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Civil Appeal No. 127 of 1974, decided on 16th June 1982.

(On appeal from the judgment dated 7‑12‑1973 of the Lahore High Court, Lahore in Writ Petition No. 330‑R of 1967).

‑‑ Sched. Part II‑Transfer of property‑Fixation of terminal date for application‑Chief Settlement Commissioner, held, not competent to prescribe a terminal date within which a person could have applied for transfer of evacuee property, hence, question of condonation of delay, if shop otherwise available for transfer, did not arise.‑[Condonation of delay].

Ch. Altaf Hussain etc. v. The Chief Settlement Commissioner and others P L D 1964 S C 68 ref.

--Sched., Part II‑Transfer of shop‑Express order passed, before shop put to auction and purchased by main respondent, that same be deleted from auction list‑Such order could have been passed by Deputy Settlement Commissioner and after passing such order shop, held, could not have been put to auction thereafter‑Auction of shop thereafter and its purported purchase by main respondent, held further could not confer any right on him and any claim made on its basis without legal force.

Syed Tanseer Asghar, Advocate Supreme Court and Tanvir Ahmad, Advo cate‑on‑Record (absent) for Appellant.

S. M. Tayyab, Advocate Supreme Court and Rana Maqbool Ahmad, Advocate‑on‑Record (absent) for Respondent No. 1.

Respondents Nos. 2 and 3: Ex parte.

Date of hearing : 16th June, 1982.

.‑This appeal by leave of this Court is directed against the judgment of the learned Single Judge of the Lahore High Court dated 7‑12‑1973 passed in Writ Petition No. 330‑R of 1967.

The dispute in this case relates to the transfer of an evacuee Shop No. 577 Block No. 6, Bhalwal, District Sargodha. The said shop was in possession of Hakim Abdul Khaliq, who died in 1956 and was succeeded by his widow Mst. Shah Begum, respondent No. 2 herein, a non‑claimant. How ever, she did not apply for the transfer of the shop in her favour and there fore, it was put to auction and auctioned in favour of one Muzzaffar Ali for Rs. 17,000 on 4‑6‑1960. The said Muzzaffar Ali not being desirous of taking the shop, applied on 22‑8‑1960 for cancellation of the auction. This prayer was accepted and the auction in his favour was cancelled vide order of the Deputy Settlement Commissioner dated 20‑9‑1960. In this order it was further directed that the shop may be included in the next Auction List.

In the meantime, respondent No. 2 had submitted on 27‑4‑1960 an application for transfer of the shop in her favour and had also submitted an application seeking condonation of delay to the Chief Settlement Commis sioner caused in applying for transfer of the shop. In relation to this applica tion, the learned Chief Settlement Commissioner, on 9‑5‑1960, made the following order: ‑

"The delay may be condoned if the shop in question is not in the Auction List."

On the basis of the above order and consequent upon the cancellation of the auction sale in favour of Muzzaffar Ali, respondent No. 2 approached the Deputy Settlement Commissioner for the transfer of the shop in her, favour. The latter, on 29‑9‑1960, transferred the shop in her favour on payment of Rs. 5,922 in cash. In this order it was further directed as follows: ‑

"This shop has been included in the present auction to be held on 30‑9‑1960. It may be deleted."

Notwithstanding the above order of the Deputy Settlement Commissioner, the shop was again put to auction on 1‑10‑1960 and the higher bid bf Rs. 5,100 was offered by Mst. Tabi (respondent No. 1). The auction was later confirmed in her favour. In view of the conflict between the order transferring the shop in favour of Respondent No. 2 and the auction sale in favour of Respondent No. 1 the matter was brought to the notice of the Additional Settlement Commis sioner, who, on 27‑6‑1961, directed the cancellation of the auction sale in favour of Respondent No. 1.

Aggrieved by the above order, Respondent No. 1 filed a revision petition which was accepted by the Settlement Commissioner by order dated 19‑4‑1962: whereby the transfer in favour of Respondent No. 2 was set aside and the auction sale in favour of Respondent No. 1 was restored. However, Respon dent No. 2 was not made a party to the proceedings in revision. In the mean while, she bad also entered into an agreement of association with Niaz Muhammad, the appellant herein, completely surrendering her rights in the shop in his favour.

