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Civil Appeal No. 124 of 1976, decided on 14th June, 1986.

(Against the judgment and order of Sind and Baluchistan High Court, Quetta, dated 22‑8‑1975 in Constitutional Petition No. 608 of 1970 and Constitutional Petition No. 8 of 1971) .

(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1558), Ss. 10, 11 & 20‑‑Leave to appeal granted to examine correctness and legality of judgment of High Court dismissing Constitutional petition filed by petitioner against cancellation of transfer orders and resumption of forty‑four immovable properties which were duly transferred to him under various provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 and permanent transfer deeds had also been issued for most of them.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑

‑‑‑Ss. 10, 11 & 20‑‑Transfer of property‑‑A number of properties transferred to appellant by auction‑‑Settlement Authorities, on suo motu revision, on basis of result of inquiry conducted on a complaint against appellant that he secured transfer of evacuee properties at low price through his influence and violation of law governing such transfer, set aside all transfer orders in favour of appellant and declared properties available for disposal‑‑Orders of Settlement Authorities were challenged by appellant before High Court in a constitutional petition and when that petition was at concluding stage of arguments, appellant moved an application in High Court that he had alienated some of those properties which were subject‑matter of proceedings before Settlement Authorities and their transferees were necessary parties for any adjudication‑‑High Court dismissing his writ petition on ground of illegalities in auction‑ Supreme Court, observing that said application of appellant necessitated an inquiry into particulars of sale and also other factual and legal questions arising in case requiring re‑examination at greater length in respect of each property separately, remanded case to High Court for fresh disposal of case in view of reasons listed by Supreme Court.

S. Ashiq Hussain Gilani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Respondent: Ex parte.

Date of hearing: 14th June, 1986.

JUDGMENT

Leave to appeal was granted to examine the correctness and legality of the Judgment of the High Court of Sind and Baluchistan, dated 22nd of August, 1975 dismissing the Constitutional Petition filed by the appellant against the cancellation of transfer orders and resumption of forty‑four immovable properties which were duly transferred to him under the various provisions of the Displaced Persons (Compensation & Rehabilitation) Act and Permanent Transfer Deeds had also issued for most of them.

A complaint was made to the Secretary, Government of Pakistan, Ministry of Rehabilitation and Works Department that the appellant had secured the transfer of about eighty evacuee properties in Quetta at low prices through his influence and in violation of the law governing such transfers. An inquiry was conducted by a Section Officer of the Ministry who submitted a report to his superiors and ultimately it transpired that seventy‑four properties had been transferred to him and in making payments for them at least seven bogus Compensation Books had been used. The report was forwarded to the Chief Settlement Commissioner by the‑ Ministry by its letter, dated 11th of August, 1980. The Chief Settlement Commissioner directed Mr. Majuddin Khan, Settlement and Rehabilitation Commissioner to examine each and every case in detail and take up such of those cases as were found to be defective in any way in suo motu revision and decide them on merits after allowing an opportunity of being heard to the interested parties. He was required to finalize his scrutiny within a period of three months and inform the Chief Settlement Commissioner and the Central Government of the result.

The Settlement Commissioner so empowered issued notices to the appellant for scrutinizing the cases of 54 such properties transferred to him. The transfer of properties Nos. 1 to 47 (Annexure 'A') was re‑opened by a notice, dated 12‑10‑1970 and 5 others (48 to 52 Annexure 'A') by a notice, dated 13‑10‑1970 and 2 others (53 and 54 Annexure 'A') by notice, dated 13‑10‑1970. The appellant could not for various reasons given by him participate in the inquiry held by the authorized Settlement Commissioner and the scrutiny was undertaken after notice to him and in his absence and by an order, dated 10‑11‑1970 the Settlement Commissioner passed the following operative order:‑

"For all these reasons, these appear to be fit cases where I should invoke my revisional jurisdiction under section 20(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Accordingly, I set aside all the orders passed so far by the learned Deputy Settlement Commissioner in favour of the respondent in respect of abovementioned properties, and declare the properties available for disposal. The Deputy Settlement Commissioner, Quetta will Proceed to recall ail transfer documents issued to respondent.

