1992 PLP 1066 (MLD)

This judgment will dispose of this petition as well as three other petitions (W.P. Nos.1765‑R/76, 1802‑R/76 and 225‑R/78), as the questions of law and facts involved in all these petitions are one and the same.

2. The factual background of the controversy, subject‑matter of these petitions, is that Balkishan Chopra Building commonly known as E.Plomer Building bearing property No.S‑19‑R‑27, 26‑The Mall, Lahore was declared as a "Big Mansion" by the Chief Settlement Commissioner. A group consisting of 15 occupants represented through Sh. Hafeezud Din respondent approached the Chief Settlement Commissioner to have the property transferred through negotiation but the offer was refused and the Chief Settlement Commissioner decide to dispose of the building through public auction. This refusal was challenged by the aforesaid group of occupants including the present petitioner as well as one Dr. Humayun Akhtar by riling a Constitution Petition (W.P. 631‑R/62). During the pendency of the petition, the auction for the disposal of the said Big Mansion was scheduled to be held on 12‑4‑1962 and on an application filed in the said writ petition, an order was passed to the effect that the auction be held but the same will not be confirmed. Thereafter seven occupants namely Sh. Hafeezud Din, Hameed Ali/Majid‑al‑Makky, S.M. Almas Ali, Mahmood Zaman, Dr. Aslam Hayat, Rabia S. Qari and Kh. Mushtaq Ahmad executed a power‑of‑attorney in favour of Sh. Hafeezud Din authorizing him to participate in the auction on their behalf for the purpose of having the property purchased in their favour. Sh. Hafeezud Din accordingly participated in the auction held on 12‑4‑1962 and gave the highest bid of Rs.20,00,000 against the reserve price of Rs.9,00,

000. This bid being the highest was accepted by the Auction Committee subject to confirmation by the Chief Settlement Commissioner. The Constitution Petition (W.P.631‑R/62) was then got dismissed as withdrawn on 20th April 1962. Sh. Hafeezud Din, the authorized representative of the group of seven occupants after confirmation of the highest bid, issued a telegram to the other occupants of the building offering them to join in the transfer of their respective portions by executing the written agreement of association and paying the proportionate price. This offer was not responded to by the other occupants including the petitioners. The Settlement Department then required the seven auction bidders to file the agreement apportioning their share in the property. Accordingly one agreement executed by six bidders dated 5‑11‑1962 was filed. The second agreement executed by seven bidders executed on 4‑12‑1963 was later filed as Miss Rabia Oari, the seventh bidder could not sign the first agreement due to her non‑availability on 5‑11‑1962. S.M. Iqbal and Dr. Humayun Akhtar submitted applications before the Chief Settlement Commissioner praying that all the 20 occupants including the 7 bidders be treated as auction‑purchasers of the building. The Chief Settlement Commissioner, however, confirmed the auction in favour of the seven bidders on the basis of agreements dated 5‑11‑1962 and 4‑2‑1963 subject to the condition that the payment of the transfer price would be the joint and several liability of all the seven bidders. The order of confirmation was conveyed vide memo. dated 30‑1/4/1963. The confirmation of the bid of seven bidders and the order confirming the bid was then challenged by S.M. Iqbal and Dr. Humayun Akhtar and others by filing a Constitution Petition (W.P.1376‑R/63) in this Court. This petition was dismissed by a Division Bench of this Court vide order dated 22‑12‑1964. This order of dismissal of the petition was then challenged by filing a petition for special leave to appeal (CPSLA No.93/65) in the Supreme Court which was dismissed vide order dated 27‑5‑1965. Thus with the dismissal of this petition for special leave to appeal, the claim that the other occupants be treated as auction‑purchasers, was finally turned down. S.M. Iqbal and Dr. Humayun Akhtar also filed a civil suit on 31‑3‑1965 in the Civil Court seeking setting aside of the auction and transfer of the Big Mansion in favour of the seven bidders. The suit was dismissed in default vide order dated 27‑7‑1969. An application for restoration was filed but was later abandoned.

