CH. IJAZ AHMED, J.--- We intend to decide the captioned cases by one consolidated order having similar facts and law arising out of the same judgment, dated 1-10-2001 of the Peshawar High Court wherein the learned High Court refused to interfere in the concurrent findings of the Courts below.
2. Appellant/petitioner filed C.P.L.A. No,3407 of 2001 whereas respondent filed C.P. 1-P of 2002 which were fixed before this Court on 7-3-2002 and leave was granted in C.P. No,3407 of 2001 to consider the following questions:-- "(4) According to this Scheme, the restoration of properties to the original transferee on clearness of Government dues could be declined only if the same had already been transferred to any other person and not where any other person had merely applied for its transfer as was envisaged in para.3A relied upon by the learned Judge of the High Court, therefore, according to learned counsel, correct law has not been applied in deciding the case which has resulted not only in miscarriage of justice but in depriving the petitioner of his valuable rights as transferee. He argued that he transfer of property in favor of the petitioner was challenged up to the level of this Court but the same was upheld.
(5) Leave is granted to consider, inter alia, the above contention.
(6) In the meantime, status quo shall be maintained.
(7) Civil Petition No,1-P of 2002 directed against the same judgment shall be heard along with this appeal."
3. Detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petition arises are that evacuee property comprised in Serai bearing 766-C (24/16 to 30/16-A) situated in Green Market, Bannu City was owned by Soobaram which was put to auction on 17-1-1967. Bid of Hameedullah was highest amounting to Rs,63,360 who failed to deposit the aforesaid amount. The amount of bid was equivalent to the reserve price.
Consequently, auction was cancelled from his name on 19-4-1967. The property in question was thereafter put for auction for several times but nobody came forward to participate in the bid.
Appellant Attaullah had purchased the land in question from the Settlement Department through negotiation. The Settlement Authority had allotted the same to him vide order,. Dated 29-1-1973 which was approved by the competent authority under the provisions of Settlement Law vide order, dated 3:2-1973 for consideration of reserve price of Rs,63,360 who was allowed to deposit the price of the property in question through equal monthly instalments of Rs,1,500. He paid more than Rs,9,000 towards the transfer price in the year 1973-74. Respondent was in occupation of portion of property in question who had filed appeal before the Settlement Commissioner against the order, dated 3-2-1973 which was accepted vide order, dated. 26-9-1973 wherein directed the transfer of the property in dispute in favor of Samiullah on payment reserve price in lump sum. Appellant being aggrieved filed constitutional petition in the Peshawar High Court which was accepted and set aside the order of the Commissioner dated 26-9-1973 and restored the order, dated 3-2-1973 vide judgment, dated 23-5-1974. Respondent filed petition before this Court who was converted into appeal and appeal was dismissed vide order dated 29-11-1983. During the pendency of the aforesaid litigation, evacuee laws were repealed in 1974. Assistant Commissioners were appointed as Deputy Settlement Commissioner as Notified Officer in order to deal with the unallotted properties. The Notified Officer cancelled the allotment order of appellant on 22-5-1975 and resumed the property in question. The appellant being aggrieved preferred application before the Settlement Commissioner who sent the same to the Deputy Settlement Conunissioner/Notified Officer. Respondent also submitted application to purchase the land before the Deputy Settlement Commissioner. The Deputy Settlement Commissioner Bannu/Notified Officer after hearing the appellant and respondent. Consequently, he accepted the application of the appellant vide order dated 4-6-1975 and allowed him to deposit the remaining price in lump sum which was deposited by him and PTD was duly issued to him. Respondent being aggrieved filed appeal/revision in the Court of Additional Settlement Commissioner and secured the stay order but subsequently his appeal/revision was dismissed vide order dated 2-4-1984. Respondent being aggrieved filed suit for declaration with perpetual injunction in the Court of Senior Civil Judge, Bamm on 19-4-1984 challenging the vires of the order of the Settlement Authorities dated 23-5-1975, 4-6-1975 and 2-4- 1984. The appellant filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the 13 issues and after recording the evidence, decreed the suit vide judgment and decree, dated 12-2-1991. Appellant being aggrieved filed appeal in the Court of Additional District Judge, Bamiu. Respondent also filed cross-objection before him. The learned Additional District Judge dismissed the appeal and cross-objection vide judgment and decree, dated 17-10-1995. Appellant being aggrieved filed civil revision in the Peshawar High Court which was also dismissed. Thereafter appellant filed Civil Petition No,3407 of 2001 before this Court in which leave was granted as mentioned above. Respondent also filed Civil Petition No,1-P of 2002 which was directed to be heard along with this appeal arising out of the Civil Petition No,3407 of 2001.
