Find a Lawyer

Civil Petition for Leave to Appeal No. 408‑K of 1985, decided on 13th March, 1986.

(On appeal from judgment of High Court of Baluchistan, dated 8‑9‑1985 in Civil Petition No. 381 of 1978) .

Constitution of

Pakistan (1973)‑‑

‑‑‑Arts. 185(3) a 199‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.10 & 11‑‑Petitioners successors and heirs of auction‑purchaser of an evacuee cinema buildings which were standing on two pieces of land on lease from local Municipality‑‑With cancellation of lease in respect of one of plots by Municipality said plot was taken by Municipality‑‑Petitioner claiming rebate from Settlement Authority which was refused‑‑Constitutional petition of petitioner dismissed by High Court‑‑No provision existing in Displaced Persons Act or Scheme framed there under, whereby any power was vested in Settlement Department to order rebate in sale price of confirmed auction sale‑‑General law of contract regulated rights of parties in case of auction, held, under Settlement Scheme for disposal of properties from compensation pool‑‑Petitioner seeking to enforce contractual rights but such rights were not enforceable by means of constitutional petition in extraordinary jurisdiction of High Court‑‑Order of High Court declining to interfere in constitutional jurisdiction being unexceptionable in circumstances, petition for leave to appeal dismissed.

S.H. Rizvi, Advocate Supreme Court with Ahmad Ullah Faruqi, Advocate‑on‑Record for Petitioners.

Nemo. for Respondents.

Date of hearing: 13th March, 1986.

The petitioners in this case are successors and heirs of one Muhammad Rasheed, who had given the highest bid of Rs.8,30,000 in the public auction held on 4th May, 1961, for the disposal of evacuee cinema at Quetta known as Paradise Cinema. According to the learned counsel for the petitioner the bid of Muhammad Rasheed was accepted and auction was confirmed in his favour. Subsequently he was also put into possession of the property. However, as the buildings of the cinema concern were standing on two pieces of land on lease from the Quetta Municipality, with the cancellation of lease in respect of one of the plots by the Quetta Municipality this portion of the plot along with the buildings thereon was taken away. Out of the total price of the property amounting to Rs.8,30,000 the auction purchaser paid a sum of Rs.2,10,785 by adjustment from compensation books but the balance still remained outstanding and was not adjusted from the compensation books submitted by him on account of doubt as to the genuineness of the same. In the meantime the auction purchaser moved the Settlement Department for grant of rebate in the sale price on the ground that it was not disclosed to him that the plot was not evacuee property, with the result that a portion of the property was taken away from him. Additionally the auction purchaser also claimed reimbursement of an amount of Rs.1,25,000 which he had spent on the renovation of the building etc. This application was considered by the Chief Settlement Commissioner, Baluchistan, and after hearing the counsel for the auction purchaser as well as the Settlement Department, the learned Chief Settlement Commissioner declined the request of the auction purchaser for rebate in the price of the property vide his order, dated 16th August, 1973. In substance the learned Officer found that the auction purchaser ought to have been himself satisfied with regard to the ownership of the land at time of auction before giving a bid and as regards the claim relating to renovation, he came to the conclusion that there was no damage done to the property after the confirmation of the auction so as to entitle the auction purchaser to any compensation on that account. Steps were then taken by the department for the recovery of the balance of the price.

2. The petitioners, therefore, challenged the legality of the order, dated 16th August, 1973, and the recovery action by means of a constitutional petition before the Baluchistan High Court at Quetta. The impugned order was assailed by the petitioners on the ground that the Chief Settlement Commissioner had no jurisdiction to dismiss their representation for the grant of rebate in the sale price of the property and, therefore, the order was nullity in law. The learned Judges of the Division Bench which heard the constitutional petition, however, repelled the contention of the petitioners for the following reasons:

"We had called upon the learned counsel for the petitioners to point out any provision of law or of Scheme framed there under, which provides the filing of a representation of the nature, in which, the impugned orders have been passed. He was unable to cite any provision of law or the Scheme. In this view of the matter, the petitioner's above representation was not competent in law. It was at the most an alleged breach of contract of sale for which the petitioners might have a right to claim damages through a civil suit, but a Constitutional Petition is not competent. Even the auction notice has not been produced before us, on the basis of which, it can be said that the Settlement Department had factually offered the sale of the plot in addition to the superstructure and the machinery."

Accordingly the constitutional petition of the petitioners was dismissed by the learned Judges by their judgment, dated 8th September, 1985.

3. In support of this petition for leave to appeal from the aforesaid judgment and order of the High Court we have heard Mr. S.H. Rizvi, learned counsel for the petitioners. He has conceded before us that there is no provision in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, or the Schemes there under, whereby any power is vested in the Settlement Department to order rebate in the sale price of the confirmed auction sale on the grounds urged in this case. According to the submission of the learned counsel the general law of Contract regulates the rights of the parties in the case of auctions held under the Settlement Scheme for the disposal of properties from the compensation pool. In view of this concession, clearly the petitioners are seeking to enforce contractual rights and in accordance with the settled legal position such rights are not enforceable by means of a constitutional petition in the extraordinary jurisdiction of the High Court. The view taken by the learned Judges of the Division Bench is, therefore, unexceptionable. The petition is accordingly devoid of force and is dismissed.

M . Y . H . 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.