3. The Big Mansion was divided into seven units under the agreements dated 5‑11‑1962 and 4‑2‑1963 by the seven auction‑purchasers and permanent transfer documents transferring these units to the respective auction purchasers were issued by the Chief Settlement Commissioner to those of the auction‑purchasers who had paid the transfer price of thier respective units. S.M. Almas Ali was issued the J.T.D. on 12 ‑6‑1967. It is pertinent to note that Kh. Mushtaq Ahmad, Dr. Aslam Hayat and Mahmood Zaman, the auction purchasers failed to make payment of the transfer price of their respective units. The Additional Settlement Commissioner Industries issued Notice No.638/RB/68 dated 22‑2‑1968 on 29‑2‑1968 to Dr. Aslam Hayat and the same was received by him on 10th of April, 1968, calling upon him to pay the transfer price, Similar notice was issued to Kh. Mushtaq Ahmad who received the same on 8‑3‑1968. Notice was also served on Mahmood Zaman but despite receipt of the notice demanding payment of transfer price, no payment was made by these three auction‑purchasers. The Additional Settlement Commissioner Industries vide order dated 2‑11‑1968 cancelled the transfer of the respective units from the names of Kh. Mushtaq Ahmad, Dr. Aslam Hayat and Mahmood Zaman. This order was conveyed to them on 5‑11‑1968. Before proceeding further, it will be appropriate to make mention of the application filed on 6‑12‑1965 by Naseer Ahmad Paracha to the Minister of Rehabilitation praying that inquiry be held in the matter of disposal of Big Mansion and on account of alleged irregularities, the auction in favour of seven auction‑purchasers be set aside. This application was followed by many applications submitted from time to time. These applications, it appears, remained pending for years and on 7‑1‑1970, the Additional Settlement Commissioner Industries, responded, by saying that the result of his application will be conveyed in due course, and then vide memo. dated 12‑3‑1971, information was given that his application has been rejected. Naseer Ahmad Piracha filed yet another application and then he filed a Constitution Petition (W.P.24‑R/72) on 14‑1‑1972 in this Court. A learned Judge of this Court on 17‑3‑1973 directed that let the application first be decided and then the writ petition will be heard.

4. The Chief Settlement Commissioner thereafter, passed the order dated 5‑5‑1972 rejecting the plea that the petitioner Naseer Ahmad Piracha was also the auction‑purchaser. The petition was thereafter dismissed in limine vide order dated 5‑7‑1972. This led to the filing of special leave to appeal (CPSLA No.427/72). Leave was then granted by the Supreme Court vide order dated 17‑11‑1972. It is pertinent to note that a written‑statement was filed in the Supreme Court by Mr. Maqbool Elahi Malik, Advocate, the then learned counsel for the Settlement Department saying that this statement is being filed to answer the question asked by the Court and that the said statement be treated as a concise statement. In this statement certain alleged irregularities in the matter of transfer of the building were pointed out, saying that as per, record, some of the Compensation Books against which 1/4th of the money as well as the transfer price was paid were found to be bogus. It was added that although the departmental enquiry with regard to the genuineness or otherwise of the compensation books submitted by the respondents has been dropped in pursuance of the order passed by the High Court in CA. No.98 of 1983, yet the investigation by the RIA. is still going on over which the Department has no control. On filing of this statement termed as "Concise Statement" three petitions were filed by Sh. Hafeezud Din, S.M. Almas Ali and Hameed Ali Makky with the assertions that the written‑statement had not been filed after examination of the record by the Chief Settlement Commissioner as the record was with the Supreme Court and as such was not available with the Chief Settlement Commissioner at the relevant time; that the averments made in this written‑statement were contrary to record and were made with a view to mislead the Court. It was added that the position taken in the written statement was altogether different from the position taken by the Department in the reports submitted to the High Court in the same proceedings out of which the appeal arose and in other various writ petitions. The correctness or otherwise of the respective assertions was not determined as Naseer Ahmad Piracha the appellant withdrew the appeal and the same was then dismissed as withdrawn. The challenge made by Naseer Ahmad Piracha to the auction and the transfer of property thus came to an end.

