ground floor and the first floor of the property in dispute in favour of respondents Nos. 5 and 6 by order, dated 8th March 1961, and has further challenged the order of the Settlement Commissioner passed on 31st May 1962, upholding the transfer in favour of the above‑mentioned respon dents.

4. In support of the petitioner, Mr. S. M. Hanif, the learned counsel for the petitioner has raised number of points both legal and factual. He contended that the property should not have been divided as he was the only person entitled to its transfer tinder the Displaced Persons (Compensation & Rehabilitation) Act, 1958. Mr. Hanif, the learned counsel for the petitioner strongly urged that the property was used as one unit by its evacuee owner in the year 1946‑

47. There is only one stair‑case leading to the entire property and the learned Settlement Authorities disregarded the instructions of the Chief Settlement Commis sioner in not treating it as one unit. This aspect of the question as already observed, has been dealt with by the Settlement Authorities and at various stages by the Deputy Settlement Commissioner, Additional Settlement Commissioner and the Settlement Commissioner, in number of orders have come to the conclusion that the property in dispute was divisible. There is nothing on the record to show that the division made by the Settlement Authorities is not in accordance with the instructions of the Chief Settlement Commissioner. The question, whether a property is divisible or not being purely a question of fact lies within the discretion of the Settlement Authorities. There must be some very strong reasons to disturb a division made by A the Settlement Authorities. This is lacking in the present case. I, therefore, do not consider it as a fit case for interference so far as this aspect of the case is concerned. I would, therefore, hold that the property was rightly divided into two units. The petitioner being in possession of the second floor was only entitled to its transfer and not any other part of the property.

5. The next question urged by the learned counsel appearing for the petitioner is that the transfer in favour of respondents Nos. 5 and 6 is illegal and cannot be supported on the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. His contention is that the property under the orders of the Deputy Settlement Commissioner should have been put to auction and ought not to have been transferred by negotiation by the Department to respondents Nos. 5 and 6.

6. Mr. Noorul Arfin, the learned counsel for respondents Nos. 5 and 6 has urged that the petitioner has no locus standi to challenge the transfer of the remaining portions of the property' in dispute; he has been transferred a house and he cannot lay any claim on any other part of the property. He has further contend ed that the transfer was absolutely legal and the question whether the property should have been transferred by public auction or otherwise rested entirely with the Settlement Authorities. The Department in the ordinary course received the offer from respondents Nos. 5 and 6 and they were fully justified in the circumstances of the present case to transfer the ground floor and the first floor to them. He has further contended that the property was deleted from the auction list at the instance of the petitioner and, therefore, it was open to the Department to transfer it by negotiation to respondents Nos. 5 and 6.

7. In support of his contention Mr. Noorul Arfin, the learned counsel appearing for respondents Nos. 5 and 6 has relied on the observations of the Supreme Court in an unreported case Mohammad Ismail v. The Chief Settlement Commissioner (Civil Appeal No. K‑20 of 1963) decided on 21st November 1963. In that case the transfer in favour of a party was challenged by another party on the ground that the transferee was not entitled to its transfer and the property should have been put to auction. Their Lordships repelled that contention on the following observations:‑-- "Their only contention is that if the said Abdul Ghafoor is eliminated, then this property will have to be put up for disposal under paragraph 14 of the Schedule to the Act by way of unrestricted public auction and they would, in that event be entitled to bid at the auction. This is at best a right which they enjoy in common with every other citizen and it gives them no special right to resist the transfer to another person who is otherwise entitled to such transfer. The Scheme of the Act is that if a person claiming a transfer established his entitle ment, then he should have a preferential right to such transfer and the question of disposal by public auction can only arise when no one is found to be entitled to the property." Mr. Noorul Arfin strongly contended that the observations of their Lordships are fully applicable to the facts of the present case. He contended that the petitioner is entitled to the transfer of only one house which he has obtained and it is none of his business that how the other portion of the property has been transferred. He strongly contended that the petitioner has no locus standi to challenge the transfer in favour of respondents Nos. 5 and 6.

8. I have not been impressed by the contention of the learned counsel. The most significant observation of their Lordships in the above‑mentioned case was that persons who had a right to participate in an unrestricted public auction cannot resist the transfer to another person who is otherwise entitled to such transfer. In the present case, what is to be considered is whether respondents Nos. 5 and 6 were otherwise entitled to the transfer of the remaining portions of the property in dispute. Besides, the present petition is governed by Article 98 of the Constitution. The requirement of this constitutional provision is that the High Court can interfere with an illegal order passed by any authority on the application of any aggrieved party. The petitioner had moved an application on 1st March 1961, for the transfer of this property on negotiation basis. He has further brought the illegality of the transfer in question to the notice of the Enforcement Police. It was at his instance that the matter was brought to the notice of the Chief Settlement Commissioner, by the Enforcement Police, who directed the Settlement Commis sioner to consider the validity of the transfer in favour of respondents Nos. 5 and

6. The petitioner is definitely an aggrieved party within the meaning of the provisions of Article 98 of the Constitution and, therefore, has a locus standi to challenge the impugned orders. It cannot be denied that he was vitally interested in the transfer of the property which is below the portion of the property transferred to him. In my opinion, the contention of the learned counsel for respondents' Nos. 5 and 6 that the petitioner has no locus standi cannot be accepted as sound. I would, therefore, repel this contention.

