1. NAIMUDDIN, J.-This appeal under clause 10 of the Letters Patent is directed against the judgment dated 27th May, 1971 passed by a learned Single Judge of this Court in Petition No. 555 of 1965, whereby he dismissed the petition.
2. The facts giving rise to the filing of the petition briefly, stated, are as follows;----- Shop No. B/2654/1, Wallace Ganj, Sukkur, in possession of the appellant since the year 1948, was publicly auctioned as the appellant who is a widow did not file any C. S. Form. However, when the shop was offered for sale by the Settlement Department at a public auction held on 28th January, 1963 she bade for the same and her bid of Rs. 18,000 being the highest against the reserved price of Rs. 25,440 was accepted. She paid the full price by adjustment from her compensation book and from the Compensation book purchased by her. The Settlement Department issued P. T. O. Dated 13th March, 1963 in her favour.
3. It appears that respondent No. 2 who was in occupation of adjacent shop bearing No. 2654/2 which was transferred to him on C. S. Form, filed an application dated 11th February, 1963 before the Settlement Commissioner to the effect that he was interested in purchasing the shop in question and offered to pay Rs. 500 above the highest bid. The Deputy Settlement Commissioner recommended acceptance of the application of respondent No. 2. However, the Additional Settlement Commissioner considered the application made on 11th February, 1963 but took the view that respondent No. 2 had no good reasons for making a request to reopen the auction and approved the auction. Thereafter, respondent No. 2 went up in revision to the Settlement Commissioner but his application was dismissed in default of appearance on 28th February, 1964.
4. However, on the same day his brother Abdul Rauf applied for restoration of the application. It is not clear from the record whether the application was restored or not. Nonetheless it appears that on Revision application No. 41 of 1964, filed by respondent No. 2 or his brother the District Judge-cum- Settlement Commissioner, Sukkur, passed the order dated 16th June, 1965 setting aside the auction on the following grounds :-
(1) that the notice of auction was not properly published
(2) that the shop which was put to auction was integral part of the shop which had been transferred to respondent No. 2 ;
(3) that he had a preferential right to purchase the shop ;
(4) and that the proceedings which took place were not in accordance with law for no auction committee had been formed ;
(5) the price which fetched in the auction was less than the recorded price.
5. The learned Settlement Commissioner further directed by the aforesaid order to put the property to auction again after were publicity.
6. Aggrieved by this order the appellant filed Petition No. 555 of 1965, which was dismissed by the order dated 27th May, 1971 now impugned in this appeal.
7. While dismissing the petition the learned Single Judge found that the grounds (2) and (3) on the basis of which auction of the property in favour of the appellant was set aside were inconsequential. As regards the ground that the auction committee was not duly formed, the learned Single Judge came to the conclusion that Auction Committee had been formed. It was however, urged before the learned Single Judge that Auction Committee should have been presided over by the Additional Settlement Commissioner. But he overruled this objection also relying on the statement of Mr. Wasim Hamid Rizvi who was appearing for the Settlement Commissioner that if the Additional Settlement Commissioner was not able to preside then the Deputy Settlement Commissioner could do so.
8. With regard to the ground of non publication of proper notice it was submitted by the learned counsel for the appellant before the learned Single Judge that the notice of auction was duly published in Daily "Rahnuma" of 6th January, 1963 and it related to a large number of properties and it was stated therein that the auction will commence from 15th January, 1963 and shall continue day after day. It was, therefore, submitted that it was necessary that for each property and each day there should have been separate notice. In this regard the stand of Mr. Rizvi on behalf of the department before the learned Single Judge was that "in practice such advertisements are not made and that these instructions are not of imperative nature".
9. The learned Single Judge disposed of this ground also in favour of the appellant by holding that "as at present advised I feel that too much importance cannot be attached to the fixation of the date and time of the auction of each individual property".
10. However, it appears that on another ground urged before the learned Single Judge that the bid of the appellant of Rs. 18,000 was below the reserved price he held that the Settlement authorities had not applied their mind to this aspect of the matter and thus upheld the order of re-auction--ing of the shop.