5. It will be recalled that in the year 1968, transfer of the respective portions in the names of Kh. Mushtaq Ahmad, Dr. Aslam Hayat and Mehmood Zaman was cancelled and they were duly informed of the said cancellation order. Thereafter, the Additional Settlement Commissioner on 18‑3‑1971 addressed Memo. No.418/RB/71 to Sh. Hafcezud Din, Hameed Ali Makky, ‑S.M. Almas Ali, Miss Rabia Qari and Aamar Raza Khan, the associates giving them opportunity to seek transfer of the resumed units/portions of the Big. Mansion by filing applications within a fortnight for purchase of the units of the defaulting asuction‑purchases as otherwise the Big Mansion as whole including the units transferred to them would be liable to be resumed for disposal afresh under the law. It was also stated in the said memo. that auction of the portion duly purchased by Kh. Mushtaq Ahmad, Mehmood Zaman and Dr. Aslam Hayat in the Big Mansion was cancelled and resumed due to non‑payment of the balance amount and that according to the amended Settlement Scheme No.111, the competent authority may on an application made to it in this behalf, allow a joint transferee of the property to pay in lump sum the amounts due from the defaulters and obtain transfer of share in the property cancelled from such defaulters provided that the share resumed or proposed to be resumed has not in the meanwhile been transferred to any other person or put to auction. This offer was repeated again vide memo. No.1345/RB/72 dated 24‑10‑1972 on payment of Rs.6,55,

900. S.M. Almas Ali conveyed the acceptance of the offer on payment of the said price vide application dated 15‑5‑1973. He accordingly filed the Deeds of Association and Surrender Deeds vide letter dated 30‑10‑1973. The Chief Settlement Commissioner ultimately vide order dated 6‑3‑1976 ordered the transfer of these three resumed portions in favour of S.M. Almas Ali subject to the condition that S.M. Almas Ali will pay the equivalent amount in cash if any of the Compensation Books through which payments have been tendered is found bogus or defective at any time. S.M. Almas Ali was also required to furnish indemnity bond in this respect. As the indemnity bond was filed and the compensation books had already been scrutinized, Transfer Order was issued in favour of S.M. Almas Ali on 17‑3‑1976.