Order pronounced in open Court."

The appellant invoked the constitutional jurisdiction of the High Court and challenged the order on grounds some of which are summarised hereunder:‑

(1) Ex parte proceedings should not have been resorted to against appellant as he had given plausible reasons for his non‑availability at the hearing and even otherwise inspection of voluminous record was required.

(2) Full and material particulars in respect of each property was not provided and the appellant was quite uninformed of the nature of the irregularities that were alleged in the transfer of e properties.

(3) Inadequacy of the transfer price was not a ground for re‑opening the transfer completed where Permanent Transfer Deeds had also issued.

(4) The case of one of the more valuable properties, namely, shop bearing Municipal No.2‑10/21 (Serial No.1 Annexure 'A') had been the subject‑matter of scrutiny and examination at various levels in the settlement hierarchy and ultimately by the High Court in Writ Petition No. 19 of 1965 decided on 23‑8‑1966 and it could not be re‑opened.

(5) That the auctions held were unrestricted and published in accordance with the requirement of the law and the appellant could not be penalised for having obtained the properties in such open auctions.

(6) The Chairman of the Auction Committee was duly authorised under instructions appearing at pages 103, 125 and 153. of the Old Settlement Manual to negotiate the price of the unattractive properties below the reserve price and where this was done there was the sanction of the law for it.

(7) Where the price was considered to be inadequate the appellant should have been asked to pay the price and make up the deficiency rather than setting aside the order of transfer itself.

(8) The appellant being a bona fide transferee invested huge amount in reconstruction, renovation and improvement of the properties and it was necessary that this element should have been kept in view in passing appropriate orders with regard to these properties.

(9) The appellant paid the price by purchasing the compensation books by paying huge amounts and such an order has rendered them valueless.

At the concluding stage of the arguments the appellant moved an application in the High Court on 23^rd June of 1975 informing the Court that he had alienated some of these properties which were the subject-matter of proceedings before the Settlement Commissioner and their transferees were necessary parties for any adjudication. He listed 26 such properties and the transferees thereof. It was by a short order disposed of the same day observing as follows:‑

"Application is belated, filed at close of arguments and is not supported by necessary sale document."

A learned Judge in the High Court came to the conclusion which is re‑produced as hereunder:‑

"I have gone through the record though haphazard and incomplete, of the properties in dispute, and found that instructions and the terms and conditions and the procedure as contained in different Settlement Schemes have been completely disregarded by the so‑called auction committee. It was obvious that the petitioner was obtaining the properties in question in most of the cases below the reserve price, and in some cases even he was allowed to obtain a property far below his own bid in violation of Rule 3, cited above, it should have been obvious to the auction committee, if there was any, that in case of bids less than the reserve price they should have re‑auctioned the property and should have obtained the highest bid at least the reserve price or in the alternative they should have reported the matter to the higher authorities as observed by the Settlement Commissioner instead of allowing huge losses to the Compensation Pool. In most of the cases I found that the entries in the bid sheet are not proper and nowhere it can be ascertained that any representative of the Deputy Commissioner did participate or what are the reasons that Additional Settlement Commissioner has failed to preside the auction proceedings as provided by law. No such order has been recorded by the Deputy Settlement Commissioner although he succeeded later on to get the order 'Auctions confirmed' by Additional Settlement Commissioner."

As regards the earlier decision in the constitutional petition (W.P. No.8 of 1971) it was held that it was not decided on merits but on account of want of locus standi of the writ petitioner and it did not bar the re‑examination of the matter in exercise of the revisional powers possessed by the Additional Settlement Commissioner. On these findings the constitutional petition was dismissed.

As the respondents were proceeded ex parte we have heard the learned counsel for the appellant and consider that it is a fit case for remand to the High Court for re‑examination at greater length of the factual and legal questions necessarily arising in this case in respect of each property separately. Our main reasons for doing so are summarised hereunder:‑

(i) The application of the appellant dated 23‑6‑1975 informing the Court that he had already alienated twenty‑six properties necessitated an inquiry into particulars of the sale. If the application was deficient the appellant should have been asked to provide greater .details. As the properties were located in Quetta town itself, transfers could have taken place through registered deeds and the parties actually concerned as well as the sales could be identified.

