AJMAL MIAN, CJ.-- By this common order we intend to dispose of the above four petitions.
Civil Petitions Nos. 1164-L to 1166-L of 1998 are directed against the order dated 16.4.1998 of a learned single Judge of the Lahore High Court in Writ Petitions Nos. 9-R, 10-R and 11-R of 1998 seeking direction for the delivery. Of the plots allegedly sold in the public auction, dismissing the same for the following reasons: "4. It is contended by learned counsel for the petitioners that they having purchased plots in open auction swa yback in 1989 could not be left in the lurch at this late stage of the day, due to the fault of the Settlement Department in auctioning non-existent plots in their names and as such they had acquired vested rights to be allotted alternate plots. Reference was made to two orders passed by Chief Settlement Commissioner whereby alternate,, plots were directed to be transferred to persons similarly affected.
5. There is no merit in these writ petitions. It is not denied that the auction of plots in question took place under the bona fide impression that these were available for transfer. Transfer orders were also issued later on these premises. However, it transpired that these plots were not existence .
Thus no enforceable contract came into being ab initio as the subject matter of the alleged contract was not. There at the time the agreement was entered into though both the parties were unaware of this fact. Such an agreement was void in terms of section 20 of Contract Act. See illustrations (a) and (b) of this provision of law.
6. It is unfortunate that the petitioners have been made to suffer for no fault of theirs for such a long time but that by itself is no ground for issuance of direction in the nature of mandamus for allotment of alternate plots in their names.
7. The petitioners, if so advised, may ask for refund of the amounts paid by them. Learned councel appearing for the Settlement Department has expressed willingness to refund these amounts to the petitioners forthwith, if so desired by them. Dismissed"
The petitioners in the above three petitions have therefore filed the above petitions for leave to appeal.
Civil Petition No. 970-L of 1998 has also identical facts but the High Court vide order dated 30.04.1998 in W.P. No. 262-R of 1993 filed by the respondent has issued the writ of mandamus though admittedly at the time of auction there was no plot in existence.
We would dismiss the above three civil petitions (CPs 1164-L to 1166-L/98) as the High Court has rightly held that writs of mandamus could not be issued against the official respondents in respect of plots which were not in existence at the time of auction.
However, in Civil Petition No. 970-L of 1998 we grant leave and direct that the appeal arising from the same. Be fixed for regular hearing at Islamabad in the second week of May, 1999.