6. The history of transfer of property is not yet complete as the occupants including the petitioners further pursued the matter of transfer of their respective portions. It will be recalled that Settlement Scheme No.VIII was originally enforced on 16‑11‑1965. Certain amendments were introduced in Settlement Scheme NONIII on 26‑4‑1970 (See PLD 1971 Central Statutes 70). The reconstituted Scheme was then enforced on 13‑8‑1973 (See PLD 1973 Provincial Statutes 256). Then further amendments were made in the Scheme on 16‑10‑1974 and 12‑6‑1974 (See PLD 1974 Provincial Statute 82 and PLD 1974 Provincial Statutes 195). Under the Settlement Scheme NO.VIII, original as well as reconstituted, occupants of available property could seek transfer by filing the prescribed Forms. Dr.Humayun Akhtar, the petitioner in Writ Petition No.1192‑R/1976, which has been dismissed in default filed Form RSS‑.VIII (Shop) on 18‑10‑1973. This Form was consigned to record with the report that the Big Mansion stands already disposed and as such is not available property. A copy of the order of Deputy Settlement Commissioner rejecting the form dated 11‑11‑1973 was received by Dr. Humayun Akhtar on 11‑11‑1973. He again applied for supply of the copy of form and the order on 28‑3‑1975. S.M. Iqbal filed Form RSS‑VIII (Shop) on 24‑10‑1973 while Dr. Aslam Hayat Khan, Mushtaq Ahmad and other petitioners admittedly did not file any form under Settlement Scheme NONIII. Mirza Munir Ahmad, the other petitioner statedly filed Form RSS‑VIII (House) on 24‑10‑1974. S.M. Iqbal, however, on 3‑9‑1975 submitted an application to the Chief Settlement Commissioner seeking transfer of the shop in his occupation. Kh. Mushtaq Ahmad, Humayun Akhtar and others submitted application dated 5‑12‑1975 to the Chief Settlement Commissioner saying that they are entitled to the transfer of their respective portions on the basis of possession and as such they seek transfer by negotiation. It was also pointed out in this application that one of the co‑bidders is trying to get whole portion transferred in his name. The grievance of the petitioners is that this request was not acceded to though the property after resumption from the names of Kh. Mushtaq Ahmad, Dr. Aslam and Mehmood Zaman was available but was illegally transferred to S.M. Almas Ali vide Order dated 16‑3‑1976. 7, This order of transfer in favour of S.M. Almas Ali was then challenged by riling the present Constitution petitions. Kh. Mushtaq Ahmad in his writ' petition (W.P. No.1502‑R/76) and S. M. Iqbal in his petition (W.P. No.1802‑R/76) have challenged the order dated 16‑3‑1976. Kh. Mushtaq Ahmad is in possession of one office room on the first floor out of the unit transfered to S.M. Almas Ali, Khalid Masud has also been implicated as a shop was given to Khalid Masud out of this unit by Mrs. Almas Ali to whom this portion was gifted by her husband. Dr. Aslam Hayat and Mirza Munir Ahmad, in their respective Constitution petitions filed against Sh. Hafeezud Din and others, have challenged the transfer of the unit allocated to Sh. Hafeezud Din as they are respectively in occupation of a shop on the ground‑floor and a flat on the first floor in the said unit. Dr. Aslam Hayat has challenged the order dated 26‑6‑1974, the T.O. (Transfer Order) issued to Sh. Hafeezud Din, by filing a Constitution petition on 10‑12‑1976 while Mirza Munir Ahmad has challenged the act of transferring the portion to Sh. Hafeezud Din by filing the petition on 5‑2‑1978. The other petitions filed to challenge the transfer of the Big Mansion in question may now be noticed. Two Constitutional petitions (W.P. No.233‑R/82 and 251‑R/83) were filed as an inquiry was got instituted in the genuineness of the Compensation Books, the deferred payment of which had already been adjusted. These petitions were dismissed vide order dated 30‑3‑1983. Thereafter, two appeals (I.C.A. No.98/83 and 99/83) were filed. These appeals were disposed of by a Division Bench of this Court vide judgment dated 9‑3‑1985. The observations made in I.C.A. No.98/83 are that the amount has been paid in respect of the compensation books which is in inquiry before the Board of Revenue. This being the position, the inquiry proceedings are set aside and Khalid Masud and S.M. Almas Ali may be treated to have been validly transferred the portion of the property in question. Three other petitions (W.P. No.1803/R/76, 1699‑R/76 and 78‑R/83) were filed by Muhammad Aslam, Pak Insurance Company and Sardar Bibi and others, the occupants respectively of different portions and servant quarters but these petitions were later got dismissed as withdrawn. This completes the factual and legal history of the disposal of the Big Mansion.

8. Stage is now set for noticing the respective pleas of the petitioners. WRIT PETITION N0.1765‑R/76:

9. Dr. Aslam Hayat deceased petitioner was one of the seven bidders. He was allocated the portion which is partly in possession of Dr. Humayun Akhtar. The deceased petitioner defaulted in making payment of the transfer price in respect of the allocated portion and as such the same was resumed from his name. He did not challenge the said resumption. The shop on the ground floor which is in his actual possession falls in the Unit assigned to Sh. Hafeezud Din respondent. The deceased petitioner in this Constitution petition seeks direction to transfer the said shop in his occupation after setting aside the transfer made in favour of Sh. Hafeezud Din. The petitioner claims the transfer of the shop in occupation on the plea that since some of the auction bidders including the petitioner were held to have committed default in payment of the auction price, the portion of the property falling to the share of defaulter bidders including the portion of the petitioner were accordingly resumed by the order. of the Additional Settlement Commissioner Industries, Lahore dated 2‑11‑1968 and that the petitioner being in possession was entitled to its transfer on the promulgation of reconstituted Settlement Scheme No.VIII vide para.7 (d) of the said Scheme. It was asserted that the petitioner had submitted an application before the Chief Settlement Commissioner seeking transfer of the said shop but the same has not been disposed of as the rejection of the same was not communicated. 1t was added that the petitioner came to know of the transfer obtained by respondent No.4 on receipt of the notice dated 1.4‑9‑1976 and as such he filed this petition on 10‑1.2‑1976.