Aggrieved by the revisional order of the Settlement Commissioner, the appellant, as associate transferee of the shop, filed a Writ Petition No. 1223‑R of 1964, which was accepted by a learned Single Judge of the Lahore High Court on 7‑1‑1966 on the ground that the order of the Settlement Commis sioner was illegal having been made behind the back of the appellant, who had acquired the rights and the interest of Respondent No. 2 in the shop.

On remand, the Settlement Commissioner, by order dated 23‑2‑1967, again accepted the revision filed by Respondent No. 1. The learned Settlement Commissioner took the view that the order dated 9‑5‑1960 of the Chief Settlement Commissioner condoning the delay for filing an application for transfer by Respondent No. 2 was conditional on the shop not being included in the auction list. As the shop had throughout remained in the Auction List, though the auction sale in favour of Muzzaffar Ali was cancelled, the application for transfer submitted by Respondent No. 2 could not be considered.

The appellant, therefore, filed a fresh writ petition (W. P. No. 330‑R/67) against the order of the Settlement Commissioner. However, the above view of the Settlement Commissioner was upheld by the learned Single Judge of the Lahore High Court by his order dated 7‑12-1973. The appellant, there fore, moved a petition for special leave to appeal in this Court raising the contention that the Settlement Commissioner and the High Court had over looked the dictum of this Court in Ch. Altaf Hussain etc. v. The Chief; Settlement Commissioner and others (PLD1964SC68) followed in a number of later cases, according to which it was beyond the competence of the Chief Settlement Commissioner to prescribe a terminal date within which a claimant or a non claimant displaced person could have applied for the transfer of the property under the Schedule to Act XXVIII of 1958 and, therefore, there was hardly any question of condoning delay, if the shop was otherwise available for transfer. Leave having been granted, hence this appeal.

The learned counsel for the appellant and the Respondent No. 1 have been heard. After hearing them and perusing the record we, consider that besides the ground noticed in the order granting leave there is another impor tant aspect which is patent on the face of the record and on account of which this appeal is liable to be accepted.

It will be recalled that the Deputy Settlement Commissioner Sargodha, in his order dated 29‑9‑1960 besides ordering that Respondent No. 2 be transferred the shop on payment of Rs. 5,922 bad also ordered that this shop which was included in the auction to be held on 30‑9‑1960 should be deleted. Thus, an express order had been passed on 29‑9‑1960, before the shop was put to auction and purchased by Respondent No. 1 that it should be deleted from the auction list. Such an order could have been passed by ‑the Deputy Settle ment Commissioner and after the said order was passed, the shop could not have been put to auction. Consequently, the auction of the shop on 30‑9‑1960 and its purported purchase by Respondent No. 1 could not confer any rights on him and any claim made by Respondent No. 1 .on its basis has no force in law.

Mr. S. M. Tayyab on behalf of Respondent No. I candidly conceded that after the order dated 29‑9‑1960 deleting the shop from the auction list the said shop could not have been put to auction on 30‑9‑1960 but attempted to argue that the order dated 29‑9‑1960 was passed in' proceedings relating to the transfer of the shop in favour of Respondent No. 1 and the Deputy Settlement Commissioner could not have, in the circumstances of the case, namely, the delay in filing of an application' having been condoned condi tionally which condition was not fulfilled by her, have transferred the shop in her favour.

Apart from the circumstance, on which there may be two opinions, that there was no 'delay in filing the application for transfer and also that the Chief Settlement Commissioner could not prescribe any terminal date iii this behalf the fact remains that the order of the Deputy Settlement Commissioner that the shop should be deleted from the auction list irrespective of the reasons which prompted the passing of this order, was an order which could be passed by the Deputy Settlement Commissioner and was a valid order. Once such an order having been passed the shop could not thereafter have been put to s auction. Hence the person participating in an auction for the said shop, in these circumstances, could not obtain any rights therein. Consequently, the orders of the Settlement authorities and upheld by the High Court bless ing the transfer of the shop in favour of Respondent No. 1 are without lawful authority and must be set aside. The result will be that the order of the Deputy Settlement Commissioner dated 29‑9‑1960 transferring the shop in favour of Respondent No. 2 remains the only legal and valid order in the field, which is herein restored. The appellant, who associated with Respon dent No. 2 will, therefore, be entitled to the transfer of the shop under the Association Deed.

The appeal is allowed accordingly, leaving the parties to bear their own costs.

Appeal allowed.

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