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Writ Petition No. 1352/R of 1976, decided on 17th March, 1984.

---S. 10--Constitution of Pakistan (1973), Art. 199--Transfer of property through auction--Bid-sheet--Issuance of P.T.0.--Legality--Bid-sheet of auction and P.T.O. issued to respondent in respect of disputed property mentioned transfer of shop only--Resorve price end survey record also showed auction of shop only--Bid-sheet being original contract between parties with regard to transfer of property through auction issuance of P.T.O. was conclusive proof that shop without Chaubara was transferred to respondent--Respondent ought to have challenged bid-sheet and P.T.O. if he thought that disputed Chaubara had also been transferred alongwtih shop--Failure of respondent to do so, held, proved beyond any doubt that shop without Chaubara was transferred to respondent- Chaubara being undisposed of ordered to be transferred to occupant of same according to law.

M. Sultan Khan for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Akhtar Mir Warsi for Respondent No. 3.

Date of hearing: 17th March, 1984.

The parties to this case are disputing the transfer of a Chaubara situate in Property No. B-III-15-S-118, Bazar Said Nagari, Gujranwala. This case was fixed for today for the hearing of the miscellaneous application, but as both the learned counsel agree for the disposal of the main case, I have heard them and decide it accordingly.

2. Briefly, the facts of the case are that a shop in the property mentioned above was allotted to one S.M. Rafi. The Chaubara thereon was in possession of Niaz Ahmad a brother of the petitioner. According to the survey record placed on the record, the rent of the shop was Rs.12 whereas that of Chaubara was Rs.5 per month. On the enforcement of the. Displaced Persons (Compensation and Rehabilitation) Act, the property was put to auction. According to the auction' list placed on the record as Annexure 'D' by the petitioner, only a shop of the rental value of Rs.144 per annum (Rs.12 per month) was to be auctioned. The auction list produced by the learned counsel for the respondent, on the other hand shows that the entire property viz the shop and the Chaubara with a rental value of Rs.204 p.a. was auctioned.

3. The bid-sheet placed on the record as Annexure 'E' however, shows that the property auctioned was Shop No. B-III-15-S-.118 with the gross annual rental of Rs.5,760 (i.e. 144 x 40). The respondent No. 3 was the highest bidder. It was, therefore, confirmed in his favour on the same day. A P.T.O. was then issued which is for the shop only. The respondent No. 3 did not challenge any of these so-called clerical mistakes at any time. He however, obtained the P.T.D., for the entire property i.e. shop and Chaubara in 1963.

4. The petitioner submitted a Form C.H. for the transfer of the Chaubara in 1966. It was, however, rejected on 2nd August, 1968 for the reason that the same having been already transferred was not available. It was further stated that according to the record, the petitioner was not in possession of the same. The petitioner filed a belated appeal after about 5 years, against the order of rejection of his form, and the same was rejected by the Settlement Commissioner on 12th of March, 1976. Before parting with the case, the Settlement Commissioner, however, directed the Deputy Settlement Commissioner to scrutinize the record and see if the Chaubara has been transferred alongwith the shop. This was done by the Deputy Settlement Commissioner, vide his order, dated 3rd July, 1976. He came to hold that it was a clerical mistake not to mention the Chaubara in the auction list, bid-sheet and the P.T.O. It is thereafter that the petitioner brought the present writ petition to this Court, for a relief.

It is contended on his behalf that as the bid-sheet and the P.T.O. did not mention the transfer of the Chaubara and as even the reserve price and survey record show that it was only the shop that was auctioned, the transfer of the Chaubara by way of P.T.D., is unlawful and it remains available to be transferred in accordance with the subsequent schemes. The learned counsel for the respondent, on the other hand, has relied on the report, dated 3rd July, 1976 of the Deputy Settlement Commissioner and states that the omission to mention the gross annual rent at Rs.12 only was a clerical mistake and that in fact the entire property had been transferred.

6. After going through the record and hearing the learned counsel, I find much force in this petition. The bid-sheet is the original contract between the parties with regard to the transfer of the property. According to them, the respondent purchased only a property, the rental value of which comes to Rs.12 per month. One of the auction lists confirms that aspect of the matter. The P.T.0 is rather conclusive on that aspect. The respondent ought to have challenged the same if at all he thought that the Chaubara had also been transferred alongwith the shop but he did not do so. Even the auction list supplied by the learned counsel respondent shows the possession of only S. M. Rafi. Admittedly, the two properties were in possession of two evacuee A persons. In this view of the matter, there is no doubt at all as to the fact that the respondent is transferee of only the shop and not the Chaubara. Consequently, the Chaubara was available on the day when the petitioner filed a form and the same would have been considered in accordance with law. The subsequent schemes also came into force and as the Chaubara remained undisposed of, the person who is occupying the same would also have the right of its transfer. In this view of the matter, the impugned order is declared to be without lawful authority and of no legal effect. The Provincial Government/ Deputy Administrator is directed to consider the form of the petitioner under the Scheme then prevailing and the subsequent schemes. He shall also take into consideration Annexure 'A' the survey list, in accordance with law.

There shall be no order as to costs.

H . B . T .

Petition accepted.

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