1974 PLP 506 (SCMR)

SALAHUDDIN AHMED, J.‑The petitioner is a local and he has become aggrieved by the order of a learned Single Judge of the Peshawar High Court refusing to set aside the order of the Settlement and Rehabilitation Commissioner (respondent No. 1) dated the 14th of November 1970, whereby the case had been remanded to the Additional Settlement and Rehabilitation Commissioner for "taking up approval or otherwise of the auction proceeding in favour of the petitioner". The dispute between the parties is over shop No. 864‑A/865 situated on City Circular Road, Peshawar Cantt. On the 7th of March 1961, the shop was transferred to one Muhammad Yaqub through negotiation. The petitioner being a local did not apply for it as Scheme No. VIII had not till then come into force. On the 26th of July 1961, one Muhammad Ibrahim made an application for transfer of the disputed shop and some other shops on the basis of his possession of shop No.

864. In June 1962, the learned Settlement Commissioner ordered that three shops, namely, Nos. 863, 864 and 864‑A/e,65 should be put up to auction separately, Accordingly on the 19th of June 1962, the shops were auctioned and respondent No. 4, Abdul Ghafoor, was declared purchaser of the disputed shop. The auction was confirmed in his favour on the same day, It appears, however, the on the 9th of June 1962, the aforesaid Muhammad Yaqub approached the High Court on a writ petition from the order of the Settlement Commissioner directing auction of the shops, and asked for an interim order of stay which was granted on the 15th of June 1962, in these terms :‑-- "Auction may take place but it should not be confirmed before the writ petition is finally decided. Respondents 3 and 4 be immediately informed of this order." This order, however, reached the Settlement Commissioner on the 20th of June 1962, i.e., after the auction had taken place, and sale had been confirmed in favour of respondent Abdul Ghafoor. Muhammad Yaqub's petition was ultimately dismissed on the 26th of June 1960. On the 24th of October 1966, the petitioner as a local applied on form L. S. for transfer of the disputed house as in the meantime Scheme No. VIII had come into force on the 16th of November 1965. On the 11th of May 1968, the Deputy Settlement Commissioner directed issue of Appendix for the disputed shop to the petitioner on payment of the transfer price as well as the arrears of rent. On the 22nd of May 1969, a Permanent Transfer Deed was issued to him. In the meantime, on the 22nd of October 1968, by an order of the Deputy Settlement Commissioner, the disputed shop was transferred to respondent Abdul Ghafoor on the basis of his purchases at the said auction dated the 19th of June 1962. On the 7th of April 1969, the petitioner applied before the Deputy Settlement Commissioner for setting aside the transfer in favour of Abdul Ghafoor and it was accepted on the 13th of May 1969. An appeal by respondent Abdul Ghafoor was dismissed by the Additional Settlement Commissioner on the 29th of November 1969. On a revisional application by Abdul Ghafoor, however, the learned Settle ment Commissioner by his order dated the 14th of November 1970, remanded the case to the Additional Settlement Commissioner. This order was impugned before the High Court by the petitioner on a writ petition but it was dismissed on the 1st of April 1974. It is evident from the facts and circumstances mentioned above that inasmuch as the High Court had granted stay on the 15th of June 1962, i.e. four days before the auction was held and confirmed on the 19th of June 1962, the auction could not be legally confirmed even though the stay order reached the Settlement Commissioner after he had already passed the order of confirmation. The learned Settlement Commissioner was, therefore, right in remanding the case to the learned Additional Settlement Commissioner "for taking up approval or otherwise of the auction proceeding in favour of the petitioner." The shop in dispute having already been disposed of in the auction dated the 19th of June 1962, was obviously not available for transfer until the confirmation had been refused. The petitioner has, however, complained that the learned Single Judge while dismissing his writ petition should not have declared that "the order secured by respondent No. 4 from the Settlement authorities as regards the confirmation of the auction in his favour holds good". This appears to be a legitimate grievance of the petitioner. The learned Single Judge while dismissing the writ petition should have allowed the impugned order of the Settlement authorities dated the 14th of November 1970, to remain as it was and not made any amendment in it. We accordingly dismiss the petition with the observation that the Additional Settlement Commissioner will now decide the question of confirmation in accordance with the order of the Settlement Commissioner dated the 14th of November 1970, uninfluenced by the aforesaid observa tions of the High Court and after having heard such parties as are interested in the matter. Petition dismissed.