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Writ Petition No.40-R of 1977, decided on 27th September, 1986.
---Ss.10 & 20 and Sched.--Settlement Scheme No.VI--Constitution of Pakistan (1973), Art.199--Tranafe'r of property through auction--Plot of land in dispute put to auction and respondent becoming successful bidder--Petitioners on learning about it, making application to Deputy Settlement Commissioner on a plain paper for cancellation of auction of plot and offering to purchase same at prevailing market price plus fifty per cent, thereof--Additional Settlement Commissioner passing order on such application, without notice to auction-purchaser, that the plot be given to petitioners provided they paid 1/4th of auction price plus fifty per cent within seven days of order--No amount having been deposited by petitioners within the time allowed, alleged transfer in their favour cancelled by Settlement Department-- Petitioner's revision petition before Settlement Commissioner and subsequent writ petition having been dismissed, matter coming in appeal before Division Bench of High Court which remanded case to Additional Settlement Commissioner for adjudication afresh Additional Settlement Commissioner in remand proceedings rejected petitioners' claim to property in dispute by impugned order--Order of Additional Settlement Commissioner being a conditional order, fact that requisite condition had not .been fulfilled coupled with the admitted position that the petitioners had applied for cancellation of auction on date after property had been put to auction was sufficient to sustain the impugned order--Allowing petitioner's request to treat their application on plain paper as prescribed form for transfer of property, held, would amount to giving a premium on their own negligence to determent of respondent who was the successful bidder in auction and in his absence order was procured by petitioners from the Settlement Department--Validity of said order was also open to serious objection as the same had been passed in absence of respondent--Non-filing of form by petitioners was established beyond any doubt in that the petitioners had failed to produce any form or proof of same having been fixed by them--Finding of Additional Settlement Commissioner on that score apart from being a finding of fact and not open to question in constitutional jurisdiction was otherwise also not open to objection on merits of the case--Petition being without any merits dismissed.
Ch. Altaf Hussain and two others v. Shabbir Hussain and 2 others P L D 1961 (W . P .) Lah.449 and Mst . Bahko v . Mst. Sairan and another P L D 1963 Lah. 72 held not applicable.
Rehmatullah and others v. Yusaf and others 1985 S C M R 1274 cited.
Azmat Saeed for Petitioners.
Ch. Muhammad Nazir Ahmad for the Settlement Department.
Ch. M. Latif Rawn for Respondents Nos.2 and 3.
Dates of hearing: 14th April and 27th September, 1986. "
This petition- under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question order dated 16-12-1976 passed by the Additional Settlement Commissioner, Lahore.
2. The facts as set up in this petition, briefly stated are that petitioner No.1 and Elahi Bakhsh (deceased) the predecessor-in- interest of petitioners Nos.2 to 5, claimed that they were in possession of the disputed plot No. C/1215, Kucha Kotli Kapooran, Lahore since 1955 whereon construction consisting of two pacca rooms had been raised by them and they have been living therein eversince. The said property was put to auction on 4th December, 1961 wherein respondent No.2 became the successful bidder. Respondent No.3 is a purchaser of the plot from respondent No.2. The petitioners on learning that the plot, aforementioned, had been put to auction made an application to the learned Deputy Settlement Commissioner on a plain paper for cancellation of the auction of the plot in dispute as they could not participate therein and were prepared to purchase it at the prevailing market price plus fifty per cent thereof. A copy of the application has been annexed as Annexure "A" with the earlier writ petition (W.P No.2269/R-1963) filed by the petitioners. The then Additional Settlement Commissioner on 10-4-1962 passed an order without notice to the auction purchaser that the plot may be given to the petitioners provided they pay 1/4th of the auction price plus fifty per cent within seven days of the order. The petitioners deposited the amount on 20-4-1964 as given in para 3 of the writ petition but the learned counsel for the petitioners while giving the facts of the case gave 20-4-1962 as the date of deposit of the amount. He however, was not able to produce any document to show that the money was deposited on the latter date viz. 20-4-1962. The Settlement Department, cancelled the alleged transfer in favour of the petitioners vide order dated 28-4-1962 passed by the Deputy Settlement Commissioner as no amount was deposited by the petitioners within the time allowed.
The petitioners feeling aggrieved by this later order dated 28-4-1962 passed by the Deputy Settlement Commissioner filed a revision petition which was dismissed by the learned Settlement Commissioner by his, order dated 24-8-1965. The petitioners thereupon cad5e up in writ petition before this Court vide W.P. No.2269/R-1963 which was dismissed in limine on 10-2-1964.