4. Learned counsel for the appellant submits that all the Courts below erred in law to non-suit the appellant on the basis of the para.3-A of the original Settlement Scheme VIII which was amended on 16-9-1973 wherein para.3-A was amended and parameters of both paragraphs are different. He further maintains that respondent challenged the virus of the orders of the Settlement Authorities dated 4-6-1975 and 2-4-1984 in a suit. At that time admittedly the Settlement Scheme No,VIII dated 16-9-1973 was in field, therefore, all the Courts below had erred in law to decide the case against the appellant on the basis of the unlamented Settlement Scheme No,VIII.
5. Learned counsel for the respondent has supported the judgment and submits that property in question was allotted to the appellant on 29-1-1973 which was approved by the Settlement Authorities on 3-2-1973, therefore, Courts below was justified to decide the case against the appellant on the basis of the un-amended para.3-A of the Settlement Scheme No,VIII. He further maintains that order, dated 4-6-1975 and 2-4-1984 were arising out of the order, dated 29-1-1973 in favor of the appellant. Therefore, the learned Courts below had rightly relied upon unamended para. 3-A of the Settlement Scheme No,VIII.
6. We have considered the submissions of learned counsel for the parties and have perused the record. It is better and appropriate to reproduce the basic facts in chronological order, relevant unamended paragraph 3-A and amended paragraph 3-A of the Scheme No,VIII and preamble of notification, dated 16-9-1973 of the Settlement Scheme No,VIII to resolve the controversy between the parties:
(a) The property in question was allotted to appellant on 29-1-1973 by the Deputy Settlement Commissioner which was approved by the competent Settlement Authority in favor of the appellant on 3-2-1973.
(b) The respondent filed appeal before the Settlement Commissioner against the order dated 3-2- 1973 which was accepted on 26-9-1973.
(c) Appellant filed constitutional petition in Peshawar High Court against the order dated 26-9-1973 which was accepted. Respondent agitated the same before this Court by filing petition which was converted into appeal and was dismissed on 29-11-1983.
(d) Evacuee laws were repealed in the year 1974. Assistant Commissioners were appointed as Deputy Settlement Commissioner as Notified Officers under the provisions of repealed evacuee laws in order to deal with the un allotted properties.
(e) Deputy Settlement Commissioner/Notified Officer cancelled the allotment of the appellant vide order, dated 22-5-1975.
(t) Appellant and respondent preferred applications before the Deputy Settlement Commissioner/Notified Orders to secure the land in question.
(g) Application of the respondent was dismissed whereas application of the appellant was accepted vide order, dated 4-6-1975 and was directed to deposit remaining amount in lump sum.
PTD was issued in his favor.
(h) Respondent filed appeal/revision before the Additional Settlement Commissioner who dismissed the same vide order, dated 2-4-1984.
(i) Respondent filed a suit challenging the order, dated 4-6-1975.
' Un amended paragraph 3-A of Settlement Scheme No,VIII "3-A(1) Within thirty days of the date of the order of cancellation as aforesaid, the defaulter may apply to the Deputy Settlement Commissioner or the Additional Settlement Commissioner (Industries) as the case may be, to allow him to pay in lump sum the whole of the balance of transfer price payable by him. The aforementioned authorities may then allow him to pay it immediately if by then, no other person has applied for the transfer of the same property nor has it been put to auction;
(2) The concerned appellate authority may allow the defaulter to pay the whole of the balance of transfer price payable by him in one lump sum within ninety days of the date of order of cancellation as aforesaid, if any, then no other person has applied for transfer of the same property nor has it been put to auction;
(3) When the defaulter makes full payment under sub-paragraph (1) or sub-para.(2) the order of the cancellation and any other order made will be withdrawn."
