Find a Lawyer

Civil Petition for Special Leave to Appeal No. 30 of 1973, decided on 3rd October 1973.

(From the judgment and order dated 14th November 1972, passed by the Lahore High Court, L4hore, in, W. P. No. 348/R of 1972).

----‑ Sched. para., 24‑Expression "liable to cancellation" Envisages application of mind by appropriate authority‑Failure of auction purchaser to pay price or installment‑Does not operate as automatic cancellation of auction sale‑Shop already auctioned in favour of another notwithstanding instalments not having been paid as required under notices issued‑Could not be transferred to a local as long as auction not cancelled.

Muhammad Iqbal, Advocate Supreme Court instructed by Kh. Wali Muhammad, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd October 1973.

The dispute in this petition concerns shop No. 5/529, situate in Malakwal, District Gujrat of which Muhammad Musa, a local, and petitioner herein, is to occupation being its allottee since about 1953. The shop was auctioned under the Schedule to Act XXVIII of 1958, and purchased by respondent No. 3 for Rs. 5,000. The auction was later confirmed on 16th November, 1960, and a P. T. O. has since been issued in his favour.

2. It appears that later under Scheme No. VIII which made a local in occupation of an evacuee property eligible for its transfer, if it is still available for transfer, the petitioner filed L. S. form on 25th October 1966. His form was rejected by the Deputy Settlement Commissioner on 14th April 1967 on the ground that it was already auctioned in favour of respondent No. 3, and, therefore, was "not available for transfer" The petitioner filed an appeal against the order of the Deputy Settlement Commissioner which was dismissed by the Additional Settlement Commissioner on 29th June 1971. A revision taken against the appellate order was also dismissed on 5th August 1971.

3. Having failed before the Settlement authorities, the petitioner moved Writ Petition No. 348/R of 1972 in the Lahore High Court which was suminardy Lismiwsed on 140 November 1972, In the High Court, the main plea urged on behalf of the petitioner was that the auction sale of the shop in favour of respondent No. 3 had in fact been cancelled because of his failure to deposit the initial 1/4th price at the time of the auction as also the subsequent instalments as and when they accrued due despite various extensions of tinge. The petitioner was asked by the High Court to product a copy of the order cancelling the auction sale to favour of respondent No. 3. On his failure of do so, his counsel requested the Court to summon the original tile because the petitioner was too poor to secure a copy. The file was summoned, but no order cancelling the auction sale in favour of respondent No. 3 was traced in the file.

4. Having failed in the attempt to substantiate the plea regarding the actual cancellation of the auction sale in favour of respondent No. 3, learned counsel for the petitioner relied upon paragraph 24 of the Schedule and submitted that upon the failure of the respondent No. 3, the auction sale in his favour stood automatically cancelled. Sub‑paragraph (1) ibid, however, makes the auction sale only "liable to cancellation". The learned Single Judge, therefore, repelled the argument and rightly came to the conclusion that under the aforesaid provision, there cannot be any automatic cancellation and the matter still rested within the discretion of the appropriate authority whether or not to cancel the auction sale on a default in the payment of any installment within the due date.

5. 1n this leave petition, the petitioner's learned counsel repeated the argument repelled by the High Court. Upon the wording of sub paragraph (1) of para. 34 there can be no manner of doubt that there can be an automatic cancellation of auction sale upon a failure of an auction purchaser to pay the price or an installment thereof, within the due date. The expression "liable to cancellation" envisages an application of mind by the appropriate authority who has discretion in that behalf. It is common knowledge that the Chief Settlement Commissioner has, by general public notices from time to time, been extending period for payment of price still outstanding to obviate the operation of the penal provisions of the aforesaid sub‑paragraph.

6. The petitioner being a local had no locus stands to apply for the transfer of the shop when it was auctioned in favour of respondent No. 3, which has sine been confirmed. The auction has never been set aside, This makes the entire proceedings before the Settlement authorities and in the High Court misconceived.

The petition is dismissed.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.