10. Mr. Rashid Murtaza Qureshi, Advocate, learned counsel for the petitioner argued that Evacuee Laws are ultra vires being violative of the equal protection of law clause contained in Article 4 of the Constitution. He added that the property left by the evacuees should have formed part of Bait‑al‑Maal and as such the widow of the petitioner has preferential right to retain the same free of cost. Learned counsel was, however, not able to show as to how the provisions contained in the evacuee laws are violative of the equal protection of law clause contained in Article 4 of the Constitution and as to how the widow can claim to retain the property. Even otherwise, these pleas cannot be allowed to be raised during arguments as the same were not taken in the petition itself. The plea taken in the petition to the effect that the portion of the property falling to the shares of the defaulting bidders included the portion occupied by the petitioner, is incorrect. The shop in the actual possession of the petitioner formed part of the unit allocated to Sh. Hafeezud Din respondent. The portion so allocated was not resumed. This being the position, the petitioner cannot claim the transfer of the shop under the reconstituted Settlement Scheme No.VIII as the said portion which included the shop in occupation of the petitioners was not "available property" in any case. Even the claim that the petitioner has filed application/Form under Settlement Scheme No.VIII cannot be accepted as neither any receipt acknowledging the filing of said Form' or a copy thereof has been placed on record. The petitioner is also not one of the signatories of the applications submitted by other applicants to the Chief Settlement Commissioner.

11. Dr. Aslam Hayat petitioner stands estopped from claiming transfer of the shop in his occupation in the year 1976 by filing this petition as the transfer of Big Mansion was challenged by him alongwith others by filing a petition (W.P.1376‑R/63) .unsuccessfully. The matter was then taken up to the Supreme Court by filing a petition for special leave to appeal (CPSLA No.95/63) but the auction was maintained. He then challenged this auction by filing a suit alongwith others and the suit was dismissed in default on 22‑7‑1969 and the restoration application filed by them was also not prosecuted and thus was also dismissed. Dr. Aslam Hayat being the signatory of the agreement dated 5‑11‑1962 and 4‑2‑1963 was aware of the transfer of the Big Mansion and the allocation of the portion which included his shop in favour of Sh. Hafeezud Din and as such, it is incorrect to allege that he became aware of the transfer on receipt of the notice demanding rent served on 19=9‑1976. The petitioner as such approached this Court with unclean hands. The petition also suffers from laches. For all these reasons, this petition is liable to be dismissed. WRIT PETITION N0.225‑R/78:

12. Mirza Munir Ahmad by filing this petition sought a declaration to the effect that so far as the disposal of the portion of the property in possession of the petitioner is concerned the same is without lawful authority and of no legal effect. It was urged that as some of the auction bidders of the Big Mansion defaulted in payment of the auction price, the other auction‑purchasers including Sh. Hafeezud Din were asked to make payment but as all the auction‑purchasers refused to pay the outstanding amount, the Additional Settlement Commissioner Industries, Lahore ultimately resumed the portion. It was added that in fact and law, default of some joint purchasers will be considered default of all and as such the entire Big Mansion became available property under Settlement . Scheme NO.VIII and the petitioner, therefore, applied for the transfer of the portion in his occupation and allotment since 1948. The grievance made is that the petitioner kept making enquiries from the Settlement Department from time to time about the disposal of his application but ultimately it came to light that some ex parte transfer orders for the resumed portion had been issued which have been challenged in this Court. It was added that ex parte act of transferring the petitioner's portion without informing the petitioner and disposing of his Form is illegal and without lawful authority and the petitioner has legal right under the reconstituted Settlement Scheme for the transfer of his occupied portion. 13 During arguments, learned counsel, however, submitted that the transfer of Big Mansion through auction was void ab initio as has been conceded in the concise statement filed by the Chief Settlement Commissioner in the Supreme Court in the petition for special leave to appeal of Naseer Ahmad Piracha. He submitted that irregularities pointed out in the concise statement inter alia are: (i) The very bid offered was void as the bidder had to deposit Rs.50,000 in cash whereas four Compensation Books were deposited by the respondents/bidders out of which the amount of two books could not be realized as requisite Agreement of Association was not filed. So the amount deposited was short by Rs.6,

