1985 PLP 489 (MLD)

Date of hearing: 25th March, 1985. This petition has called into question the order of the Settlement Commissioner passed on 28-2-1978.

2. The relevant facts are that on 30th of October, 1968 the land in dispute bearing Survey Nos.304/1 to 304/7 and 274/1 to 274/4 in Deh Landhi, Karachi, consisting of 10 Acres and 33 Ghuntas was put to public auction and the highest bid of Mst. Momina Bai, the predecessor- in-interest of the present petitioners had been accepted. The highest bids in respect of the different survey numbers offered ranged from Rs.110 per sq. yard to Rs.36 per sq. yard. Rs.1,33,288 was deposited by the auction purchaser. However, since one Lutfur Rehman had challenged that the said land could not be treated as a building site and could not be auctioned, and had obtained the stay order from the High Court in Petition No.486/67 on 9th November, 1967, therefore, the auction was cancelled by Deputy Settlement Commissioner (Land) on 27-12-1968 and communicated to Mst. Momina Bai on 22-2-1969. She filed an appeal against the said order before Additional Settlement Commissioner on 14-11-1969 was returned the same on 27-12-1969 for presentation before the proper Court.

3. Petition No.486/67 was dismissed by High Court on 10-6-74 and thereafter Mst. Momina moved for the hearing of her appeal but the same could not be heard for one reason or the other and was eventually heard on 28-2-1978 and the present impugned order was passed as detailed in para. 5 hereafter.

4. What had happened meanwhile was that respondent Muhammad Aqil applied on 23-5-1974 under scheme No. VII t for transfer of these survey numbers and he was transferred an area of 10842 sq. yards of survey No.304 on 13-1-1975. Thereafter, P.T.D. was also issued to him for the same on 10-12-1977.

5. The present petitioners got the matter resurrected and moved for hearing of the appeal. The Settlement Commissioner maintained the order for transfer of 10842 sq. yards of Survey No.304 under scheme No.VIII in favour of the respondent No.3 because the Permanent Transfer Deed had been issued in his favour and he did not consider it desirable to reopen the matter. Of-course it had been observed by him that it was doubtful if such a big area could be transferred legally under scheme No.VIII and that too without considering the case of earlier auction. But the Settlement Commissioner did not elaborate any further and left it at that. The appeal of the present petitioners against the cancellation was accepted on the ground that the auction could not be cancelled by the Assistant Settlement Commissioner, once the auction had been confirmed by the Additional Settlement Commissioner and further on the ground that Mst. Momina had paid almost full auction price to the tune of Rs.1,33,188 which was still lying with the department, therefore, the better course adopted was the finalization instead of cancellation. Eventually the auction held in favour of Mst. Momina minus 10842 sq. yards of Survey No.304 transferred to respondent No.3, was restored and finalized in favour of the petitioners. But condition had been laid that the petitioners should pay the price on plot at the rate at Rs.6 per sq. yard. It was observed that the member Board of Revenue had accorded his approval to the exclusion of the land from the list of available plot supplied to the Land Utilization Department.

6. Mr. Imam Ali Kazi, Advocate has challenged the order of the Settlement Commissioner dated 28-2-1978 on the ground that the transfer in favour of Muhammad Aqil was not legal as the petitioners' claim for the transfer of the whole land on the basis of auction in favour of Mst. Momina was pending. However the fact is that the auction in favour of Mst. Momina had been cancelled on 27-12-1968 in view of the fact that the High Court had issued the stay order in respect of the auction. And the order of cancellation of auction was in operation on 13-1-1975 when 10842 sq. yards was given to Muhammad Aqil under scheme No.8. And by that date even the Petition No.486/67 had been dismissed by the High Court and, therefore, there was no stay order from the High Court in operation, nor still the petitioners predecessor had moved the Settlement Commissioner for the stay of any further proceedings in the matter although Mst. Momina Bai had been informed on 26-2-1969, that auction in her favour was cancelled. Therefore, the Settlement Department was competent on 13-1-1975 to treat the land as available for disposal to the respondent No.3 in terms of scheme No. VIII. Of course it would have been better if the matter of cancellation of the auction from the name of the petitioners' predecessor should have been taken into consideration at the relevant time but I do not find any illegality in the order passed by the Settlement Authorities on 13-1-1975 in transferring the land to respondent No.3. Again I do not find any illegality in the order of the Settlement Commissioner dated 28-2-1978 where it had been held that transfer in favour of respondent No.3 was correct. Further there is no illegality in the view when by the Settlement Commissioner that it was not desirable to reopen the said matter particularly when P.T.D. had been issued to respondent No.3.

7. Mr. Abdul Monem Khan, counsel for the respondent No.3 had made a statement at the bar that the transfer in favour of the respondent No.3 was on the basis that the respondent No.3 had raised permanent structures since 1958 on the said land for the purposes of dairy farm. In these circumstances it was neat and proper that the Settlement Commissioner should have upheld the transfer in favour of respondent No.3.

8. Next contention of Mr. Imam Kazi is that once the Settlement Commissioner had restored the auction of the disputed land minus 10842 sq. yards in favour of the petitioners, he was not justified in raisin the price of the land in question at the flat rate of Rs.6 per sq. yard which has the effect of almost making the price of the land more than double of what it had been auctioned for. The submission appears t me to be correct. The restoration of the auction, held in favour of Momina, of the disputed land minus 10842 sq. yards should have automatically meant the transfer of the land to the petitioners at the same rate which their predecessor had offered in the auction. It would have been different matter if the petitioners had given their accord to the raising of the price but the petitioners' counsel has told me that they had never given their accord to such rise in price, and of course the Settlement Commissioner had also not stated in his order that the increase in price was being made by the consent of the petitioners. l: Therefore, the rise in price was completely uncalled for and was illegal. am, therefore, of the view that the petitioners are entitled to purchase the disputed land minus 10842 sq , yards at the same price for which the land had been auctioned on 30th of October, 1968. The result is that this petition is partly allowed as observed above but it is dismissed as against respondent No.

3. The Board of Revenue should make the recalculations and refund to the petitioners any amount which may b found due to them after recalculation and after excluding the area of 10842 sq. yards in Survey number

304. The Settlement Commissioner is further directed to issue the P.T.D. in favour of the petitioners in respect of the balance of the disputed land. A. A. Petition partly allowed.