2005 PLP 1070 (SCMR)

5. A careful scrutiny of the entire record would reveal that the controversy was set at naught by the High Court by means of order dated 2‑10‑1991, relevant portion whereof is reproduced hereinbelow for ready reference:‑‑ "The submissions have no force. Mst. Zainab Bibi, auction purchaser, was not associated or heard in the proceedings commenced on the application of respondent No.1 under Settlement Scheme No.VIII. Merely because the Additional Settlement Commissioner erroneously assumed that the plot was resumed as the auction‑purchaser perhaps defaulted in payment of the auction money is no substitute of express order to be passed by the competent authority for the confirmation or refusal to confirm the auction. The aforesaid observation made by the Additional Settlement Commissioner in his order, dated 3‑5‑1972 was based on misreading of the record, as there is nothing on the record that the property was ever resumed after refusal to confirm the auction. In the same manner, the act of putting the property again to auction in the year 1968 was also wholly erroneous having been taken arbitrarily, without adverting to the fact that the confirmation of the auction in favour of the petitioners was never refused and the case was never put up before the competent authority for confirmation or otherwise of the said auction. No act of the Settlement authority so taken could prejudice the right of the auction purchaser in the property. The argument that an auction‑purchaser in whose favour auction has not been confirmed has no right to maintain a writ petition, is not tenable and the rule laid down in the reported judgment relied upon by the learned counsel for respondent No.1 is not applicable in the facts and circumstances of the case. The auction‑purchaser has, at least a right to maintain that a decision should be taken by the competent authority regarding confirmation or otherwise of the auction held in his favour. It has been held by the Supreme Court in Sher Muhammad v. Settlement and Rehabilitation Commissioner 1974 SCMR 506 that the property cannot be treated to be available till such time the confirmation of the auction is refused, therefore, the Deputy Settlement Commissioner and the Settlement Authorities were vested with no jurisdiction to transfer the property under Settlement Scheme No.III under which only those properties could be transferred which were available. The argument that the auction‑purchaser failed to deposit 1/4th of the amount offered in the highest bid is not relevant at this stage because none of the officers of the Settlement Department has given finding on this aspect of the case. For the foregoing reasons, the orders impugned in this writ petition are not sustainable. This writ petition is accepted. The order dated 14‑7‑1972 passed by the Deputy Settlement Commissioner for the transfer of the plot in dispute in favour of respondent No.1 and the P.T.D, issued in his favour on the basis of the said order, as also the order, dated 15‑4‑1978 passed by the Deputy Settlement Commissioner dismissing the application of the petitioners are hereby declared to have been passed without lawful authority and are of no legal effect and accordingly quashed."

6. Being aggrieved the petitioner preferred Civil Petition bearing No.38‑L of 1992 before this Court assailing the said judgment but leave to appeal was refused and petition rejected vide order, dated 2‑12‑1992, relevant portion whereof runs as follows:‑‑ "(4) We have examined the record and are of the view that, in the circumstances of the case, non‑confirmation of the auction is not a valid ground to deprive the auction‑purchaser of the rights in the property. As already observed, soon after the auction she was dragged into a protracted litigation culminating in the High Court's order, dated 4‑5‑1967; she was never associated with the proceedings as to the transfer of the plot to the petitioner under Settlement Scheme No.VIII, or the subsequent litigation between him and Muhammad Sharif. It is on the record that the auction file was not placed before the competent authority for perusal and confirmation of the auction. No notice was served on "the auction‑purchaser and she was condemned unheard. As held by the High Court the act of putting the property to auction in 1968 was wholly illegal and cannot be treated as notice to the auction purchaser. The property was not available for auction and its subsequent disposal under Settlement Scheme No.VIII in favour of the petitioner was wholly illegal. The transfer of the plot in his favour is not sustainable in law and has rightly been interfered with by the High Court. There is no merit in this petition. It is dismissed and the leave refused."

7. A bare perusal of the relevant portion of judgment passed by learned High Court on 2‑10‑1991 in Writ Petition No. 122‑R of 1979 and order of this Court, dated 2‑12-1992 would reveal that following points were dilated upon, considered and decided in a crystal clear manner:‑‑ (a) Non‑confirmation of the auction cannot be considered as a valid ground to deprive the auction‑purchaser of the rights in the property. (b) Mst. Zainab was never associated with the proceedings initiated under Settlement Scheme No.VIII, which culminated into the allotment of the plot in question in favour of Muhammad Saleem (petitioner). (c) The relevant record concerning auction of the plot in question in favour of Mst. Nuzhat Jehan was not produced before the learned Deputy Settlement Commissioner who was kept in dark and remained unaware about the fact that plot in question was already auctioned in favour of Mst. Zainab. (d) The plot in question was not available for disposal under Settlement Scheme No. VIII as it already stood auctioned in favour of Mst. Zainab. (e) The approval of plot in favour of Muhammad Saleem (petitioner) was not sustainable being unlawful. (f) The plot in question could not have been treated to be available till such time the confirmation of the auction was refused by the competent authority.

8. In view of what has been stated above the suit filed subsequently by Muhammad Saleem (petitioner) was not maintainable and has rightly been dismissed under Order VII, rule 11, C.P.C, by the learned High Court. As mentioned hereinabove the controversy has already been set at naught by this Court and the order impugned being well‑based and in B accordance with the dictum as laid down by this Court in Civil Petition No.38‑L of 1992 does not warrant any interference. The petition being merit less is dismissed. M.H./M‑786/S Petition dismissed.