217. Hence the participation of Sh. Hafeezud Din in the auction proceedings was illegal and defective. (ii) The condition of deposit of 1/4th of the transfer price was not complied with; (iii) That Naseer Ahmad Piracha also appeared to be one of these persons on whose behalf bid was offered and the power‑of‑attorney on the basis of which Sh. Hafeezud Din gave bid was doubtful document as it does not bear any signature or endorsement of any member of the Auction Committee but also because it mentions the names of only seven bidders.

14. Learned counsel argued that the concise statement is to be equated with and treated as an order of the Chief Settlement Commissioner, and as this order has neither been challenged nor has been got vacated by Sh. Hafeezud Din and other transferees, the Big Mansion as a whole is to be treated as "available property" transferable to the occupants in terms of para.7(d) of the reconstituted Settlement Scheme No.VIII.

15. I will firstly deal with the contentions taken in the petition itself. The flat on the first floor in occupation of the petitioner forms part of the portion allocated in favour of Sh. Hafeezud Din. This portion was never resumed. The plea that in actual fact and in law, default of some of joint purchasers will be considered as default of all and hence the entire Big Mansion became available property under Settlement Scheme No.VIII, was in fact abandoned during the arguments by the learned counsel. Even otherwise there is no merit in the plea. The portion allocated to three auction‑purchasers was resumed and thereafter, the bid being one and joint, the transferees were offered the opportunity to apply for transfer of such portions jointly and individually by submitting application seeking transfer of the same against same amount of price as was payable by the defaulters. This offer was accepted by one of the joint transferees and amount in default was paid by S.M. Almas Ali and Khalid Masud in this Court. Accordingly a Division Bench of this Court in I.CA. No.98/83 held that these transferees be treated to have been validly transferred the portions of the property in question. The portion in occupation as such could not be treated as "available property" for the purpose of reconstituted Settlement Scheme No.VIII. In 4act Mirza Munir Ahmad, petitioner, could not avail of the reconstituted Settlement Scheme No.VIII as the transfer of the portion was made earlier under Settlement Scheme No.III. At that time Mirza Munir Ahmad was offered to join other occupants in making the bid but he declined this offer vide reply (Annex. R/4) saying that he would like to occupy the said portion in the capacity of a tenant. The disposal of the property as originally made under Settlement Scheme No.1II, having not been challenged throughout these years, the petitioner has no locus standi to challenge the transfer in favour of Sh. Hafeezud Din on the plea that some of the joint bidders were defaulters in paying the price of their assigned units and as such the transfer of the entire property has been rendered void.

16. The Settlement Scheme No.III provides for the disposal of the Big Mansion. Para.7 and proviso to para. 9 and para. 16 being relevant, may be reproduced:‑‑ "

7. If two or more persons desire to bid jointly, they will disclose in writing to the Auction Committee the names and addresses of the persons joining in the bid and the fact whether any of them is a claimant. In such a case the person bidding jointly will be represented by an authorized agent holding a power‑of‑attorney from all of them. 9. . Provided that where one or more claimants have participated in a joint bid the abovementioned documents will be produced at one time by an authorised agent on behalf of all of them and in such a case the authorised agent will also produce an agreement signed by all the bidders including non‑claimant displaced persons and locals, if any, indicating the share of each in the property,