11. Another point which was urged by the learned counsel for the appel--lant before the learned Single Judge as well as before us was that the revision itself was incompetent.
12. We have heard the learned counsel for the appellant. The Settlement Commissioner, respondent No. 1 has not defended the appeal and respon--dent No. 2 remained absent in spite of due notice to him as he was not represented by any counsel.
13. As regards the question of reserved price, the learned counsel for the appellant referred to annexure `E' wherein it is mentioned that the rent of the shop in question was Rs. 53 and on this basis the reserved price of the property ought to have been 53 x 40 x 12-25,440. He pointed out that the Settlement and Rehabilitation Commissioner, Hyderabad had allowed 25 per cent reduction on the intimated price to the respondent No. 2 in relation to the other shop which was transferred to him on C. H. Form which was according to general practice in respect of such properties in Sukkur District. Accordingly the reserved price of the property would come to Rs. 19,080. Therefore, her bid of Rs. 18,000 accepted by the Additional Settlement Commissioner was within his competence for the stand of the department before the learned Single Judge was that he had such authority and reliance was placed before the learned Single Judge on memorandum issued on the 9th and 16th March, 1960 which, as stated in the judgment appears at page 408 of the New Settlement Manual which reads as follows :--------- "If the highest bid offered is less than the reserve price, the Additional Settlement Commissioner of the area concerned may at his discretion transfer the shop to any person by negotiation who is prepared to offer a reasonable price."
14. However, the stand of the department before the learned Single Judge wits that the Additional Settlement Commissioner should have given reasons for rejecting the offer of respondent No. 2 which was higher by Rs. 500 than the highest bid of the appellant. In our view if the Additional Settlement Commissioner had not given reasons for rejecting the offer which was only higher by Rs. 500, the appellant should not have been penalized after her offer was duly accepted. A bona fide purchaser should not suffer because of such commission on the part of a settlement authority.
15. This would be against the spirit of the Act whereunder he was acting. The learned counsel for the appellant relied on the following observation of a learned Single Judge of this Court in Dr. Badrul Haq v, Ahmad and another (PL D 1979 Kar. 482).
16. "But the auction proceedings were duly approved in spite of the low rate obtained for the plots. It cannot, therefore, be said that the auction was bad or that it was illegal or without jurisdiction. Mr. Munshi has pointed out that the Assistant Settlement Commis--sioner, Larkana had no jurisdiction to dispose of the P form or include the plots in the auction list. But a reference had to be made to the Additional Settlement Commissioner, Hyderabad and it is presumed that the auction has been taken-under his directions. Under the circumstances the P. T. D. Issued in respect of plots Nos..1545/1 and 2 could not be cancelled on the ground that the form lying with the Settlement Department for more than 9 years had first to be disposed of or that the reserve price of Rs. 4.50 per sq. Yard could not be reduced. These are matters which should have been considered at the time of approval of the auction proceedings but the auction proceedings having been found to be in order..."
17. We would follow these observations. Further we think, since the appellant who is a widow had paid the price of the shop by adjustment of Rs. 7,500 from her Compensation Book and Rs. 10,500 from the Com--pensation Book of another person from whom she had purchased the same; as along back as the year 1963 and her investment has remained blocked for all these years, it will not be just and fair if for a technical reason i.e. The Additional Settlement Commissioner did not give reasons for rejecting the offer of respondent No. 2, the appellant should be deprived of her right when the competency of the other to approve the bid which was highest, is not even in doubt more so when the appellant is in posses--sion of the shop since the year 1948 and when respondent No. 2 had no vested right in the, property and had no locus. Standi to file any revision against the auctioning of the property or acceptance of the bid.
18. The learned advocate for the appellant has, however, shown willingness on the part of the appellant to pay Rs. 500 more so that the pool does not suffer any loss. This is more than fair. For all these reasons we would allow the appeal, set aside the orders of the learned Single Judge and the District Judge-cum-Settlement Commissioner and direct respondent No. 2 or its successor, as the case may be, to issue P. T. D. In favour of the appellant on receipt of Rs. 500.