Still not satisfied the petitioners preferred an appeal (L.P.A. 348 of 1964). This appeal was accepted by judgment dated 12-11-1970 delivered by a Division Bench of this Court and the case was, remanded to the learned Additional Settlement Commissioner for adjudication afresh. The relevant part of the judgment of the Division Bench of the High Court is reproduced hereunder for facility of reference:-
"It is sufficient to state for the purpose of the order which we purpose to pass that it is a common ground that the application form of the petitioners was not dealt with in accordance with law and they were not given any opportunity to substantiate the pleas raised by them. The transfer order made in favour of the petitioners also being an ex parte order could not jeopardize the rights of respondent No.1. who was the highest bidder. The proper order in. these circumstances will be to accept this appeal and remand the case to the learned Addl. Settlement Commissioner for disposing of the form of the petitioners-appellants in accordance with law on the subject after hearing the parties and giving them an opportunity to substantiate their claims. We order accordingly. It is needless to point out that in case the petitioners do not succeed in establishing their entitlement, the auction will remain operative in the field and the Settlement Authorities will be at liberty if they so choose to accept the same. There will be no order as to costs."
The learned Additional Settlement Commissioner in remand proceedings rejected the claim of the petitioners to the property in dispute by his order dated 16-12-1976. Hence, the present petition.
3. The learned counsel for the petitioners has raised the following contentions:
(1) That the scope of consideration of the case on remand was limited but the learned Additional Settlement Commissioner went beyond the limited scope in determining that no form had been filed by the petitioners. Elaborating his contention the learned counsel submitted that it had been found by this Court that the form had been filed by the petitioners and there was no justification for the Additional Settlement Commissioner to have gone beyond this finding.
(2) That even if no form had been submitted it is immaterial because if the petitioners were to be found entitled to the property in dispute, the form could be submitted subsequently. Reliance was placed in, this regard on Ch. Altaf Hussain and two others v. Shabbir Hussain and 2 others reported as P L D 1961 (W.P.) Lah.449 and Mst. Bahko v. Mst. Sairan and another reported as P L D 1963 Lah.72.
(3) That the very auction of the property in dispute in favour of the respondent was not justified in that auction could be held of a vacant site only whereas the property in dispute was not so.
4. The learned counsel for respondent. No.1 submitted that submission of form is sine qua non for seeking transfer of any property and that there was no such form submitted by the petitioners and only an application for cancellation of auction had been made. He contended that the said application could not be treated as a form and that the order of remand passed by this Court in fact if read in its totality required the determination of the rights of the' parties to the property in dispute and the learned Additional Settlement Commissioner was, therefore, justified in passing the impugned order. Reliance was placed by the learned counsel in respect of the above contention on Rehmatullah and others v. Yusaf and others reported as 1985 S C M R 1274.
5. The learned counsel for respondents Nos.2 and 3 contended:-
First, that no form had been filed by the petitioners till the date of auction viz 4-12-1961 and, therefore, the auction in favour of respondent No.2 could not be questioned:
Secondly, that without having filed a form there can be no valid claim of the petitioners to the property in dispute and that the alleged form which in fact was an application for cancellation of the auction could not be treated as a form and that the plea of having filed any form was neither taken in the previous writ petition nor in the Letters Patent Appeal but was verbally raised at the time of hearing of the Letters Patent Appeal and, therefore, the respondents could not raise objection at that time that no form had been filed. In this context the learned counsel submitted that the learned Additional Settlement Commissioner was, therefore, justified in examining whether any form had been filed by the petitioners or not and that the order of this Court in the Letters Patent Appeal, as already submitted by learned counsel for respondent No.1., if read in its totality did not prohibit the Additional Settlement Commissioner in dealing with the matter in its total perspective and in coming to a conclusion about the entitlement of the parties to the plot in dispute:
Thirdly, that the petitioners for the first time requested for cancellation of auction on 6-12-1961 and offered to purchase it at the market value plus fifty percent which shows that there was no entitlement of the petitioners under para 13 of the Schedule but they were seeking the transfer only under Settlement Scheme No-VI.