16. All the joint purchasers of a property will be jointly and severally responsible for the payment of amounts due from all or, any one of them. The notice of demand will ordinarily be served on their authorized agent but the service of such a notice on any one of them will be deemed to be service on all of them." A perusal of these paras. would show that bid can be offered jointly in accordance with the agreed arrangement between the joint bidders and that the joint purchasers of the property are jointly and severally responsible for the payment of the transfer price. This being the position, in case of default committed by the three joint bidders, the portion, allocated to them under the agreement could not legally be resumed without serving a proper Demand Notice on other joint purchasers to pay the amount in default and in case of failure to make the payment by other joint purchasers, the entire transfer could be cancelled. In the instant case, the Additional Settlement Commissioner Industries vide order dated 2‑11‑1968 cancelled the transfer of the units allocated to the three defaulting joint purchasers without serving a Demand Notice on the other joint purchasers and without providing them opportunity to make payment of the balance of the transfer price. Later on, realising that the transfer was joint and several, notices were issued to the other joint purchasers so as to provide them opportunity to pay the amount in default and thus to retain transferred units by making payment of the balance transfer price. In this notice (Annex. R/6 with the written statement of S.M. Almas Ali dated 12‑3‑1971), it was further stated that failure to seek transfer of this resumed portion jointly or individually against the same amount of share as was not paid by the defaulters, would be deemed as refusal to have the resumed portions transferred and in that case that Big Mansion as a whole including the portions already transferred would be liable to be resumed for disposal under law. This course so adopted was in accord with Settlement Scheme No.III as amended vide Notification dated 26‑11‑1970 (See PLD 1971 Central Statutes 70). Sub para. 2(a) added to para.3 provided that on an application made to him in this behalf, Additional Settlement Commissioner may allow the joint bidders to pay in lump sum the amount due from defaulters and obtain transfer of the share cancelled or proposed to be cancelled from the names of such defaulters provided that share resumed or proposed to be resumed has not in the meanwhile been transferred to any other person. The aforesaid sub‑para. 3 further provides that when the defaulter or the joint transferee makes full payment under sub‑paras. 1, 2 and 2 (a), the order of cancellation or any other order made will be withdrawn. It is, therefore, apparent that the Additional Settlement Commissioner validly made the offer to other joint purchasers to pay the amount in default for the purpose of seeking transfer of the resumed portions. It was for this reason that the Division Bench of this Court in I.CA. No.98/83 observed that Khalid Masud and S.M. Almas Ali will be treated to have been validly transferred the portion (resumed portions) of the property in question and thereby set aside the inquiry proceedings statedly initiated into the genuineness or otherwise of the Compensation Books. Learned counsel for Settlement Department in this view of the matter took the position in the said appeal that the Pay Orders have been accepted by the Settlement Department in terms of the indemnity bond irrespective of the Compensation Books being genuine or otherwise. In this view of the matter, the so‑called irregularities referred to in the concise statement lose all significance and the matter of transfer of the resumed portions cannot be challenged.

16. Even otherwise, the irregularities pointed out in the concise statement were not supported by the learned counsel for the Settlement Department during the hearing of these petitions. He stated that he has specific instructions from the Member, Board of Revenue (Settlement Wing), to disown the content of the said concise statement and to adopt the position that the transfer of the Big Mansion initially through unrestricted public auction in its entirety and later the transfer of the resumed portions to S.M. Almas Ali and Khalid Masud are valid in law and are being supported by the Settlement Department. On merits, also the so‑called irregularities referred to in the concise statement are without substance. The assertion that Rs.50,000 was to be deposited as earnest money has no legal foundation as according to the Settlement Scheme No.III, the amount to be deposited was much less than Rs.50,000 and admittedly the sum deposited was much more than the amount of earnest money, of Rs.2,000 (See the terms and conditions of auction of Big Mansions at page 366 of MA. Latif's Displaced Persons (Compensation and Rehabilitation) Act, 1958). The 1/4th of the amount was also deposited and at this stage, delay if any, in paying the one‑fourth of the bid money cannot furnish basis for treating the transfer void ab initio. Likewise, the plea that there were 8 bidders, cannot be availed of as the said question stood resolved with the dismissal of the writ petition filed by the concerned party. These pleas as well as the question of genuineness or otherwise of the Compensation Books cannot be agitated either by the Settlement Department or by any other party in view of the acceptance of the payment in cash in terms of indemnity bond. (See judgment of the Division Bench of this Court in I.CA. No.98/83). This petition also suffers from laches. There is no merit in any of the pleas noted above. WRIT PETITION NO.1502‑R/76:

