1. ' MUHAMMAD HALEEM, J.-The petitioner assails the order of the Peshawar High Court, Peshawar, dated 18th June, 1978, by which Civil Miscellaneous No, 536 of 1978 seeking to implead respondents 4 and 5 as necessary parties in Writ Petition No, 231 of 1978 was allowed.
2. ' The petitioner is a claimant displaced person and his been making efforts for the issuance of M. R.
3. V. In respect of agricultural land abandoned by him in India but on account of a techniczi objection he has not been successful in getting that document so far. After the break-up of one unit, the settlement work in 1973 was divided and transferred to the provinces. In 1974, the Evacuee Property and Displaced Persons (Repeal) Ordinance, 1974, was promulgated with retrospective effect from Ist of July, 1974. And, according to the petitioner, the matter in regard to the issuance of this certificate was saved by section 2 (2) of this Ordinance. Later, this Ordinance was replaced by the Evacuee Property and Displaced Person Laws (Repeal) Act, 1975. And on 24th of March, 1976, the Central Record Office, Lahore, transferred his case to the Province of Sind and from there it was transferred to N.-W.F.P., but again, the Chief Settlement and Rehabilitation Commissioner. N.-W.F.P returned the file to the Central Record Office by the letter dated 8th of June, 1976, for deciding the case. However, on 12th of June, 1976, pursuant to the request of the petitioner, the Assistant Commissioner, reserved agricultural land bearing Khasra Nos. 19 to 23, 60 to 65, 57 to 59, 97, 121, 136 to 138, 198, 199. 315, 321, 330, 334, 350 to 354, 455 and 457, situate in village Daddiwala. Tehsil Lakki Murwat, District Bannu. Thereafter, on 16th of June, 1976. Scheme No, 2 was enforced for the disposal of undisposed land ; nonetheless, according to the petitioner the land reserved was outside the scope of the Scheme and on the Ist of July, 1976, the Central Record Office, Lahore, issued M. R. V., which was sent to the Deputy Commissioner, Bannu, for the settlement of his claim in that District and from there it was sent to Tehsil Lakki by the Deputy Commissioner. On 5th of August, 1976. The Dafter Qanungo, made a proposal for the allotment of the part of the land against a portion of the entitlement certificate while the balance of the units still remained to be satisfied. By order dated 7th of December, 1976, the second respondent approved the proposal and on 15th of December, 19.76 steps were taken to complete the formalities.
4. ' The second respondent, thereafter auctioned Khasra Nos. 60 to 65 and 67 to 69 which was a part of the reserved land on 26th of December, 1976, in spite of the protest made by the petitioner that this land could not have been auctioned as it was a part of the reserved land. Again, on 30th of December, 1976, -the second respondent suo motu reviewed his first order of allotment dated 7th of December, 1976, without any, notice to the petitioner and cancelled the allotment. The petitioner learnt about it on 7th of January, 1977, and he thereupon sent a 'telegram to the second respondent not to disturb the status quo which action was confirmed by the Tehsildar, Lakki Murwat, by his letter dated 5th of January, 1977, addressed to the petitioner. On 6th of January, 1977, Khasra Nos.
5. 198, 199, 135 to 138, 455 and 456 which had already been allotted to the petitioner were auctioned by the second respondent without any prior notice of the public auction.
6. ' Aggrieved by it, the petitioner, filed a revision on 8th of January, 1977, before the third respondent and obtained a stay order ; and on 25th of January, 1977, the revision was accepted and the order dated 30th of December, 1976, was set aside with the result that the allotment stood restored in favour of the petitioner subject, however, to the confirmation by the Board of Revenue. There after, the third respondent, again suo motu reviewed his order on 14th of May, 1977, and recalled it which led to the revival of the order dated 30th of December, 1976, by which his allotment was cancelled.
7. The decision principally hinged on a telephonic message about a notification having been issued imposing a ban on the allotment of land made after 30th of June, 1973, which, according to the petitioner, did not apply to his case as the proposal was made to him for the allotment of the land before 30th of June, 1973, which awaited confirmation. This notification was considered by the Peshawar High Court, Peshawar, in Writ Petition No, 331 of 1976 wherein the High Court had held that it was nullity but despited the fact that it was brought to the notice of the third respondent he took this illegal decision.
8. ' Being aggrieved the petitioner filed the aforementioned Writ Petition in the High Court and on 27th of May, 1977, the High Court sent for the comments from the respondent and in the meantime ordered status quo with notice to the respondents. The interim order was confirmed on 29th of October, 1977, and the respondents were directed to expedite the submission of the comments. The petitioner alleges that in spite of status quo order dated 27th of May, 1977, respondents 4 and 5 deposited the auction price on 27th of November, 1977 in collusion with some officials of the department and, thereafter, through C. M. No, 536 of 1978, applied for being joined as necessary parties in the petition. It was objected to by the attorney of the petitioner but the High Court held that as the rights have "devolved" on these respondents as being auction purchasers, the petition cannot be disposed of in their absence. Therefore, they had to be necessarily impleaded in the petition.
9. ' When this petition came up for hearing on 11th of January, 1979, the counsel for the respondents, entered caveat and took time for filing documents and the petition was adjourned to 25th of Novemher, 1979, It was further made clear to the learned counsel for these respondents that the petition would be disposed of on that date after hearing him and that no further adjournment would be granted. On 25th of November, 1979, a telegram was received from the counsel seeking adjournment on the ground of the demise of his father. The hearing was adjourned to 28th November, 1979, and the Advocate-on-Record, who was present was told to communicate the date to the counsel but in spite of it he is absent. The Advocate-on-Record was not in a position to argue the matter although he had filed unauthenticated copy of a notice for auction of the land. It was contended by the counsel for the petitioner that the High Court failed to go into the facts of the case for it was only the petitioner who had a grievance against the 'illegal cancellation of his allotment by the third respondent and until that question was determined the land allegedly auctioned could not be available for transfer and hence the third and the fourth respondents who were not parties in the earlier proceedings before the aforementioned officers could not be said to have derived any interest to enable them to be joined as necessary parties in the petition. In support of this contention, the learned counsel relied on Ch. Muhammad falai v. The-Chief Settlement Commissioner, Lahore and others (I). This contention has force as the petitioner bas all along been
(1) 1970 SCM R 670 ' striving to uphold the order of allotment and till such time as there is no final determination the land cannot be said to be available for disposal by auction. Again, in the proceedings for the restoration of the allotment, it was the petitioner who is an aggrieved party and it is he who had filed the petition seeking the quashment of the order of the third respondent by which he has reviewed his earlier order ; and having regard to the nature of the controversy, we do not see how the third and the fourth respondents can be regarded to have acquired any interest in the land till such time as the legality of the cancellation of the allotment is not determined. The mere payment of the auction price during the pendency of the status quo order would not entitle them to be joined as necessary parties on the view of the matter that we have taken for that too is subject to the result of the litigation. Having held so we are of the view that the discretion exercised by the High Court was injudicious.
10. ' Accordingly, we would convert this petition into an appeal and allow it as a result of which the impugned order is set aside.