1983 C (PLP)

Malik Muhammad Qayyum for Petitioner. Ch. Muhammad Hussain Naqshbandi for Respondents. Date of hearing : 27th April,, 1982. This Writ Petition calls in question the validity of the order dated 3rd April, 1976 of the Settlement Commissioner, Lahore Division, Lahore.

2. The facts relevant for the disposal of the writ petition tray be briefly stated. Property No. B‑ii‑7‑S‑1340 situated at Hafizabad, was pur chased by respondent No. 2 in an open auction at the price of Rs.19,

200. Respondent No. 2 failed to pay the arrears of the transfer price within the stipulated period. In consequence, the auction was cancelled under para. 3 of the Settlement Scheme No. VIII and the property was placed in the com pensation pool by order dated 24th October, 1967 of the Deputy Settlement Commissioner, Gujranwala (Annexure 'D'). Aggrieved. by this order, respondent No. 2 filed an appeal before the Settlement Commissioner. During the pendency of the appeal, the property .was re‑auctioned as no stay order was obtained by respondent No.

2. It was purchased by Shah Muhammad Khan at the price of Rs.6,

100. The petitioner associated with the later. It may be pointed out that Shah Muhammad Khan was not impleaded as party to the appeal filed by respondent No. 2 and notwithstanding this, the Settlement Commissioner by order dated 29th December, 1973 (Annexure 'B') accepted the appeal and set aside the auction made in favour of the petitioner. The petitioner challenged the aforesaid order in the High Court by means of Writ Petition No. 399/R/74, which was accepted on 10th April, 1975 and the case was remanded for decision afresh on merits by giving due notice to the petitioner to represent her case. In consequence, the Settlement Commissioner by his order dated 3rd April, 1976 maintained the order of resumption of the property, in dispute, from respondent No.

2. He also held that the subsequent auction at reduced price without obtaining the order of the Additional Settlement Commissioner, in favour of the petitioner was illegal. Aggrieved with this‑order, respondent No. 2 filed Writ Petition No. 842/R/80 which was dismissed on 15th November, 1980. Respondent No. 2 did not challenge this order before the Supreme Court. The same has, therefore, attained finality and on this short ground alone he is non‑suited. This being so, the only question to be examined in this writ petition filed by the petitioner against the impugned order is as to whether the setting aside of auction in favour of the petitioner was made by the Settlement Commis sioner on valid grounds.

2. The learned counsel for the petitioner submits that the house in dispute at the time of auction and taking over possession by the petitioner was in a dilapidated condition. The petitioner had to carry out a lot of improvements to render it habitable. This, she did at the expense of thousands of rupees. It further submits that the property was' offered for purchase through auction held on 26th October, 1967, 24th November, 1967, 27th February, 1968 and 28th April, 1968, but nobody offered any bid and it was in view of this circumstance that the reserved price was impliedly reduced by the learned Additional Settlement Commissioner by approving the auction on 3rd August, 1968. These questions of fact stand unrebutted on record, in that, neither any written statement has been filed by the Settlement Department nor any one has appeared on their behalf to contest the writ petition. It is no doubt true that in terms of paragraph 11 of Settlement Scheme No. VIII, subject to any general or special order issued by the Chief Settlement Commissioner, reserved price in respect of houses is generally to be determined on evaluation basis and under paragraph 12 of the Scheme no bid below the reserved price shall be accepted unless otherwise directed by the Chief Settlement Commissioner by general or special order. The Additional Settlement Commissioner being the Chairman of the Auction Committee was fully authorised to confirm or cancel auction in pursuance of the instructions issued by the Chief Settlement Commissioner for the disposal of the houses and shops by auction. Reference may be made to Muhammad Din v. Settlement Com missioner, Peshawar Division, Peshawar and others (P L D 1973 S C 117) and Hakim Hafiz Muhammad Hussain v. Settlement and Rehabilitation Commissioner, Rawalpindi and others (P L D 1975 Lab. 231). In any event, paragraph. 12 of the Settlement Scheme No. VIII does not lay down a condition precedent for obtaining prior sanction of the Chief Settlement‑ Commissioner for accepting bid below the reserved price. In the instant case, the auction was duly approved by the Additional Settlement Commissioner on 3rd August, 1968, as is apparent from Item No. 5 of the Permanent Transfer Deed issued in favour of the petitioner (photo copy of which has been placed on record as (Annexure `A'), therefore, for all intent and purposes, the provisions of paragraph 12 of the Settlement Scheme had been substantially complied with when the auction was proved by the Additional Settlement Commis sioner. Moreover, in pursuance of the remand order passed by the High Court, the Settlement Authority was concerned only to examine the validity or otherwise of the order resumption of the property, in dispute, from res pondent No. 2 and was not competent to examine the validity of the auction made in favour of the petitioner, as respondent No. 2 did not file any appeal against the auction proceedings in favour of the petitioner. Thus, visualized, after the issuance of P. T. D. in favour of the petitioner on 19th July, 1969 the Settlement Authorities became funclus officio to deal with the matter.

4. Be that as it may, the petitioner is unconditionally prepared to retain the property, in dispute, at a price of Rs.19,200 the amount for which it was originally auctioned in favour of respondent No. 2 and willing to pay the balance amount of Rs.13,100 to the Settlement Department. An affidavit to this effect has been duly sworn by Mr. Khurshid Akbar, attorney of the petitioner through whom this writ petition has been filed and placed on record. This concession has been made by the learned counsel for the petitioner and her attorney on equitable considerations. The conduct of the petitioner is laudable. 5. 1n view of the above, I hold that the impugned order dated 3rd April, 1976 of the Settlement Commissioner is without lawful authority in so for it relates to the cancellation of auction in favour of the petitioner, but the petitioner shall pay the balance amount of Rs.13,100 to the Settle ment Department, in the light of the undertaking given by the petitioner's attorney.

6. With these observantions the Writ Petition is accepted with no order as to costs. M. Y. H. Petition accepted.