Amended paragraph 3-A of Settlement Scheme No,VIII to the extent of its applicability to the evacuee properties in N.-W.F.P. Province.
"3(I) If payment is not made within the specified period, the competent authority, without giving any further notice to the defaulter, will:--
(a) cancel the transfer of the property,
(b) forfeit an amount not exceeding twenty-five percent of the transfer price of the property already paid by the transferee plus other dues, if any,
(c) resume the property for fresh disposal under Chapter III of the scheme, by ejecting the defaulter from the property forcibly, if considered necessary.
(2) A copy of the order made under sub-para.(I) will be sent to the defaulter by post within fifteen days from the date of amount, if any, to the defaulter within thirty days.
4(I) The authority concerned may, on application made to him by the defaulter within fifteen days of the date of order of cancellation as aforesaid, allow him to pay in lump sum that whole of the transfer price payable by him within a period of thirty days from the date of order of cancellation or by monthly instalments not exceeding twelve as may be allowed on merit by the Additional Settlement Commissioner, if by then the property has not been transferred to any other person."
' Preamble of Notification dated 16-9-1973 of Settlement Scheme No,VIII.
"In exercise of the powers conferred under subsection (3) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and having received the approval of the Government of N.-W.F.P. In writing in pursuance of the powers delegated to it under the Government of Pakistan Notification No,S.R.0.645 (1)171, dated 31st December, 1971, the Chief Settlement Commissioner is pleased to reconstitute with immediate effect, the existing Settlement Scheme No,VIII, as under."
7. In case the aforesaid facts are put in juxtaposition, then it is crystal clear that the property in question is situated in Province of N.-W.F.P. The competent authority had amended and framed the scheme to disposal of the evacuee properties in N.-W.F.P. On 16-9-1973. Unlamented scheme is a general scheme whereas amended scheme is special scheme. It is a settled law that special law excludes the general law as the law laid down by this Court in various pronouncements. See Zia- ur-Rehman's case PLD 1973 SC 49. It is pertinent to mention here that the basic order, dated 22-5- 1975 was passed under the provisions of Settlement Scheme No,VIII as amended in 1973 to the extent of its applicability to the Evacuee Properties in N.-W.F.P. Province, therefore, Courts below had erred in law to decide the case on the basis of the provisions of unlamented Scheme No,VIII. It is also an admitted fact that respondent had not challenged the virus of the order of the allotments in favor of the appellant by the Settlement Authorities on 3-2-1973 in his suit as is evident from the contents of the plaint itself. Respondent had challenged the virus of the order dated 4-6-1975.
Admittedly at that time specific scheme for the Province of N.-W.F.P. Dated 16-9-1973 was enforced.
This aspect of the case was not considered by all the Courts below in its true perspective. It is a settled maxim that a Judge must wear all the laws of the country on the sleeve of his robe as law laid down by this Court in Muhammad Sarwar's case PLD 1969 SC 278. As all the Courts below had decided the case on the basis of the para.3-A of unlamented scheme which was no more in the field in view of promulgation of the Scheme No,VIII in N.-W.F.P. Having a different criteria's to dispose of the evacuee properties in N.-W.F.P. Therefore, all the Courts below had committed material irregularity or illegality as law laid down by this Court in Shaukat Nawaz's case 1988 SCM R 851.
8. In view of what has been discussed above, the judgments of the Courts below are not in consonance with the mandatory provisions of law applicable in the case in hand, therefore, all the judgments of the Courts below are set aside and appeal is accepted with no order as to costs. Civil Petition No,1-P of 2002 filed by the respondent is hereby dismissed.