17. Kh. Mushtaq Ahmad, petitioner, was one of the seven co‑bidders, who had offered the highest bid which was confirmed on 30th March, 1963 and the Big Mansion was transferred jointly subject to the condition that the payment of price will be joint and several responsibility of all the bidders. The petitioner defaulted in making payment and as such notice dated 29th February, 1968 was issued to him which according to the petitioner was not received by him, but respondent has produced the receipt dated 8‑3‑1968 (Annex. R/8) showing receipt of the notice demanding payment of the balance price. The unit allocated in the name of the petitioner in pursuant to the confirmed bid was then resumed by the Additional Settlement Commissioner vide order dated 2‑11‑1968. The petitioner did not challenge the said resumption nor offered to pay the price of the said resumed portion. He, however, submitted a form dated 24‑10‑1973 under Scheme No.VIII seeking transfer of the portion in actual occupation. 18.. It will be recalled that after resumption of the units allocated in the name of Kh. Mushtaq Ahmad, Mehmood Zaman and Dr. Aslam Hayat, notice dated 24‑10‑1972 was issued to the other joint bidders namely S.M. Almas Ali, etc. to seek transfer of these resumed portions by making payment of the amount due i.e. balance of the transfer price. This offer was accepted by S.M. Almas Ali vide letter dated 15‑5‑1973. It is also pertinent to note here that the notice dated 24‑10‑1972 allowing opportunity to seek transfer of the resumed portions was issued in pursuant to sub‑para 3‑a added to Scheme No‑Ill. The petitioner submitted a form at best on 24‑10‑1973 i.e. much after the acceptance of the offer to purchase the resumed units. Even the application dated 5‑12‑1975 submitted by the petitioner alongwith others was a belated one. The resumed portions/units were as such not "available property" so that the transfer of the same could be claimed under the Revised Settlement Scheme No.VIII. WRIT PETITION N0.1802‑R/76:

19. Mr. S.M. Iqbal is an occupant in shop on the ground‑floor which fell within the portion/unit allocated to Kh. Mushtaq Ahmad. He was not a co- bidder. The portion allocated to Kh. Mushtaq Ahmad was resumed on account of non‑payment of the transfer price by him and the same portion so resumed was got transferred by S.M. Almas Ali as per the details given in the paras above.

20. S.M. Iqbal petitioner initially pleaded that there were twenty persons who had authorised Sheikh Hafeezud Din to participate in the auction. He alongwith others filed Writ Petition No.631‑R/62 seeking transfer of the property through negotiations. This petition was dismissed. He was also one of the persons who had filed a suit claiming the same relief on the same facts. The suit was dismissed in default on 29‑7‑1969. The restoration application filed to have the suit restored was also abandoned. The petitioner entered the scene again in the year 1973 by submitting form under Settlement Scheme No.VIII for transfer of the shop in occupation. The plea is that the Big Mansion is to be transferred to the occupants under para. 7 of the Reconstituted Settlement Scheme No.VIII. Before filing of the form under the said scheme, the resumed portion was offered for transfer vide notice dated 24‑10‑1972 to the auction bidders who were in default and S.M. Almas Ali had accepted the offer vide letter dated 15‑5‑1973.

21. The pleas taken in both these petitions have been dealt with in detail in the cases of Mirza Munir Ahmad and Dr. Aslam Hayat. Both these petitions also suffer from laches and inordinate delay.

22. All these petitions, for the reasons recorded above, are found to be without merit and are, therefore, dismissed with costs. AA./M‑211/L Petitions dismissed.