9. The most important question for consideration in the present case is whether the Settlement Commissioner was competent to transfer the property in dispute on negotiation basis to respondents Nos. 5 and

6. According to the finding given by the Settlement Authorities the remaining portion of the property in dispute is of commercial nature and it is situated in a commercial locality. On the finding of the Settlement Commissioner that respondents Nos. 5 and 6 are locals and the portions in dispute are business premises, the property in dispute was not transferable to them under the Schedule of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. Even otherwise, the value of the property is more than Rs. 10,000 and it was not transferable to respondents Nos. 5 and

6. Under the Schedule, if a house or a shop is not transferable to a claimant, non‑claimant or a local, it is to be sold to the highest bidder in an unrestricted public auction. This is quite clear from para. 6 of the Schedule relating to houses and para. 11 relating to shops.

10. Mr. Noorul Arfin contended that it was open to the Department to transfer the property in dispute under para. 7 on negotiation basis. Para. 7 of the Schedule relating to houses reads as under:‑-- "

7. After houses have been transferred under paragraphs 1, 2, 3, 4 and 6 those not so transferred shall be disposed of in such manner and subject to such terms and conditions as may be prescribed." It will be noticed that under this paragraph only those houses which have not been transferred under paragraphs 1, 2, 3, 4 and 6 can be disposed of in such manner and subject to such condi tions as have been prescribed by the competent authority. C The contention of the learned counsel has not much substance, because no genuine effort was made to dispose of the property in dispute by unrestricted public auction. After the claim of the petitioner and the contesting respondents has been rejected it was never put to public auction. Even otherwise the conten tion that it has been disposed of under any prescribed terms and conditions is also devoid of any force. In support of his contention the learned counsel for the contesting respondents referred to the instructions of the Chief Settlement Commissioner contained at page 163 of the old Settlement Manual. He has relied on para. (c) of the letter of the Central Government dated 24th June 1960, which is to the following effect:‑-- "This para. relates to the unattractive properties which could not be disposed of under the schemes already in force or by unrestricted public auction as the case my be. One last round of restricted auction in the case of such buildings shall be carried out quickly. Such properties if still undisposed of, may be transferred to the occupants or any other interested person by negotiation provided they pay. full price of the property normally chargeable from the persons in, possession of such properties. Houses in the possession of locals, above the value of Rs. 10,000 may also be transferred to them under the revised orders issued by the Central Government provided they pay prevailing market value. The Additional Settlement Commis sioners can exercise this power in the case of shops in the possession of locals also, but this power should be exercised sparingly and every effort should be made to dispose of such shops by unrestricted public auction. As regards industrial concerns (not allotted by the Board) the transfer by negotia tion will be effected on payment of the prevailing market value only in cases where property could not be disposed of by unrestricted public auction." The case of the contesting respondents that the property in dispute is an unattractive property is not supported by the facts and circumstances of this case. Admittedly, the property in dispute was transferred to the contesting respondents Nos. 5 and ‑6 for more than Rs. 62,

000. It is situate in a commercial locality and there is nothing before me to hold that it was an unattractive property. Mr. Noorul Arfin further contended that under the said instructions the Additional Settlement Commis sioners have been empowered to transfer the shops in possession p of locals on negotiation basis. It must have been noticed that this paragraph relates to unattractive properties and has to be read in that context. Besides, the instructions clearly show that this power is to be exercised very sparingly and the directions of the Chief Settlement Commissioner are that every effort should be made to dispose of such properties by unrestricted, public auction. In the present case, the petitioner on 1st March 1961, had also applied for the transfer of the property on evaluation basis. It is, therefore, strange that without notice to him and without considering the other aspects of the case, the Settlement Authorities hurriedly decided to transfer the property in dispute to respondents Nos. 5 and 6 on evaluation basis without considering whether they were competent to do so or not.

11. The learned counsel for respondents Nos. 5 and 6 has further contended that the property was deleted from the auction list at the instance of the petitioner. He urged that in view of this, it is not open to the petitioner to challenge the transfer to respondents Nos. 5 and 6 by negotiation because he himself got it deleted from the auction list. This contention also has no force because the property in dispute was deleted from the auction list only with a view to adjudicate upon the claim of the petitioner and not on the ground that it should be disposed of on negotia tion basis. It is in evidence that the property in dispute was deleted from the auction list on the representation of the petitioner that his NCH Form was pending for the transfer of the entire property and his representation appeals and review applications were also pending before the Settlement Authorities. It was for this reason that the property was deleted from the auction list. The learned counsel for the contesting respondents has not been able to point out any provision of law under which the transfer in their favour could be held as good. Even the learned Settlement Commissioner had to admit in his order dated 31st May 1962 that the transfer in favour of respondents Nos. 5 and 6 was irregular but he declined to interfere with the transfer because he was of the view that no loss has been caused to the compensation Pool. In my view the learned officer fell into an error in not setting aside the transfer on this ground. The learned officer failed to notice that the petitioner had also applied to obtain the property in dispute much before the contesting respondents on negotiation basis. He further failed to notice that without disposing of the petitioner's application the Department in post haste accepted the proposal of the contest ing respondents. The circumstances in which the property in dispute has been transferred to them cannot be said to be above board. It cannot be supported on any of the provisions of the relevant enactment or on any instructions of the Chief Settlement Commissioner applicable to the facts of the present case. I would, therefore, hold that the transfer in favour of respondents Nos. 5 and 6 in respecting of the ground floor and the first floor of the property in dispute is without lawful authority and liable to be set aside. Since the property in dispute could not be transferred under the Schedule to a claimant, non‑claimant or a local, it should have been put to the public auction. Accordingly, I would quash the impugned orders. The Settlement Authorities are directed to dispose of the ground floor and the first floor of the property in dispute by unrestricted public auction.

12. In the result, subject to the above remarks, the petition is allowed with no order as to costs. K.B.A. Petition accepted.