1988 PLP 1186 (CLC)

M.Z. Khan Burkifor Respondents Nos . 1 to

4. Sh. Zia‑ud‑Din Ahmad Qamar for Respondents Nos. 5 and

6. Date of hearing: 28th September, 1987. The land in dispute measuring about 101 kanals situated in khata No.428, village Kathgarh Tehsil Taunsa District Dera Ghazi Khan described as lot No.3 was sold by open auction held on 26‑8‑1984 as residuary evacuee property under Notification No.99‑Pol/Sett/84 dated 24‑6‑1986 of Government of Punjab, Board of Revenue (S & R Wing), Lahore. Respondent No. 5 offered the highest bid Rs. 6,

900. According to the scheme the bid was to be accepted or rejected by the Deputy Commissioner. It appears from the note dated 8‑11‑1984 written by the Assistant Commissioner that the same was actually confirmed in his name but through this note the A . C . sent back the file to the Deputy Commissioner recommending that since the confirmation of auction in the name of Wahid Bakhsh was due to accidental slip and as such was wrong, therefore, it was proper that the same should be confirmed in the name of Ahmed Khan s/o Sardar Khan. By his order dated 13‑11‑1984, the D.C. did not agree with this proposal and passed a specific order that the confirmation/ acceptance had been correctly made in the name of the person who offered the bid and who also participated in the auction and because Ahmad Khan did not participate in the auction, therefore, the same could not be confirmed in his name as suggested. The matter did not end here. One Altaf Hussain H . V .0 . again made a report on 3‑2‑1985 to the D.C. stating therein that the highest bid was offered by Wahid Bakhsh on behalf of Ahmad Khan s/o Sardar Khan who participated in the auction as such and 1/4th of the amount was also deposited by Wahid Bakhsh, therefore, the bid was confirmed in the name of Wahid Bakhsh. It was also stated that after the confirmation of auction in favour of Wahid Bakhsh the A . C . summoned Wahid Bakhsh who made a statement before him that he made the offer at the instance of Ahmad Khan s/o Sardar Khan because the latter was sick and that 1/4th amount was also deposited by him on his behalf, therefore, the auction should be confirmed in the name of Ahmad Khan and in this view of the matter the A . C . recommends that according to the statement of Wahid Bakhsh the acceptance /confirmation of the auction should be made in the name of Ahmad Khan instead of Wahid Bakhsh. This report was approved by the D.C. on 8‑2‑1985. It has been submitted by the learned counsel for the petitioners that it was done after the auction had already been accepted by the D.C. in the name of Wahid Bakhsh as is evident from note of A . C . dated 8‑11‑1984 sent to D.C. and Deputy Commissioner's order on it dated 13‑11‑1984 which became final and could not have been interfered with. The allegations of learned counsel for the petitioner is that the auction bid sheet was interpolated and after the name of Wahid Bakhsh s/o Muhammad Nawaz, Caste Multani, resident of Jhoke Lara Dakhli Mauza Takani the following words were added:‑ which according to the learned counsel is on the face of it an addition made in this portion of bid‑sheet which is with different pen as is clear from Annexure 'C' in order to favour Ahmad Bakhsh and about all these proceedings the petitioners were kept absolutely unaware. Proceeding further to complete the narration of facts the petitioners on 7‑11‑1984 filed an appeal before the Addl: Commissioner (Rev.) D.G. Khan, which was numbered as Appeal No. 283 of 7‑11‑1984 and during the pendency of this appeal the learned Additional Commissioner (Revenue) transferred the file from his Court to the Court of Commissioner, D.G. Khan Division who vide his order dated 13‑1‑1986 rejected the same. The reasons which weighed with the learned Commissioner were that vide Reference No.742‑84/PS/MBR (R) dated 14‑10‑1984 which are the instructions issued in clarification of the scheme of auction of residuary evacuee property laying down that the persons who were in possession of said property had the first right to purchase at the highest price offered in open auction and the appellant in the appeal was present at the time of auction refused to avail of this chance, therefore, they did not have any right to contest the auction at that belated stage. It was also held by the Commissioner that there was no irregularity in the auction proceedings and those had been conducted according to instructions issued by the Board of Revenue. The petitioners challenged this order by filing revision petition before the Member, Board of Revenue, Lahore, which was rejected in limine by a short order dated 18‑3‑1986. These orders have been challenged in this writ petition.

