1984 PLP 617 (CLC)

‑‑ Chap. III‑Settlement Scheme No. VIII, para. 9 (b)‑Evacuee industrial property, transfer of ‑ Procedure mentioned in para. 9 (b),‑Settlement Scheme No. VIII not followed strictly while entering into negotiations for transfer of property Parties agreeing that property in question be disposed of by an unrestricted public auction‑Orders passed accordingly‑Any pre vious proceedings /orders of Settlement Authorities for transfer of property cancelled and declared to be without lawful authority. Order passed by the Settlement Authorities in respect of the evacuee property in question namely Lalchand Kaishoomal F. B. Food Industries, located in Hyderabad, was challenged by the petitioner in a previous Cons titutional Petition No. 248 of 1975. This previous Constitution Petition was dismissed by order, dated 9th May, 1975 ' of a learned Single Judge of the erstwhile High Court of Sind and Baluchistan, Karachi, in which order it was observed that the previous constitution petition was mis conceived because the impugned order of the Settlement Authorities clearly stated that the property in question would be disposed of according. to law and rules and that the petitioner could not have any grievance with the Settlement Authorities to dispose of the property in question in accordance with law. While dismissing the previous constitu tion petition, learned Single Judge observed that let the matter be decided according to law and rules by the Settlement Authorities.

2. The petitioner's case is that his 'O' Form, dated 22nd December, 1973 for transfer of a residential property to a local was pending orders and without disposal of that form, the property in question could not be transferred by auction or otherwise by the Settlement Authorities. From the evidence on record, including the documents filed by the petitioner in support of the present constitution petition, it is clear that the property in question is not a residential property and, therefore, there is no question of its transfer to the petitioner against his 'O' Form, if at all any such 10' Form was filed by the petitioner before the Settlement Authorities. The grievance of respondent No, 3 and respondent No. 4 is that the property has been ordered to be transferred to respondent No. 5 on negotiation basis which is not permissible, as the property is an evacuee industrial property. The relevant provisions of Settlement Scheme No. II are contained in Chapter III, which provide that every industrial concern and unregistered factory shall, unless a person is entitled to retain it under the Act, be sold to the highest bidder in an unrestricted public auction. The other relevant scheme is Scheme No. VIII and relevant Chapter there also is III of the Scheme. para. 9 (b) was added after para. 9 in Scheme No. VIII by Notification No. 1538‑Pol/ 70(1), dated 26th November, 1970, which provides that an industrial concern shall be put to auction at least three times and in case the bids offered during these auctions fall short of the reserve price or the auctions go without any bid, such an industrial concern may be disposed of by negotiations. There is a further amendment in Settlement Scheme No. VIII by Notification No. CSC/SIND/ADMN/73‑857 in Gazette of Sind Extraordinary Part‑I, dated 10th May, 1973 whereby para. 9 (b) was substituted and the new sub‑para. 9 (b) provided for auction of an industrial concern at least three times but as regards negotiations there after, it was provided that such negotiations shall be carried out by inviting sealed tenders which will be opened by a committee consisting of the Settlement Commissioner (Industries), Settlement Commissioner Sind and the Additional Settlement Commissioner of the area concerned and the highest offer shall be subject to the approval of the Government.

3. It appears from the record before this Court that the procedure mentioned in rule 9 (b) in Settlement Scheme No. VIII has not been followed strictly while entering into negotiations for the transfer of the property in question to respondent No.

5. The learned Additional Advocate‑General Sind, who appears on behalf of the Settlement Commissioner, Hyderabad and Additional Settlement Commissioner, Hyder abad, also contends that the property in question may be ordered to be disposed of by an unrestricted public auction. Learned counsel for the respondent No. 3 and respondent No. 5 also agree that such an order may be passed by this Court while disposing of the present constitution petition. No one has appeared on behalf of the respondent No. 4.

4. Present Constitutional Petition No. S‑671 of 1975 is disposed o by directing the Settlement Authorities to dispose of the property in question by an unrestricted public auction. The parties to this petition will be entitled to participate in this auction and make their bids. Any previous proceedings/orders passed by the Settlement Authorities for the transfer of this property are hereby cancelled and declared to be without any lawful authority. The case is remanded to the concerned Settlement Authority for disposal of the property by an unrestricted public auction. A copy of this order will be sent to the Settlement Commissioner, Karachi, who will arrange for the sending of the record of the concerned authority of the Settlement Department for disposal of the property in question through unrestricted public auction. There will be no order as to costs. M.Y.H. Order accordingly.