1985 PLP 1247 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment, dated 2‑11‑1980 of the Lahore High Court; whereby a Constitutional petition arising out of an urban settlement case filed by the respondent No: 1 was allowed.

2. The said respondent was transferee in possession of the shop and Chobara in dispute since May, 1960. It is stated that on account of his failure to pay the instalments of the transfer price the property was put to auction in November, 1960 wherein the petitioner being the highest bidder became the transferee. During subsequent protracted litigation between the parties the Settlement Authorities discovered that the re‑auction of the property in dispute which implied cancellation of the transfer earlier made in favour of the respondent, was illegal on account of failure to observe the necessary procedure for resumption of a transferred property. Accordingly proceedings were taken to regularise the cancellation, more than half a decade later; with the result that the auction in favour of the petitioner was maintained while the transfer in favour of the respondent remained ineffective. The respondent having failed in the settlement forum filed a Constitutional petition in the High Court which was allowed on the ground that the original cancellation of transfer made in favour of the respondent who was a displaced person in possession, was without lawful authority. The subsequent effort at correcting the error could not enure for the benefit of the petitioner. Accordingly while setting aside the subsequent auction the transfer in favour of the respondent was restored. The petitioner has now sought leave to appeal.

3. After hearing the learned counsel the fact remains established that the cancellation of transfer earlier made in favour of the respondent was without observance of the then prevailing procedure. The contention of the learned counsel that cancellation was not necessary and that the property could be auctioned even without cancellation and resumption, is without any force. The Memorandum, dated 24‑6‑19$0 at page 155 of the Old Settlement Manual relied upon by him does not support the proposition. In any case he admits that auction could not have taken place without ejecting the original transferee. Nothing was done in a lawful manner, therefore, the finding of the High Court held that the auction in November, 1960 of the property in dispute in favour of the petitioner was at that relevant time, without lawful authority. We may add that it was all done without conscious application of mind with regard to the rights of the respondent by virtue of the earlier transfer order passed in his favour. This view also finds support from Muhammad Musa v. Settlement and Rehabilitation Commissioner and 2 others 1974 S C M R 352.

4. Learned counsel contended that the subsequent correction of mistakes by the Settlement Authorities would render the auction lawful. This argument also is without force because at the time the auction was held the property in dispute was not available for re‑transfer, whether through auction or otherwise. The main reason being that the earlier transfer in favour of the respondent was still intact. Any subsequent effort by the Settlement Authorities to correct the error was a futile exercise. This petition has no force and is accordingly dismissed. M. I.??? Petition dismissed.