2. Learned counsel for the petitioners in support of the writ petition has inter alia raised the following contentions:‑ (1) That according to law the appellate authority in this case was the Addl. Commissioner (Rev.) and not the Commissioner, therefore, the proceedings taken up by the Commissioner on transfer of appeal by Addl. Commissioner (Rev.) to his Court are absolutely void and coram non judice: (2) That according to the Scheme the auction was to be conducted by an Auction Committee consisting of one of these i. e AC/ EACO/ EASO alongwith IIaqa Magistrate and if there happened to be no Ilaqa Magistrate then Magistrate 1st Class to be nominated by D.C. and in this case the auction was conducted by A . C . alone; (3) That according to law as it then existed, the petitioners being in possession as sitting tenants of the land in dispute being its occupants had the first right to purchase the land at reserved price which was to be calculated on the basis of average market price for the preceding 12 months under Para 8 of the said Notification dated 24‑6‑1984 and the petitioners having not been offered to purchase the land at such price, therefore, the land could not have been put to auction. This concession was available to an unauthorized occupant also. (4) That mere alleged presence (which is not conceded) of one of the petitioners and his alleged participation in the auction proceedings and alleged offer made by him did not detract from the legal rights of the petitioners that they should have been offered the land for purchase and at least the petitioners other than Muhammad Aslam who was allegedly present at the time of auction were entitled to be offered the land before putting it to auction; (5) That the proceedings for getting confirmation of auction in the name of Ahmad Bakhsh were conducted fraudulently and that he was not bidder in the auction proceedings and his name was added through unauthorized interpolation in the bid sheet in order to benefit him behind the back of the petitioners without any notice to them and without their knowledge; (6) That the finding of the Commissioner that the petitioners did not avail of the chance of purchase of land is based on ignorance of law as also misreading of the record; and (7) That the learned Member, Board of Revenue did not apply his judicial mind and without recording any finding of the contentions raised before him mechanically dismissed the revision petition by a slipshod order which is not proper and legal disposal of revision petition.

3. On the other hand learned counsel foil the respondents have contested the correctness of the contentions raised by the learned counsel for the petitioners. It has been vehemently argued that the appeal of the petitioners before the Additional Commissioner (Rev.) was premature having been filed on 7‑11‑1984, whereas even the auction in favour of Wahid Bakhsh was accepted on 8‑11‑1984 or 13‑11‑1984 and the appeal could only be filed within 15 days after the acceptance /confirmation of auction. It has been denied that the name of Ahmad Khan was added in the auction bid‑sheet afterward and it has been contended that his name was originally present in the bid‑sheet. Learned counsel for respondents also argued that Muhammad Aslam one of the petitioners actually participated in the auction proceedings and he made offer and when asked to sign bid‑sheet he refused to sign it, a note about which has been given in the bid‑sheet as is apparent there from vide Annexure 'C'.

4. Learned counsel for the respondents submitted that the auction was conducted by A. C. with Tehsildar, therefore, there was no defect in the constitution of the auction committee. It has been lastly argued on behalf of the learned counsel for the respondents with considerable force that the petitioners were not entitled to get the land by purchase as it has been provided in the scheme itself that concession to purchase land was to be extended only to those occupants whose total land holding including the land intended to be purchased does not exceed the subsisting holding i.e. 121 acres and each of the petitioners being owners of more than 121 acres therefore were not aggrieved persons to maintain the writ petition, and the same was not competent. Learned counsel for the respondents has also submitted that according to the subsequent instructions issued on 14‑10‑1984 the first right of purchase could be admitted by the D.C. if filed within 15 days of the auction at the rate of highest price offered in the open auction and the petitioners having not availed of the said chance within 15 days of the auction, therefore, they were rightly held to have disentitled themselves to purchase the land by the Commissioner which order has been supported, being legal one.