(ii) One of the more valuable properties had been the subject‑matter of revision before the Settlement Commissioner and then in writ petition. Apart from the locus standi of the informant/writ petitioner the legality of the transfer itself was examined and affirmed. The Settlement Commissioner in the impugned order failed to take note of the following facts:‑

(a) The finding of the Settlement Commissioner earlier recorded 19‑10‑1964 that "According to rules, the evaluation price of the shop was to be determined on the basis of the year 1946 rent which comes to Rs.450 p.m,"

(b) The Additional Custodian's order dated 23‑7‑1951 as hereunder:‑

"I have seen the place myself. This hotel was opened by Muhammad Jan in war days when sugar was not available since this man have a very big quota of sugar, therefore, he could earn a lot and it was very easy for him to pay the rent of the shop at Rs.500 p.m. but now since the war is over the circumstances have changed the income of these hotels have gone down therefore, the Court has reduced the rent to Rs.125 which is ire my opinion reasonable, therefore, the rent fixed by the Court may be charged for the period 1‑7‑1950 up‑to‑date, notice may be issued i.e. from 1‑11‑1949 to date at Rs.125."

(c) There was another identical case of the irregular disposal of Big Mansion as appears from the following report dated 13‑10‑1970 by the same Settlement Commissioner.

"It had also been alleged that an industrial concern known as Pak. Automobile 'had also been transferred to a local dealer as a shop. I have looked up the relevant file and find that this property was not transferred to Ch. Imdad Ali, but to another gentleman, namely Mr. G.M. Malik. This property which consists of property Nos. 2‑12/19 and 2‑12/21 was assessed at Rs.800 for the year 1946. This was transferred to Mr. G.M. Malik by the then Deputy Settlement Commissioner, Quetta (Maj. Hasnain) for Rs.4,03,200 on 22‑11‑1959. Any property carrying a monthly assessment of Rs.500 or more was to be treated as a big mansion and disposed of as such. It is not understood as to how the then Deputy Settlement Commissioner was competent to dispose it of himself and straightaway transfer it on a form N . C . S . I had a mind to issue a show‑cause notice tp the transferee in this case as well, but for Memo No. 1700/RB/, dated 14‑4‑1961 from the Secretary, West Pakistan Industries Rehabilitation Board to the address of Additional Settlement and Rehabilitation Commissioner, Quetta stating that the learned Chief Settlement and Rehabilitation Commissioner, Pakistan, had been pleased to reduce and fix the rent of this concern at Ra.200 per month (copy enclosed for ready reference). Eventually the transfer price was reduced from Rs.4,03,200 to Rs.1,00,800. In defence to this order of the then learned Chief Settlement Commissioner, Pakistan, I have not thought it proper to initiate any proceedings against the transferee even in respect of his doubtful title to the transfer of this property much earlier than this order of reduction in the rent."

(d) Even if the auction bid of this property as a Big Mansion was to be approved by Settlement Commissioner (Industries) as required under the instructions then the bid offered by the appellant would be deemed to be still pending awaiting his orders. If that is so cancellation of the transfer and resumption of the property may not be appropriate order without referring the matter to the Competent Authority.

(iii) There was a set of properties where the bid offered by the appellant was higher than the reserve price but he was unauthorised allowed reduction in the bid below the reserve price. Neither the auction nor the bid was found to be defective. The reduction of the bid given was held to be unauthorized. On that hypothesis the appellant should have been called upon to make up the price.

(iv) If the auction Committee was constituted of substitute officers and not of those who should ordinarily be on it, the purchasers are not responsible or accountable. Those officers should have been associated in the enquiry at least by obtaining their comments as to in what circumstances it so happened. Properties, as distinguished from the legality was for those officers to explain and justify rather than by the bidders, purchasers and the transferees.

For these reasons, which are not exhaustive, we accept the appeal set aside the judgment of the High Court and remand the case to the High Court for its fresh disposal. No order as to costs.

M. Y. H. Appeal accepted.

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