Fourthly, that the offer of the petitioners having been accepted by the then Deputy Settlement Commissioner admittedly without notice to the auction purchaser was of no consequence at all and notwithstanding the illegality of that order the petitioners in any case will be estopped now to raise any objection to the auction in favour of respondent No.2 as they did not even comply with the condition of that offer viz. the deposit of 1/4th of the price plus fifty percent within 7 days of the afore mentioned order dated 10-4-1962 of the Deputy Settlement Commissioner. The learned counsel contended that the cancellation of the offer to the petitioners on 28-4-1968 in the afore-mentioned circumstances was absolutely justified and not open to question; and
Lastly, that the petitioners have not come to this Court with clean hands all through. This is apparent from the report of the Department filed in Writ Petition No.22691R of 1963 wherein it had been clearly mentioned that the petitioners' made manipulation with the dates 'so as to show that they had deposited the amount viz 1/4th plus 50% before the date allowed for the purpose had expired.
The learned counsel also pointed out that the order dated 10-4-1962 passed by the Deputy Settlement Commissioner had come to the knowledge of the petitioners/ their counsel soon thereafter and they would therefore be precluded to agitate against the auction purchaser, respondent No.2 whose right otherwise also had been infringed by having passed order dated 10-4-1962 without allowing them an opportunity of hearing.
6. Having given consideration to the controversy involved, I find that the contentions raised on behalf of the respondents have force. Before dealing with the controversy as regards the filing of the form or otherwise, it may be observed at the outset that order dated 10th April, 1962 passed by the Deputy Settlement Commissioner under which order the petitioners claim title to the property in dispute was a conditional order requiring the petitioners to deposit the 1/4th price plus 50% within seven days from the date of the order which condition had, as established on record, not been fulfilled by the petitioners. The above fact coupled with the admitted position that .the petitioners applied for cancellation of the auction on a plain paper on a date after the property had been put to auction is sufficient to sustain the impugned order. Now allowing their request would amount to giving a premium on their own negligence to the detriment of respondent No.2 who was the successful bidder in the auction and in whose absence the order dated 10-4-1962 was procured by the petitioners from the Deputy Settlement Commissioner.
7. In the same context, it may also be observed that the very validity of order dated 10-4-1962 aforementioned is open to serious objection as the same had been passed in the absence of respondent No. 2.
8. Adverting now to the question of filing of form I suffice by observing that non-filing of the form by the petitioners is established beyond any doubt in that despite opportunity having been given by this Court the petitioners have not been able to produce any form or proof of the same having been filed by them. The finding of the learned Additional Settlement Commissioner on this score apart from being a finding of fact and not open to question in the constitutional jurisdiction of this Court is, therefore, otherwise also not open to objection on merits of the case as well.
9. The observations in the judgment of the Division Bench of this Court delivered in the earlier Letters Patent Appeal "the application form of the petitioners was not dealt with in accordance with law" has to be read conjunctively with the other portion of the said judgment which do tend to imply that the functionary who was to be seized of the matter on remand had also to examine whether the proper form had been filed by the petitioners as he was obliged to dispose of the form in accordance with law. The Additional Settlement Commissioner was therefore, justified in having gone through the controversy in its total perspective which, inter alia, included the determination of the respective contentions of the parties as to whether any form had been filed by the petitioners or not. Since there was no such form filed by the petitioners, he gave a finding to this effect and non-suited the petitioners inter alia, on the ground of non-availability of any form of the petitioners, which fact it may be observed at the cost of repetition is also borne out from the fact that the petitioners have not been able to establish the filing of the form even before this Court in the present proceedings. The learned counsel for the petitioners has, however, referred to Annexure "A" to the earlier writ petition filed by the petitioners, viz Writ Petition No.2269/R-1963 to say that the said annexure could be treated as a form. The said annexure it may be pertinently noticed is only an application on a plain paper praying for cancellation of the auction and permission of sale of the property in favour of the petitioners at the market value of the property plus 50 . This application, as already pointed out above, was accepted subject to the condition of deposit of 1/4th of the price plus 50 within seven days which condition had not been fulfilled by the petitioners and, therefore, the application stood disposed of on merits. There was, therefore, no room left for consideration afresh of the said application.
10. Before parting with the case, it may be observed that the authorities cited on behalf of the petitioners about the filing of the form being inconsequential proceed on different facts and do not appear to be applicable to the case in hand.
11. In view of the foregoing discussion, I find no merits in this petition which is accordingly, dismissed.
There will, however, be no order as to costs.
S.Q. /A-185/L Petition dismissed.
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