5. Replying the said arguments of the learned counsel for the respondents, learned counsel for the petitioners controverted the same both on facts and law and laid much stress on his argument that the instructions dated 14‑10‑1984 were ultra vires the provisions of the parent law under which the said instructions and schemes were framed. According to him firstly the said instructions were never notified for information of general public, therefore, they could not be enforced as a law in order to disentitle the petitioners on account of any fault having been committed in its compliance. He has referred to the provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, section 3 (1) (b) of which provides that the land occupied by a person shall be first offered for sale 'to such person and argued that it was not for the petitioners to apply in that behalf but the requirement of law was that an offer should have been made to them to purchase it and, therefore, any scheme or instruction made or issued thereunder could not have the effect of over‑riding the provisions of Act itself. The change of mode of determination of the reserved price from the previous one which was prescribed under duly notified scheme dated 24‑6‑1984 through mere instructions dated 14‑10‑1984 it was argued, was also illegal and could not have prejudiced the rights of the petitioners. This argument was apart from the argument that at time when the auction took place these instructions dated 14‑10‑1984 were not in the field, therefore, the case was governed by the previous formula prescribed in the scheme itself dated 14‑6‑1984.

6. I have considered the arguments of both the parties. I will first deal with contention No.l raised by the learned counsel for the petitioners regarding jurisdiction of Commissioner to deal with the appeal of the petitioners because the finding on that point if goes in favour of the petitioners, I would then refrain from expressing my opinion on the merits of the case and the other contentions raised. Since in that event the case shall have to be remanded for disposal of appeal of the petitioners by the competent Court. The provisions of relevant scheme provide that the officer authorized to accept/confirm the auction was D.C. and he was also authorised to reject the bid without assigning any reason. It is further provided that against any order if passed by the D.C. in exercise of these powers either rejecting or accepting the bid, the appeal shall be filed within 15 days before the Addl: Commissioner (Revenue). It was admitted by the learned counsel for the parties that in none of the provisions of relevant laws and schemes the Comissioner has been nominated as the appellate authority to entertain and hear such appeals. It is well‑settled law that when an officer by designation is authorized or nominated as appellate authority under law before whom appeals are to be filed, A it will be his exclusive jurisdiction and no other officer would be competent to act as appellate authority and decide the appeal. The designated officer nominated in this case before whom the appeals were to be preferred was the Addl: Commissioner (Rev.) before whom the petitioners filed the appeal. He did not have the legal authority to abdicate his jurisdiction in favour of the Commissioner and could not under the law have transferred the appeal pending before him the Commissioner for disposal. It is well‑settled proposition of law that when a thing is required to be done in a particular manner and by a particular authority it has to be done in that manner and by that authority and the proceedings if taken and disposed of by any authority other than the nominated one under the law shall be coram non judice and void ab initio. In this view of the legal position I B hold that the transfer of appeal by the Addl: Commissioner (Rev.) to the Commissioner and the proceedings taken by the Commissioner H on the said appeal thereafter and its disposal by him vide order dated 13‑1‑1986 are without lawful authority and of no legal effect. The impugned order of the learned Member, Board of Revenue dated 18‑3‑1986 shall have to fall being super‑structure raised on the void order passed by the Commissioner. Apart from this the learned Member, Board of Revenue has not disposed of the revision petition judicially who passed the impugned order mechanically without attending to the factual and legal pleas raised before him. When an authority or tribunal is required to decide a matter before him regarding rights of the parties the least requirement under the law is that he should apply his judicial mind to the points involved in the case and record his C finding on them which was not done by him. 7.‑ For the foregoing reasons the impugned order dated 13‑1‑1986 passed by the Commissioner and order dated 18‑3‑1986 passed by the learned Member, Board of Revenue are hereby declared to have been passed without lawful authority and of no legal effect and they are hereby quashed. The writ petition is accepted with costs. I have refrained from expressing my views about the respective contentions raised by both the parties as noted above and on merits of the case so that it may not prejudice either of them. The case is remanded to the Addl. Commissioner (Rev.) Dera Ghazi Khan who shall proceed to dispose of the appeal of the petitioners which shall be deemed to be pending before him and shall dispose of the same in accordance with law after hearing the parties who shall be at liberty to raise all the pleas for and against which they desired to taise including the other contentions noted above. H.B.T./A‑282/L Case remanded.