2006 PLP 180 (CLC)

SYED ZAHID HUSSAIN, J.

The dispute concerns with an Annexe adjacent to Bungalow No.B.I-S9-133, Civil Lines, Sheikhupura. Whereas the total area of the Bungalow is 8 Kanals, the said Annexe consists of 15 Marlas approximately along with superstructure. Mst. I.B. Rafique (petitioner No.2) who was in possession of the same, applied for .its transfer on 3-8-1959. The same was ordered to be transferred to her by the Deputy Settlement Commissioner and P.T.O. dated 15-10-1959 was issued. The occupant of the Bungalow namely Syed Iqbal Ahmed, however, assailed that order through appeal which was accepted by the Additional Settlement Commissioner on 26-11-1959 and the case was remanded to the Deputy Settlement Commissioner. Afterwards Mst. I.B. Rafique made another application for transfer of Annexe on the basis of subsequently issued instructions, which according to her enabled her to seek transfer. The said application was declined by the Deputy Settlement Commissioner on 27-4-1960 on the ground that she 'was "person of means" and that the property should be put in pool for its further disposal. Another application was filed by her in view of instructions dated 6-12-1961. The said application was considered by the Deputy Settlement Commissioner, Sheikhupura and it was found by him that she had satisfied the requisite conditions for transfer of the property. Since, however, the matter concerning the main bungalow was pending in the High Court, it was ordered to be kept pending to await the decision of the High Court. While, however, the matter was pending, the property in dispute was included in auction list which was proposed to be held on 25-4-1966. On 23-4-1966 the Deputy Settlement Commissioner recommended the deletion of the property from the auction list. Despite that it appears the property was put to auction in favour of late Abdul Ahad (the predecessor-in-interest of respondents Nos.2 to 4) on the proposed date. The matter was agitated by Mst. I.B. Rafique on which the learned Additional Settlement Commissioner, Sheikhupura passed an order staying the confirmation of the auction of the property till the decision of the revision petition. This was vide order, dated 7-6-1966. (According to the learned counsel the said revision petition was never disposed of judicially and should be presumed to be still pending). In the meanwhile, however, Khawaja Muhammad Rafique, the husband of Mst. I.B. Rafique filed Form RSS-VIII on 12-10-1973 in view of the revised Settlement Scheme No.VIII. The Deputy Settlement Commissioner on 13-1-1977 noted that till then no earnest money or 1/4th of the auction price had been deposited by the auction-purchaser. Some correspondence with auctioneer purchaser ensued and the matter was considered by the Departmental functionaries. On 14-1-1978, the Deputy Settlement Commissioner, held the property as available and found petitioner No.1 entitled to transfer. Consequently, T.O. dated 17-1-1978 was issued. Writ Petition No.346/R of 1978 was filed by one Khalid Saeed whereas Sh. Abdul Waheed and others also filed Writ Petition No.490/R of 1978. Both these petitions came up for hearing together before a learned Judge of this Court who was pleased to dismiss the petition of Khalid Saeed (Writ Petition No.346/R of 1978) whereas the matter was remanded to the Notified Officer while accepting Writ Petition No.490/R of 1978. This was vide judgment, dated 6-11-1990. Pursuant to that order dated 2-9-1991 was passed by the Notified Officer who upheld the transfer made in favour of petitioner No.1 dated 14-1-1978. Writ Petition No.252/R of 1991 was again filed by respondents Nos.2 to 4, which was accepted on 19-10-1992 and the matter was remanded to the Notified Officer for decision afresh after hearing the parties. It is in this context that order, dated 14-11-1992 was passed by respondent No.1 which has now, been assailed by Khawaja Muhammad Rafique and 2 others. The same order has been challenged by Syed Afzal Hussain (who is respondent No.5 herein) through Writ Petition No.22/R of 1993, which has identical background.

2. The learned counsel for the petitioners has been heard. Despite the fact that the names of the learned counsel for respondents Nos.2 to 4 duly appear in the cause list, none has come forward to enter appearance or contest this petition today. The petition has been accordingly heard ex parte.

3. It stands out from the above factual background of this litigation that the entire edifice sought to be built by the respondents/ auction purchasers was on the basis of auction dated 25-4-1966. Thus, it is of fundamental importance to find out as to whether the property was available for disposal through auction and that there was no impediment (factual or legal) at that time in the disposal of the property in that manner. Order, dated 23-4-1966 passed by the learned Deputy Settlement Commissioner shows that deletion of this property from the auction list was recommended by him. It is also noticeable that even after the auction had been held, the Additional Settlement Commissioner stayed the confirmation in favour of the auction purchasers, vide order, dated 7-5-1966. Another important aspect is that petitioner No.1 took initiative of seeking transfer of the property in his own name and had also filed Form. It shows continuous struggle of the husband and wife, the occupants, to seek transfer. Not only the Deputy Settlement Commissioner ordered deletion of the property from auction, before it was held, but also its confirmation was afterwards stayed by the Additional Settlement Commissioner. All this was the result of efforts of the petitioners. Prima facie no rights could have been claimed on the basis of such an auction in view of Syed Mowahad Hussain v. Syed Karam Ali Shah through Legal Heirs and 2 others 1993 SCMR

170. It was held therein that when the house had been deleted from earmarking it could, not be disposed of under that Scheme. Ordinarily it could have of its own clinched the fate of the matter. But now through the impugned order, respondent No.1 has proceeded to confirm the auction of 1966. It is contended by the learned counsel that the conclusions drawn by the Notified Officer in the impugned order are self-contradictory and suffer from inconsistencies. The operative part of the order reads like this:

"Undisputedly the Annexe which is subject-matter of dispute was not available for transfer and resumption to be made under Chapter II of Scheme No.VIII. Under the circumstances the order of D.S.C. dated 14-1-1978 is void ab initio. Similarly, the auction bid of the petitioner was neither rejected nor confirmed. The auction held on 25-4-1966 is accordingly confirmed, subject to the completion of necessary formalities attached thereto. No order as to costs." The contention is not without force inasmuch as by confirming the auction in 1992, order, dated 14-1-1978 could not be regarded as void. The determining feature of this case, however, remains as to legality of the auction, effect of order of Additional Settlement Commissioner, dated 7-6-1966 and order of transfer dated 14-1-1978 pursuant to the Form submitted by Khawaja Muhammad Rafique in the year 1973. The order does not show that the confirmation of the auction was ever made by the competent authority in favour of respondents Nos.2 to

4. It was for the first time now after the remand by the High Court in the above mentioned writ petition that the learned Notified Officer through the impugned order has upheld the auction in favour of respondents Nos.2 to

4. The learned counsel for the petitioners places reliance on Abdul Hamid and others v. Fazalur Rehman and others 1989 SCMR 120 and Muhammad Nasim Anwar and others v. Additional Deputy Commissioner, Vehari and others 2002 SCMR 226 that a belated attempt on the part of the auction-purchaser to clear the dues, cannot be countenanced. It however, still remain to be determined as to whether without confirmation of the auction, the auction-purchasers i.e. respondents Nos.2 to 4 could acquire any indefeasible right in the property and such auction could be confirmed. The learned Notified Officer should have examined these aspects in the light of the material on the record and by summoning the original files. It needs no reiteration that with the repeal of the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975, the proceedings had not abated or lapsed of their own and rather the matter had to be disposed of as "pending proceeding" by the Notified Officer through a speaking order by judicious application of mind. Such factual controversy still, thus, remain to be resolved with exercise can be undertaken by the Notified Officer only by summoning and retrieving the files pertaining to this property. The order of respondent No.1, therefore, cannot be regarded as a lawful exercise of power, which is declared as of no legal effect. The obvious result thereof is that the Notified Officer is to re-examine the matter in the light of the orders passed by the Settlement Authorities from time to time. Let the parties cause their presence/ representation before the Notified Officer who as stated by the learned counsel for the Department these days is the learned Member (Judicial-I), Board of Revenue, Lahore on 22-12-2005 for further proceedings in the matter. Though respondents Nos.2 to 4 have remained unrepresented before this Court, yet the learned Notified Officer will take all possible steps for their service before him. No order as to costs. M.B.A./M-1427/L Case remanded.